Current Status of Business Registration Regulations According to the 2014 Enterprise Law

"economic force" as affirmed in Resolution of the 11th Congress, but also the "important" driving force of our country's economy today.

Practice has proven that private economic development is the solution to the problem of socio-economic development of the country, effective business activities are the factor that promotes the development of the economy, determining the sustainable existence of a political regime. Faced with the rapid development of the private economy, as well as the remaining limitations, the important task is to perfect the legal framework. The law on business registration needs to change to suit and adapt to each period and situation, especially in the development and promulgation of documents and policies on business registration with the general trend of strong reform of administrative procedures, creating favorable conditions for business entities to quickly enter the market, shortening time and costs, encouraging people to do business in fields and professions that are not prohibited by law.

- Third, the process of international economic integration.

Integration makes international relations develop, the world gets closer together, different legal systems have more opportunities to collide and contact, so there is more mutual influence. Integration creates common playgrounds where people who want to avoid being excluded from the common playground must comply with the common rules. Countries are forced to interact, cooperate, struggle, and compromise to build common rules and participate in the common playground without being dependent [1, p.23].

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Nowadays, international integration has become an important and urgent issue for all countries in the world. In our country, the achievements of the renovation process have created new positions and forces both internally and externally for us to enter a new period of development. Vietnam's position is increasingly consolidated and affirmed in the international political arena and is also a necessary premise for the industrialization and modernization of the country. Our country's foreign relations with other countries, international organizations and territories are now more expanded.

ever. In the current international context, the trend of peace, stability, independence, and cooperation for development is the common trend, which is a great opportunity [8].

However, in the process of international economic integration, we still face many difficulties and challenges. Although the business environment in our country has been significantly improved, it is still limited in many aspects such as the legal system is still lacking and not yet synchronized, not clear and consistent enough. Enterprises only focus on the economic value of goods and pay less attention to the social value of goods like some civilized and modern countries today. The administrative apparatus is still complicated, harassing, and bureaucratic; corruption is somewhat more sophisticated and complicated.

Therefore, in order to meet the requirements of integration, create favorable conditions for businesses to improve operational efficiency, reduce costs, enhance competitiveness and at the same time overcome difficulties and challenges in the process of international economic integration, amending and perfecting laws and reforming administrative procedures on business registration in a more convenient and simpler direction, without discrimination between domestic and foreign business entities is one of the urgent requirements that must be implemented to enhance the attractiveness of the investment and business environment in Vietnam, encourage people to get rich, enhance the competitiveness of businesses, especially attracting domestic and foreign resources.

Chapter 1 Conclusion

Freedom of business is an important human freedom in the economic field. However, entities wishing to conduct production and business activities must register with a state agency (business registration agency) and must follow a certain procedure. Business registration is a mandatory legal procedure for the birth of a business. Through business registration, the legal status of an enterprise is recognized by the State and the enterprise is guaranteed its rights and obligations. At the same time, business registration is also an effective tool for the State to manage business entities. In the process of implementing business registration

In business, both enterprises and business registration agencies are subject to the law, so building and perfecting the legal framework to regulate business registration activities in accordance with the current integration context is an essential requirement to ensure business freedom and meet practical needs.

Chapter 2

STATUS OF LAW ON BUSINESS REGISTRATION AND LAW ENFORCEMENT ON BUSINESS REGISTRATION ACCORDING TO ENTERPRISE LAW 2014 IN BAC NINH CITY

2.1 Current status of regulations on business registration under the 2014 Enterprise Law

2.1.1 Conditions for business registration

Freedom of business is the right of everyone in society recognized by the State by the Constitution. Article 5 of Decree 78/2015/ND-CP dated September 14, 2015 of the Government on business registration affirms:

“Establishing a business in accordance with the law is the right of individuals and organizations and is protected by the State.”

However, to ensure order in economic management, ensure harmony between the rights and interests of the State, collectives and individuals, protect political security and social order and safety, the State sets out the following conditions for business registration:

2.1.1.1 Conditions for business registration entities

The production and business activities of business entities play an important role and have a decisive meaning for the growth of the economy and the existence of society, so business is not only recognized by the State as the right of organizations and individuals but also encouraged by the State to develop. However, to properly exercise this power, entities must operate within the legal framework set forth by law. Not every entity is allowed to establish, contribute capital and manage an enterprise but must comply with the provisions of the law. In some cases, due to the specific nature of their profession or position, if they conduct business activities, they will risk disrupting the equality of enterprises and social interests, so these entities are also prohibited by law from doing business. Conditions for entities registering for business are specifically stipulated in Article 18 of the 2014 Enterprise Law, according to which organizations and individuals have the right to establish and manage enterprises in Vietnam except in the following cases:

+ State agencies and armed forces units use state assets to establish businesses to make profits for their own agencies and units.

State agencies and armed forces are agencies that perform specialized functions, the nature of the power of these agencies is clearly demonstrated; regulations stipulate that these entities do not have the right to establish and manage enterprises because if these entities are allowed to participate in business, it will lead to the phenomenon of political power manipulating the economy, losing equality as well as freedom in business.

+ Cadres, civil servants and public employees according to the provisions of law on cadres, civil servants and public employees.

The 2008 Law on Civil Servants, the 2010 Law on Public Employees and especially the 2005 Law on Anti-Corruption do not allow civil servants and public employees to establish businesses. Clause 1, Article 37 of the 2005 Law on Anti-Corruption prohibits civil servants and public employees from: “establishing, participating in the establishment or participating in the management and operation of private enterprises, limited liability companies, joint stock companies, partnerships, cooperatives, private hospitals, private schools and private scientific research organizations, except in cases where the law provides otherwise”; Civil servants and public employees are also: “not allowed to do business in the fields they are responsible for managing after leaving their positions within a certain period of time as prescribed by the Government”.

