The rules about the Who does not establish a business specified in Clause 2 Article 18 of the Law on Enterprise 2014. In order to explain and clarify the provisions of this Law, Expertis will explain each specific regulation in order to provide general knowledge that many entrepreneurs will be interested in.
Who is not allowed to set up a business?
All individuals and organizations except for the cases listed below are allowed to set up businesses.
1. State agencies and people's armed forces units use state assets to set up business enterprises to make profits for their own agencies or units.
What does state property include?
According to Article 1 Clause 1 Decree No. 14 / 1998 / ND-CP of the Government stipulating the management of state assets defines:
"State property is property formed from the state budget or originating from the state budget, property over which state ownership is established in accordance with law, land, forests. , mountains, rivers, lakes, water resources, underground resources, marine resources, continental shelf and airspace. "
More specifically, Article 2 of this Decree specifies the types of state assets including:
“1. State properties in the administrative and non-business area: are assets assigned by the State to state agencies, non-business units, armed force units, political organizations, socio-political organizations, social organizations, and social organizations. - Management and use occupations include:
b) Houses and other construction works attached to land;
c) Other properties associated with the land;
d) Means of transportation, working equipment and other assets.
Infrastructure properties in service of public interests and national interests include:
a) System of transport works;
b) System of irrigation works;
c) Lighting system, water supply and drainage;
d) Cultural constructions;
d) Other infrastructure works.
2. State assets at the enterprise
Property established and owned by the State in accordance with law, including:
a) The property which is the material evidence and means used in the violation of law is confiscated with the State fund and fines for law violations;
b) Found buried or sunk property; dropped, forgotten, vacant, derelict and other properties prescribed by law as state properties;
c) Assets donated, donated, contributed by organizations and individuals inside and outside the country and other forms of transfer of ownership of the property to the State, aid aids of the Government, non-governmental organizations external and other international organizations.
3. State reserve assets
Land, forests, mountains, rivers, lakes, groundwater resources, resources in seas, continental shelves and airspace (hereinafter referred collectively to as land and other natural resources). "
What is the purpose of gaining profits for agencies and units?
According to Article 4 Article 18 The Law on Enterprises of the year 2014 defines the profit-taking for agencies and units as follows: is the use of income in any form derived from business activities, from capital contribution, stock purchase a part, buy a capital contribution to one of the following purposes:
1. Divide in any form to some or all of the following:
- Officials, civil servants and public employees in accordance with the law on cadres, civil servants and public employees;
- Officers, non-commissioned officers, professional armymen, workers and defense officers in agencies and units of the People's Army; officers and career non-commissioned officers in bodies and units of the Vietnam People's Police, except for those appointed to be authorized representatives to manage the State's contributed capital at enterprises.
2. Supplementing the operational budget of the agency or unit in contravention of the law provisions on the state budget
3. Establishing a fund or adding it to the fund for private benefit of agencies or units
2. Officials, civil servants and public employees in accordance with the law on cadres, civil servants and public employees
According to Clause 1 Article 4 The Law on Officials and Officials in the year 2008 defines:
☸ Staff: be a Vietnamese citizen, elected, approved, appointed to hold positions and titles according to terms in the Party's, State's, political-social organizations at central, provincial or district level within the payroll and salary from the state budget.
☸ Civil servant: be a Vietnamese citizen, recruited and appointed to a rank, position or title in an agency of the Communist Party of Vietnam, the State, or at a central, provincial or district socio-political organization; in agencies and units of the People's Army that are not officers, professional soldiers, defense workers; in agencies and units under the People's Public Security Forces who are not professional officers and non-commissioned officers, and in the leadership and management apparatus of public non-business units of the Communist Party of Vietnam, the State, and socio-political organizations (hereinafter referred to as public non-business units), on the payroll and receiving salary from the State budget; For civil servants in the leadership and management apparatus of a public non-business unit, the salary is guaranteed from the salary fund of the public non-business unit in accordance with law.
