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LITIGATION REPRESENTATION
Client 09…11: I just granted a court decision about land conflicts, may I know when the decision comes into effect?
Respond:
Terms 2 Clause 282 Code of Civil Procedure stipulates:
Clause 282. Appeal result
2. The first-instance courts' judgments/decisions or parts thereof which are not appealed against shall take legal effect as from the day on which the appeal time limit expires.
Accordingly, first-instance courts’ judgments or judgments that are not appealed will come into effect when the appeal time limit expires.
According to Terms 1 Clause 273, the appeal timeline is 15 working days, counting from the date of announcing judgments. If a party, representative of an agent, organization, or individual is not present at the court day or is not present when announcing judgment without reasonable explanation, then the appeal timeline will start from the date they receive the judgment or when the judgment is published.
Article 273. The time limit for an appeal
1. The time limit for an appeal against the first-instance court's judgment is 15 days from the date of judgment pronouncement; for the involved parties or representatives of agencies/organizations/individuals initiating lawsuits being absent from the Court sessions or absent when the Court pronounces the judgment with good and sufficient reason, the time limit for an appeal shall be counted from the date the judgment is handed to them or publicly posted up.
The next appeal timeline will be stipulated following Clause 280, which is 1 month (when the procuracy receives the judgment.
Article 280. The time limit for an appeal
1. The time limit for appealing against a first-instance court's judgment shall be 15 days for the procuracy of the same level and 1 month for the immediate superior procuracy, counting from the date of judgment pronouncement. In cases where the procurators do not attend the Court sessions, the appeal time limit shall be counted from the day the procuracy of the same level receives the judgment.
2. The time limit for appealing against the first-instance court's decision on suspension or termination of the resolution of the case shall be 07 days for procuracy of the same level and 10 days for immediate superior procuracy, counting from the day on which the procuracy of the same level receives such decision.
When there is an appeal submitted, the court will hold a appellate trial panel according to Term 6 Clause 313, and then appellate judgments shall take effect from the date they are pronounced
Article 313. Appellate Court judgments
6. The appellate judgments shall take effect from the date they are pronounced.
Terms 2 Clause 282 Code of Civil Procedure stipulates:
Clause 282. Appeal result
2. The first-instance courts' judgments/decisions or parts thereof which are not appealed against shall take legal effect as from the day on which the appeal time limit expires.
Accordingly, first-instance courts’ judgments or judgments that are not appealed will come into effect when the appeal time limit expires.
According to Terms 1 Clause 273, the appeal timeline is 15 working days, counting from the date of announcing judgments. If a party, representative of an agent, organization, or individual is not present at the court day or is not present when announcing judgment without reasonable explanation, then the appeal timeline will start from the date they receive the judgment or when the judgment is published.
Article 273. The time limit for an appeal
1. The time limit for an appeal against the first-instance court's judgment is 15 days from the date of judgment pronouncement; for the involved parties or representatives of agencies/organizations/individuals initiating lawsuits being absent from the Court sessions or absent when the Court pronounces the judgment with good and sufficient reason, the time limit for an appeal shall be counted from the date the judgment is handed to them or publicly posted up.
The next appeal timeline will be stipulated following Clause 280, which is 1 month (when the procuracy receives the judgment.
Article 280. The time limit for an appeal
1. The time limit for appealing against a first-instance court's judgment shall be 15 days for the procuracy of the same level and 1 month for the immediate superior procuracy, counting from the date of judgment pronouncement. In cases where the procurators do not attend the Court sessions, the appeal time limit shall be counted from the day the procuracy of the same level receives the judgment.
2. The time limit for appealing against the first-instance court's decision on suspension or termination of the resolution of the case shall be 07 days for procuracy of the same level and 10 days for immediate superior procuracy, counting from the day on which the procuracy of the same level receives such decision.
When there is an appeal submitted, the court will hold a appellate trial panel according to Term 6 Clause 313, and then appellate judgments shall take effect from the date they are pronounced
Article 313. Appellate Court judgments
6. The appellate judgments shall take effect from the date they are pronounced.
Client T.T.H: I am participating in a conflict at the court, but the defendant just passed away. Therefore, is the defendant’s inheritance eligible to be present at the court?
