One or two minor errors, this happened many times, making them tired [24, p. 10]. In fact, the current legal regulations have not yet specified in detail how business officers must guide businesses to register. Therefore, business registration officers still guide, but not providing complete guidance is not a violation of the law. I think the problem does not lie in the fact that the law does not stipulate, but the main problem here is the attitude of business registration officers towards businesses. For example, businesses having to amend their business registration certificates due to inconsistencies between the language used to understand the types of production lines and the industries used in the business process is quite common. All of the above cases will be resolved quickly if business registration officers have a spirit of support and create more favorable conditions for businesses.
In cases where the law clearly stipulates procedures, many cases where the law does not clearly stipulate procedures for business registration create even more difficulties for enterprises. These are cases of converting the form of operation of state-owned enterprises operating under the Law on State-owned Enterprises to operate under the model of limited liability companies and joint stock companies and converting foreign-invested enterprises currently operating under the Law on Foreign Investment to operate under the 2005 Enterprise Law.
For state-owned enterprises, the conversion of state-owned companies into operating under the model of a single-member LLC is carried out in accordance with the provisions of Decree No. 95/2006/ND-CP dated September 8, 2006 of the Government on the conversion of state-owned companies into single-member LLCs. However, according to the provisions of this Decree, the authority to carry out business registration procedures for the above-mentioned companies has not been clearly defined. On the other hand, state-owned companies that are not subject to the subjects mentioned in the Decree will be
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In which direction to convert, the authority and procedures for business registration for this type of company are not yet specifically regulated.
For foreign-invested enterprises operating under the Law on Foreign Investment, although conversion is not mandatory, according to the provisions of the 2005 Enterprise Law as well as the regulations guiding this law, some enterprises have no better choice than to re-register [34, p. 22].
Foreign-invested enterprises currently exist in four forms: joint venture enterprises, joint stock companies, 100% foreign-owned enterprises, and business cooperation contracts. Foreign-invested enterprises that have registered their business under previous regulations of the law on enterprises and investment and are now re-registering or converting their business types under the provisions of the 2005 Enterprise Law are currently subject to unfair restrictions compared to domestic state-owned enterprises and private enterprises. Decree 101/2006/ND-CP of the Government regulating re-registration and conversion procedures for these enterprises is relatively narrow, limiting many of the enterprises' options. This is reflected in the regulations that these enterprises must re-register under the prescribed types of enterprises without any other options. Only then can they convert to other types of enterprises. In addition, foreign-invested enterprises, especially those operating under laws other than the Investment Law, such as insurance companies and foreign bank branches, do not know how to re-register [34, p. 22].
In addition, the names of foreign-invested enterprises are also an issue that needs to be clearly defined when converting because if the names of foreign-invested enterprises are kept the same, there will be some names of foreign-invested enterprises.
business name contrary to the provisions of the Law on Enterprises. Therefore, there should be specific regulations guiding the name of the business for consistency.
In fact, business registration nationwide over the past 6 years has also recorded procedural innovations that make business registration procedures more convenient, easier, and less time-consuming. A typical example of such innovation is that the Business Registration Offices have implemented online business registration to receive business registration dossiers and notify the progress and results of processing business registration dossiers online. Only when the business registration is successful, the enterprise must go to the Business Registration Office to get the results. Some other Business Registration Offices have implemented one-stop business registration procedures, which also creates many conveniences for enterprises. Enterprises only need to submit one-stop business registration dossiers at the Business Registration Office, other procedures for seal registration and tax code registration, and invoice purchase registration will be sent to relevant agencies for implementation without the enterprise having to submit them directly. When the deadline comes, the enterprise will go to the Business Registration Office to receive the results. Such regulations will help businesses, as they do not have to spend time and effort going to relevant agencies to complete the procedures. On the other hand, implementing this mechanism well also reduces the negative aspects arising in the business registration process. However, the reality of implementing the one-stop mechanism mechanically and unscientifically in some provinces and cities has brought about the opposite results [49, p. 13]. A reality recorded through a survey is that: while the one-stop mechanism is implemented quite well in Lao Cai province, on the contrary, in Dak Lak, investors who want to register a business will go to the one-stop office to submit their documents, then the person receiving the documents will transfer the documents to the Business Registration Office for processing; then, if a business registration certificate is granted, the investor will come to the one-stop office to receive them; this process essentially creates another door to receive documents in the business registration procedure, which is actually contrary to the provisions of the Law on Enterprises and the regulations guiding its implementation. Thus, one-stop procedure if not
If done properly with the nature of "one door, one seal", it will easily become "one door - many locks".
It is a well-established fact in both theory and practice that the more procedures and regulations there are, the higher the cost of doing business [38, p. 53]. On the other hand, many procedures often bring about results opposite to the set goals. Meanwhile, the rich are willing to pay more costs to avoid the complexity of procedures, while preventing others from entering the market.
2.3.6. About business licenses and conditions
Business conditions are understood as requirements that enterprises must have or must implement when doing business in specific industries or professions, expressed by business licenses, certificates of eligibility for business, practice certificates, certificates of professional liability insurance, requirements for legal capital or other requirements (Clause 2, Article 7 of the 2005 Enterprise Law). According to this understanding, a business license is just a form of expression of business conditions and is only different from business conditions in that it is implemented by a licensing mechanism expressed by granting the applicant a type of certificate of eligibility for doing business in a certain industry or profession. Business conditions in general are requirements that enterprises must meet, which may be conditions for being licensed or may just be business conditions that must be complied with during the business process.
