NEW REGULATIONS ON ENTERPRISE REGISTRATION
On January 04, 2021, the Decree No. 01/2021/ND-CP on enterprise registration takes effect and includes new regulations on enterprise registration procedures, and additional cases of revocation of branch or representative office, business household licenses. As a result, it creates advantageous opportunities for companies and enterprises during the market entry stage in specific, and the business growth in general.
This Decree replaces the old provisions of Decree 78/2015/NĐ-CP and Decree 108/2018/ND-CP with the following highlights:
1. The enterprise identification number is also the identification number of an enterprise participating in social insurance
According to Clause 1 Article 8 of Decree 01/2021/ND-CP, the enterprise identification number is also the identification number of an enterprise participating in social insurance. Therefore, the enterprise identification is also the tax identification number and the identification number of an enterprise participating in social insurance. Under the provision of Clause 1 Article 8 Decree 78/2015/ND-CP the enterprise identification was only the tax identification number of the enterprise.
Similarly, Clause 3 Article 5 Decree 122/2020/ND-CP dated October 14, 2020 regulates the coordination, continuity of procedures for enterprise establishment registration, branches, representative offices, declares the employer, grants the identification number of a unit participating in social insurance, registers to use the enterprise’s invoices. It does also mentioned: “Enterprise, branch, representative office numbers are used as the identification number of a unit participating in social insurance”.
2. Authorize to implement on the procedure of the enterprise registration
Under the Article 12 Decree 01/2021/ND-CP, there are two additional cases of authorization to implement the enterprise registration procedures:
– Authorizing public postal service providers.
– Authorizing a non-public postal service provider.
3. New regulations on cases of granting the enterprise registration according to contingency process
According to Clause 1, Article 13 of Decree 01/2021/ND-CP, the provision of enterprise registration according to contingency process is the granting of enterprise registration not done through the National Enterprise Registration Information System.
The grant of enterprise registration according to contingency process is applicable when one or more of the following cases occur:
+ National enterprise registration information system is under construction and upgrading;
+ The national business registration information system has technical problems;
+ War, riot, natural disasters and other force majeure cases.
Decree 78/2015/ ND-CP does not mention this issue.
Stipulating clearly the contingency process cases help the enterprise to be more active and know clearly on the procedures of enterprise registration.
4. The time of being started of the enterprise business operation
Decree 78/2015/QDD-CP has not provide for the specified time of starting business activities of the enterprise. Besides, the Clause 2 Article 34 Decree 01/2021/ND-CP add: In the case the enterprises register the starting date of the business operation after the date of being granted the business registration certificate, the enterprise is allowed to do the business since the registration day, except in the case of conditional business investment.
5. Refund of enterprise registration content publication fee
Under the provision of Clause 3 Article 35 Decree 01/2021/NĐ-CP, the request of the enterprise registration content publication and the enterprise need to submit the enterprise registration content publication fee implement at the time the enterprise submit the application file of the enterprise registration.
In case the enterprises are not issued an enterprise registration certificate, they are reimbursed for the enterprise registration content publication fee.
6. Stipulating clearly the legal status of the enterprise in the National Enterprise Registration Database
Clearly in Article 41 of Decree 01/2021/ND-CP provides for the legal status of the enterprise in the National Enterprise Registration Database, including:
– Business suspension;
– No longer doing business at the registered address;
– The certificate of enterprise registration is revoked due to enforcement of tax administration;
– Are undergoing dissolution procedures, have been divided, amalgamated, merged;
– Are in bankruptcy proceedings;
– Was dissolved, went bankrupt, ceased to exist;
– Are active.
Decree 78/2015/ND-CP and Decree 108/2018/NĐ-CP do not have clearly regulations on the legal status of enterprise.
7. Add the case of not being registered, notified of changes in business registration content
Pursuant to Clause 1 Article 65 Decree 01/2021/ND-CP the enterprise is not allowed to register or notify changes in enterprise registration information in the following cases:
– The business registration office has issued a notice of the enterprise’s violation in the case of revocation of the enterprise registration certificate or the decision to revoke the enterprise registration certificate has been issued;
– In the process of dissolution under the dissolution decision of the enterprise;
– The request of the Court or the Judgment Execution Agency or the Investigation Agency, the Heads, Deputy Heads of the Investigation Agency, Investigators defined in the Criminal Procedure Code;
– Enterprise is in legal status “No longer doing business at the registered address”.
