New Points of the Enterprise Law Amendment in 2022

The Enterprise Law is revised in 2022, you should understand it for your convenience in the upcoming work of the company. MVA Vietnam specializes in buying and selling businesses , transferring projects , consulting investment , selling products, accounting software , social insurance software , e-invoice solutions , digital signature – token,…

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Law No. 03/2022/QH15 amending and supplementing a number of articles of the Law on Public Investment , the Law on Investment in the form of public-private partnership , the Law on Investment , the Law on Housing , the Law on Bidding , the Law on Electricity , the Law on Enterprises The Law on Special Consumption Tax and the Law on Civil Judgment Execution was promulgated on January 11, 2022 and took effect on March 1, 2022. The contents related to the Enterprise Law specified in Article 7 of the Amendment and Supplement Law have affected many aspects of corporate governance in order to adapt to objective conditions and create favorable conditions. for businesses to overcome difficulties in practice.

Important new points of the Enterprise Law 2020 as amended and supplemented in 2022 include:

Regulations on company members (Article 49 and Article 50).

These amendments related to the names of Articles 49, 50 of the Enterprise Law 2020 (Rights and obligations of members of the Board of Members (‘ Board of Members’ )) are amended as follows:

1. To amend and supplement the title of the article and the opening paragraph of Clause 1, Article 49 as follows:

“Article 49. Rights of company members

1. Company members have the following rights:”.
2. To amend and supplement the name of Article 50 as follows:

“Article 50. Obligations of company members”.

It can be seen that, in the regulations on Limited Liability Company with 2 or more members according to LDN 2020 before amendment, the concept of a member’s council is specified in Article 55, that is, after the provisions in Articles 49, 50 on rights and obligations of “members of the Board of Directors”. In addition, the term “members of the company” is used in the wording clause in Clause 29, Article 4. Such regulation is unreasonable in terms of: (i) legislative technique:  legal terms need to be prescribed in order and uniformity, (ii)  content aspect : Council of Members in Clause 1, Article 55 includes: including “authorized representative of a member of the company being an organization”, but this is not the subject mentioned in Articles 49 and 50, but the organization that is a member of the company is the subject of regulation of this Article. the law.

Therefore, the modification of the phrase “member of the Members’ Council” into the phrase “member of the company” is to ensure the consistency of Articles 49 and 50 of LDN 2020 with relevant provisions of this Law.

Regulations on signing minutes of meetings of the Board of Directors/Board of Directors (‘BOD’) (Article 60, Article 158)

Amendments in Clauses 2 and 3, Article 60 (Minutes of the Members’ Council meeting) and Clause 2, Article 158 (Minutes of the Board of Directors meeting) include:

1. Remove the requirement for signatures of participants who do not agree to approve the minutes of the Members’ Council meeting in the regulations on the content of the minutes;
2. In case the chairperson or the minutes-recorder refuses to sign the meeting minutes, the minutes will take effect if the meeting participants  agree to ratify the  signed meeting minutes.
3. Supplement the joint responsibility of the person signing the minutes of the meeting of the Board of Directors (‘BOD’) and the individual Chairman, the person recording the minutes of the meeting of the Board of Directors/Board of Directors for damage caused to the enterprise due to refusal to sign meeting minutes in accordance with this Law, the company’s charter and relevant laws.

According to the provisions of the Enterprise Law 2020, in order for the minutes to take effect in the event that the chairperson or the person recording the minutes refuses to sign it, the signatures of all members who do not agree to approve the minutes of the meeting must be signed. However, the fact that these members often do not cooperate, refuse to sign the minutes of the meeting, leading to the minutes not ensuring the main contents as prescribed by the Law and not taking effect. This directly affects the decision-making authority of the Members’ Council/Board of Directors in corporate governance and administration.

Therefore, the addition and unification of Articles 60 and 168 on the signing of the minutes of the Members’ Council/Board of Directors meeting in the direction of reducing the dependence of the minutes’ validity on the signatures of attendees who do not agree to ratify it will overcome the problem. difficulties and obstacles in the implementation process above.

Regulations on disclosure of information on mid-year financial statements of state-owned enterprises (Article 109)

Amendments related to Point d Clause 1 Article 109 (Regular Information Disclosure) are as follows:

“d) Report and summary of the mid-year financial statements, including the parent company’s financial statements and the consolidated financial statements (if any); the announcement must be made before July 31 of each year”.