Respond:
Article 74 of the Civil Code Procedure 2015 stipulates the following:
Article 74. Inheritance of procedural rights and obligations.
1. Where the involved parties, being individuals, die while participating in the procedures and their property rights and obligations are inherited, their heirs shall participate in the procedures.
Following this article, it can be interpreted as Where the involved parties, being individuals, die while participating in the procedures, and their property rights and obligations are inherited, their heirs shall participate in the procedures.
To determine the inheritance, according to the Civil Code 2015, there will be 2 cases:
Inherit via will: If the deceased individual has will then the inheritance will be determined as the will (which includes the duty of participating the court)
Inherit via law: If the deceased individual does not have will, or the will has been invalid, or the inheritance listed in the will refuses to inherit. According to Article 651 Civil Code 2015, the inheritance level will be determined as follow:
Article 651. Heirs at law
1. Heirs at law are categorized in the following order of priority:
a) The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring, and adopted children of the deceased;
b) The second level of heirs comprises grandparents and siblings of the deceased; and biological grandchildren of the deceased;
c) The third level of heirs comprises biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.
2. Heirs at the same level shall be entitled to equal estate shares.
3. Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died or because they are not entitled to inherit, have been deprived of the right to inherit, or have disclaimed the right to inherit.
Accordingly, we need to determine the first level of inheritance and equally distribute the asset for the listed inheritance. If no individual is listed in the first level then we need to determine the second level of inheritance. If there is no individual listed in the third level of inheritance to distribute the asset (also relevant duty)
Article 74 of the Civil Code Procedure 2015 stipulates the following:
Article 74. Inheritance of procedural rights and obligations.
1. Where the involved parties, being individuals, die while participating in the procedures and their property rights and obligations are inherited, their heirs shall participate in the procedures.
Following this article, it can be interpreted as Where the involved parties, being individuals, die while participating in the procedures, and their property rights and obligations are inherited, their heirs shall participate in the procedures.
To determine the inheritance, according to the Civil Code 2015, there will be 2 cases:
Inherit via will: If the deceased individual has will then the inheritance will be determined as the will (which includes the duty of participating the court)
Inherit via law: If the deceased individual does not have will, or the will has been invalid, or the inheritance listed in the will refuses to inherit. According to Article 651 Civil Code 2015, the inheritance level will be determined as follow:
Article 651. Heirs at law
1. Heirs at law are categorized in the following order of priority:
a) The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring, and adopted children of the deceased;
b) The second level of heirs comprises grandparents and siblings of the deceased; and biological grandchildren of the deceased;
c) The third level of heirs comprises biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.
2. Heirs at the same level shall be entitled to equal estate shares.
3. Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died or because they are not entitled to inherit, have been deprived of the right to inherit, or have disclaimed the right to inherit.
Accordingly, we need to determine the first level of inheritance and equally distribute the asset for the listed inheritance. If no individual is listed in the first level then we need to determine the second level of inheritance. If there is no individual listed in the third level of inheritance to distribute the asset (also relevant duty)
LABOR CONSULTING
Ms. Quyen: Is that eligible if my company does not wish to participate in the compulsory Social Insurance for employees?
Respond:
Term 1 Article 168 Labour Code 2019 stipulated social insurance, health insurance, and unemployment insurance of employees and employer:
Article 168. Participation in social insurance, health insurance, and unemployment insurance
1. Employers and employees shall participate in compulsory social insurance, compulsory health insurance, and unemployment insurance and enjoy the benefits by provisions of the law on social insurance, health insurance, and unemployment insurance.
Employers and employees are encouraged to obtain other kinds of insurance for employees.
Accordingly, by law, insurance participation is compulsory; employees and employers do not have the “option” to participate or not participate.