In practice, the implementation of the Law on Enterprises shows that business conditions are quite diverse and are also one of the most pressing issues for entities when registering for business. Currently, according to statistics, the whole country has nearly 300 types of business licenses in all industries. In recent years, the number of
These types of licenses are not only not decreasing but are increasing in both number and complexity; they are shown in the following aspects:
Firstly , it is very difficult for businessmen to find specialized legal documents regulating business activities that require a business license. Even state agencies have not been able to count how many business sectors and occupations require a license. Meanwhile, new licenses are issued more and more than before and are more difficult to predict. The business registration agency has the obligation to guide the people, but they themselves do not know what types of licenses are currently valid for which sectors and occupations, and what are the procedures and conditions for granting licenses?
Second, permits are time-consuming, costly and time-consuming to obtain, but are of very short value.
Third , duplicate or unnecessary and illegal licenses are often not effectively prevented and not promptly abolished.
Fourth , there is no established principle for controlling the issuance of new licenses and no regular assessment of the validity and usefulness of licenses and other current business conditions.
Fifth, converting licenses into business conditions also does not make much sense because they still have to meet many requirements and standards before they can operate.
Sixth , the licensing objectives are sometimes unclear, and the criteria for administrative agencies to grant or refuse to grant licenses are sometimes unclear.
Seventh , the licensing and business conditions monitoring process has not involved relevant people, has not consulted and clearly explained the rights of license applicants, and if a license is refused, the reason is often not stated and the right to appeal is not explained to the applicant [39, pp. 12,13].
It can be assessed that the problem of business licenses and conditions is the biggest and most difficult problem to solve in the content of the law on business registration. This is not only due to the wide scope of influence of licenses in all sectors and fields, but also because maintaining and developing them is a great source of profit for ministries and branches. Because of the benefits of ministries and branches, the number of licenses and business conditions has not decreased but is difficult to eliminate because their necessity has been recognized and approved by the National Assembly deputies. (For example, the provisions of the 2004 Commercial Law and the 2005 Tourism Law have "accidentally" provided specialized state management agencies with the authority to review and issue certain types of licenses).
In addition, administrative regulations and administrative procedures on business conditions are increasingly appearing in legal regulations. The characteristics of these regulations and procedures are that it is difficult to clearly define and their difficulty and complexity when implemented in practice. Currently, we have only counted business licenses in the form of approval from state agencies, but we have not counted administrative regulations regulating other conditional business activities. This reality has been and continues to be a difficult obstacle for businesses when doing business in these industries and fields.
2.3.7. About the business registration agency
The system of business registration agencies has been established in all provinces and cities across the country. However, district-level business registration agencies have not been fully established in all districts, and there is no official agency to manage the system of local business registration agencies at the central level. In general, business registration agencies
The apparatus and personnel organization have not been perfected. There are still many limitations and shortages in working experience as well as equipment serving the business registration work. The system of business registration agencies has not been clearly defined and formed in terms of organization, and has not yet become an independent agency system. The relationship between agencies in the system is unclear. The coordination in performing tasks between the provincial and district business registration offices is very weak and ineffective. The relationship between provincial and central business registration agencies is mainly through the Department of Planning and Investment and the Ministry of Planning and Investment.
In terms of personnel, the country currently has more than 1,000 officials working on business registration, including more than 300 officials specializing in provincial-level business registration offices and about 700 officials (both full-time and part-time) at the district level [48, p. 8]. Meanwhile, each year, an average of about 20,000 enterprises must be registered and the number of enterprises that must be inspected and audited up to now is about 100,000 enterprises. This is truly a huge amount of work. On the other hand, the payroll of the business registration offices all belong to the Department of Planning and Investment. The budget, facilities, and equipment also belong to the Department of Planning and Investment. Therefore, with limited resources and facilities, the business registration offices are also likened to "prolonged suffering".
Business registration offices across the country have basically performed well the task of issuing business registration certificates in accordance with the law, but no business registration office has completed the task of guiding businessmen on conditional business lines and business conditions in those business lines in accordance with the law. This situation does not entirely stem from the weakness of business registration officers, but is a consequence of the overlap, complexity, lack of transparency and publicity of legal documents regulating conditional business lines and business conditions in those business lines of ministries, branches and localities. The current legal system of Vietnam
contains both formal and informal regulations, both written and unwritten, on conditional business lines and business conditions for business lines. As a result, even ministries, branches and localities that set out conditions and licenses cannot be sure how many conditions and licenses are available in their industry or locality. Therefore, it is understandable that business registration officers cannot guide businessmen on conditional business lines and business conditions. This situation shows us that in order for business registration officers to be able to fulfill their tasks, the efforts of the business registration offices and business registration officers alone are not enough, but there must be clear and unified regulations on the contents related to the law on business registration.
The practice of implementing regulations on business registration has revealed many limitations of business registration agencies in terms of the business information system. Especially the management of information related to naming businesses, changing business information and managing dissolved or bankrupt businesses. The Department of Small and Medium Enterprise Development under the Ministry of Planning and Investment has also begun to deploy a business information management system, but because it has not been deployed uniformly and synchronously nationwide, it has not yet limited the phenomenon of businesses with the same name or names that cause confusion with other businesses. On the other hand, the number of statistics on businesses that are still operating and dissolved businesses compiled by the Department of Small and Medium Enterprise Development compared to the statistics of the General Statistics Office and the General Department of Taxation is different [48, p. 12]. We can partly assess the capacity of business registration agencies through the following example:
Table 2.13. Post-business registration loopholes