Decree No. 96/2015/ND-CP detailing certain provisions of the Enterprise Law

DECREE

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Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Enterprise Law dated November 26, 2014;

At the proposal of the Minister of Planning and Investment;

The Government promulgates this Decree to detail certain provisions and measures to implement the Law on Management and Use of Weapons, Explosives, and Support Tools.No. INDUSTRIAL EXPLOSIVES - TNP1 EXPLOSIVESonof the Enterprise Law.

Article 1. Scope of Regulation and Applicability

1. This Decree provides detailed regulations for Article 10, Article 44, Article 189, and Article 208 of the Enterprise Law.

2. This Decree applies to enterprises, agencies, organizations, and individuals as specified in Article 2 of the Enterprise Law.

3. The provisions on seals in this Decree apply to joint-stock companies, limited liability companies, partnerships, and private enterprises that register their business according to the provisions of the Enterprise Law and the Investment Law. Organizations and units established under the following laws shall not be subject to the seal regulations in this Decree but shall comply with current regulations on the management and use of seals:

a) Notary Public Law;

b) Lawyers Law;

c) Forensic Appraisal Law;

d) Insurance Business Law;

e) Securities Law;

f) Cooperative Law.

Article 2. Policy for the development of social enterprises

1. The State encourages and creates conditions for organizations and individuals to establish social enterprises with the aim of addressing social and environmental issues for the benefit of the community.

2. Social enterprises are entitled to investment incentives and support as provided by law.

3. Social enterprises must fully exercise rights and fulfill obligations corresponding to each type of enterprise and other rights and obligations as stipulated by the Enterprise Law and this Decree.

Article 3. Acceptance of foreign non-governmental aid and sponsorship

1. Social enterprises accept foreign non-governmental aid to implement the goal of addressing social and environmental issues as prescribed by law on the acceptance of foreign non-governmental aid.

2. In addition to the aid specified in Clause 1 of this Article, social enterprises may accept sponsorship in the form of assets, financial resources, or technical assistance from domestic individuals, agencies, organizations, and foreign organizations registered to operate in Vietnam to achieve the goal of addressing social and environmental issues.

3. The procedures for accepting sponsorship as specified in Clause 2 of this Article shall be carried out as follows:

a) The acceptance of sponsorship must be documented in writing. The sponsorship acceptance document must include the following information: details about the sponsoring individual or organization, the type of asset, the value of the asset or sponsorship funds, the date of sponsorship, requirements for the sponsored enterprise, the name and signature of the authorized representative of both parties.

b) Within five working days from the date the sponsorship acceptance document is signed, the enterprise must notify the Department of Planning and Investment or the aid and sponsorship management agency under the People's Committee of the province or centrally-administered city (hereinafter referred to as the provincial People's Committee) where the enterprise has its principal office of the acceptance of sponsorship; the notification must be accompanied by a copy of the sponsorship acceptance document.

4. In case the contents of the sponsorship acceptance document as specified in Point a Clause 3 of this Article change, the social enterprise must notify the Department of Planning and Investment or the aid and sponsorship management agency under the provincial People's Committee where the enterprise has its principal office of the changes in accordance with the procedures and formalities specified in Point b Clause 3 of this Article.

Article 4. Registration of Social Enterprises

1. Social enterprises shall carry out business registration according to the procedures, formalities, and documents corresponding to each type of enterprise as prescribed in the Enterprise Law.

2. The name of social enterprises shall be established in accordance with Articles 38, 39, 40, and 42 of the Enterprise Law and may include the term "social" in the specific name of the enterprise.

Article 5. Publicizing Commitment to Implementing Social and Environmental Goals of Social Enterprises

1. Social enterprises must notify their Commitment to Implementing Social and Environmental Goals to the business registration authority for public disclosure on the National Business Registration Portal when establishing the enterprise or during its operation.

2. In case the content of the Commitment to Implementing Social and Environmental Goals changes, social enterprises must notify the business registration authority about the changed content within five working days from the date of the decision to change for public disclosure on the National Business Registration Portal. The notification must be accompanied by the revised and supplemented Commitment to Implementing Social and Environmental Goals.

3. The business registration authority shall update the information in the enterprise file and publicly disclose it on the National Business Registration Portal within three working days from the date of receipt of the notifications under Paragraphs 1 and 2 of this Article.

