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The Need to Improve the Law on Procedures for Establishing Enterprises in Conditional Business Sectors and Professions


CHAPTER 3

DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW ON PROCEDURES FOR ESTABLISHING ENTERPRISES IN CONDITIONAL BUSINESS INDUSTRIES AND PROFESSIONS IN VIETNAM TODAY


3.1. The need to improve the law on procedures for establishing enterprises in conditional business lines and professions

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To realize the right to freedom of business and ensure an important economic aspect of the human rights content recognized in the 2013 Constitution, the National Assembly has promulgated two laws regulating investment and business activities, namely the 2014 Enterprise Law and the 2014 Investment Law. These two laws have contributed to creating an open legal corridor for people to exercise their right to freedom of investment and business in industries and professions that are not prohibited by law. In that spirit, the 2014 Enterprise Law and the 2014 Investment Law have provisions of a profound and groundbreaking reform nature in many different aspects and contents regarding procedures, from market entry procedures.

However, in reality, there are still many shortcomings in the implementation of business registration procedures for conditional business lines. Therefore, the Enterprise Law needs to overcome the limitations of the Enterprise Law analyzed in Chapter 02. According to Chapter 2 of the thesis, the promulgated legal documents have not kept up with the current law, forcing conditional business lines to comply with specialized laws, to meet the statutory capital, Sub-licenses, and Practice Certificates. On the other hand, some industries and professions are not really necessary, and are not clearly included in the list of conditional business lines and professions. [28]

The Need to Improve the Law on Procedures for Establishing Enterprises in Conditional Business Sectors and Professions


At present, our country is in the period of innovation and integration, therefore, the national economy also needs to develop strongly. In the process of economic development, enterprises contribute a significant part. Therefore, creating conditions for enterprises to register their business quickly and conveniently will be the problem to push the entry into the business market.

Through the process of practical application, we need to have a comprehensive and thorough study of relevant scientific arguments for evaluation. In order to promptly meet the practical needs of businesses that want to participate in the business market. [26]

Firstly, the improvement of the law on procedures for business establishment comes from the need for business registration procedures for business registrants and even those who guide business registration procedures for conditional business lines and professions. On the other hand, it also comes from the need for market development.

Second, with the current socio-economic development, there cannot be any remaining shortcomings related to the procedures for establishing conditional business lines and professions as there are now.

Third, the permission for businesses to register through the National Business Registration Portal has been implemented nationwide and has satisfied businesses and achieved certain successes. Therefore, the application of information technology is an urgent need;

Fourth, facing the need for integration and gradually conforming to international standard practices on business registration in conditional business sectors and professions.

Fifth, develop the country so that the government is determined to build a rich, beautiful, civilized and integrated country, completing legal institutions. Including removing and eliminating legal barriers with unclear regulations.


or duplicate in meaning; strengthen discipline and policy discipline for state agencies, civil servants in serving the people and business community.

3.2. Directions for perfecting the law on procedures for establishing enterprises in conditional business sectors and professions in Vietnam today

The two Enterprise Laws and Investment Laws of 2014 have come into effect, bringing about clear results in the growth in the number of business establishments and the capital ratio, showing that if our State continues to implement legal reforms for businesses more boldly and in a breakthrough manner to realize the institution of freedom of business as stipulated in the 2013 Constitution, businesses are free to do business in industries and professions that are not prohibited by law, it will attract domestic and international investors.

On the other hand, in order to integrate internationally, Vietnam must reform its business establishment procedures. Because businesses play an important role in economic development. In fact, Vietnam is currently a member of the World Trade Organization, and has participated in a series of free trade agreements with developed economies such as China, Korea, Japan, Australia, etc. The signed agreements all have provisions that create favorable conditions for investors to enter the Vietnamese market. Therefore, it is necessary to continue to provide directions for investors and individuals to easily register for business in conditional business lines.

To realize reform ideas, the Enterprise Law needs to develop regulations to perfect the law on Business Registration Procedures, avoid inadequacies in documents, and eliminate redundant regulations.


If legal regulations are creating barriers in the implementation process, procedures for establishing conditional enterprises will reduce the number of enterprises operating in conditional business lines and professions.

With the proposed direction in accordance with the provisions of the Constitution on the right to freedom of business in industries and professions that are not prohibited by law but are only restricted in necessary cases for reasons of national defense, national security, social order and safety, social morality, and public health.

Below are some directions to improve the law on business freedom:

Firstly, perfecting the law on procedures and order of business registration in conditional industries and professions must thoroughly grasp the viewpoints of the Party and the State, be consistent and consistent with the development situation of enterprises, and orient the development of the socialist economy, aiming to build legal norms suitable for the development of the country.

Second, perfecting the law on the process and procedures for establishing enterprises in conditional business sectors and professions requires inheriting, amending and supplementing current regulations, reviewing and eliminating inappropriate and outdated regulations that hinder the development of enterprises and the economy. At the same time, continuously expanding comprehensive international cooperation on legal regulations in conditional business sectors and professions, creating favorable conditions for foreign investors to develop in Vietnam. In addition, supplementing legal regulations on freedom of business and investment of enterprises, creating an open legal corridor for enterprises to develop.

Third, perfect the law on the order and procedures for establishing enterprises in conditional business sectors and professions under current Vietnamese law, on the basis of inheriting, amending and supplementing current regulations.

Fourth, respect the right to freedom of business and the role of conditions of incorporation.


