Thông tư 02/2017/TT-BKHDT

CIRCULAR

ON GUIDING THE MECHANISM FOR COOPERATION IN PROCESSING OF APPLICATIONS FOR INVESTMENT REGISTRATION AND ENTERPRISE REGISTRATION SUBMITTED BY FOREIGN INVESTORS

Pursuant to the Law on Investment No. 67/2014/QH13 dated November 26, 2014;

Pursuant to the Law on Enterprises No. 68/2014/QH13 dated November 26, 2014;

Pursuant to the Government’s Decree No. 78/2015/ND-CP dated September 14, 2015 on enterprise registration;

Pursuant to the Government’s Decree No. 118/2015/ND-CP dated November 12, 2015 on detailing and providing guidelines for the implementation of a number of articles of the Law on Investment;

Pursuant to the Government’s Decree No. 116/2008/ND-CP dated November 14, 2008 on defining functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

At the request of Director of Business Registration Department, Director of Foreign Investment Department;

The Minister of Planning and Investment promulgated the Circular on guiding the mechanism for cooperation in processing of applications for investment registration and enterprise registration submitted by foreign investors.

Article 1. Scope

This Circular provides guidance on mechanism for cooperation in processing of applications for investment registration and enterprise registration submitted by foreign investors as prescribed in Article 24 of the Decree No. 118/2015/ND-CP

Article 2. Regulated entities

This Circular is applied to the following entities:

1. Foreign investors, foreign-invested business entities (hereinafter referred to as “foreign investors”) defined in the Law on Investment that apply for investment registration, enterprise registration, contribute capital, purchase shares or stakes in accordance with regulations of Vietnam law;

2. Investment registration authorities;

3. Business registration authorities;

4. Other organizations, individuals related to investment registration and enterprise registration.

Article 3. Definitions

For the purposes of this Circular, the terms below shall be construed as follows:

1. “Cooperation mechanism” is a mechanism for cooperation between Investment registration authorities and Business registration authorities in processing applications for investment registration and enterprise registration submitted by foreign investors as prescribed in Article 24 of the Decree No. 118/2015/ND-CP.

2. “Investment registration authorities” consist of Departments of Planning and Investment of provinces, Management Boards of Industrial Parks, Export Processing Zones, Hi-tech Parks and Economic Zones as specified in Article 28 of the Decree No. 118/2015/ND-CP

3. “Business registration authorities” are provincial-level Business registration offices as prescribed in Point a Clause 1 Article 13 of the Decree No. 78/2015/ND-CP

4. “Common information processing system” is a professional communication system created and operated by the Ministry of Planning and Investment for sending, receiving, storing, displaying information or performing other data processing tasks so as to serve the cooperation between Business registration authorities and Investment registration authorities during the application of the cooperation mechanism.

5. “Document digitizing” means the scan of data available on physical documents so that the written data will be converted into electronic documents.

6. “Application-receiving division” means a division that assists the Investment registration authority in the adoption of issuing and adjusting procedures of the Investment Registration Certificate.

Article 4. Cases in which the cooperation mechanism is applied

1. A foreign investor invests in establishment of a business organization as specified in Article 22 of Law on Investment.

2. A foreign investor makes investment by contributing capital or purchasing shares or stakes as defined in Clause 1 Article 26 of Law on Investment.

3. A foreign investor changes both enterprise registration information and investment registration information, including:

a) Both business lines and target of the investment project;

b) Both the address of the enterprise's headquarters and the location of investment project;

c) Both the charter capital of the enterprise and the capital invested in the project;

d) Both the members, information about founding shareholders, shareholders who are foreign investors in the enterprise and information about the investor in the Investment Registration Certificate.

Article 5. Rules for applying the cooperation mechanism

1. The investor that applies for investment registration and enterprise registration is entitled to decide whether to apply the cooperation mechanism stipulated in this Circular or follow the separate procedures specified in Law on Investment, Law on Enterprises and other guiding documents.