+ Officers, non-commissioned officers, professional soldiers, workers, and defense officials in agencies and units of the People's Army; officers and professional non-commissioned officers in agencies and units of the Vietnam People's Public Security, except for those appointed as authorized representatives to manage the State's capital contribution in enterprises.

These are entities that perform professional functions related to national security and social order and safety. National interests are always promoted and absolutely respected. Prohibiting the above entities from participating in the establishment of enterprises, on the one hand, avoids the situation of dispersion in public service, on the other hand, avoids the encroachment of political power on economic power.

+ Executive officers and managers in state-owned enterprises, except for those appointed as authorized representatives to manage the State's capital contribution in other enterprises;

Executives and managers in state-owned enterprises are not allowed to establish and manage enterprises, including: members of the Board of Directors, General Directors, Deputy General Directors, Directors, Deputy Directors, Chief Accountants, members of the Board of Supervisors, Heads and Deputy Heads of functional departments and divisions, Heads of branches and representative offices of state-owned enterprises. The regulation that these entities are not allowed to establish and manage enterprises is to avoid abuse of power, ensure equality for enterprises and not harm the common interests of society.

+ Minors; persons with limited civil act capacity or those who have lost civil act capacity; organizations without legal status.

Minors, that is, those who have not reached the legal age, cannot participate in establishing and managing enterprises because their responsibility has not been fully imposed on them. Those who have limited civil capacity or have lost civil capacity cannot control their actions and therefore cannot establish and manage enterprises. The addition of the subject "organizations without legal status" that are not entitled to establish and manage enterprises is a new point of the Enterprise Law 2014 compared to the Enterprise Law 2005. This provision is reasonable because:

“An organization without legal status lacks an important content: Having assets independent of other individuals and organizations and being responsible for those assets. Therefore, an organization without legal status is not qualified to establish and manage an enterprise.” [26, p. 30]

The law stipulates that these entities do not have the right to establish and manage enterprises in order to avoid business risks for partners, customers and themselves, causing negative impacts on the economy.

+ People who are being prosecuted for criminal liability, serving a prison sentence, an administrative decision at a compulsory drug rehabilitation facility, a compulsory education facility, or are prohibited from practicing business, holding a position or doing certain work related to business according to a court decision; other cases as prescribed by law on bankruptcy and anti-corruption.

These subjects are not allowed to establish and manage enterprises because their freedom has been or may be restricted. If they are allowed to do business, it will negatively affect the investment environment, disrupt business order, and harm society and customers.

Cases as prescribed by law on bankruptcy. Clause 3, Article 130 of the Bankruptcy Law 2014 stipulates:

“ A person holding a managerial position of an enterprise or cooperative declared bankrupt who intentionally violates the provisions of Clause 1, Article 18, Clause 5, Article 28, Clause 1, Article 48 of this Law shall be considered and decided by the Judge to not be entitled to establish an enterprise or cooperative or to act as a manager of an enterprise or cooperative within 03 years from the date the People's Court issues a decision declaring bankruptcy .” However, this provision shall not be applied in cases where an enterprise or cooperative goes bankrupt due to force majeure.

In addition, in case the business registration authority requests, the person registering to establish a business must submit a Criminal Record to the Business Registration Authority. This is a new provision of the 2014 Enterprise Law. However, the Criminal Record is not a mandatory document in the business registration dossier but is only a provision in some cases when the business registration authority requests it.

The regulation that some subjects are not entitled to establish and manage enterprises is necessary and important to ensure equality among enterprises and social benefits. However, the subjects prohibited from establishing and managing enterprises as mentioned above still have the right to contribute capital, buy shares, buy capital contributions to joint stock companies, limited liability companies, and partnerships if they do not fall into the following cases:

- State agencies and armed forces units use state assets to contribute capital to enterprises to gain profits for their own agencies and units;

- Subjects are not allowed to contribute capital to enterprises according to the provisions of the law on cadres and civil servants. Specifically, according to the provisions of Clause 2, Article 37 of the 2005 Law on Anti-Corruption, it is stipulated that: " The head, deputy head of an agency, and the spouse of such persons are not allowed to contribute capital to enterprises operating within the scope of the industry or profession in which such person directly performs state management. "

2.1.1.2 Conditions on business lines and professions

Article 33 of the 2013 Constitution states: “ Everyone has the right to freely conduct business in sectors and occupations that are not prohibited by law .” In the spirit of the 2013 Constitution, Article 7 of the 2014 Enterprise Law affirms that enterprises have the right to:

“ 1. Freedom to do business in industries and professions that are not prohibited by law .

2. Be autonomous in business and choose the form of business organization; proactively choose the industry, profession, location, and form of business; proactively adjust the scale and industry and profession of business .”

If previously, the law stipulated the fields in which investment and business were permitted, now the law specifically stipulates the prohibited investment and business sectors; investors and enterprises are allowed to conduct business in all other sectors and business sectors according to regulations. Specifically, Clause 1, Article 6 of the 2014 Investment Law clearly states 6 sectors and business sectors prohibited from investment and business, including:

“a) Trading in narcotic substances as prescribed in Appendix 1 of this Law;

b) Trading in chemicals and minerals specified in Appendix 2 of this Law;

c) Trading in specimens of wild plants and animals as prescribed in Appendix 1 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora; specimens of endangered and rare wild animals and plants of Group I of natural origin as prescribed in Appendix 3 of this Law;

d) Prostitution;

d) Buying and selling people, human tissues and body parts;

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