The following article introduces important changes of the Enterprise Law under the Law on Amendment and Supplementation of 9 Laws in order to improve the legal framework on corporate governance and remove some difficulties and obstacles in practice.
1. Regulations on members of the Members’ Council in Articles 49 and 50
For limited liability companies with two or more members, Clause 29, Article 4 and Clause 1, Article 46 of the Law on Enterprises provide for “company members”. However, instead of stipulating the rights and obligations of “members of the company”, Articles 49 and 50 of the Enterprise Law stipulate the rights and obligations of “members of the Board of members”.
According to Clause 1, Article 55 of the Law on Enterprises, the Members’ Council is the highest decision-making body, including: (i) all company members who are individuals and (ii) authorized representatives of public members. you are the organization. Therefore, the use of the phrase “member of the Members’ Council” in the above two Articles may lead to the understanding that the authorized representative of a company member is an organization that also has the same rights and obligations as a member of the Board of Directors. members of the company, including basic rights and obligations such as the right to share profits in proportion to the capital contribution, to receive the remaining value of the company’s assets in proportion to the contributed capital when the company is dissolved or bankrupt; the obligation to contribute fully and on time the committed capital, to be responsible for the company’s debts and other property obligations within the amount of capital contributed to the company…
Therefore, the Law amending and supplementing 9 Laws has amended the phrase “member of the Members’ Council” to ” member of the company” in Articles 49 and 50 of the Law on Enterprises to ensure consistency with relevant regulations. authority of this Law.
2. Regulations on the disclosure of information on the mid-year financial statements of enterprises
According to the provisions at point d, clause 1, Article 109 of the Law on Enterprises and point g, clause 1, Article 23 of the Government’s Decree No. 47/2021/ND-CP dated April 1, 2021 detailing a number of articles of the Enterprise Law enterprises with 100% charter capital held by the State must periodically publish reports and summaries of their mid-year financial statements audited by an independent auditing organization on the company’s website and of the owner’s representative. However, Clause 2, Article 60 of the Law on management and use of state capital invested in production and business in enterprises in 2014, Clause 1, Article 33 of the Law on Accounting in 2015 and Article 37 of the Law on Independent Auditing in 2011 stipulates that: state enterprises are only required to audit their annual financial statements; does not stipulate an audit of the mid-year financial statements.
Since the implementation of the above regulation, there have been many recommendations and reflections from enterprises (including large-scale enterprises under the model of parent company – central subsidiary company and independent companies). small-scale establishment in the locality) on the overlap and inconsistency in the content of the requirements for enterprises to audit the mid-year financial statements between the Law on Accounting, the Law on Enterprises and the Law on Management and Use of Financial Statements. State capital invested in production and business in enterprises.
In addition, the requirement of enterprises to periodically disclose information on their mid-year financial statements audited by an auditing organization as prescribed at Point d, Clause 1, Article 109 of the Law on Enterprises creates an additional burden on costs for businesses, especially small-scale ones, operating mainly for non-profit purposes. With about 1,000 state-owned enterprises having to fulfill the information disclosure obligation under the Enterprise Law, it can indirectly reduce the annual revenue for the state budget because the entire business sector can spend billions of dong to audited the financial statements of the previous year.
Therefore, in order to reduce costs and time for enterprises and ensure the consistency of the legal system in disclosing enterprise information, Clause 4, Article 7 of the Law amending and supplementing 9 Laws determining the mid-year financial statements of enterprises disclosing information that are not required to be audited.
3. Regulations on subjects identified as defense and security enterprises
On the basis of inheriting the provisions of the Enterprise Law 2014, Clause 5, Article 217 of the Enterprise Law 2020 stipulates: “The Government shall detail the organization, management and operation of state-owned enterprises that directly serve the State. national defense and security, or combine economic with national defense and security”, according to which a defense and security enterprise must first be a state-owned enterprise according to the provisions of Article 88 of the Law on Enterprises. According to the provisions of Decree No. 93/2015/ND-CP dated October 15, 2015 of the Government on organization, management and operation of defense and security enterprises, enterprises directly serve national defense and security. or combine economic with national defense and security must be an enterprise with 100% charter capital held by the State belonging to the Ministry of National Defense or the Ministry of Public Security, excluding enterprises that are subsidiaries of enterprises owned by the State. hold 100% of charter capital.
However, in fact, a number of enterprises assigned by the Ministry of Defense to perform national defense and security tasks are limited liability companies owned by the parent company, a Group or Corporation under the Ministry of Defense. 100% charter capital. Before the 2014 Enterprise Law took effect, these enterprises were recognized as defense and security enterprises. Since the Enterprise Law 2020 took effect, because they are not classified as defense and security enterprises, these enterprises have encountered difficulties and obstacles in the implementation of current mechanisms and policies. when accounting for expenses for performing defense and security tasks.
In addition, currently, on the basis of the direction of the Prime Minister, the Ministry of National Defense is arranging enterprises under the Ministry in the direction of reorganizing enterprises to form a model of parent company – subsidiary company. . 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, this subsidiary is not classified as a defense and security enterprise according to the provisions of the Law on Enterprises and guiding documents, so there is no basis for implementing policies to support enterprises. perform national defense and security tasks according to current regulations.