2. The investor shall prepare the application and be legally responsible for the legality, truthfulness and accuracy of the information declared in the application for investment registration and enterprise registration. The number of sets of application for investment registration and enterprise registration is specified in regulations of law on investment and enterprises.

3. Investment registration authorities and Business registration authorities shall cooperate, exchange information and only request the investor to submit one copy of the following documents if it is required in both the application for investment registration and the application for enterprise registration:

a) The passport or personal identification papers with the same value as a passport if the investor is an individual;

b) The Decision on establishment or the Enterprise Registration Certificate or papers with the same value as these documents if the investor is an organization;

c) The document authorizing another entity to follow procedures for investment registration and/or enterprise registration.

In such case, the investment registration authority shall keep the copy submitted by the investor and send the copy of the aforesaid paper to the business registration authority. The copy provided by the Investment registration authority is deemed to be the valid one as prescribed in Clause 10 Article 3 of the Decree No. 78/2015/ND-CP

4. Investment registration authorities and Business registration authorities shall be responsible for integrity of the documents in the process of document transfer and cooperating in the confirmation of document transfer when applying the cooperation mechanism.

5. Investment registration authorities and Business registration authorities shall ex officio consider the validity of application, process the application for investment registration and the application for enterprise registration; cooperate, share information and be responsible for the scope of functions and tasks of each agency. The investment registration authority shall specify necessary addition or revision of documents every time such an application is submitted.

6. The uniqueness and clearness of the enterprise’s name shall be verified at the time the Business registration authority notifies the Investment registration authority of the valid application for enterprise registration.

7. The time limit for issuance of the Enterprise Registration Certificate, the written confirmation of changes in enterprise registration contents under the provisions of Clause 1 Article 28 of Decree No. 78/2015/ND-CP shall begin at the time the business registration authority receives information on the Investment Registration Certificate, document of the Department of Planning and Investment on approving the capital contribution or purchase of shares or stakes of the foreign investor.

Article 6. Application of the cooperation mechanism when a foreign investor invests in establishment of a business organization

1. The investor shall submit the application to the Application-receiving division.

The investor shall submit the application for investment registration and the application for establishment of enterprise to the Application-receiving division.

The Application-receiving division shall check the validity of the application for investment registration as prescribed in the Law on Investment and Decree No. 118/2015/ND-C and validity of the application for establishment of enterprise as stipulated in Clause 2 Article 27 of Decree No. 78/2015/ND-CP In such case, the application for establishment of an enterprise does not include the valid copy of the Investment Registration Certificate.

If the application for investment registration and the application for establishment of enterprise are valid, the Application-receiving division shall receive and add them to the Common information processing system, send the applicant a note of receipt and digitize the applications into the Common information processing system.

2. The Application-receiving division and Business registration authority shall consider the validity of the application.

a) For the Application-receiving division:

The Application-receiving division shall process the application for investment registration on National Information System on investment under procedures as stipulated in Law on Investment and its guiding documents. In the cases where the application is rejected, the Application-receiving division shall request the Business registration authority to remove the applicant’s enterprise registration information from the National Enterprise Registration Information System.

b) For Business registration authorities:

Within 02 working days from the day on which the information about application for enterprise registration is received through the Common information processing system, the Business registration authority shall process the application for enterprise registration through the National Enterprise Registration Information System and inform the Application-receiving division of the validity of the application through Common information processing system.

- If the application is valid:

The Business registration authority shall notify the Application-receiving division of the validity of the application.

- If the application is invalid:

The Business registration authority shall notify the Application-receiving division of necessary addition or revision of documents. The application-receiving division shall instruct the applicant to complete their application accordingly. The requested revision and addition shall be posted on the National Business Registration Portal. When the investor completes revising the documents or providing additional documents as requested, the Application-receiving division shall receive, digitize the application and send it to the Business registration authority through Common information processing system.