Clause 1 Article 56 Decree 78/2015/NĐ-CP does not regulate the enterprise is in legal status “No longer doing business at the registered address”.
The addition of the conditions allows the legislature to verify the actual status of an enterprise’s operation. Accordingly, Enterprise needs to base on its adjustments on new regulations in accordance with the provisions of law, as well as they can avoid the possible disadvantages.
8. Add the case of revocation of a branch or representative office registration certificate
Clause 3 Article 60 Decree 78/2015 / ND-CP, the enterprise’s branch, representative office or business location shall only have its branch operation registration certificate or representative office revoked in case deactivated for 01 year without notifying the Business Registration Office and Tax authorities.
According to Clause 1 Article 77 Decree 01/2021/NĐ-CP, a brand or representative office shall have its branch, representative office operation registration certificate revoked in the following cases below:
– The content declared in the application file for registration of a branch or representative office operation is fake;
– Branches, representative offices ceased operation for 1 year without notifying the Business Registration Office and the Tax authority;
– According to the decision of the Court, request of the competent authority as prescribed by law.
9. Add a case of not being registered business households
One more case is not registered business households under the provisions of point b, Clause 1, Article 80 Decree No. 01/2021 / ND-CP:
Individuals and household members being Vietnamese citizens with full civil act capacity under the Civil Code have the right to establish business households as prescribed in this Chapter, except for the following cases. :
- Minors, persons with limited capacity for civil acts; people with loss of civil act capacity; people with cognitive difficulties and behavior mastery;
- Persons facing criminal prosecution, detention, imprisonment, administrative handling measures at compulsory detoxification establishments, compulsory educational institutions or being banned from holding positions by court, practicing occupations or doing certain jobs;
- Other cases as prescribed by relevant laws.
10. Business household is allowed to hire the manager
There are not previously regulated for the owner of business household allowed to hire a business manager.
According to Clause 3, Article 81 of Decree 01/2021/ND-CP, the owner of a business household can hire others to manage and run the business operation of the business household.
In this case, the owner of the business household, household members participating in the business household registration have responsible for all debts and other property liabilities arising from the business operation.
However, the owner of the business household, the household members participating in the business household registration are responsible for the business activities of the business household, but not related to the representative.
11. The time mark need to be registered to change contents of business household registration certificate
Pursuant to Clause 1, Article 90 Decree No. 01/2021/ ND- CP, the owner of the business household have responsible for registering changes in the Certificate of business household registration with the business registration office within 10 days since the date of change.
Decree 78/2015/ND-CP does not previously regulated.
12. Non limited time to deactivate the business for the business households
According to Clause 1, Article 76 Decree 78/2015 / ND-CP, in case business deactivated for 30 days or more, a business household has to notify the business registration office of the district where it has registered its business and directly managed Tax authorities. The business deactivated period must not exceed 01 year.
Clause 1, Article 91 Decree 01/2021/ND-CP, in case of business deactivate for 30 days or more, the household business must notify the business registration office of the district where it has registered its business and directly managed tax authorities. As a result, from January 4, 2021, business households are allowed to deactivate their business indefinitely, without limitation for 01 year as before.
Moreover, this Decree also stipulates that a business household deactivate its business or continues business ahead of the notified deadline, the business household shall send a written notice to the business registration authority of the district where The business household has registered at least 03 working days before deactivating business, continuing business before the notified deadline.
13. New regulations on cases of business household termination
Under the provisions of Clause 1, Article 92 of Decree 01/2021/ND-CP, when the business household are terminated, they have to send a notice of the termination of the business household’s operation to the business registration office in the district where it is registered, attached to the notice has the following documents:
– Notice of tax identification number invalidation by tax authorities;
– A copy of the minutes of the household members on the termination of the business household operation in case the household members register for business;
– Original certificate of business household registration.
And Article 77 Decree 78/2015 / ND-CP does not clearly stipulate the submitted papers attached to the Notice of termination of business household operation.
All the above are the principal changes related to the business registration procedures which take effect as of January 4, 2021. The individuals, enterprises and business households have to pursuant to the new regulations to adjust as well as implement the business registration procedures, change the enterprise registration contents in accordance with the prescribed by law.