If the enterprise does not participate in compulsory insurance, then the company (and employee - if it is proven that there has been a negotiation not to participate in social insurance) then the enterprise will be liable to an administrative penalty stipulate on Decress 12/2022/NĐ-CP dated 17 January 2022 (depend on the scale of violation):
Article 39. Violations against regulations on payment of compulsory social insurance and unemployment insurance premiums
1. A fine ranging from VND 500.000 to VND 1.000.000 shall be imposed upon an employee for reaching an agreement with his/her employer on not participating in compulsory social insurance and unemployment insurance premiums, or participating in an incorrect insurance plan, or not paying insurance premiums at the prescribed rate.
5. A fine equal to 12% to under 15% of the total amount of compulsory social insurance and unemployment insurance premiums payable at the date of issuance of violation record, but not exceeding VND 75.000.000 shall be imposed upon an employer for the commission of one of the following violations:
a) Making late payment of compulsory social insurance and unemployment insurance premiums;
b) Paying social insurance and unemployment insurance premiums under the prescribed rates but not to the extent that they are accused of evasion of payment of insurance premiums;
c) Failing to pay social insurance and unemployment insurance premiums for the total number of employees eligible for participation in compulsory social insurance and unemployment insurance but not to the extent that they are accused of evasion of payment of insurance premiums;
d) Appropriating social insurance and unemployment insurance premiums paid by employees.
6. A fine equal to 18% to 20% of the total amount of compulsory social insurance and unemployment insurance premiums payable at the date of issuance of violation record, but not exceeding VND 75.000.000 shall be imposed upon an employer for failing to pay compulsory social insurance and unemployment insurance premiums for the total number of employees eligible for participation in compulsory social insurance and unemployment insurance, if not liable to criminal prosecution.
7. A fine ranging from VND 50.000.000 to VND 75.000.000 shall be imposed upon an employer for the commission of one of the following violations:
a) Evading paying compulsory social insurance and unemployment insurance premiums if not liable to criminal prosecution;
b) Altering or falsifying any documents included in the application for the lower-than-normal rate of contributions to the occupational accident and occupational disease insurance fund, if not liable to criminal prosecution.
The above penalty applies to individuals; the penalty for the organization is twice that for the individual.
Besides the administrative penalty, enterprises and employees must participate in other social insurance by law.
Term 1 Article 168 Labour Code 2019 stipulated social insurance, health insurance, and unemployment insurance of employees and employer:
Article 168. Participation in social insurance, health insurance, and unemployment insurance
1. Employers and employees shall participate in compulsory social insurance, compulsory health insurance, and unemployment insurance and enjoy the benefits by provisions of the law on social insurance, health insurance, and unemployment insurance.
Employers and employees are encouraged to obtain other kinds of insurance for employees.
Accordingly, by law, insurance participation is compulsory; employees and employers do not have the “option” to participate or not participate.
If the enterprise does not participate in compulsory insurance, then the company (and employee - if it is proven that there has been a negotiation not to participate in social insurance) then the enterprise will be liable to an administrative penalty stipulate on Decress 12/2022/NĐ-CP dated 17 January 2022 (depend on the scale of violation):
Article 39. Violations against regulations on payment of compulsory social insurance and unemployment insurance premiums
1. A fine ranging from VND 500.000 to VND 1.000.000 shall be imposed upon an employee for reaching an agreement with his/her employer on not participating in compulsory social insurance and unemployment insurance premiums, or participating in an incorrect insurance plan, or not paying insurance premiums at the prescribed rate.
5. A fine equal to 12% to under 15% of the total amount of compulsory social insurance and unemployment insurance premiums payable at the date of issuance of violation record, but not exceeding VND 75.000.000 shall be imposed upon an employer for the commission of one of the following violations:
a) Making late payment of compulsory social insurance and unemployment insurance premiums;
b) Paying social insurance and unemployment insurance premiums under the prescribed rates but not to the extent that they are accused of evasion of payment of insurance premiums;
c) Failing to pay social insurance and unemployment insurance premiums for the total number of employees eligible for participation in compulsory social insurance and unemployment insurance but not to the extent that they are accused of evasion of payment of insurance premiums;
d) Appropriating social insurance and unemployment insurance premiums paid by employees.
