Thông tư 01/2011/TT-BKHCN

CIRCULAR

GUIDING THE ESTABLISHMENT AND OPERATION REGISTRATION OF SCIENCE AND TECHNOLOGY ORGANIZATIONS (STOS) WITH FOREIGN OWNED CAPITAL, OF REPRESENTATIVE OFFICE, BRANCH OF FOREIGN STOS IN VIETNAM

Pursuant to Law on Science and Technology dated july 09,2000;
Pursuant to Decree No. 81/2002/ND-CP dated October 17,2002 of the Government detailing a number of Articles of Law on Science and Technology;
Pursuant to Decree No. 80/2010/ND-CP dated July 14, 2010 of the Government providing for coordination, investment with foreigners in Science and Technology field;
Pursuant to Decree No. 28/2008/ND-CP dated March 14, 2008 of the government providing for function, duties, authorities of organizational structure of Ministry of Science and Technology,
Minister of Science and Technology guides the establishment and operation registration of STOS with foreign owned capital, of representative office, branch of foreign STOS in Vietnam as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of application

This Circular guides the establishment condition and operation registration procedures of science research organizations, technology development and science research organizations, technology and science service organization with foreign owned capital in Vietnam (hereinafter collectively called as STOS with foreign owned capital); procedure for establishment, rights and obligations of representative office, branch of foreign STOS in Vietnam.

Article 2. Using language and form of dossier application

1. Dossiers and formal documents of Vietnam State are made in Vietnamese and commonly used foreign languages. In case there is any discrepancy between Vietnamese documents and the foreign language one, the Vietnamese one shall apply.

Dossiers granted or certified by the foreign competent agencies must be translated into Vietnamese and be been consular legalization.

2. Dossiers requesting for establishment and operation registration of STOS with foreign owned capital, dossier requesting for granting license of establishing representative office, branch of foreign STOS in Vietnam applied directly or via postal system to Ministry of Science and Technology.

Chapter II

CONDITIONS FOR ESTABLISHMENT AND PROCEDURES OF OPERATION REGISTRATION OF STOCKS WITH FOREIGN OWNED CAPITAL IN VIETNAM

Article 3. Condition for establishment of STOS with foreign owned capital

STOS with foreign owned capital is established if it satisfies fully conditions provided in Article 13 Decree No.80/2010/ND-CP dated July 14, 2010 of the Government providing for coordination, investment with foreigners in Science and Technology field (hereinafter abbreviated as Decree No.80). Clause b, c, d Article 13 Decree No.80 is guided specifically as follows:

1. Organization’s operation Charter must have fully basic contents under provision in Annex I enclosed with this Circular, in which operation domains need to be written clearly, specifically, suitable to regulations of Vietnam law.

2. Conditions on science and technology human resource, head office and technical material facilities applied according to provisions in Article 5 and Article 6 Circular No.02/2010/TT-BKHCN dated March 18, 2010 of Minister of Science and Technology guiding for establishment and operation registration of STOS (hereinafter abbreviated as Circular No. 02).

For the case STOS who are the organizations jointed between Vietnamese organizations, individuals and foreign organizations, individuals, contribution capital of the foreign side must be at least 10% of total operation registration capital of the organization and must be not lower 100.000.000 dong.

Article 4. Orders, procedures for issuing decision of establishment of STOS with foreign owned capital

1. Organizations, individuals apply dossiers requesting for establishment to the science and technology operation registration office (hereinafter called as Registration Office) under Ministry of Science and Technology’s management.

Orders, procedures for issuing decision of establishment are implemented according to provision in Article 14 and Article 15 Decree No. 80, except special cases, Ministry of Science and Technology submits Prime Minister for consideration, decision.

2. Registration Office is responsible for being contact point of receipt and appraising establishment dossier of STOS with foreign owned capital.

a) For STOS with foreign owned capital under establishment authority of Prime Minister, Registration Office compiles appraising report and reports to Minister of Science and Technology for submitting to Prime Minister.