3. Issuance of the Investment Registration Certificate

On the same working day as the day on which the Investment Registration Certificate is issued, the Application-receiving division shall digitize the Investment Registration Certificate in the National Information System on investment and send the information to the Business registration authority through the Common information processing system.

On a weekly basis, the Application-receiving division shall send a valid copy of the Investment Registration Certificate together with the physical application for enterprise registration to the Business registration authority.

4. Issuance of the Enterprise Registration Certificate

Within 02 working days from the day on which the information about the Investment Registration Certificate is received through the Common information processing system, the Business registration authority shall process the application for enterprise registration through National Enterprise Registration Information System and send the information to the Tax Registration Information System to create the enterprise identification number and issue the Enterprise Registration Certificate. On the same working day as the day on which the Enterprise Registration Certificate is issued, the Business registration authority shall transfer the Enterprise Registration Certificate to the Application-receiving division.

5. Delivery of the result to the investor

Within 01 working day from the day on which the Enterprise Registration Certificate is received, the Application-receiving division shall deliver the Enterprise Registration Certificate and Investment Registration Certificate to the investor. The investor may receive the Investment Registration Certificate in advance if necessary.

Article 7. Application of the cooperation mechanism when a foreign investor invests in capital contribution or purchase of shares or stakes

1. The investor shall submit the application to the Application-receiving division under the Department of Planning and Investment.

The foreign investor investing in capital contribution or purchase of shares or stakes shall submit the application for registration of capital contribution or purchase of shares or stakes and the application for revision of the enterprise registration information of the company receiving contributed capital at the Application-receiving division under the Department of Planning and Investment.

The Application-receiving division under the Department of Planning and Investment shall check validity of the application for registration of capital contribution or purchase of shares or stakes as stipulated in Law on Investment and written guidelines for execution; validity of the application for enterprise registration contents changed as prescribed in the Decree No. 78/2015/ND-CP In such case, the application for enterprise registration contents changed does not include the Documents of Department of Planning and Investment on approving the capital contribution or purchase of shares or stakes of the foreign investor.

If the application is valid, the Application-receiving division under Department of Planning and Investment shall issue the note of receipt to the applicant.

2. The Application-receiving division under Department of Planning and Investment shall transfer the application for enterprise registration to the Business registration authority.

On the same working day as the day on which the application is received, the Application-receiving division under Department of Planning and Investment shall transfer the application for enterprise registration to the Business registration authority.

3. Consideration of validity of the application

a) For the Application-receiving division under the Department of Planning and Investment:

The Application-receiving division under Department of Planning and Investment shall process the application for capital contribution or purchase of shares or stakes through National Information System on investment in accordance with procedures as stipulated in the Law on Investment and written guidelines.

b) For Business registration authorities:

Within 02 working days from the day on which the application for enterprise registration is transferred, the Business registration authority shall process the application for enterprise registration through National Enterprise Registration Information System and inform the Application-receiving division under Department of Planning and Investment of the validity of the application.

- If the application is valid:

The Business registration authority shall inform the Application-receiving division under Department of Planning and Investment of the validity of the application, and wait for the Department of Planning and Investment’s Approval for contributing capital or purchasing shares or stakes by the foreign investor for enterprise registration.

- If the application is invalid:

The Business registration authority shall notify the Application-receiving division under Department of Planning and Investment of necessary addition or revision of documents. The Application-receiving division shall instruct the applicant to complete their application accordingly. If the investor revises the application for enterprise registration, the Application-receiving division under Department of Planning and Investment shall receive and send the application to the Business registration authority.

4. Issuance of the Approval for the capital contribution or purchase of shares or stakes of foreign investors

If the capital contribution or purchase of shares or stakes of the foreign investor meet the validity as defined in Point a and Point b Clause 1 Article 22 of Law on Investment, the Department of Planning and Investment shall issue the Approval for contributing capital or purchasing shares or stakes by the foreign investor.