6. A fine equal to 18% to 20% of the total amount of compulsory social insurance and unemployment insurance premiums payable at the date of issuance of violation record, but not exceeding VND 75.000.000 shall be imposed upon an employer for failing to pay compulsory social insurance and unemployment insurance premiums for the total number of employees eligible for participation in compulsory social insurance and unemployment insurance, if not liable to criminal prosecution.
7. A fine ranging from VND 50.000.000 to VND 75.000.000 shall be imposed upon an employer for the commission of one of the following violations:
a) Evading paying compulsory social insurance and unemployment insurance premiums if not liable to criminal prosecution;
b) Altering or falsifying any documents included in the application for the lower-than-normal rate of contributions to the occupational accident and occupational disease insurance fund, if not liable to criminal prosecution.
The above penalty applies to individuals; the penalty for the organization is twice that for the individual.
Besides the administrative penalty, enterprises and employees must participate in other social insurance by law.
Client chị Lam Vi: If enterprises do not pay salary, end of year bonus then where should employees file a complaint?
Respond:
According to Article 94 of the Labour Code 2019, the company must pay salaries on time for employees:
Article 94. Salary payment rules
1. Employers shall directly, fully, and punctually pay salaries to their employees. When an employee cannot directly receive his/her salary, the employer may pay it through a person legally authorized by the employee.
2. Employers must not restrict or interfere with their employees’ spending of their salaries; must not force their employees to spend their salaries on goods or services of the employers or any particular providers decided by the employers.
In some situations, enterprise (if the enterprise has tried all possible remedies but still cannot pay salary on time) then, the enterprise can delay the salary payment but can not exceed 30 days, and the enterprise must pay interest if the delay is more than 15 working days:
Article 97. Salary payment time
4. In case of a force majeure event in which the employer cannot pay the employee on schedule after all remedial measures have been implemented, the salary shall be paid within 30 days. If a salary is paid at least 15 days behind schedule, the employer shall pay the employee compensation worth at least the interest on the amount paid behind schedule at the latest 1-month interest rate quoted by the bank at which the employee’s salary account is opened.
It has already been the timeline, but the company still has not paid the salary, and the Employee has already filed a complaint to company leaders, but it remains unsolved, then according to Article 15 Decree 24/2018/NĐ-CP, the employee can submit the complaint to Labour Investigation of Department of Labor, War Invalids and Social Affairs for settlement.
Article 15. Authority to handle complaints related to labor, occupational safety, and hygiene
1. Employers shall have the power to handle complaints for the first time about complaints against their decisions on or acts of labor or occupational safety and hygiene.
2. The Chief Inspector of the Department of Labour, War Invalids and Social Affairs of the province where the employer’s head office is located shall have the power to handle complaints related to labor or occupational safety and hygiene for the second time in case the complainant disagrees with the first-time complaint handling decision as regulated in Article 23 or over the time limit prescribed in Article 20, the complaint remains unhandled.
3. The authority to handle complaints about occupational accident investigation shall follow provisions outlined in Article 17 of the Government’s Decree No. 39/2016/ND-CP dated May 15, 2016.
Besides, the employee can file a complaint to the court about the payment delay (but the case must go through medication with the labor mediator first)
According to Article 94 of the Labour Code 2019, the company must pay salaries on time for employees:
Article 94. Salary payment rules
1. Employers shall directly, fully, and punctually pay salaries to their employees. When an employee cannot directly receive his/her salary, the employer may pay it through a person legally authorized by the employee.
2. Employers must not restrict or interfere with their employees’ spending of their salaries; must not force their employees to spend their salaries on goods or services of the employers or any particular providers decided by the employers.
In some situations, enterprise (if the enterprise has tried all possible remedies but still cannot pay salary on time) then, the enterprise can delay the salary payment but can not exceed 30 days, and the enterprise must pay interest if the delay is more than 15 working days:
Article 97. Salary payment time
4. In case of a force majeure event in which the employer cannot pay the employee on schedule after all remedial measures have been implemented, the salary shall be paid within 30 days. If a salary is paid at least 15 days behind schedule, the employer shall pay the employee compensation worth at least the interest on the amount paid behind schedule at the latest 1-month interest rate quoted by the bank at which the employee’s salary account is opened.
