not yet recognized, such as capital contribution by labor, capital contribution by knowledge. Or capital contribution by intellectual property rights, currently there have appeared new types of intellectual property such as internet domain names... that the law has not updated. Vietnamese law still leaves open the regulations regulating the form of capital contribution of company members and the procedures for transferring capital contribution from members to companies. The concept of capital contribution to establish a company is still limited to the form of assets... Each separate law on enterprises itself has also revealed limitations, affecting the establishment of enterprises, and the development of enterprises that do not meet the requirements of national economic development and international economic integration.
In order to actively contribute to the consistent implementation of economic policies defined in the Constitution, in the Resolutions of the Party and the State; to strongly exploit all domestic and foreign resources for economic development, especially financial resources from all economic sectors; to arouse the dynamism, enthusiasm and confidence of entrepreneurs in contributing capital to establish and develop companies; to enhance the competitiveness of enterprises - an important driving force for development; to create a more unified, transparent and equal legal framework for all types of enterprises and facilitate the process of contributing capital to establish companies, the improvement of the provisions of Vietnamese law on contributing capital to establish companies is an inevitable need.
3.2. DIRECTIONS FOR IMPROVING VIETNAMESE LAW ON CAPITAL CONTRIBUTION TO ESTABLISH A COMPANY
In the coming years, when the initial momentum of the newly opened economy is no longer there, we will have to use our real intelligence to create real development, which requires us to have a more correct and honest perception and assessment of the issues. Business development with capital contribution to establish a company will become the main driving force for the development of
economy, so it is necessary to have a complete legal system on enterprises in general and capital contribution to establish a company in particular.
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The completion of Vietnamese law on capital contribution to establish a company in the coming time needs to be based on the following basic directions:
Firstly , deeply institutionalize the innovation path and policies affirmed at the 9th National Party Congress, especially the policy of developing a multi-sector economy, considering all economic sectors as important components of a socialist-oriented market economy; the policy of maximizing internal strength and proactively integrating into the international economy.
Second, inheriting the progressive and positive regulations that Vietnam's current laws on capital contribution to establish companies have achieved, overcoming existing shortcomings and limitations.
Third , create equality between the private economic sector and the state economic sector. This equality must be guaranteed both legally and in practice. To do so, we need:
+ Create a unified "playing" rule. Currently, in our economy there is a paradox, on the same "playing field" there are many different playing rules applied to each subject. This will give rise to unfairness both legally and in practice. This is a very unreasonable unfairness, because when investing in business, anyone who creates more wealth for society is encouraged, there should be no distinction between which economic sector is given priority for development over another.
+ Create a healthy competitive environment. On the basis of a unified and fair law, creating an unhealthy competitive environment is a practical guarantee of equality between economic sectors. If equality is only stipulated in the law but in reality, the sectors
If the economy still has special incentives for certain economic sectors, then legal regulations are meaningless.
+ Gradually eliminate the monopoly of state-owned enterprises in a number of fields. A healthy competitive environment also means eliminating the monopoly of state power in business. A true market economy does not accept monopoly, especially the monopoly of state-owned enterprises. Monopoly not only makes consumers provided with worse goods and services due to lack of competition, but it also hinders business development.
Fourth, ensure the freedom of business of all entities, have regulations to support enterprises in creating and operating an effective and legal corporate governance system. Enterprises of all economic sectors have the right to do business in industries and occupations that are not prohibited by law; have the right to autonomy and be responsible for their business activities; have the right to choose and change the form of internal management organization, appropriate investment-business forms and are protected by the State. The State respects the legitimate business autonomy of enterprises, applies a unified registration regime (instead of licensing), eliminates the unreasonable "request-grant" and "approval" mechanisms that cause trouble for enterprises.
Fifth, fundamentally innovate the functions, tasks and methods of state management of enterprises. The state does not directly intervene through administrative measures, but supports and creates favorable conditions through mechanisms, policies and state management for enterprises to develop healthily; considers encouragement, guidance and assistance as one of the main functions; considers investors and enterprises as objects of service of state administrative agencies. Previous regulations that are beneficial to enterprises will continue to be implemented within the previously committed time limit. Respect for rights
of enterprises in internal management organization, autonomously agree and decide internal relations in accordance with Vietnamese law and international commitments. At the same time, ensure that state management agencies exercise the right to inspect the law compliance of enterprises.
Sixth, ensuring that it is both suitable for the characteristics and development level of our country's economy in transition and meets the requirements of proactive integration into the regional and world economy. The content of the Enterprise Law must be consistent with international treaties that our country has committed to in multilateral and bilateral agreements, especially basic principles such as "National Treatment" and "Most Favored Nation". At the same time, it must anticipate the integration trend, contribute to building and continuing to perfect a business environment that is equal, transparent, stable, open, attractive enough and competitive compared to the region .
3.3. MAIN RECOMMENDATIONS TO IMPROVE VIETNAMESE LAW ON CAPITAL CONTRIBUTION TO ESTABLISH A COMPANY
Perfecting the law on capital contribution to establish a company is a big issue in Vietnam today. Based on the above research, I would like to make some main recommendations as follows:
3.3.1. Building a complete system of legal documents on public works
company
The birth and development of the company created great impacts on the development of the country.
socio-economic development of the country. Therefore, we have appropriate investment in building and perfecting corporate law. Corporate law needs to have a worthy position in the Vietnamese legal system.