4. The Commitment to Implementing Social and Environmental Goals of social enterprises shall be drafted according to a model and must include the following contents:

a) Social and environmental issues; methods that the enterprise plans to implement to address these social and environmental issues.

b) The time frame for implementing activities aimed at solving social and environmental issues.

c) The percentage (%) of annual profit retained for reinvestment to address social and environmental issues.

d) Principles and methods for using grants and sponsorships from organizations and individuals; principles and methods for handling remaining grants and sponsorships when the enterprise dissolves or converts into a regular enterprise (if applicable).

đ) Name and signature of the owner of a private enterprise for a private enterprise; general partner for a limited partnership; members, individual shareholders, legal representatives, or authorized representatives of organizational members or shareholders for a limited liability company and a joint-stock company.

5. The resolution of the Board of Members, Shareholders' Meeting regarding changing the content of the Commitment to Implementing Social and Environmental Goals must be passed according to the voting ratio stipulated in Point b Clause 3 Article 60 and Clause 1 Article 144 of the Enterprise Law for social enterprises operating in the form of a limited liability company and a joint-stock company.

Article 6. Termination of Commitment to Implementing Social and Environmental Goals of Social Enterprises

1. Social enterprises terminate the Commitment to Implementing Social and Environmental Goals in the following cases:

a) Expiration of the Commitment to Implementing Social and Environmental Goals period.

b) The social and environmental issues in the Commitment to Implementing Social and Environmental Goals have changed or no longer exist.

c) Failure to implement or insufficient implementation of the Commitment to Implementing Social and Environmental Goals and the retention rate of profits for reinvestment.

d) Other cases as decided by the enterprise or competent state authorities.

2. In the event of terminating the Commitment to Implementing Social and Environmental Goals of social enterprises, the entire remaining balance of assets or finances from received grants and sponsorships must be transferred back to the individuals, agencies, or organizations that provided the grants and sponsorships or transferred to other social enterprises or organizations with similar social goals. A social enterprise can only terminate the Commitment to Implementing Social and Environmental Goals if it ensures sufficient payment of all debts and other property obligations after processing the remaining balance of the grants and sponsorships received by the enterprise.

3. The resolution of the Board of Members, Shareholders' Meeting regarding terminating the Commitment to Implementing Social and Environmental Goals must be passed according to the voting ratio stipulated in Point b Clause 3 Article 60 and Clause 1 Article 144 of the Enterprise Law for social enterprises operating in the form of a limited liability company and a joint-stock company.

4. Social enterprises must notify the business registration authority about the termination of the Commitment to Implementing Social and Environmental Goals within five working days from the date of the termination decision for public disclosure on the National Business Registration Portal. The notification must be accompanied by the following documents:

a) Decision and a copy of the meeting minutes of the enterprise or the decision of the competent state authority (if any), clearly stating the reasons for termination.

b) Agreement with related individuals or organizations regarding the handling of the remaining balance of assets or finances from sources of grants and sponsorships received by the social enterprise (if any).

5. The business registration authority shall update the information in the enterprise file and publicly disclose it on the National Business Registration Portal within three working days from the date of receipt of the notification.

Article 7. Conversion of social welfare facilities, social funds, and charitable funds into social enterprises

1. Social welfare facilities, social funds, and charitable funds may use their entire assets, rights, and obligations to register as social enterprises after receiving a written decision from the competent authority that issued the establishment permit for such social welfare facilities, social funds, and charitable funds allowing the conversion into social enterprises.

2. The social enterprise, upon registration, shall automatically inherit all legitimate rights and benefits, be responsible for debts including taxes, labor contracts, and other obligations of the social welfare facilities, social funds, and charitable funds. The social welfare facilities, social funds, and charitable funds shall cease operations from the date the social enterprise receives the Enterprise Registration Certificate.

Article 8. Division, Splitting, Merger, Consolidation, and Dissolution of Social Enterprises

1. Division, splitting, merger, and consolidation of social enterprises shall be carried out in the following cases:

a) A social enterprise may be divided or split into several social enterprises.

b) Various enterprises and social enterprises may merge into a social enterprise.

c) Enterprises and social enterprises may be consolidated into a social enterprise.

2. The documentation, procedures, and formalities for division, splitting, merger, and consolidation of social enterprises shall be implemented according to the corresponding provisions of the Enterprise Law.

3. In the case of dissolution of a social enterprise, the remaining balance of assets or finances received from sources must be returned to individuals, agencies, organizations that provided assistance or transferred to other social enterprises or organizations with similar social objectives.

