法律解答 - Bizlawyer

Conditions for issuance of labor sublease operation licenses

回答

On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the labor sublease, including the conditions for the grant of a labor outsourcing license.

Labor sublease operation license means a permit granted by the President of the People’s Committee of the province where the enterprise is headquartered to an enterprise established in accordance with the Law on Enterprises to conduct labor outsourcing.

Accordingly, enterprises that are entitled to labor outsourcing must satisfy the following conditions to be granted a license:

The legal representative of the labor leasing enterprise shall:

Be an enterprise executive as prescribed by the Law on Enterprises;
Not have any criminal conviction;
Have at least 03 years (36 months) of working in labor dispatch or labor supply in the last 05 years before the application for licensing is submitted.

The enterprise has paid a deposit of VND 2,000,000,000 (2 billion Vietnam dongs).

After being licensed, the labor leasing enterprise will be able to recruit, sign a labor contract with the employee, then transfer the employee to work and be subject to the direction of another employer, but still maintain the labor relationship with the enterprise that has entered into the labor contract.

This Decree takes effect from February 1, 2021.

Right, obligations and interests of the parties when the Labor Contract is invalidated

回答

On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the rights, obligations and interests of the parties when the Labor Contract is invalidated as follows:

For partially invalidated labor contracts: Rights, obligations and interests of both parties during the period from first day on which the employee works under the partially invalidated employment contract to the day on which the contract is revised shall be settled in accordance with the effective collective bargaining agreement or, if such a collective bargaining agreement is not available, in accordance with law.

In case the salary under the invalidated employment contract is lower than the minimum salary prescribed by labor laws or the effective collective bargaining agreement, both parties shall negotiate the salary to ensure conformity with regulations. The employer shall pay the difference between the initial salary and the re-negotiated salary for the actual work period under the invalidated employment contract.

For (i) the labor contract is completely invalid because the person concludes the labor contract without authority or violates the principle of entering into the labor contract; (ii) The labor contract is completely invalid because the entire contents of the labor contract violate the law or the work entered into the labor contract is the work which is prohibited by law, the rights, obligations and interests of the person The labor contract since starting working under the labor contract is declared invalid until the labor contract is re-signed/ signed to perform as follows:

If the rights and interests of each party in the labor contract are not less beneficial than those prescribed by law or effective collective bargaining agreement, the rights, obligations and interests of the employee are performed according to the content of the labor contract which is declared invalid;
If the labor contract contains the rights, obligations and interests of each party not conformable with law does not affect other parts of the contracts, the rights, obligations and interests of the employee shall comply with the labor agreement applicable collective action, in case there is no collective bargaining agreement, the provisions of law will be applied.

This Decree takes effect from February 1, 2021.

Settlement upon invalidation of labor contracts

回答

On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the settlement upon invalidation of labor contracts as follows:

For partially invalidated labor contracts: When the labor contract is declared to be partially invalid, the employer and the employee proceed to amend and supplement the part of the labor contract which is declared invalid in accordance with the labor agreement collective action and law. In case the two parties do not agree to amend and supplement the contents which have been declared invalid, the labor contract shall be terminated;
For a labor contract which is completely invalidated, the settlement method is as follows:

The labor contract is completely invalid because the person concludes the labor contract or violates the principle of entering into the labor contract: When the labor contract is declared null and void, the employee and the employer re-sign the labor contract in accordance with law. In case of not re-signing the labor contract which is declared to be totally invalid, the labor contract shall be terminated;
The labor contract is completely invalid because the entire contents of the labor contract violate the law or the work entered into the labor contract is prohibited by law: When the labor contract is declared totally invalid, the the employee and the employer sign a new labor contract in accordance with the law. In case the two parties do not sign a new labor contract, the labor contract shall be terminated.

This Decree takes effect from February 1, 2021.

Legal News No. 01/2021

回答

Remove obstacles for enterprises with multiple legal representative

回答

On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.

One of the typical points in the Law on Enterprise 2020 is the regulation on the legal representative. Specifically as follows:

– As prescribed in Clause 2 Article 13 of the Law on Enterprises 2014: “A limited liability company or joint-stock company may have one or multiple legal representatives. The quantity, titles, rights and obligations of legal representative of the enterprise shall be specified in the company’s charter.”