The company's operations are subject to the regulation of many different branches of law. Therefore, perfecting the legal basis for the company's operations is not an easy task.
Not only is it about perfecting the law on enterprises, but it also includes civil law, administrative law, commercial law, labor law , etc. That is, the perfection must be systematic and consistent throughout the legal system. Create consistency in the legal system, overcome contradictions in the provisions of the law on companies. Eliminate the concept of an independent economic law sector and consider the company as an important institution of the Commercial Law. Current practice in Vietnam makes it difficult to clarify the boundary between economic law and commercial law. Eliminating the concept of an independent economic law sector and considering the company as an institution under commercial law is very necessary.
Continue to study and amend the limitations of the Enterprise Law. Ensure the systematicity and consistency of documents guiding the implementation of the Enterprise Law. There have been many documents guiding the implementation of the Enterprise Law. However, some areas still lack guidance documents from ministries and branches. Typically, regulations on the scope and business conditions for civil and economic investigation services or regulations on business conditions (regardless of economic sectors) for asset valuation and credit rating services; business conditions and business management organization for employment brokerage services.
3.3.2. Approaching the concept of property in a new direction in the provisions of legal documents
The current Vietnamese Civil Code defines property by listing. Article 172 of the Vietnamese Civil Code stipulates that “ Property includes real objects, money, valuable papers and property rights. ”
Such a definition creates rigidity in the concept of property. While property is a dynamic concept and has not only legal meaning but also great economic meaning. It is always dynamic because of the economic value of
It is therefore a mistake to give property a rigid definition. However, theoretically it must be pointed out that property includes things and rights that have economic value and the ability to satisfy people's material and spiritual needs. What constitutes property depends on each stage of development of human society.
This approach essentially provides considerable flexibility in resolving capital contribution disputes in particular and property disputes in general.
3.3.3. The Civil Code needs to introduce the concept of money.
According to the provisions of the Civil Code, money is also a type of property. However, the Civil Code does not specifically define what money is. The absence of this provision leads to inconsistent understandings of the legal nature of money, and confusion between the economic and legal aspects of money.
In the capital contribution to establish a company in the form of capital contribution in the form of money, if there is no specific regulation, it can lead to different understandings. Because money itself is also an object, but it is separated from the object to stand independently as a separate asset, with legal characteristics different from the object. Some differences between money and objects can be listed as follows:
Firstly , for objects, the purpose of humans is to exploit the usefulness of that object itself (a chair to sit on, a motorbike to ride, a cup to drink water from...). However, for money, our purpose is not to exploit the usefulness of its natural nature (paper money can be written on, but this is not its main purpose). We use money with three main functions: a payment tool, an accumulation tool, and a tool to value other assets.
Second , ordinary objects can be created by many different entities, while money is exclusively issued by the State. The issuance of money is considered one of the manifestations of each country's sovereignty.
Third , objects are quantified by common units of measurement, while money is quantified by its face value.
Thus, the Civil Code needs to have specific provisions on the concept of money. Introducing the concept of money aims to unify the legal nature of money, thereby helping to make transactions related to money, including capital contribution to establish a company in the form of capital contribution in money, more convenient.
3.3.4. Perfecting regulations on intellectual property rights
In addition to tangible assets, intangible assets (including intellectual property rights) also affirm their essential role not only for manufacturers and businesses but also for the socio-economic development of each country. According to Mr. Kamil Idris - Director General of the World Intellectual Property Organization (WIPO), " Although tangible assets such as land, labor and capital used to be the standard for comparing economic status, this is no longer true. The new driving force for prosperity in contemporary society is knowledge-based assets. "
For a company as a business organization, intellectual property rights are increasingly important assets. Nowadays, many companies have to invest in research or purchase intellectual property rights. Therefore, in contributing capital to establish a company, intellectual property rights are increasingly becoming an important form of capital contribution. On that basis, we have appropriate investment in building and perfecting intellectual property laws. Intellectual property laws need to have a worthy position in the Vietnamese legal system. Moreover, intellectual property rights are subject to the regulation of many different branches of law. Therefore, perfecting the basis
Legality is not only about perfecting intellectual property law but also includes criminal law, administrative law, commercial law, civil procedure law , etc. That is, the perfection must be systematic and consistent throughout the legal system. Intellectual property law must be systematic and consistent; it is necessary to stipulate additional issues that are not regulated by law; the regulations must be clear and specific; the regulations must be compatible with international conventions related to intellectual property rights of which we are and will be members, especially the 1883 Paris Convention for the Protection of Industrial Property, the 1886 Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Because these are the backbone conventions of the international intellectual property law system. Furthermore, intellectual property laws must be reasonable, creating favorable conditions for both creative entities and other relevant entities, not causing trouble for them.
The main solutions to improve Vietnam's current intellectual property laws include:
Firstly , review all current legal documents on intellectual property, specific legal regulations on intellectual property. On that basis, consider removing, amending, and supplementing any regulations or documents.
Second, immediately develop and promulgate two Decrees: Decree guiding the provisions on copyright in the Civil Code and the Law on Intellectual Property; Decree guiding the provisions on industrial property rights in the Civil Code and the Law on Intellectual Property.
Third , developing and promulgating legal documents to regulate basic issues that are only generally regulated in the Civil Code and the Law on Intellectual Property and are awaiting implementation guidance documents. For example: Copyright transfer contracts; Use of literary and artistic works;