Slide Luật Doanh Nghiệp

được thiết kế để cung cấp kiến thức cơ bản và chuyên sâu về các quy định pháp luật liên quan đến hoạt động kinh doanh và quản lý doanh nghiệp. Dưới đây là một mô tả tổng quan về nội dung và cấu trúc có thể xuất hiện trong một giáo trình như vậy: Phần Giới Thiệu: Khái quát về Luật Doanh nghiệp: Giới thiệu về lịch sử, vai trò, và ý nghĩa của Luật Doanh nghiệp trong môi trường kinh doanh. Quy định pháp luật: Tổng quan về các văn bản pháp luật chính liên quan đến doanh nghiệp, bao gồm các điều lệ, luật và quy định. Hình Thức và Quy Mô Doanh Nghiệp: Lựa chọn hình thức doanh nghiệp: So sánh giữa các loại hình doanh nghiệp như công ty cổ phần, công ty trách nhiệm hữu hạn, doanh nghiệp tư nhân, v.v. Quy mô doanh nghiệp: Quản lý kích thước và quy mô của doanh nghiệp và tác động của nó đối với các yếu tố pháp lý. Thủ Tục Đăng Ký Doanh Nghiệp: Quy trình đăng ký: Hướng dẫn về thủ tục và tài liệu cần thiết để đăng ký một doanh nghiệp mới. Trách nhiệm và quyền lợi của doanh nghiệp: Giải thích về trách nhiệm pháp lý của doanh nghiệp và quyền lợi mà nó đạt được qua quá trình đăng ký. Quản Lý và Quản Trị Doanh Nghiệp: Quản lý tài chính: Nắm vững các quy tắc về quản lý tài chính của doanh nghiệp, bao gồm quản lý thu chi, quản lý nợ, và báo cáo tài chính. Quản lý nhân sự: Thảo luận về các vấn đề liên quan đến quản lý nhân sự, bao gồm hợp đồng lao động và quyền lợi của người lao động. Giao Dịch Kinh Doanh và Hợp Đồng: Hiểu biết về hợp đồng: Phân tích các yếu tố cơ bản của hợp đồng kinh doanh và cách thực hiện giao dịch kinh doanh hiệu quả.

Enterprise Law Enterprises Organization

Lecturer: Tran Minh Tu

Class Rules

▪ Grade proportions

▪ Final 50%

▪ Mid-term 30% multiple choice

▪ Progress 20% group (4-5) written paper

▪ Lecturer will pick randomly 3-4 groups to submit

▪ No attendance check

▪ Students are required to complete given assignments

▪ Enterprise Law regulate a business entity called enterprise

▪ Enterprises and juridical person

▪ Enterprise and companies

A comparision between a natural person and a enterprise

▪ Reorganization, business transactions

▪ Separation and Division

▪ Merge and Acquire

▪ Contracts

▪ Dissolution, bankruptcy

Legal documents

▪ Vietnamese Civil Code 2015

▪ Vietnamese Law on Enterprises 2020

▪ Vietnamese Law on Bankruptcy 2014and their following Decrees

Who owns the enterprise?

How do we determine the owner?

The owner and the manager

How much authority does the manager have?

Mr An wants to buy a large number of tables and chairs for his office He got an offer from the sales manager of the office furniture and equipment company Luka (hereinafter referred to as Luka) Mr An ordered 500 swivel chairs; the contract was signed on Jan 15, 2023 with Luka’s sales manager Upon receiving the goods, Mr An noticed that the swivel chair was not the same as the model he was offered and complained to Luka Luka’s legal officer told him that the sales manager was not authorized to represent the company to sign a sales contract with the customer.

Identify the legal issue and analyze it.

Enterprise establishment

▪ Are you eligible to establish an enterprise?

▪ What would your business be?

▪ What are you selling?

▪ What form would your enterprise be?

▪ Where do you get your capital?

▪ Enterprise Registration Certificate (ERC)

Introduction

▪ What are the exceptions?

▪ Capital – Domestic, State, and Foreign

▪ What kind of assets can become capital?

