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CIRCULAR
GUIDING IMPLEMENTATION OF DECREE
23-2007-ND-CP OF THE GOVERNMENT DATED 12 FEBRUARY 2007 IMPLEMENTING
THE COMMERCIAL LAW REGARDING TRADING AND DISTRIBUTION ACTIVITIES1
BY ENTERPRISES WITH FOREIGN OWNED CAPITAL IN VIETNAM
Pursuant to Decree
29-2004-ND-CP of the Government dated 16 January 2004 on functions, duties and
powers of the Ministry of Trade;
Pursuant to Decree
23-2007-ND-CP of the Government dated 12 February 2007 implementing the
Commercial Law
regarding
activities of purchase and sale of goods and activities directly related to
purchase and sale of goods by enterprises with foreign owned capital in Vietnam;
Pursuant to Decree
35-2006-ND-CP of the Government dated 31 March 2006 on franchising activities;
Pursuant to Decree
12-2006-ND-CP of the Government dated 23 January 2006 implementing the
Commercial Law
regarding
international purchase and sale of goods, agency for sale and purchase, and
processing and transit of goods involving foreign parties;
Pursuant to Decree
108-2006-ND-CP of the Government dated 22 September 2006 implementing the
Law on
Investment;
The Ministry of Trade
hereby provides the following guidelines on Decree 23-2007-ND-CP:
I. General
Guidelines
1. Investment in
order to conduct trading activities and activities directly related to trading:
A foreign investor or an
enterprise with foreign owned capital in Vietnam which satisfies the conditions stipulated in
article 4.1(a) of Decree 23 shall have the right to invest in order to conduct trading activities and
activities directly related to trading in the investment forms and pursuant to
the schedules for
implementation stipulated in Appendix 1 of Decision 10-2007-QD-BTM of the
Minister of Trade dated 21 May 2007
announcing the schedule for implementation for trading activities and distribution activities
(hereinafter referred to as
Decision 10).
2. Exercise of export
rights:
2.1 An enterprise with
foreign owned capital in Vietnam which has been licensed to exercise export rights shall be permitted
to exercise export rights as follows:
(a) To export lines of
goods not on the list of goods the export of which is prohibited (Section 1 of Appendix 1 of Decree 12),
not on the list of goods (if any) the export of which has been temporarily suspended, and
not on the list of goods not permitted to be exported (Clause A of Section II of Appendix 2
of Decision 10).
(b) With respect to lines
of goods on the list of goods permitted to be exported pursuant to a schedule (Clause B of
Section II of Appendix 2 of Decision 10), an enterprise with foreign owned capital shall be
permitted to conduct export in accordance with the schedule which has been stipulated.
(c) To directly purchase
goods from business entities which have business registration for purchase and sale of, or
which have the right to distribute such goods in order to export them.
(d) To directly conduct
export procedures with the customs office in accordance with the law of Vietnam.
2.2 An enterprise with
foreign owned capital which has been licensed to exercise export rights shall
not be permitted to set up an
establishment in order to store goods for export.
3. Exercise of import
rights:
3.1 An enterprise with
foreign owned capital in Vietnam which has been licensed to conduct import
rights shall be permitted to
exercise import rights as follows:
(a) To import lines of
goods not on the list of goods the import of which is prohibited (Section II of Appendix 1 of Decree 12),
not on the list of goods (if any) the import of which has been temporarily suspended, and
not on the list of goods not permitted to be imported (Clause A of Section II of Appendix 3
of Decision 10).
(b) With respect to lines
of goods on the list of goods permitted to be imported pursuant to a schedule (Clause B of
Section II of Appendix 3 of Decision 10), an enterprise with foreign owned capital shall be
permitted to conduct import in accordance with the schedule which has been stipulated.
(c) To directly conduct
import procedures with the customs office in accordance with the law of Vietnam.
(d) To sell each group of
imported goods to one business entity with business registration to trade or with the right to
distribute such group of goods. An enterprise with foreign owned capital shall have the right to
make its own selection of this business entity and to register it with the competent licence-issuing
body. Each group of goods comprises the lines of goods in one chapter of the Import
Tariff List.