In case Ministry of Science and Technology assigned by Prime Minister for approving operation Charter of STOS with foreign owned capital, with 15 days since the date of being assigned,  Registration Office submits to Minister of Science and Technology for issuing decision of approving operation Charter of STOS with foreign owned capital.

b) For STOS with foreign owned capital under establishment authority of Minister of Science and Technology, Registration Office appraises and submits to Minister of Science and Technology for issuing decision of establishment and decision of approving operation Charter of STOS with foreign owned capital.

c) When any change to operation Charter, STOS with foreign owned capital sends written request enclosed with draft of Chapter to the Registration Office. With 15 working days, the Registration Office submits to Minister of Science and Technology for decision of approving supplementing, modifying Charter or reports to Minister for submitting to Prime Minister for decision under his authorities.

3. Duration of appraising dossier requesting for establishing STOS with foreign owned capital, when necessary, the Registration Office has the rights:

a) Collecting experts’ opinions for dossier consideration, valuation of the organization’s capacity.

b) Directly contact with representative of STOS with foreign owned capital in order to making clearly the issues relating to establishment dossier.

c) Submitting to Minister of Science and Technology official letter asking for opinions of relevant agencies, organizations for operation domains which the state stipulates private conditions.

d) Submitting to Minister of Science and Technology the decision of establishing the council of appraising establishment dossier; attendants of the council include prestige and qualified managers, experts, scientist in relevant domains.

Article 5. Operation registration of STOS with foreign owned capital

1. STOS with foreign owned capital applies dossier of operation registration to the Registration Office after being made decision to establish and approved Charter under authorities by the Prime Minister or the Ministry of Science and Technology.

2. Conditions and dossiers of operation registration of STOS with foreign owned capital are implemented under provision in Article 3, 4, 5, 6 of the Circular No.02.

3. STOS with foreign owned capital pays fees, charges under provision in Circular No.187/2009/TT-BTC dated September 29, 2009 of Ministry of Finance providing for rates, collection regime, remittance and management, use of fees for appraising of conditions of science and technology activities and charges for granting science and technology operation registration Certificate.

Article 6. Science and technology operation registration Certificate

1. Science and technology operation registration Certificate granted by Ministry of Science and Technology to the STOS with foreign owned capital according to standard form provided in Annex II enclosed with this Circular.

2. Time-limit of the science and technology operation registration Certificate is in accordance with the time of project implementation written in the organization’s investment Certificate.

In case the STOS with foreign owned capital registered operation before the effective date of Decree No.80, the science and technology operation registration Certificate may no need to write effective time-limit.

3. Provisions on use, re-registration, supplementing, modifying registration, withdrawal, cancellation to valid of the science and technology operation registration Certificate of the STOS with foreign owned capital implemented according to provisions in Article 8 and Article 9 of Circular No.02.

Article 7. Operation registration of representative office, branch of STOS with foreign owned capital

1. STOS with foreign owned capital registers for operation of its representative office, branch at Departments of Science and Technology in which its representative office, branch located.

2. Conditions and operation registration dossiers of representative office, branch of STOS with foreign owned capital, orders, procedures of registration and withdrawal, cancellation to valid of operation Certificate implemented according to provisions in Article 11 and Article 12 of this Circular No. 02.

3. When STOS with foreign owned capital conducts operation registration of representative office, branch must pay fees, charges under provision in Circular No.187/2009/TT-BTC dated September 29, 2009 of Ministry of Finance providing for rates, collection regime, remittance and management, use of fees for appraising of conditions of science and technology activities and charges for granting science and technology operation registration Certificate.

Chapter III

REPRESENTATIVE OFFICES, BRANCHES OF FOREIGN STOS IN VIETNAM

Article 8. Establishment condition and dossier requesting for granting license of establishing representative office, branch of foreign STOS in Vietnam.

1. Representative offices, branches of foreign STOS in Vietnam are established if it satisfies fully establishment conditions and dossiers provided in Article 26 and Article 27 of Decree No.80.

2. Written request for granting License of establishing representative offices, branches of foreign STOS in Vietnam must be made under standard form as provided in Annex III of this Circular.

Article 9. Contents of License of establishing representative offices, branches of foreign STOS in Vietnam

1. License of establishing representative offices, branches of foreign STOS in Vietnam granted by Ministry of Science and Technology and must have the following main contents:

a) Name, office’s address of the representative office, branch.

b) Name, office’s address of foreign STOS.

c) Information of head of the representative office, branch.

d) Operation contents of the representative office, branch.