Sole proprietorship

▪ Doanh nghiệp tư nhân

▪ Ownership: an individual

▪ Owner cannot be a general partner

▪ Capital

▪ The owner is the sole investor

▪ What if he/she wants to mobilize capital?

▪ Structure

Sole proprietorship

Sole-proprietorship characteristics

▪ Unlimited liability

▪ Owner must be liable for the enterprise financial obligation with all

of their personal assets

▪ Is the owner exempted from the obligation to pay when he/she die?

▪ Legal status – NOT a juridical person

▪ The owner conducts business activities by his/her own name

▪ Sole-proprietorship cannot establish enterprise, buy stocks, or

Sole proprietorship

▪ Structure

▪ Is not required a complex structure by the law

▪ ‘My business, my rule’

▪ Legal representative

▪ The owner can hire employees to work for them (receptionists, accountants…); but do these employees represent the sole-proprietorship?

▪ Only the owner can represent sole-proprietorship

▪ He/she can authorize another person to represent him/her

=> legal consequences?

proprietorship

Sole-▪ Handling ownership in specific situations

▪ Owner dies

▪ The heirs of the owner inherit the sole-proprietorship

▪ Do the heirs of the owner inherit his debt?

▪ Owner is declared lost/limit legal capacity

▪ Legal representative

▪ Legal guardian

Sole proprietorship

▪ Lease the sole-proprietorship

▪ Condition – lease contract

▪ Consequence – the owner keep his enterprise

▪ Sell the sole-proprietorship

▪ Condition – sale contract

▪ Consequence – the ownership changes

Household

Business

▪ A business household is registered by an individual or

household members and is responsible for all of their assets for the household's business activities In case

household members register a business household, one member shall be authorized to act as the business

representative The individual who registers the business household, the person authorized by the household

members to act as the business household representative, is the business household owner

Household

Business

▪ Household business has 1 headquarter (can have as many business locations as desire)

▪ The owner of a business household must bear

unlimited liability for all business activities of his/her household, not limited to the scope of assets used in business activities.

▪ Business households do not have legal status

▪ Công ty hợp danh

▪ Is treated as a company in Vietnamese law

▪ However, in international business perspective, partnership

is often viewed as a form of ‘joint venture’

▪ Owner(s) ≥2

▪ Owners are called ‘partners’

▪ Distinguishing ‘general partners’ (thành viên hợp danh) and

‘limited partners’ (thành viên góp vốn)

▪ Partnership structure in Vietnamese law is Limited Liability Partnership (LLP)

▪ Can a sole-proprietorship owner become partner?

▪ Partners are the investors

▪ Any assets contributed will transfer ownership from partners

to the partnership

▪ Can partners mobilize capital (huy động vốn) by issuing

▪ Conduct business activities in the partnership’s name

▪ Has unlimited liability for the partnership’s financial obligations

▪ Receive distributed profits in proportion to his/her stake or

as agreed

▪ General partners – Limits

▪ Cannot be a sole-proprietorship owner

▪ Cannot be a general partner of another partnership unless it

is accepted by the other general partners

▪ Must not, in their own names or others’ names, do business

in the same busines lines as those of the partnership for personal gain or to serve the interests of another

organization or individual

▪ Must not transfer part or all of his/her stake in the company

to another organization or individual

▪ Unless accepted by other general partners

▪ Receive distributed profits in proportion to their holdings

▪ Transfer their stakes to other persons – limited partner’s stakes

▪ Do not participate in administration of the partnership; do not

do business in the partnership’s name;

▪ Comply with the partnership’s charter, resolutions and decisions of the Board of Partners

▪ Partnerships count votes based on number of partners

▪ Structure

▪ President of Board of Partners

▪ Manager the partnership’s everyday business as general partners

▪ Convene and organize meetings of the Board of Partners; sign resolutions and decisions of the Board of Partners

▪ Assign tasks and coordinate operation of general partners

▪ Organize and fully retain accounting records, invoices and other documents of the partnership as prescribed by law

▪ Represent the company in civil proceedings,

▪ Legal representative

▪ ALL general partners

▪ Business activities GP conducts are considered to be in the name

of the partnership

▪ General partners shall assume different managerial positions in the partnership under agreement When some or all general partners perform certain business activities together, it will be decided under the majority rule.