3.2 An enterprise with
foreign owned capital which has been licensed to exercise import rights shall
not be permitted to set up an
establishment in order to distribute imported goods.
4. Exercise of
distribution rights:
4.1 An enterprise with
foreign owned capital which has been licensed to conduct distribution rights
shall be permitted to exercise
distribution rights as follows:
(a) To conduct
wholesaling, retailing, franchising and agency for trading goods manufactured in Vietnam and goods imported
into Vietnam, except for goods on the list of goods not permitted to be distributed (Clause
A of Section II of Appendix 4 of Decision 10).
(b) With respect to lines
of goods on the list of goods permitted to be distributed pursuant to a schedule (Clause B of
Section II of Appendix 4 of Decision 10), an enterprise with foreign owned capital shall be
permitted to conduct wholesaling, retailing, franchising and agency for trading of goods in
accordance with the schedule as stipulated.
4.2 An enterprise with
foreign owned capital which has been licensed for wholesaling [and] retailing
shall be permitted to conduct
wholesaling [and] retailing activities correctly as stipulated in clauses 7 and
8 of article 1 of Decree 23.
An enterprise with foreign owned capital which has been licensed to establish a retail sales
outlet (also including a first retail sales outlet) shall not be permitted to conduct retailing outside
[or in addition to] the retail sales outlet which has been licensed.
4.3 Establishment of
retail sales outlets outside [in addition to] the first retail sales outlet:
(a) The establishment of
retail sales outlets in addition to the first retail sales outlet shall be considered on a case by
case basis and shall depend on the number of retail sales outlets, market stability,
population density in the province or city where the retail sales outlet is to
be set up, and consistency of
the investment project with the master plan of such province or city.
(b) Any enterprise with
foreign owned capital which has already been granted an investment licence [or] investment
certificate with items stipulating the establishment of retail sales outlet/s in addition to the first
retail sales outlet but which has not yet been granted a licence
to establish a retail sales
outlet in accordance with Decree 23 must conduct procedures for the issuance of a licence to
establish a retail sales outlet in accordance with the guidelines in clause 4(d) of Section II
of this Circular.
II. Issuance of
Licences in Order to Conduct Trading Activities and Activities
Directly Related to Trading
1. Cases of
investment only in order to exercise export rights [and/or] import rights but
not to conduct distribution
business or activities directly related to trading:
(a) A foreign investor
investing in Vietnam for the first time only in order to exercise export rights [and/or] import rights
must conduct procedures for the issuance of an investment certificate.
An enterprise with foreign
owned capital currently operating in Vietnam which only wishes to add exercise of export
rights [and/or] import rights must conduct procedures to supplement its investment certificate.
An application file shall
comprise:
- Request for issuance of
or addition to an investment certificate in accordance with the law on investment;
- Explanatory statement on
satisfaction of business conditions regarding nationality of the legal entity,
investment form, business services and operational scope;
- Registration document
for items on exercise of export rights [and/or] import rights.
(b) The competent licence-issuing
body shall rely on the provisions in Decision 10 to issue or supplement the investment
certificate without requiring approval from the Ministry of Trade.
2. Cases of
investment for the first time in order to conduct trading activities and
activities directly related to
trading:
(a) A foreign investor
investing in Vietnam for the first time who invests in trading activities and activities directly
related to trading must conduct procedures for the issuance of an investment certificate.
An application file shall
comprise:
- Request for the issuance
of an investment certificate in accordance with the law on investment;
- Explanatory statement on
satisfaction of business conditions regarding nationality of the legal entity,
investment form, business services and operational scope;
- Registration document
for items on carrying out trading activities and activities directly related to trading.
(b) The competent licence-issuing
body shall issue an investment certificate after obtaining approval from the Ministry
of Trade.
3. Cases of addition
in order to conduct trading activities and activities directly related to trading:
An enterprise with foreign
owned capital which has already been granted an investment licence [or] investment certificate
which wishes to add conduct of trading activities and activities directly
related to trading must conduct
procedures for the issuance of a business licence.
(a) Issuance of a business
licence:
- An application file
shall comprise:
+ Request for the issuance
of a business licence on standard Form MD1 issued with this Circular;
+ Explanatory statement on
satisfaction of business conditions regarding nationality of the legal entity, investment form,
business services and operational scope;
+ Registration document
for items on carrying out trading activities and activities directly related to trading.