It has already been the timeline, but the company still has not paid the salary, and the Employee has already filed a complaint to company leaders, but it remains unsolved, then according to Article 15 Decree 24/2018/NĐ-CP, the employee can submit the complaint to Labour Investigation of Department of Labor, War Invalids and Social Affairs for settlement.
Article 15. Authority to handle complaints related to labor, occupational safety, and hygiene
1. Employers shall have the power to handle complaints for the first time about complaints against their decisions on or acts of labor or occupational safety and hygiene.
2. The Chief Inspector of the Department of Labour, War Invalids and Social Affairs of the province where the employer’s head office is located shall have the power to handle complaints related to labor or occupational safety and hygiene for the second time in case the complainant disagrees with the first-time complaint handling decision as regulated in Article 23 or over the time limit prescribed in Article 20, the complaint remains unhandled.
3. The authority to handle complaints about occupational accident investigation shall follow provisions outlined in Article 17 of the Government’s Decree No. 39/2016/ND-CP dated May 15, 2016.
Besides, the employee can file a complaint to the court about the payment delay (but the case must go through medication with the labor mediator first)
ENTERPRISE CONSULTING
Anonymous Client: For a Limited liability company with 4 members to change partners, what application needs to be submitted? What are the notification document samples?
Respond:
For changing partners in Limited Liability Company with more than 2 members usually falls into 2 categories:
1. Adding new partners: The application shall follow Clause 1 Article 52 Decision 01/2021/ND-CP
1. In case of admission of new members, which leads to an increase in the company’s charter capital, the company shall send an application for changes to enterprise registration information to the Business Registration Office of the province where it is headquartered. The application includes the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) The resolution or decision and copy of minutes of meeting of the Board of Members on admission of new members;
d) Certifications of new members’ capital contribution;
dd) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives, and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
e) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment.
2. Changing partner: The application shall follow Clause 2 Article 52 Decision 01/2021/ND-CP
Article 52. Registration of change of members of a multi-member limited liability company
2. In case of a change of members due to the transfer of stakes, the application for changes to enterprise registration information must include the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) A transfer contract or documents proving completion of the transfer;
d) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
dd) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment,
Notification to change partner will follow Annex II-1 issued attached with Circular 01/2021/TT-BKHĐT
For changing partners in Limited Liability Company with more than 2 members usually falls into 2 categories:
1. Adding new partners: The application shall follow Clause 1 Article 52 Decision 01/2021/ND-CP
1. In case of admission of new members, which leads to an increase in the company’s charter capital, the company shall send an application for changes to enterprise registration information to the Business Registration Office of the province where it is headquartered. The application includes the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) The resolution or decision and copy of minutes of meeting of the Board of Members on admission of new members;
d) Certifications of new members’ capital contribution;
dd) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives, and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
e) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment.
2. Changing partner: The application shall follow Clause 2 Article 52 Decision 01/2021/ND-CP
Article 52. Registration of change of members of a multi-member limited liability company
2. In case of a change of members due to the transfer of stakes, the application for changes to enterprise registration information must include the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) A transfer contract or documents proving completion of the transfer;
d) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
dd) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment,
Notification to change partner will follow Annex II-1 issued attached with Circular 01/2021/TT-BKHĐT
Ms. T.T.B: My company is a Limited Liability company with 2 members, we want to transfer to a joint stock company without raising capital, is it legible?
Respond:
For changing partners in Limited Liability Company with more than 2 members usually falls into 2 categories:
1. Adding new partners: The application shall follow Clause 1 Article 52 Decision 01/2021/ND-CP
1. In case of admission of new members, which leads to an increase in the company’s charter capital, the company shall send an application for changes to enterprise registration information to the Business Registration Office of the province where it is headquartered. The application includes the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) The resolution or decision and copy of minutes of meeting of the Board of Members on admission of new members;
d) Certifications of new members’ capital contribution;
dd) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives, and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
e) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment.