▪ Limited partners do not have the right to represent the enterprise

▪ Unless the partnership authorize for them to represent

Multi-member

LLC

▪ Công ty trách nhiệm hữu hạn 2 thành viên trở lên

▪ Has 02 – 50 members that are organizations or individuals

▪ A member’s liability shall be equal to the amount of capital that member contributed to the enterprise, except for

specific cases

▪ The member’s stake (contributed capital) may only be transferred in specific cases

▪ Has juridical person status from the day ERC is issued

▪ May issue bonds but not shares

Multi-member

LLC

▪ Ownership

▪ Owners are called Members

▪ Member can be an individual or an organization

▪ The LLC holds the Member register which contain information

of all Members

▪ Members in LLC make decision based on stake proportion

Multi-member

LLC

▪ Members earn ownership through full contribution of their part to the charter capital

▪ Assets’ ownership will be transferred to the LLC

▪ Charter capital is important in LLC

▪ It determines the company’s financial ability

▪ Shows the proportional authority of the Members

▪ Before ERC issuance – Promise to contribute capital

▪ Certificate of capital contribution

▪

Multi-member

LLC

▪ Limited liability

▪ Fully and punctually contribute capital as promised;

▪ Take on a liability for the company’s debts and liabilities which is equal to the contributed capital – Exceptions?

▪ Do not withdraw capital from the company in any shape or form; except for certain cases

▪ Personal liability – when perform in the name of the company

Multi-member

LLC

▪ Members cannot withdraw their contributed capital

▪ Withdrawal equals to termination of Member status

▪ Situations are allowed for withdrawal

▪ Request company to buy back stakes

▪ Offer to transfer stakes to other members

▪ Transfer stakes to other people

▪ Legal consequences – Can the beneficiaries become

Members?

Multi-member

LLC

▪ Settle of stakes in special occasions (when the member cannot freely act)

▪ When the member is dead

▪ When the member has lost/limited legal capacity

▪ When the member is in debt

▪ Director/ General Director

▪ Board of Conrollers (optional unless the company is owned)

State-Multi-member

LLC

▪ Structure

▪ Board of Members (BoM)

▪ BoM decides on important matters of the company

▪ BoM can vote through meetings or questionaire survey

▪ Votes are counted based on proportion of capital

▪ Acts as an organizer for BoM meetings

▪ Monitors the implementation of BoM’s decisions

▪ Has term of office (05 years)

Multi-member

LLC

▪ Structure

▪ Conducting meeting of the BoM – President

▪ A Member can request President for BoM meeting to resolve issues within its jurisdiction

▪ The meeting is conducted if the members that own more than 65% stakes participate

▪ Decisions will be made with a majority of participating stakes

▪ BoM Resolution

Multi-member

LLC

▪ Structure

▪ Conducting meeting of the BoM – President, Members*

▪ The meeting is conducted if the members that own more than 65% stakes participate

▪ What if the meeting does not meet required proportion?

▪ Participation – can be determine based on direct presentation, authorized presentation,

▪ Decisions will be made with a majority of participating stakes

▪ BoM Resolution

Multi-member

LLC

▪ Structure

▪ Conducting meeting of the BoM – President, Members*

▪ The meeting is conducted if the members that own more than 65% stakes participate

▪ Decisions will be made with a majority of participating stakes

▪ 65% - Business plans, projects, salaries for executives…

▪ 75% - Change in charter, charter capital; reorganization; dissolve

or declare bankruptcy…

▪ BoM Resolution

Multi-member

LLC

▪ Structure

▪ Conducting meeting of the BoM – President, Members*

▪ The meeting is conducted if the members that own more than 65% stakes participate

▪ Decisions will be made with a majority of participating stakes

▪ BoM Resolution

▪ The Board of Members shall ratify its resolution and decisions by voting at the meeting, questionnaire survey or another method specified in the company's charter

▪ In case of questionnaire survey, a resolution or decision will be ratified when it is voted for by a number of members that hold at least 65% of charter capital

Multi-member

LLC

▪ Structure

▪ Director/General Director

▪ Can be a Member or hired outside the company

▪ Requirements – full legal capacity, not governmental officer

▪ Operates daily business activities

▪ Obligations

▪ Implement BoM’s decisions

▪ Report business activities to BoM

▪ Make suggestions to BoM regarding business

▪ Other obligations given in the Charter

Can you name some examples of the execution of these duties?