☸ Official: Vietnamese citizens who are recruited according to their working positions or working in public non-business units under the employment contract regime, receiving salaries from the public fund's public salary fund according to the provisions of law. (Article 2, Law on officers of the year 2010)
3. Officers, non-commissioned officers, professional armymen, workers and defense officers in agencies and units of the People's Army; officers and career non-commissioned officers in bodies and units of the Vietnam People's Police, except for those appointed to be authorized representatives to manage the State's contributed capital at enterprises.
4. Officers leading and professional managers in State enterprises, except those who are appointed as authorized representatives to manage the State's contributed capital in other enterprises
5. Minors; people with limited civil act capacity or lost civil act capacity; The organization has no legal status
What is a person who has lost civil act capacity?
Clause 1 Article 22 The Civil Code of the year 2015 provides for people with disabilities of civil acts as follows:
“When a person suffers from a mental illness or other disease but is unable to perceive or control the conduct, at the request of the person with related rights or interests or relevant agencies, organizations or Courts, the decision declares this person to be incapable of civil acts on the basis of the conclusion of forensic mental examination.
When there is no grounds to declare a person incapable of civil acts, at the request of such person or of the person with related rights or interests or relevant agencies or organizations, the Court shall issue a decision to cancel. abolishing the decision declaring the loss of civil act capacity. ”
What is the case in a person with limited civil act capacity?
1 Clause Article 24 stipulates the limited capacity of civil acts:
"Those who are addicted to drugs and other stimulants, which lead to the dispersal of family properties, at the request of persons with related rights or interests or relevant agencies or organizations, the Court may issue a decision intended to declare this person a person with limited civil act capacity. ”
When does the organization have no legal status?
An organization shall not be recognized as a legal entity when it fails to meet the following conditions (based on the provisions of the Import and Export Article Article 1 of the Civil Code of the year 74 provides for legal entities):
a) It is not established under the provisions of the Civil Code of the Import Export Law and other relevant laws;
b) There is no organizational structure or executive agency;
c) Having no property independent from other individuals or legal entities and being responsible for their own property;
d) Do not participate in legal relations independently.
6. Persons who are being examined for penal liability, serving imprisonment penalties, decisions on administrative handling at compulsory detoxification establishments, compulsory education establishments or being banned from practicing business, holding positions or doing certain jobs, related to business under court decisions;
Other cases in accordance with the law on bankruptcy, anti-corruption.
Individuals are not allowed to set up businesses under the Bankruptcy Law
Clause 3 Article 130 The Bankruptcy Law stipulates:
"If the manager of an enterprise or cooperative is declared bankrupt and intentionally violates the provisions of Clause 1 of Article 18, Clause 5 of Article 28, or Clause 1 of Article 48 of this Law, the judge shall consider, decide not to be entitled to establish enterprises, cooperatives, to act as managers of enterprises and cooperatives within 03 years from the date the People's Court issues the bankruptcy declaration. ”
Individuals are not allowed to set up businesses according to the provisions of the Anti-Corruption Law of the year 2014
Clause 2 Article 20 stipulates:
Persons holding positions and powers in agencies, organizations and units must not do the following:
- Establishing, participating in management and administration of private enterprises, limited liability companies, joint-stock companies, partnerships, cooperatives, unless otherwise provided for by law;
- Establishment and holding of titles, management positions and administration of private enterprises, limited liability companies, joint-stock companies, partnerships, cooperatives in the domains in which they were previously responsible for managing within certain time limits prescribed by the Government;
Clause 4 Article 20 stipulates:
Heads and deputy heads of state agencies are not allowed to contribute capital to enterprises operating within the scope of their branches and trades, which they directly perform the state management or let their spouses, parents and / or children doing business within the scope of their branches and trades, which are directly performed by the State management.
Thus, in addition to the 6 case specified in Clause 1, Article 18, the Enterprise Code of 2014, every individual and organization has the right to establish an enterprise in Vietnam.
If requested by the business registration agency, the person who registers to establish an enterprise must submit a judicial record card to the business registration office.