The documentation, procedures, and formalities for the dissolution of a social enterprise shall be carried out according to the corresponding provisions of the Enterprise Law regarding the dissolution of enterprises. If a social enterprise still has a remaining balance of assets or finances from received assistance or support, then the dissolution documentation must include an Agreement with related individuals or organizations on the handling of the remaining balance of assets or finances from received assistance or support.

Article 9. Responsibilities of Individual Business Owners, Members, and Shareholders of Social Enterprises

1. Individual business owners, members, and shareholders of social enterprises may only transfer their contributed capital or shares to other organizations or individuals if they commit to continuing to implement social and environmental goals.

2. Shareholders who have signed the Commitment to Implement Social and Environmental Goals may only transfer their shares according to the provisions of Clause 3, Article 119 of the Enterprise Law during the term of the Commitment to Implement Social and Environmental Goals.

3. Social enterprises must maintain social and environmental goals, retained profit levels for reinvestment, and other contents recorded in the Commitment to Implement Social and Environmental Goals throughout their operation. In the event of non-compliance or incomplete compliance with the Commitment to Implement Social and Environmental Goals and retained profit levels for reinvestment, the social enterprise must return all benefits, grants, and support specifically allocated to social enterprises. At the same time, individual business owners for individual businesses, members for joint-stock companies and limited liability companies, shareholders for joint-stock companies who have signed the Commitment to Implement Social and Environmental Goals, and board members of joint-stock companies shall jointly bear responsibility for returning the benefits and support received and compensating for any resulting damages in the event of a violation of this provision.

Article 10. Publicizing the activities of social enterprises

1. In cases where they receive preferential treatment, aid, or sponsorship, social enterprises must submit to the Department of Planning and Investment or the aid and sponsorship management agency under the provincial People's Committee a Social Impact Assessment Report on their activities carried out within the year, no later than 90 days from the end of the fiscal year.

2. The Social Impact Assessment Report shall be prepared according to a prescribed format and must include the following contents:

a) Name and business registration number of the enterprise.

b) Preferential treatments, aids, or sponsorships received.

c) Activities carried out by the enterprise during the year; social and environmental issues addressed by the enterprise.

d) Social benefits and impacts achieved by the enterprise and corresponding beneficiary groups; clearly stating evidence regarding the achieved impacts and benefits (if available).

3. Organizations and individuals have the right to request the Department of Planning and Investment or the aid and sponsorship management agency under the provincial People's Committee to provide information and copies of the Social Impact Assessment Report and the receipt documents for aid and sponsorship kept at that agency. The Department of Planning and Investment or the aid and sponsorship management agency under the provincial People's Committee has the obligation to provide full and timely information according to the requests of organizations and individuals.

Article 11. Monitoring and Supervising the Activities of Social Enterprises

1. The provincial People's Committee is responsible for monitoring and supervising social enterprises with headquarters located in its province or city. The Department of Planning and Investment or the aid and sponsorship management agency under the provincial People's Committee is the main agency assisting the provincial People's Committee in monitoring and supervising social enterprises. The monitoring and supervision of social enterprises' activities shall be conducted as follows:

a) Requesting enterprises to report on compliance with the Commitment to Implement Social and Environmental Goals when necessary.

b) Directly or requesting competent state agencies to inspect enterprises based on the contents of the Commitment to Implement Social and Environmental Goals.

2. Monitoring and supervision of social enterprises as stipulated in Clause 1 of this Article shall be carried out according to the following procedures and formalities:

a) Requests for reporting on compliance with the Commitment to Implement Social and Environmental Goals must be made in writing. They must specify the reasons, specific content of the request; deadlines and methods for implementing the requests.

b) State agencies may only directly conduct inspections of enterprises at least 15 days after sending a notification requesting inspection to the enterprise.

c) Within five working days from the end of the inspection of the social enterprise, the inspecting agency must issue a written report on the inspection results. The report must be sent to the social enterprise, the provincial People's Committee, and relevant agencies under the provincial People's Committee.

Article 12. Quantity, Form, and Content of the Seal Model of Enterprises

1. The owner of a private enterprise for a sole proprietorship, the Board of Members for a general partnership, the Board of Members or the Chairman of the company for a limited liability company, and the Board of Directors for a joint-stock company decide on the quantity, form, content, and model of the seal, as well as the management and use of the seal, except where the Company Charter provides otherwise. The contents of the Company Charter or Decision on the seal of the enterprise must include:

a) The seal model, including: Form, size, content, ink color.

b) Number of seals.

c) Regulations on the management and use of seals.