▪ Special transactions that need BoM’s consideration

Multi-member

LLC

▪ Structure

▪ Controllers/Board of Controllers (BoC)

▪ Supervise the company’s managers activities

▪ Report to the BoM

▪ Not required unless the LLC is State-owned

Multi-member

LLC

▪ Legal Representative

▪ Can have ≥2

▪ By default the BoM President is the legal representative

▪ Director/General Director can also be legal representative

▪ How do outsiders know who is the legal representative of the LLC?

▪ Obligation to publish information

Single-Member

LLC

▪ Công ty trách nhiệm hữu hạn một thành viên

▪ Owned by a single organization or individual ((hereinafter referred

to as “owner”)

▪ The owner’s liability for the company’s debts and other liabilities shall be equal to the company’s charter capital

▪ Cannot issue shares

▪ Can issue bonds

Single-member

LLC

▪ Ownership

▪ The owner can be an individual or an organization

▪ Owner has similar rights and obligations like the Member in the Multi-member LLC

▪ Ratify the company’s annual financial statements

▪ Decide the company’s reorganization, dissolution or file bankruptcy

LLC

▪ Owner is an individual

▪ Similar rights like organization owner

▪ Individual owner has less rights to the company than organization owner Example: Right to approve contracts for borrowing, lending, sale of assets and other contracts

prescribed by the company's charter whose value are at least 50% of the total assets written in the latest financial statement; Right to ratify the company’s annual financial statements

LLC

▪ Owner’s obligations

▪ Contribute capital

▪ Similar rules like Multi-member LLC

▪ Comply with the company’s charter

▪ Separate the company’s asset and owner’s asset

▪ Cannot withdraw from the company, unless transfer the capital to others

▪ Chairman/President, Director/General Director

▪ Board of Members, Director/General Director

▪ A Single-member LLC that is owned by an individual

▪ Chairman/President, Director/ General Director

▪ Consists of 3- 7 members assigned by the Owner

▪ Has term of office

▪ Operates in the name of the Owner, of the company

▪ Elects a BoM President

▪ Conducts meetings in the similar manner to Multi-member LLCs

LLC

▪ Structure

▪ Chairman/ President of the company

▪ If the Owner is an organization

▪ If the Owner is an individual => Owner = President

▪ Director/General Director

▪ Can be the President or assigned/hired by the Owner

▪ Duty of the managers (President, Director, Controller, etc.)

LLC

▪ Legal representative

▪ Can have ≥2

▪ By default the BoM President is the legal representative

▪ Director/General Director can also be legal representative

Joint-stock

company

(Joint-stock Company)

▪ A shareholder’s liability for the company’s debts and liabilities

is equal to the amount of capital contributed to the company by the shareholder

▪ Has the status of a juridical person from the day on which the Certificate of Enterprise Registration is issued

▪ May issue shares, bonds and other kinds of securities

Joint-stock

company

▪ Owner(s) are called shareholders (cổ đông)

▪ Shareholders can be organizations and individuals

▪ Minimum number of shareholders is 03 – no limit on the maximum

▪ A shareholder’s liability for the company’s debts and liabilities is equal to the amount of capital contributed to the company

▪ Shareholders may transfer their shares

▪ Except for founding shareholders’ shares and other restrictions stated in the company’s Charter

Joint-stock

Company

▪ Ownership

▪ Shareholders earn their ownership through purchase of shares

▪ Difference in ownership based on different type of shares

▪ Types of shares – ordinary (phổ thông) and preference (ưu đãi)

▪ Super-voting/Voting preference shares (cổ phần ưu đãi biểu quyết)

▪ Participating shares (cổ phần ưu đãi cổ tức)

▪ Redeemable shares (cổ phần ưu đãi hoàn lại)

▪ And other preference shares the Joint-stock Company stated in their Charter