– As regulated in Clause 2 Article 12 of the Law on Enterprises 2020: “A limited liability company and a joint-stock company may have one or more legal representatives. The company’s charter specifies the number, managerial position and rights and obligations of the enterprise’s legal representative. If the company has more than one legal representative, the company’s charter specifies rights and obligations of each legal representative. In case the division of rights and obligations of each legal representative is not clearly specified in the company’s charter, each legal representative of the company will be the authorized representative of the enterprise to the party third; All legal representatives are jointly liable for any damage caused to the enterprise in accordance with the civil law and other relevant laws. ”

Thus, it can be seen that the Law on Enterprise 2020 has more specific provisions in the following points:

+ If the company has more than one legal representative, the company’s charter specifies rights and obligations of each legal representative.

+ In case the division of rights and obligations of each legal representative is not clearly specified in the company’s charter, each legal representative of the company will be the authorized representative of the enterprise to the party third;

+ All legal representatives are jointly liable for any damage caused to the enterprise in accordance with the civil law and other relevant laws.

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Controllers are no longer a title in The Organizational structure of a single-member limited liability company owned by an organization

回答

On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.

One of the typical points in the Law on Enterprise 2020 is the regulation: The Controller is no longer a title in The Organizational structure of a single-member limited liability company owned by an organization. Specifically as follows:

– According to the provisions of Clause 1, Article 78 of the Law on Enterprises 2020, a single-member limited liability company owned by an organization shall apply one of the two models below:

+ A company with a President and the Director/General Director;

+ A company with a Board of Members and the Director/General Director.

– Previously, according to Clause 1 Article 78 of the Law on Enterprises 2014, a single-member limited liability company owned by an organization shall apply one of the two models below:

+ A company with a President and the Director/General Director and The Controller;

+ A company with a Board of Members and the Director/General Director and The Controller.

Thus, from January 1, 2021 onwards, the title of Controller does not exist in The Organizational structure of a single-member limited liability company owned by an organization, this is considered a positive change by The controller’s role is not important in a Company that is not a state-owned enterprise.

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The reduction of administrative procedures

回答

On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.

Some of the typical points in the Law on Enterprise 2020 are the provisions in the reduction of administrative procedures. Specifically, as follows:

The enterprise is not required to notify the Business Registration Authority of the seal sample

According to Clause 2 Article 44 of the Law on Enterprises 2014: Before using the seal, the enterprise must send the seal design to the business registration authority in order for the business registration authority to post it on the National Business Registration Portal. In Article 43 of the Law on Enterprises 2020, this provision is removed.

In addition, the Law on Enterprises 2020 also recognizes a number of new points related to the seal of the enterprise, specifically as follows:

+ Record the form of digital signature seal in accordance with the law on electronic transactions.

+ The law does not stipulate what the sign must show (in the past, the name and code of the enterprise was required). Accordingly, the enterprise decides on its own: Type of seal, quantity, form and content of the seal of the enterprise, branch, representative office and other units of the enterprise.

+ The management and storage of the seal: Due to the company’s charter or the regulations stamped by the enterprise, branch, representative office or other unit of the enterprise. (Previously only recorded the charter).

However, there are shortcomings in Article 43 of the Law on Enterprises 2020: It is not clear how to determine the seal of the enterprise if there is no public database on the seal sample.

2. The enterprise is not required to notify the Business Registration Authority of changes related to the company’s manager

Removing Article 12 of the Law on Enterprises 2014, specifically, previously stated: The enterprise must notify the business registration authority of the changes to the name, address, nationality, ID number, passport number or other ID papers of the following persons within 05 days from the day on which such changes are made:

+ Members of the Board of Directors of the joint-stock company;

+ Members of the Control Board or controllers;

+ The Director or General Director.

In summary, since 2000 up to now, Vietnam has had 04 versions of the Law on Enterprise (the Law on Enterprise 1999; the Law on Enterprise 2005; the Law on Enterprise 2014; the Law on Enterprise 2020). The change can be viewed from many different perspectives, both positive and negative. However, one thing is for sure, the introduction of the Law on Enterprise 2020 more or less will affect the investment and business situation of enterprises in Vietnam.