2. The seal model of the enterprise is presented in a specific form (round, polygonal, or other shapes). Each enterprise has a unified seal model in terms of content, form, and size.

3. Information about the enterprise's business registration number and name in the seal model content shall comply with the provisions of Article 30 and Clause 1 of Article 38 of the Enterprise Law. In addition to the above information, the enterprise may supplement other languages or images into the seal model content of the enterprise, except in cases provided for in Article 14 of this Decree.

Article 13. Quantity, form, content of the sample seal of branch offices and representative offices

1. The individual business owner for a sole proprietorship, the Board of Members for a general partnership, the Board of Members or the Chairman of the company for a limited liability company, and the Board of Directors for a joint stock company shall decide on the quantity, form, content, and sample of the seal, as well as the management and use of the seal of branch offices and representative offices, except where the Company Charter provides otherwise.

2. The content of the sample seal of branch offices and representative offices must include the name of the branch office or representative office as stipulated in Clauses 1 and 2 of Article 41 of the Enterprise Law. In addition to the aforementioned information, the enterprise may supplement other languages and images into the content of the sample seal of branch offices and representative offices, except in cases provided for in Article 14 of this Decree.

Article 14. Images and languages not to be used in the content of the sample seal

1. Enterprises are not allowed to use the following images, words, and symbols in the content or as the form of the sample seal:

a) National flag, national emblem, party flag of the Socialist Republic of Vietnam.

b) Images, symbols, and names of the state, state agencies, people's armed forces units, political organizations, socio-political organizations, occupational socio-political organizations, social organizations, and occupational social organizations.

c) Words, symbols, and images that violate the historical traditions, culture, ethics, and customs of the Vietnamese nation.

2. Enterprises bear responsibility for ensuring compliance with the provisions of Clause 1 of this Article, intellectual property laws, and related laws when using images, words, and symbols in the content or as the form of the sample seal. Disputes between enterprises and other individuals or organizations regarding the words, symbols, and images used in the content of the sample seal shall be resolved by the court or arbitration. Enterprises must cease using seals containing words, symbols, or images that violate the provisions of this Article and bear responsibility for compensating damages according to the effective decisions of the court or arbitration.

3. Business registration authorities are not responsible for reviewing the content of the sample seal of enterprises when processing notification procedures for the sample seal for enterprises.

Article 15. Management and use of seals

1. Enterprises established before July 1, 2015 may continue to use seals already issued to them without having to notify the sample seal to the business registration authority. If an enterprise makes additional seals or changes the ink color of the seal, it must follow the notification procedures for the sample seal as prescribed in the regulations on enterprise registration.

2. If an enterprise established before July 1, 2015 makes a new seal in accordance with this Decree, it must return the old seal and the Certificate of Registration of Sample Seal to the police agency that issued the Certificate of Registration of Sample Seal. The police agency will issue a receipt acknowledging the return of the seal at the time of receiving the seal from the enterprise.

3. If an enterprise established before July 1, 2015 loses its seal or the Certificate of Registration of Sample Seal, the enterprise may make a new seal in accordance with this Decree; simultaneously, it must report the loss of the seal and the Certificate of Registration of Sample Seal to the police agency that issued the Certificate of Registration of Sample Seal.

4. Enterprises have the responsibility to notify the sample seal to the business registration authority where the enterprise has its principal office to publicly post on the National Portal for Enterprise Registration in the following cases:

a) Making a seal for the first time after registering the enterprise;

b) Changing the quantity, content, form of the sample seal, and ink color;

c) Revoking the sample seal.

5. The procedure, process, and documentation for notifying the sample seal shall be carried out in accordance with the regulations on enterprise registration.

Article 16. Restrictions on Cross Ownership Between Companies

1. Contributing capital to establish a business enterprise according to Clause 3, Article 189 of the Enterprise Law includes contributing capital, purchasing shares to establish a new business enterprise, purchasing equity stakes, or shares of an already established business enterprise.

2. Cross ownership refers to the simultaneous ownership of equity stakes or shares by two business enterprises.

3. Jointly contributing capital to establish a business enterprise according to Clause 3, Article 189 of the Enterprise Law is the case where the total number of shares or equity stakes held by these companies equals or exceeds 51% of the charter capital or the total number of ordinary shares of the related company.

