베트남 기업법

Abstract

1. History of Enterprise Law This article has briefly examined the historical development, basic principles and problems of Vietnamese company law. Vietnamese company law derived from French law in the colonial period but its development has not been consistent. Since independence, company law in Vietnam has been influenced by various factors but especially the economic policies of the CPV. However, the private sector and Vietnamese company law have developed since Doi Moi began in 1986. In order to open the economy, Vietnam passed the Law on Foreign Investment in Vietnam 1987 (Luat Dau tu nuoc ngoai tai Viet Nam) to allow foreign investors to invest in areas of the economy. Similarly, to encourage the development of the private economic sector, the Companies Law (Luat Cong ty) and the Law on Private Enterprises (Luat Doanh nghiep tu nhan) were enacted by the National Assembly in December 1990. In June 1999, the Enterprises Law (Luat Doanh nghiep) was introduced to replace the Companies Law 1990 and the Law on Private Enterprises 1990. Again in 2005, the Enterprise Law 1999, State Enterprise Law 2003 and FDI of Law on Foreign Investment were merged into the Enterprise Law 2005("Law"). 2. Forms of Enterprise Under the Law, the Government encourages enterprises to conduct and enhance the scale and scope of business activities by providing for four forms of enterprise: limited liability company, shareholding company, partnership and private enterprise. (1) A limited liability company is defined as an enterprise in which a member is liable for the debts and other property obligations of the enterprise within the amount of capital he/she/it undertakes to contribute to the enterprise. The number of members shall not exceed 50 and a limited liability company shall not be entitled to issue shares. A limited liability enterprise with one member is a new form of enterprise provided for by the Law. A one-member limited liability company under the Law is an enterprise owned by one entity. The owner will be liable for all debts and other assets obligations of the enterprise within the amount of the charter capital of the enterprise. (2) A shareholding company is defined as an enterprise in which the charter capital is divided into equal portions called shares. Shareholders are liable for the debts and other property obligations of the enterprise within the amount of capital contributed to the enterprise. The minimum number of shareholders is three and there is no restriction on the maximum number. Shareholding companies may issue securities to the public in accordance with the legislation on securities. (3) Partnership is defined as an enterprise in which there must be at least two partnership members who are individuals with professional qualifications and credibility and who will be liable for the obligations of the partnership with all of their assets. There may also be capital contributing members in a partnership who shall only be liable for the debts-of the partnership within the amount of capital they have contributed to the partnership. Partnership will be the required form for enterprises providing legal consulting or health care services. (4) A private enterprise is an enterprise owned by one individual who shall be liable for all activities of the enterprise with all his/her assets. 3. Transitional adjustment problems As demonstrated, there are a number of transitional adjustment problems with current company law that need to be resolved. Firstly, the present discrimination between domestic and overseas investors when setting up a company should be abolished. Business licences are not only restrictions on business freedom but also encourage corruption. Many business licences are not only impractical, but also troublesome for enterprises. They should be abolished. Secondly, weaknesses in corporate governance rules can be improved by borrowing from the laws of developed countries. Ownership and management need to be more formally separated and the functions of the board of management and the managing director should be clarified. Company law reform should upgrade provisions on company officers' duties and create effective ways to protect investors and other stakeholders.