Which individuals/organizations are not allowed to establish businesses?

What does state-owned property include?

According to Article 1, Clause 1 of Government Decree No. 14/1998/ND-CP on the management of state assets, the definition is:

"State assets are assets formed from or originating from the state budget, assets whose ownership is established by the State according to the provisions of law, land, forests, mountains, rivers, lakes, water sources, underground resources, resources in the sea, continental shelf and airspace."

More specifically, Article 2 of this Decree specifies the types of state assets, including:

“1. State-owned assets in the administrative and public service sector: These are state assets entrusted to state agencies, public service units, armed forces units, political organizations, socio-political organizations, social organizations, and professional social organizations for management and use, including:

a) Land;

b) Houses and other construction works attached to the land;

c) Other assets attached to the land;

d) Transportation vehicles, work equipment, and other assets.

Assets belonging to infrastructure serving the public and national interests include:

a) Transportation infrastructure system;

b) Irrigation systems;

c) Lighting and water supply/drainage systems;

d) Cultural works;

e) Other infrastructure projects.

2. State assets in enterprises

Assets that are established as state-owned assets according to the provisions of law include:

a) Assets that are evidence or means used in violating the law are confiscated and deposited into the State treasury, along with fines collected for violating the law;

b) Buried or submerged property that is found; lost, abandoned, ownerless, or ownerless property; and other property as stipulated by law are state property;

c) Assets donated, contributed, or transferred to the State by domestic and foreign organizations and individuals, as well as assets provided as aid by foreign governments, non-governmental organizations, and other international organizations.

3. State reserve assets

Land, forests, mountains, rivers, lakes, water sources, underground resources, resources in the sea, continental shelf and airspace (hereinafter collectively referred to as land and other natural resources).”

What constitutes an act with the purpose of gaining personal benefit for an agency or unit?

According to Clause 4, Article 18 of the 2014 Enterprise Law, the definition of private profit for an agency or unit is as follows: it is the use of income in any form obtained from business activities, from capital contributions, share purchases, or equity purchases for one of the following purposes:

1. Divide in any way among some or all of the following people:

• Officials, civil servants and public employees in accordance with the law on cadres, civil servants and public employees;
• Officers, non-commissioned officers, professional soldiers, workers, and defense officials in agencies and units of the People's Army; professional officers and non-commissioned officers in agencies and units of the Vietnam People's Public Security, excluding those appointed as authorized representatives to manage the State's capital contribution in enterprises.

2. Supplementing the operating budget of agencies and units contrary to the provisions of the law on state budget.

3. Establishing or supplementing funds for the private benefit of the agency or unit.

According to Clause 1, Article 4 of the Law on Cadres and Civil Servants of 2008, the definition is:

☸ Staff: A Vietnamese citizen who is elected, approved, or appointed to a position or title for a fixed term in a Party, State, or socio-political organization at the central, provincial, or district level, within the official staff and receiving a salary from the state budget.

☸ Civil servants: A Vietnamese citizen is a person recruited and appointed to a rank, position, or title in an agency of the Communist Party of Vietnam, the State, or a socio-political organization at the central, provincial, or district level; in an agency or unit of the People's Army that is not an officer, professional soldier, or defense worker; in an agency or unit of the People's Public Security that is not an officer or professional non-commissioned officer; or in the leadership and management apparatus of a public service unit of the Communist Party of Vietnam, the State, or a socio-political organization (hereinafter collectively referred to as a public service unit), within the staffing structure and receiving a salary from the state budget. For civil servants in the leadership and management apparatus of a public service unit, their salary is guaranteed from the public service unit's salary fund as prescribed by law.

☸ Officials: A public employee is a Vietnamese citizen recruited for a specific job position, working at a public service unit under an employment contract, and receiving a salary from the public service unit's salary fund as prescribed by law. (Article 2, Law on Public Employees 2010)

What does it mean to be a person lacking legal capacity?

Clause 1 of Article 22 of the 2015 Civil Code stipulates the following regarding persons lacking legal capacity:

"When a person, due to mental illness or other disease, is unable to perceive or control their behavior, at the request of a person with relevant rights and interests or of a relevant agency or organization, the Court shall issue a decision declaring this person to be incapacitated in civil matters based on the conclusions of a forensic psychiatric examination."

When there are no longer grounds to declare a person incapacitated, the Court, at the request of the person themselves, or of a person with related rights and interests, or of a relevant agency or organization, shall issue a decision to revoke the decision declaring the person incapacitated.

Under what circumstances are individuals considered to have limited legal capacity?

Clause 1 of Article 24 stipulates the following regarding persons with limited civil capacity:

"If a person addicted to drugs or other stimulants squanders family assets, the court may, at the request of a person with relevant rights and interests or of a relevant agency or organization, issue a decision declaring that person to be of limited civil capacity."

When does an organization lack legal personality?

An organization is not recognized as a legal entity if it does not meet the following conditions (based on Clause 1, Article 74 of the 2005 Civil Code on legal entities):

a) Not established in accordance with the provisions of the 2005 Civil Code or other relevant laws;

b) There is no organizational structure or governing body;

c) Does not possess assets independent from other individuals or legal entities and is solely liable for its own debts using its own assets;

d) Not participating in legal relationships independently in one's own name.

Individuals who are not permitted to establish businesses under the provisions of the Bankruptcy Law.

Clause 3 of Article 130 of the Bankruptcy Law stipulates:

"If a person holding a managerial position in a bankrupt enterprise or cooperative intentionally violates the provisions of Clause 1, Article 18, Clause 5, Article 28, and Clause 1, Article 48 of this Law, the Judge shall consider and decide that they are not entitled to establish an enterprise or cooperative, or to manage an enterprise or cooperative, for a period of 03 years from the date the People's Court issues the bankruptcy declaration decision."

Individuals who are prohibited from establishing businesses are those specified in the 2008 Law on Prevention and Combat of Corruption.

Clause 2 of Article 20 stipulates:

Persons holding positions of authority within agencies, organizations, or units are prohibited from doing the following:

• Establishing, participating in the management and operation of private enterprises, limited liability companies, joint-stock companies, partnerships, and cooperatives, except where the law provides otherwise;
• Establishing, holding management or executive positions in private enterprises, limited liability companies, joint-stock companies, partnerships, or cooperatives within the field that they were previously responsible for managing, for a specified period as prescribed by the Government;

Clause 4 of Article 20 stipulates:

Heads and deputy heads of state agencies are prohibited from investing in businesses operating within the scope of the industry or profession they directly manage, or from allowing their spouses, parents, or children to conduct business within the scope of the industry or profession they directly manage.