If the capital contribution or purchase of shares or stakes of the foreign investor do not meet the requirements as defined in Point a and Point b Clause 1 Article 22 of Law on Investment, the Application-receiving division under Department of Planning and Investment shall notify the Business registration authority for removing the information of the application for enterprise registration through the National Enterprise Registration Information System.

On the same working day as the day on which the Approval for contributing capital or purchasing shares or stakes by the foreign investor is issued, the Application-receiving division under Department of Planning and Investment shall send it to the Business registration authority.

5. Issuance of Enterprise Registration Certificate, the written confirmation of changes in enterprise registration contents

On the same working day as the day on which the Department of Planning and Investment’s Approval for contributing capital or purchasing shares or stakes by the foreign investor is received, the Business registration authority shall issue the Enterprise Registration Certificate, the written confirmation of changes in enterprise registration contents; and transfer the Certificate, the written confirmation to the Application-receiving division under Department of Planning and Investment at the same time.

6. Delivery of the result to the investors

Within 01 working day from the day on which the Enterprise Registration Certificate is received, the written confirmation of changes in enterprise registration contents, the Application-receiving division under Department of Planning and Investment shall deliver the Approval for contributing capital or purchasing shares or stakes by the foreign investor and Enterprise Registration Certificate, the written confirmation of changes in enterprise registration contents to the enterprise. The enterprise may receive the Approval for contributing capital or purchasing shares or stakes by the foreign investor in advance if necessary.

Article 8. Application of the cooperation mechanism in case of simultaneous adjustment of investment registration and enterprise registration contents

1. The investor shall submit the application to the Application-receiving division.

The investor shall submit the application for investment registration and the application for enterprise registration to the Application-receiving division.

The Application-receiving division shall check the validity of the application for investment registration as prescribed in Law on Investment and the Decree No. 118/2015/ND-CP; the validity of application for registration of establishment of an enterprise as stipulated in Clause 2 Article 27 of the Decree No. 78/2015/ND-CP If the application is valid, the Application-receiving division shall deliver the note of receipt to the applicant.

2. The Application-receiving division shall transfer the application to the Business registration authority.

On the same working day as the day on which the application is received, the Application-receiving division shall transfer the application for enterprise registration to the Business registration authority.

3. The Application-receiving division and Business registration authority shall consider the validity of the application.

a) For the Application-receiving division:

The Application-receiving division shall process the application for investment registration through National information system on investment under procedures as stipulated in Law on Investment and written guidelines.

b) For Business registration authorities:

Within 02 working days from the day on which the application for enterprise registration is transferred, the Business registration authority shall process the application through National Enterprise Registration Information System and inform the Application-receiving division of the validity of the application.

- If the application is valid:

The Business registration authority shall issue the Enterprise Registration Certificate, the written confirmation of changes in enterprise registration contents through National Enterprise Registration Information System; and transfer the Certificate, the written confirmation to the Application-receiving division at the same time.

- If the application is invalid:

The Business registration authority shall notify the Application-receiving division of necessary addition or revision of documents. The Application-receiving division shall instruct the applicant to complete their application accordingly. If an investor or an enterprise revises the application for enterprise registration, the Division of receiving and processing applications for investment registration shall receive and send the application to the Business registration agency.

4. Delivery of the result to the investors

Within 01 working day from the day on which the Enterprise Registration Certificate is received, the written confirmation of changes in enterprise registration contents from the Business registration authority, the Application-receiving division shall collect and deliver the result to the investor. The enterprise may receive the Enterprise Registration Certificate, the written confirmation of changes in enterprise registration contents or Investment Registration Certificate in advance if necessary.

Article 9. Application of the cooperation mechanism when a foreign investor invests in establishment of business entities under standby procedures

1. The implementation of the cooperation mechanism under standby procedures is applied in the following cases:

a) The development or upgrade of the Common information processing system is in progress;

b) The Common information processing system has technical problems;

c) Other force majeure events.

The Ministry of Planning and Investment shall inform the specific time for applying the cooperation mechanism in accordance with standby procedures.