Establishing a business, there must be a problem of putting the interests of investors first. There must be a document clearly defining the authority and responsibility of the focal agency to handle investment procedures related to the handling authority of many ministries, branches and related agencies; the principle of interconnectivity in handling administrative procedures, simultaneously performing administrative procedures in the process of implementing procedures for approving investment policies at the same time as approving locations, granting investment certificates, implementing investment projects; simplifying the order, procedures, records and time for performing investment procedures.

Fifth, promptly complete the law on procedures for establishment in conditional business sectors and professions in Vietnam today, in line with the international integration process.

3.3. Solutions to perfect the law on procedures for establishing enterprises in conditional business sectors and professions in Vietnam today

Business registration is a legal procedure for businesses to enter the market. Currently, Vietnam is striving towards a transparent business registration procedure, in order to create conditions for businesses to quickly enter the market, ensuring the freedom of business of all business entities. However, the current legal regulations on this issue still have many shortcomings, creating barriers, reducing the level of market entry of investors. There should be solutions to effectively implement regulations on freedom of business, promulgate business investment conditions according to the 2013 Constitution and the 2014 Investment Law. [2]

Reduce some conditional business lines that do not necessarily require conditions for that business line, remove that business line from the list of conditional business lines. Specifically, the business lines that should be removed: Business lines that are not really necessary such as "Business of plant varieties, animal breeds", "Business of fertilizers", "Business of chemicals, insecticides".


Merge some industries and business lines with unclear conditions in the list to reduce business conditions. Specifically: Merge the industries: "Business of veterinary technical services", "Business of veterinary drugs, vaccines, biological products, microorganisms, chemicals used in veterinary medicine", into one industry: "Business of veterinary services"

Or there are industries and professions that are not really clear like "Food business" but include three different groups "under the specialized management field" of three ministries: Industry and Trade, Agriculture and Rural Development and Health. With many ministries and management sectors, investors must apply for many types of sub-licenses according to specialized laws.

The Law amending and supplementing Article 6 of Appendix 4 on the list of conditional business lines of the Investment Law took effect from January 1, 2017. However, there are still many shortcomings, and many industries and trades need to be further eliminated and amended to suit the current market development. Because these industries and trades will directly affect the order and procedures for establishing enterprises in conditional business lines and trades.

It is necessary to stipulate that some industries and professions in the banking, currency trading, and gold trading groups must require legal capital. Other industries and professions not related to currency, it is thought that legal capital should be abolished. In fact, enterprises already have charter capital when they are established.

On the other hand, the application of the Practice Certificate for the Director of an enterprise according to the specialized laws of some industries is inappropriate, and it is necessary to soon eliminate the application of the Practice Certificate for the head of an enterprise. The reason is that they are the ones who manage the enterprise, manage the operation and develop the economy, not necessarily the ones who participate in the implementation of the profession.

It is necessary to shorten the process of registering business procedures “pre-inspection” and “post-inspection”. The reason is that many businesses only choose the business sector and profession.


have those conditions to implement and apply to business. Therefore, it is not necessary to register to establish a business first and then register for a conditional business line. Thus, investors, organizations and individuals who want to do business have to go through the procedures twice to be granted a license for a conditional business line. That is, eliminating the need to apply for a sub-license if the enterprise has a need to conduct business in a conditional business line as requested. The licensing authority only needs to issue a Business Registration Certificate and record the conditional business line on the business license.

Currently, being allowed to register business establishment procedures through the National Information Portal (ie electronic registration) is a step forward. This application is difficult to access and register via smartphone. Meanwhile, the current development trend is the technology era. Therefore, it is necessary to soon have a solution to access smart data through technology applications, in order to upgrade business registration services, reduce the time for business registration procedures for industries and professions in general and conditional business industries and professions in particular.

Reduce the need to go through too many agencies to apply for licenses for conditional business lines. For example, currently, the Ministry of Industry and Trade has the authority to issue up to 68 Business Licenses of all kinds, this number is 58 at the Ministry of Agriculture and Rural Development, 31 at the Ministry of Transport, 30 at the State Bank... It is necessary to reduce this to avoid wasting time and money when registering to establish a business in conditional business lines. Not to mention, there will be many negative things happening during the licensing process.

If we set out a solution for a specialized unit, specializing in appraising documents and being responsible for the process of applying for, granting licenses and permits for conditional business lines, it will reduce the process of going through.


Request permission from specialized agencies, reduce procedures and processes when applying for business registration certificates for conditional business lines. Accordingly, create maximum conditions for people and investors who want to establish businesses in conditional business lines.

Although, Vietnamese law is always amended and supplemented to suit the integration trend. But we have not reviewed and forecasted the socio-economic development of our country at a further level, because, over time, according to socio-economic development and international integration, conditional business lines and professions will not be suitable for the present, not to mention the legal documents will be outdated, not keeping up with the development, unintentionally affecting individuals, organizations that want to participate in business in conditional business lines and professions. Therefore, it is necessary to boldly amend and supplement according to the development of society to suit. Below are some solutions to perfect the law on the order and procedures for establishment in conditional business lines and professions:

Firstly, ensure the right to freedom of business of business entities on a statutory basis by specifically regulating this right in laws, decrees, and circulars on sectors, occupations, goods, and services prohibited from business, conditional business, and business conditions in a clear, specific, and easy-to-understand manner.

Second, expand the scope of the law on business registration to create a "broad playground" for business entities, so that they can easily choose the type of business that suits their capabilities and aspirations;

Fourth, Issue general instructions on procedures and order of establishing enterprises in conditional business lines and professions;

Fifth, it is necessary to tighten administrative discipline in issuing legal documents on conditional investment and business sectors. Ministries, ministerial-level agencies, People's Committees of provinces and centrally run cities

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