Therefore, in order to ensure the identification of subjects as defense and security enterprises in line with reality, Clause 7 Article 7 of the Law on Amendments and Supplements 9 of the Law amending Clause 5, Article 217 of the Enterprise Law assigns the Government to direct Guidance on the organization, management and operation of enterprises directly serving national defense and security or combining economic with national defense and security that are state-owned enterprises and limited liability companies regulated by state-owned enterprises. prescribed in Clause 2, Article 88 of the Law on Enterprises, holding 100% of charter capital to handle the above-mentioned practical problems.
4. Regulations on attending and voting at the General Meeting of Shareholders
According to Article 148 of the Law on Enterprises, the conditions for a resolution of the General Meeting of Shareholders to be adopted are determined based on the percentage of votes of all shareholders attending the meeting. However, the identification of shareholders attending the meeting has not been clearly defined, so it actually happens that a shareholder who has registered and attended the General Meeting of Shareholders but leaves midway or does not vote in the box. vote or not vote online. This leads to problems in determining the number of shareholders attending the meeting to calculate the percentage of votes as prescribed in Article 148 above. Although it is only a technical problem, the above-mentioned problems are causing great obstacles to the adoption of the resolution of the General Meeting of Shareholders. According to information in the National Database on Business Registration, there are 237 in the whole country.
Therefore, Clause 5, Article 7 of the Law on Amendments and Supplements 9 of the Law amending Clauses 1 and 2, Article 148 of the Law on Enterprises in the direction of only counting the voting results of shareholders attending and voting at the meeting to approve passed a resolution, specifically:
(i) Resolution on the following contents: types of shares and total number of shares of each class; changing industries, professions and business fields; change the organizational structure and management of the company, invest in an investment project or sell assets valued at 35% or more of the total value of assets recorded in the company’s most recent financial statement, except for cases in the charter of the company. the company prescribes a rate or other value; The reorganization or dissolution of the company shall be approved if it is approved by the number of shareholders representing 65% of the total votes or more of all shareholders attending and voting at the meeting , except for the case specified in Clause 1 of this Article. Clauses 3, 4 and 6 of this Article; The specific ratio is prescribed by the company’s charter (Clause 1, Article 148).
(ii) Resolutions are passed when approved by the number of shareholders holding more than 50% of the total votes of all shareholders attending and voting at the meeting , except for the case specified in Clause 1, 3, 4 and 6 of this Article; The specific ratio shall be prescribed by the company’s charter (Clause 2, Article 148).
5. Regulations on signing minutes of meetings of the Members’ Council/Board of Directors
According to Clause 3, Article 60, Clause 2, Article 158 of the Law on Enterprises, if the chairperson or the minutes recorder refuses to sign the minutes of the meeting of the Members’ Council/Board of Directors, if all other members of the Board of Directors are approved, If the members/Board of Directors attending the meeting sign, this minutes will take effect. Point e, Clause 2, Article 60 of the Law on Enterprises also stipulates that the minutes of a meeting of the Members’ Council must include the full name, signature and content of opinions of attendees who disagree with the meeting minutes (if any). However, in fact, members who do not agree to approve the meeting minutes often do not cooperate, refuse to sign the meeting minutes, leading to the minutes not ensuring the main content as prescribed by the Law and not being effective. force. This directly affects the decision-making authority of the Board of Members/Board of Directors in corporate governance and administration.
In order to remove the above difficulties and obstacles, the Law amending and supplementing 9 Laws has amended Point e, Clause 2, and Clause 3, Article 60, Clause 2, Article 158 of the Law on Enterprises in the direction of eliminating the requirement to have the signature of meeting participants disagree with the approval of the meeting minutes in the meeting minutes, specifically:
(i) Clause 3, Article 60: “In case the chairperson, the person taking the minutes refuses to sign the minutes of the meeting, the minutes will take effect if all other members of the Members’ Council attend and agree to ratify them. the minutes of the meeting shall be signed and have all the contents specified at Points a, b, c, d, dd and e, Clause 2 of this Article. The minutes of the meeting clearly state that the chairperson and the minutes-recorder refuse to sign the minutes of the meeting. The person signing the minutes of the meeting is jointly responsible for the accuracy and truthfulness of the content of the minutes of the meeting of the Members’ Council. The chairperson, the person taking the minutes is personally liable for damage caused to the enterprise by the refusal to sign the minutes of the meeting in accordance with this Law, the company’s charter and relevant laws.
(ii) Clause 2, Article 158: “In case the chairperson, the minutes taker refuses to sign the meeting minutes, but if all other members of the Board of Directors attend and agree to ratify the meeting minutes, sign and approve the meeting minutes. If all contents are specified at Points a, b, c, d, dd, e, g and h, Clause 1 of this Article, this record shall take effect. The minutes of the meeting clearly state that the chairperson and the minutes-recorder refuse to sign the minutes of the meeting. The person signing the minutes of the meeting is jointly responsible for the accuracy and truthfulness of the content of the minutes of the meeting of the Board of Directors. The chairperson, the person taking the minutes is personally liable for damage caused to the enterprise by the refusal to sign the minutes of the meeting in accordance with this Law, the company’s charter and relevant laws.
Source: dangky Kinhdoanh.gov.vn