Previously, the above provisions of LDN 2020 guided at Point g, Clause 1, Article 23 of Decree No. 47/2021/ND-CP dated April 1, 2021 of the Government, the obligation to periodically publish reports and summaries The mid-year financial statements of enterprises in which 100% charter capital is held by the State must be audited by an independent auditing organization on the website of the company and of the agency representing the owner. However, current regulations on the independent audit regime are only required for annual financial statements (Clause 2, Article 60 of the Law on management and use of state capital invested in production and business in enterprises). 2014; Clause 1, Article 33 of the Law on Accounting in 2015 and Article 37 of the Law on Independent Auditing in 2011). Therefore, the mandatory regulation of auditing for mid-year financial statements has created additional unreasonable and time-consuming costs for businesses. indirectly reduce the actual state budget revenue, and at the same time do not ensure the consistency of the legal system in the implementation of enterprise information disclosure. This issue has been reflected by many businesses since the Enterprise Law 2020 took effect, especially large-scale enterprises under the model of parent company – subsidiary and small-scale independent companies. , operating mainly for non-profit purposes.

Therefore, the removal of the regulation on mandatory audit for the mid-year financial statements of enterprises will contribute to overcoming the above shortcomings and create conditions for a large number of state-owned enterprises in fulfilling their obligations. statutory disclosure of information.

Regulations on attending and voting at the General Meeting of Shareholders (‘GMS’) (Article 148)

Amendments and supplements in Clauses 1 and 2 of Article 148 (Conditions for a resolution of the General Meeting of Shareholders to be passed) are specified in the direction that the subject has the right to decide on the adoption of a Resolution of the General Meeting of Shareholders by the method of approving the transfer of the General Meeting of Shareholders. from  “shareholder attending the meeting”  to  “shareholder attending and voting at the meeting to approve” .

In fact, the number of shareholders registered to attend the meeting and the number of shareholders attending the meeting participating in voting may not be the same, as in the case of registered shareholders leaving midway. In addition, according to Article 148 of the Enterprise Law 2020 and guiding documents, the concept of “participating shareholders” has not been clearly defined, leading to the fact that shareholders who do not participate in voting at the meeting are not allowed to vote at the meeting. counted into the total number of shareholders as a basis for considering the percentage of votes cast. This shortcoming affects the accuracy of the resolution of the General Meeting of Shareholders.

Therefore, the regulation to only count the voting results of “shareholders attending and voting at the meeting to approve” is reasonable to overcome obstacles in practice.

Provisions on terms of implementation (Article 217)

Clause 5, Article 217 (Implementation Terms) is amended and supplemented as follows:

“5. Pursuant to the provisions of this Law, the Government shall detail the organization, management and operation of enterprises directly serving national defense and security or combining economic with national defense and security which are state-owned enterprises  . State-owned enterprises and limited liability companies in which 100% of charter capital is held by state-owned enterprises specified in Clause 2, Article 88 of this Law.

The above provisions of the Enterprise Law 2020 before the amendment did not clearly define the form of enterprises directly serving national defense and security or combining economic with national defense and security. Meanwhile, Clause 1, Article 13 of Decree No. 47/2021/ND-CP dated April 1, 2021 of the Government regulating spending on a number of articles of the Enterprise Law stipulates that this form must be a “responsible company”  . one-member limited liability by the Ministry of National Defense and the Ministry of Public Security exercising the right to represent the state owner in the enterprise.”. The term “representative of the state owner” here can be understood to include the form of a subsidiary company in which 100% of the charter capital is held by the parent company, and the parent company is a state-owned enterprise held by the State. 100% charter capital (according to Clause 2, Article 88 of the Enterprise Law 2020). In addition, the current reality, based on the direction of the Prime Minister, the Ministry of Defense is arranging enterprises under the Ministry in the direction of reorganizing enterprises to form a model of parent company – public company. subsidiary. In which, the parent company is an enterprise in which 100% charter capital is held by the State; Subsidiaries operating under the model of limited liability companies with 100% charter capital owned by the parent company are also assigned by the Ministry of National Defense and the Ministry of Public Security to perform tasks directly serving national defense and security. However,

In order to overcome the unclear points in the identification of defense and security enterprises and in line with reality, the revised Clause 5, Article 217 directly stipulates the form of enterprises directly serving national defense and security. or combine economic with national defense and security as “state-owned enterprises and limited liability companies in which 100% of charter capital is held by state-owned enterprises specified in Clause 2, Article 88 of the Law on Enterprises”. with the Government’s guiding document on organization, management and operation of this group of enterprises.