2. Application of the cooperation mechanism when a foreign investor applies for the establishment of an enterprise under standby procedures as follows:

a) The investor shall submit the application to the Application-receiving division.

The investor shall submit the application for investment registration and the application for enterprise establishment to the Application-receiving division.

The Application-receiving division shall check the validity of the application for investment registration as prescribed in the Law on Investment and Decree No. 118/2015/ND-CP; registration for establishment of an enterprise as stipulated in Clause 2, Article 27 of Decree No. 78/2015/ND-CP In such case, the application for establishment of an enterprise does not include the valid copy of Investment Registration Certificate.

If the application is valid, the Application-receiving division shall issue the note of receipt of application for investment registration and the application for enterprise registration to the applicant.

b) The Application-receiving division shall transfer the application to the Business registration authority.

On the same working day as the day on which the application is received, the Application-receiving division shall transfer the application for enterprise registration to the Business registration authority.

c) The Application-receiving division and Business registration authority shall consider the validity of the application.

- For the Application-receiving division:

The Application-receiving division shall process the application for investment registration through National information system on investment under procedures as stipulated in Law on Investment and written guidelines for execution.

- For Business registration authorities:

Within 02 working days from the day on which the application for enterprise registration is transferred, the Business registration authority shall process the application through National Enterprise Registration Information System and inform the Application-receiving division of the validity of the application.

If the application is valid:

The Business registration authority shall notify the Application-receiving division on the application for enterprise registration which is valid for collecting.

If the application is invalid:

The Business registration authority shall notify the Application-receiving division of necessary addition or revision of documents. The application-receiving division shall instruct the applicant to complete their application accordingly. If the investor revises the application for enterprise registration, the Application-receiving division shall receive and send the application to the Business registration authority.

d) Issuance of the Investment Registration Certificate

On the same working day as the day on which the Investment Registration Certificate is issued, the Application-receiving division shall send the valid copy of the Investment Registration Certificate to the Business registration authority.

dd) Issuance of the Enterprise Registration Certificate

Within 02 working days from the day on which the valid copy of the Investment Registration Certificate is received, the Business registration authority shall process the application through National Enterprise Registration Information System and send the information to the Tax Registration Information System to create the enterprise identification number. On the same working day as the day on which the Enterprise Registration Certificate is issued, the Business registration authority shall transfer the Enterprise Registration Certificate to the Application-receiving division.

e) Delivery of the result to the investors

Within 01 working day from the day on which the Enterprise Registration Certificate is received, the Application-receiving division shall deliver the Enterprise Registration Certificate and the Investment Registration Certificate to the investor. The investor may receive the Investment Registration Certificate in advance if necessary.

Article 10. Specimens of documents

1. The specimens of the note of receipt of the application for investment registration and enterprise registration, Notice of validity of the application for enterprise registration, Notice of revision and addition to the application for investment registration and enterprise registration, Minutes of the Document Transfer are provided in the appendices of this Circular.

2. Organizations and individuals prescribed in Article 2 of this Circular are responsible for uniformly using the specimens issued together with this Circular in the course of applying the cooperation mechanism.

Article 11. Collection of enterprise registration fees

When applying the cooperation mechanism, the Investment registration authority shall collect enterprise registration fees and transfer them to the State budget in accordance with regulations of law on fees and charges.

Article 12. Implementation

1. This Circular comes into force from June 15, 2017.

2. The People’s Committees of provinces shall provide sufficient human resources, funds and other resources to the Investment registration authorities and Business registration authorities to ensure the implementation of the tasks and power as specified herein.

3. The Departments of Planning and Investment, Management Boards of Industrial Parks, Export Processing Zones, Hi-tech Parks and Economic Zones of provinces, Provincial-level Business registration authorities and other organizations and individuals related to investment registration and enterprise registration are responsible for the implementation of this Circular.

4. Any problems arising in the course of implementation of this Circular should be promptly reported by relevant organizations and individuals to the Ministry of Planning and Investment for study, amendment and supplement.