2. Changing partner: The application shall follow Clause 2 Article 52 Decision 01/2021/ND-CP
Article 52. Registration of change of members of a multi-member limited liability company
2. In case of a change of members due to the transfer of stakes, the application for changes to enterprise registration information must include the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) A transfer contract or documents proving completion of the transfer;
d) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
dd) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment,
Notification to change partner will follow Annex II-1 issued attached with Circular 01/2021/TT-BKHĐT
For changing partners in Limited Liability Company with more than 2 members usually falls into 2 categories:
1. Adding new partners: The application shall follow Clause 1 Article 52 Decision 01/2021/ND-CP
1. In case of admission of new members, which leads to an increase in the company’s charter capital, the company shall send an application for changes to enterprise registration information to the Business Registration Office of the province where it is headquartered. The application includes the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) The resolution or decision and copy of minutes of meeting of the Board of Members on admission of new members;
d) Certifications of new members’ capital contribution;
dd) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives, and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
e) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment.
2. Changing partner: The application shall follow Clause 2 Article 52 Decision 01/2021/ND-CP
Article 52. Registration of change of members of a multi-member limited liability company
2. In case of a change of members due to the transfer of stakes, the application for changes to enterprise registration information must include the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) A transfer contract or documents proving completion of the transfer;
d) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
dd) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment,
Notification to change partner will follow Annex II-1 issued attached with Circular 01/2021/TT-BKHĐT
Ms. T.T.B: My company is a Limited Liability company with 2 members, we want to transfer to a joint stock company without raising capital, is it legible?
Response:
About transferring enterprise legal entity, according to Clause 2 Article 202 about Law on Enterprise 2020:
2. A limited liability company can be converted into a joint stock company:
a) without raising additional capital from other organizations and individuals or selling stakes;
b) by raising additional capital from other organizations and individuals;
c) by selling all or part of the stakes to one or some organizations and individuals; or
d) combining the methods specified in Points a, b and c of this Clause and other methods.
Accordingly, it is eligible for owners to change legal entities from Limited Liability Company to joint stock company without raising capital from other organizations, individuals, or selling the capital contribution to other organizations, individuals.
However, clients need to consider that according to Law on Enterprise 2014 the minimum shareholders in a joint stock company is 03 and no maximum limitation. Therefore, if the company do not meet the requirements (only with 2 shareholders), then it is not eligible to transfer enterprise legal entity
Besides, Enterprise must register with Enterprise Registration offices about legal entity transferring within the timeline of 10 working days, counting from the date of conducting the transferring.
After transferring, the transferred enterprise will inherit all legal rights and benefits and be liable for all debt, including tax debt, labor contract, and other original duties.
Transferring application follows Clause 4 Article 26 Decision 01/2021/NĐ-CP.
Notification about the transfer follows the Annex attached with Circular 01/2021/TT-BKHĐT.
About transferring enterprise legal entity, according to Clause 2 Article 202 about Law on Enterprise 2020:
2. A limited liability company can be converted into a joint stock company:
a) without raising additional capital from other organizations and individuals or selling stakes;
b) by raising additional capital from other organizations and individuals;
c) by selling all or part of the stakes to one or some organizations and individuals; or
d) combining the methods specified in Points a, b and c of this Clause and other methods.
Accordingly, it is eligible for owners to change legal entities from Limited Liability Company to joint stock company without raising capital from other organizations, individuals, or selling the capital contribution to other organizations, individuals.
However, clients need to consider that according to Law on Enterprise 2014 the minimum shareholders in a joint stock company is 03 and no maximum limitation. Therefore, if the company do not meet the requirements (only with 2 shareholders), then it is not eligible to transfer enterprise legal entity
Besides, Enterprise must register with Enterprise Registration offices about legal entity transferring within the timeline of 10 working days, counting from the date of conducting the transferring.
After transferring, the transferred enterprise will inherit all legal rights and benefits and be liable for all debt, including tax debt, labor contract, and other original duties.
Transferring application follows Clause 4 Article 26 Decision 01/2021/NĐ-CP.
Notification about the transfer follows the Annex attached with Circular 01/2021/TT-BKHĐT.