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Extend the term of capital contribution by property

回答

On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.

One of the typical points in the Law on Enterprise 2020 is the provision on prolonging the capital contribution term of capital with assets contributors/founding shareholders, specifically as follows:

According to Clause 2 Article 48 of the Law on Enterprise 2014: Every member must contribute capital properly in terms of sufficiency and type of assets as agreed within 90 days from the day on which the Certificate of Business registration is issued.

According to Clause 2 Article 47 of the Law on Enterprise 2020: The members shall contribute sufficient and correct assets as promised when applying for enterprise registration within 90 days from the issuance date of the Certificate of Enterprise Registration. The time needed to transport or import the contributed assets and for completing ownership transfer procedures will be added to this 90-day period.

This means that: The Law on Enterprise 2020 allows founding members/shareholders, if they contribute capital with assets, it is allowed to subtract the time of transporting, importing assets to contribute capital, performing administrative procedures to transfer ownership of assets when determining the time limit for capital contribution out of the time limit of 90 days from the date of being granted the Certificate of Enterprise Registration.

In terms of advantages: This approach of The Law on Enterprise 2020 has solved a practical problem that is: Contributing capital with assets often requires a longer time.

In terms of disadvantages: Despite progress, this regulation has not clarified some of the following legal issues:

+ Firstly, the subjects are allowed to extend the capital contribution period: The regulations do not specify whether such extended period applies only to members/shareholders contributing capital with assets or also applies to members/Shareholders contribute capital in cash.

+ Secondly, the maximum time limit for capital contribution: The regulations do not give any restriction on the time limit necessary to transport, import, carry out administrative procedures to transfer the ownership of property. This can lead to a large management gap in the issue of capital contribution to the enterprise, members/shareholders of capital contribution may intentionally delay the capital contribution by not doing timely.

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Pre-registration contracts must carry out transfer the rights and obligations

回答

On June 17, 2020, the Law on Enterprise 2020 was passed by the National Assembly to replace the Law on Enterprise 2014, effective from January 1, 2021.

Some of the typical points in the Law on Enterprise 2020 are the provisions related to Pre-registration contracts. As follows:

According to Clause 2, Clause 3 Article 19 of the Law on Enterprise 2014:

If the enterprise establishment is permitted, the enterprise shall keep performing the duties and rights under the concluded contracts, unless otherwise agreed by the parties.
If the enterprise registration is not granted, the person who enters into the contract prescribed in Clause 1 of this Article shall take responsibility, or the founder of the enterprise shall take joint responsibility for the implementation of the contract.

2. According to Clause 2, Clause 3 Article 18 of the Law on Enterprise 2020:

When the Certificate of Enterprise Registration is granted, the enterprise shall continue exercising and performing the rights and obligations under the concluded contracts mentioned in Clause 1 of this Article, and the parties shall transfer the rights and obligations in accordance with the Civil Code, unless prescribed by the contracts.
In case the Certificate of Enterprise Registration is not granted, the persons who conclude the contracts mentioned in Clause 1 of this Article are responsible for their execution. Any other participant in the establishment of the enterprise is also responsible for the execution of these contracts.

3. This means that: The Law on Enterprise 2020 has added:

Responsibilities for founding members or shareholders of a company to transfer contractual rights and obligations to the company in accordance with the Civil Code as soon as the company is established.
Requiring all founding members or shareholders of a company (instead of just the signatories) to be jointly responsible for contracts before the enterprise registration signed in case of the company not established.

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Regulations on the form of payment via bank accounts

回答

On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, this Decree provides for the form of payment via bank accounts as follows:

Based on the nature of work and production and business conditions, the employer and the employee agree in the labor contracts in the form of time-based, product-based and flat wage payments.

Employee’s salaries under the above forms of payment are paid in cash or through employee’s personal accounts opened at banks. For the payment through the employee’s personal account, the employer must pay the fees associated with the account opening and remittance.

Thus, from the effective date of this Decree, the employer and the employee are not required to agree on fees related to the opening and maintenance of bank accounts, but all related fees in connection with the opening of an account and remittance of wages to the employee, the employer will have to pay the payment if the bank account is selected.

This Decree takes effect from February 1, 2021.