đ) Amount of Vietnamese and foreigners work at the representative office, branch.

e) Number, date of issuance and time-limit of License.

2. License of establishing representative office, branch of foreign STOS in Vietnam granted under standard form provided in Annex IV enclosed with this Circular.

Article 10. Orders, procedures for granting License of establishing representative offices, branches of foreign STOS in Vietnam

1. Registration Office is responsible for being contact point to receive and appraise dossier requesting for granting License of establishing representative offices, branches of foreign STOS in Vietnam.

2. After receiving complete and regular dossier, Registration Office considers dossier, submits to Minister of Science and Technology official letter aiming to ask for opinions of the People’s Committees of centrally-affiliated cities and provinces in which foreign STOS locate its representative offices, branches and relevant Ministries, agencies for the following issues:

a) Operation situation of relevant foreign STOS in localities (if any) and opinions of the People’s Committees of centrally-affiliated cities and provinces in which foreign STOS locate its representative office, branch.

b) Operation situation of foreign STOS having programs, projects relating to Ministries, Branches (if any).

c) Examining elements of identity of persons expected to be heads of representative offices, branches in Vietnam (when necessary).

3. Dossier consideration duration of requesting for extending, supplementing, modifying License, Ministry of Science and Technology has the right to request the foreign STOS to show relevant documents in order to prove in case some information in dossier need to be made clearly.

4. Dossier consideration duration of requesting for extending, supplementing, modifying License, when necessary, within 10 working days from the date of dossier receipt, Ministry of Science and Technology presides over coordinate with relevant Ministries, agencies assigning mission delegation to appraise at site of the representative offices, branches.

5. The foreign STOS conducting establishment registration of representative office, branch in Vietnam pays fees, charges according to provisions in Circular No.166/2010/TT-BTC dated October 27, 2010 of Ministry of Finance guiding rates, collection regime, remittance and management, use of fees for appraising of conditions of science and technology activities and charges for granting License of establishing the foreign STOS’ representative offices, branches in Vietnam.

Article 11. Rights and obligations of representative offices, branches of foreign STOS in Vietnam

1. Representative offices, branches of foreign STOS in Vietnam have the rights and obligations referred to provisions in Article 13, clause 1 and clause 3 Article 14 of Decree No.06/2005/ND-CP dated January 19, 2005 of the Government for the establishment and operation of representative offices, foreign research, coordination organization in Vietnam.

2. Representative offices, branches of foreign STOS in Vietnam implement report regime in writing periodically annual to Ministry of Science and Technology on its operation situation in Vietnam under standard form provided in Annex V enclosed with this Circular and are responsible for the report, providing documents or explaining the issues relating to operations of representative offices, branches to Ministry of Science and Technology at request.

Article 12. Recruitment and management of staffs at representative offices, branches of foreign STOS in Vietnam

1. The quantity of foreigners and Vietnamese work at the representative offices, branches is the officials, staffs who work regularly within the time-limit of License of establishing the representative offices, branches of foreign STOS in Vietnam and not exceed the quantity provided in the License.

2. In case representative offices, branches of foreign STOS in Vietnam are established according to programs, research, coordination projects with partners who are Ministries, branches, the People’s Committees of centrally-affiliated cities and provinces of Vietnam, it is necessary to stipulate specifically in the agreement the quantity of foreign employees and their working time-limit at the representative offices, branches in Vietnam. This Agreement is one of foundations enable Ministry of Science and Technology granting License of establishing representative offices, branches of foreign STOS in Vietnam.

3. Recruiting foreigners to work at the representative offices, branches of foreign STOS in Vietnam implemented according to provisions of law on recruitment and management of foreigners working in Vietnam.

4. Operation duration in Vietnam, if any change to personnel recruited to work at representative offices, branches, within 10 days since the date of change, representative offices, and branches must send report enclosed with copies of relevant documents to the Registration Office.

In case representative offices, branches of foreign STOS in Vietnam have demand of changing the quantity of foreign staffs, it requires to be permitted by the competent state agencies.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 13. Transfer provisions

1. Registration Office shall review all science and technology operation registration Certificates issued before the effective date of this Circular, notifies in writing to STOS with foreign owned capital for carrying out procedures to register for re-granting science and technology operation registration Certificates under provisions in this Circular.