Client V…3@gmail.com Enterprises want to increase charter capital then how about licensing tax?
Respond:
About licensing tax follows the current regulation at Term 1 Clause 10 Decision 126/2020/NĐ-CP :
Article 10. Deadlines for submission of declarations of land-related amounts, licensing fees, registration fees, fees for grant of rights, and other amount payables prescribed by regulations of law on management and use of public property
1. Licensing fees
a) New businesses (except household and individual businesses), including medium and small enterprises converted from household businesses) and existing businesses that establish new dependent units or business locations shall submit the licensing fee declaration by January 30 of the year preceding the establishment or inauguration year.
About licensing tax timeline then at Term 9 Article 18 Decision 126/2020/NĐ-CP
Article 18. Deadlines for payment of tax-related amounts, fees for grant of right to the extraction of water resources and minerals, fees for grant of sea area usage, registration fees, and licensing fees
9. licensing fee:
a) Licensing fee shall be paid annually by the 30th of January.
About the level of licensing fees, please follow Term 1, 4 Decree 139/2016/NĐ-CP as follow:
Article 4. Rate of licensing fees
1. The rate of licensing fees for the organizations having the production and business of goods and services is as follows:
a) The organizations with charter capital and investment capital over 10 billion dong: 3,000,000 dong/year;
b) The organizations with charter capital and investment capital of less than 10 billion dong: 2,000,000 dong/year;
c) The branches, representative offices, business locations, public service providers and other business organizations: 1,000,000 dong/year;
The rate of licensing fees for the organizations specified under Points a and b of this Paragraph is based on the charter capital written in the certificate of business registration or on the investment capital written in the certificate of investment registration in case of no charter capital.
4. If the organizations specified under Points a and b, Paragraph 1 of this Article change their charter capital or investment capital, the ground for determining the rate of licensing fees is their charter capital or investment capital of the year preceding the year of calculation of licensing fees.
Accordingly, if an enterprise's wish to change capital (increase capital) led to the changes in licensing tax, then is it compulsory to submit the licensing tax declaration (as well as the new level licensing tax), the last day would be 30/01 preceding year.
About licensing tax follows the current regulation at Term 1 Clause 10 Decision 126/2020/NĐ-CP :
Article 10. Deadlines for submission of declarations of land-related amounts, licensing fees, registration fees, fees for grant of rights, and other amount payables prescribed by regulations of law on management and use of public property
1. Licensing fees
a) New businesses (except household and individual businesses), including medium and small enterprises converted from household businesses) and existing businesses that establish new dependent units or business locations shall submit the licensing fee declaration by January 30 of the year preceding the establishment or inauguration year.
About licensing tax timeline then at Term 9 Article 18 Decision 126/2020/NĐ-CP
Article 18. Deadlines for payment of tax-related amounts, fees for grant of right to the extraction of water resources and minerals, fees for grant of sea area usage, registration fees, and licensing fees
9. licensing fee:
a) Licensing fee shall be paid annually by the 30th of January.
About the level of licensing fees, please follow Term 1, 4 Decree 139/2016/NĐ-CP as follow:
Article 4. Rate of licensing fees
1. The rate of licensing fees for the organizations having the production and business of goods and services is as follows:
a) The organizations with charter capital and investment capital over 10 billion dong: 3,000,000 dong/year;
b) The organizations with charter capital and investment capital of less than 10 billion dong: 2,000,000 dong/year;
c) The branches, representative offices, business locations, public service providers and other business organizations: 1,000,000 dong/year;
The rate of licensing fees for the organizations specified under Points a and b of this Paragraph is based on the charter capital written in the certificate of business registration or on the investment capital written in the certificate of investment registration in case of no charter capital.
4. If the organizations specified under Points a and b, Paragraph 1 of this Article change their charter capital or investment capital, the ground for determining the rate of licensing fees is their charter capital or investment capital of the year preceding the year of calculation of licensing fees.
Accordingly, if an enterprise's wish to change capital (increase capital) led to the changes in licensing tax, then is it compulsory to submit the licensing tax declaration (as well as the new level licensing tax), the last day would be 30/01 preceding year.