4. The Chairman of the company, Members of the Board of Members, or Members of the Board of Directors of related companies are responsible for ensuring compliance with the provisions of Article 189 of the Enterprise Law when deciding to contribute capital, purchase shares, or equity stakes of another company. In this case, the Chairman of the company or members of the Board of Members, or members of the Board of Directors of the related company will jointly bear responsibility for compensating losses incurred by the company when violating the provisions of this Article.

5. The business registration agency will refuse to register changes in membership or shareholders of a company if during the processing of the application it discovers that the contribution of capital, purchase of shares to establish a business enterprise, or transfer of shares, equity stakes violates the provisions of Clauses 2 and 3, Article 189 of the Enterprise Law.

6. Business enterprises without state-owned shares or equity stakes that have contributed capital or purchased shares before July 1, 2015 have the right to buy, sell, transfer, increase, or decrease their equity stakes or number of shares but may not increase the existing cross ownership ratio.

Article 17. Principles of State Management Over Enterprises

1. State agencies are responsible for guiding, supporting, promoting, and creating favorable conditions for enterprises to comply with legal regulations.

2. Civil servants may not require founders of enterprises to submit additional documents, impose additional procedures, or create difficulties or harassment for organizations or individuals in receiving applications and processing procedures for enterprises beyond what is stipulated.

3. Enhance coordination and information sharing among state agencies regarding the operational status of enterprises; facilitate access to information about enterprise operations stored at agencies and units for relevant individuals and organizations, except where confidentiality must be maintained according to legal provisions.

4. Each state management agency from central to local levels, and representative bodies of owners are responsible for monitoring and supervising the activities of enterprises within their assigned functions and tasks. Activities of supervision, inspection, and examination by state management agencies and representative bodies of owners shall not adversely affect or hinder normal enterprise operations.

Article 18. Coordination and Sharing of Information on Enterprise Operations Among Agencies and Units

1. Monthly, agencies under Ministries, ministerial-level agencies, provincial People's Committees, and district People's Committees send the provincial business registration agency where the enterprise has its main office the following information:

a) Types of business licenses, certificates of eligibility to conduct business, professional practice certificates, certificates or approvals regarding business conditions issued to the enterprise, branch offices, representative offices, and managers of the enterprise.

b) Decisions on handling violations of business operations by the enterprise, branch offices, representative offices, and managers of the enterprise.

c) Decisions to suspend operations and decisions to terminate suspension of business operations.

d) Information on tax law violations by the enterprise.

2. Within three working days from the date of receipt of the information as prescribed in Clause 1 of this Article, the business registration agency updates the relevant business registration dossier.

Article 19. Construction of a risk management system for monitoring and supervising business operations

1. The People's Committee of the province shall proactively establish a database on the operational status of businesses, plans, methods for exchanging information with relevant agencies, and publicizing such information; construct a risk management system for monitoring and supervising business operations within the scope of their state administrative management functions.

2. The risk management system for monitoring and supervising business operations includes the following contents:

a) A focal point responsible for managing the risk system.

b) A list of risks that need to be monitored and supervised.

c) Levels of risk that need to be controlled.

d) Methods for warning, preventing, and handling risks upon discovery.

đ) Methods for collecting, exchanging information, and assessing risks.

3. On a monthly basis, the Department of Planning and Investment or another agency designated by the People's Committee of the province shall act as the focal point to compile the operational status and compliance with laws of businesses to report to the People's Committee of the province; simultaneously sending the reports to other agencies under the People's Committee of the province and the People's Committee of the district.

Article 20. Effective Date

This Decree replaces Decree No. 102/2010/NĐ-CP dated October 1, 2010, guiding detailed implementation of certain provisions of the Enterprise Law and takes effect from December 8, 2015.

Article 21. Organization of Implementation

1. Ministers, Heads of ministerial-level agencies, Heads of government agencies, Chairpersons of provincial and centrally-administered city People's Committees, and entities subject to this Decree are responsible for implementing this Decree.

2. The Ministry of Planning and Investment shall guide and issue forms for administrative procedures as prescribed in this Decree.

3. Provincial and centrally-administered city People's Committees are responsible for establishing and promulgating regulations on coordination among subordinate agencies and lower-level People's Committees regarding information exchange and construction of a risk management system for monitoring and supervising business operations./.