Notification of Ministry of Science and Technology sending to STOS not exceed 03 times, once 30 days away from each other. Past the notified time limit, if the STOS fails to carry out procedures to register for re-granting science and technology operation registration Certificates under provisions in this Circular, the Registration Office submits to Minister of Science and Technology for carrying out procedures for cancellation to such Certificate’s valid under regulations.

2. The STOS with foreign owned capital who established and registered for its operation before the effective date of this Circular, must carry out procedures to register for re-granting science and technology operation registration Certificates under provisions in this Circular.

a) In case of change of registration capital structure (the foreign side withdraws capital or assign its capital to the Vietnam side), The STOS with foreign owned capital must send official letter to Registration Office enclosed with meeting minute of founding council/founders passing contents of capital withdrawal of the foreign side or capital assignment of the foreign side to the Vietnam one.

After the foreign side’s capital contribution is no longer, the STOS carries out procedures of operation registration at Departments of Science and Technology of cities, provinces in which such organizations locate its head office according to provisions in point b, clause 3 of Circular No.02.

b) In case of retaining the foreign side’s whole capital contribution, the STOS with foreign owned capital must complete dossier of registration for re-granting under regulations of this Circular.

Within 15 working days since the date of receipt of completed and regular dossier, the Registration Office submits to Minister of Science and Technology for re-granting the science and technology operation registration Certificate to the organization under standard form provided in Annex II enclosed with this Circular, and issuing decision of recognizing the organization and approving operation and organization Charter.

3. Representative offices, branches of foreign STOS in Vietnam granted License of establishment are continued to operate in accordance with provision in the License.

Article 14. Effect

1. This Circular takes effect after 45 day since the signing date.

2. Annulling provision on establishment of STOS with foreign owned capital in points a clause 2, Article 1 Circular No. 02.

Implementation duration, if there is any difficulty, agencies, organizations need to reflect promptly in writing to the Ministry of Science and Technology for consideration, decision./.

ANNEX I

BASIC CONTENTS OF OPERATION CHARTER OF STOS WITH FOREIGN OWNED CAPITAL
(Issuing together with Circular No. 01/TT-BKHCN dated March 16, 2011 of Minister of Science and Technology)

Operation Charter of STOS with foreign owned capital must include the following basic contents:

Chapter I. General provisions

Name of STOS with foreign owned capital: name in Vietnamese, name in foreign language (if any), abbreviated name in Vietnamese or in foreign language (if any).

Head office: address, telephone, facsimile number.

Legal basis for organization and operation: Law on Science and Technology, Decree No. 81/2002/ND-CP dated October 17, 2002 of the Government providing in detail for implementation of a number of Articles of Law on Science and Technology, Decree No. 80/2010/ND-CP dated July 14, 2010 of the Government providing for coordination and investment with foreigners in science and technology field and the other relevant legal documents.

Chapter II. Activity field, functions, duties and authorities

Operation domains, functions, duties and authorities of STOS are defined by the establishment organizations, individuals according to its targets, tasks, complying with provision in Article 4 Decree No.80/2010/ND-CP dated July 14, 2010 of the Government providing for coordination and investment with foreigners in science and technology field and suitable to other regulations of Vietnam law.

Chapter III. Organizational structure

Organizational structure, forms of appointment, removal, duties and powers of titles in managerial apparatus and the other agencies (founding council, council of Institute/Center/…, science council, consultant council) of STOS.

Chapter IV. Material facilities – technology and finance

Provisions on technology-material facilities sources of the organizations, registration capital, capital contribution parties, portion of capital contribution, principles of raising and reducing capital and the other financial principle.

Chapter V. Dissolve

Stipulate clearly conditions, orders, and procedures of dissolve.

Chapter VI. Implementation provisions

Effective time of Charter, conditions for modifying and supplementing Charter.

PROVISION ON USE OF LICENSE

Representative offices, branches of foreign STOS must implement seriously the following provisions:

1. To present License at the competent state agencies’ request.

2. Prohibit repairing, erasing contents in the License.

3. Prohibit permitting somebody to borrow, renting out the License.

4. To conduct procedures of registration for modifying, supplementing, re-granting and extending License as provided.

5. If the License is lost or missed, organizations of License must inform promptly to the Ministry of Science and Technology.