- The competent licence-issuing
body shall issue a business licence on standard Form GP1 issued with this Circular,
after obtaining approval from the Ministry of Trade.
(b) Amendment of or
addition to a business licence:
- An application file
shall comprise:
+ Request for amendment of
or addition to the business licence on standard Form MD2 issued with this Circular;
+ Copy of the issued
business licence.
- The competent licence-issuing
body shall issue a new business licence containing the amended or added items,
and also revoke the previously issued business licence. In a case where the amendments of or
additions to a business licence concern the business of trading and activities directly
related to trading, the competent licence-issuing body shall make the amendment or addition
after obtaining approval from the Ministry of Trade.
(c) Re-issuance of a
business licence:
- An application file
shall comprise:
+ Request for re-issuance
of the business licence on standard Form MD3 issued with this Circular;
+ Document certified by
the police office on declaration of loss of the business licence, or explanatory statement on
the reason why the business licence was torn, burnt or otherwise destroyed.
- The competent licence-issuing
body shall issue a new business licence containing all the same items as in the
previously issued business licence.
4. Cases of
establishment of a retail sales outlet in addition to the first retail sales
outlet:
An enterprise with foreign
owned capital which wishes to establish a retail sales outlet in addition to its first retail sales
outlet must conduct procedures for the issuance of a licence to set up a retail sales outlet.
(a) Issuance of a licence
to set up a retail sales outlet:
- An application file
shall comprise:
+ Request for the issuance
of a licence to set up a retail sales outlet on standard Form MD4 issued with this Circular;
+ Copy of the investment
certificate [or] investment licence associated with setting up the first retail sales outlet.
- The competent licence-issuing
body shall issue a licence to set up a retail sales outlet on standard Form GP2 issued
with this Circular, after obtaining approval from the Ministry of Trade.
(b) Amendment of or
addition to a licence to set up a retail sales outlet:
- An application file
shall comprise:
+ Request for amendment of
or addition to the licence to set up the retail sales outlet on standard Form MD5 issued
with this Circular;
+ Copy of the licence to
set up the retail sales outlet which it is requested to amend or add to.
- The competent licence-issuing
body shall issue a new licence to set up a retail sales outlet containing the amended or
added items, and also revoke the previously issued licence to set up the retail sales
outlet. In a case where the amendments of or additions to the licence to set up the retail sales outlet
concern operational items of the retail sales outlet, the competent licence-issuing body shall
make the amendment or addition to the licence after obtaining approval from the Ministry
of Trade.
(c) Re-issuance of a
licence to set up a retail sales outlet shall be conducted the same as stipulated in clause 3(c)
above.
(d) Issuance of a licence
to set up a retail sales outlet for an outlet in addition to the first retail sales outlet which was
established pursuant to law but which has not been granted a licence to set up pursuant to Decree
23:
- An application file
shall comprise:
+ Request for the issuance
of a licence to set up a retail sales outlet on standard Form MD4 issued with this Circular;
+ Report on investment
status and operational status of the retail sales outlet for which a licence to set up is requested;
+ Copy of the investment
certificate [or] investment licence.
- The competent licence-issuing
body shall issue a licence to set up a retail sales outlet on standard Form GP2 issued
with this Circular.
III. Revocation of
Business Licences and Licences to Set Up a Retail Sales Outlet
The competent licence-issuing
body shall revoke a business licence [and] a licence to set up a retail sales outlet in the following
cases:
1. An enterprise with
foreign owned capital operating in the sector of trading and activities directly related to trading commits
a breach of law for which the law stipulates that the business licence [and] licence to set up a retail
sales outlet must be revoked.
2. The project investing
in trading and activities directly related to trading terminates operation as stipulated by law.
3. The competent licence-issuing
body revokes the investment certificate [or] investment licence.
IV. Reporting
Regime
1. Enterprises with
foreign owned capital operating in the sector of trading and activities directly
related to trading must comply
with the regime on financial and statistical reporting stipulated by the law of Vietnam.
2. Every quarter, prior to
the 15th
day of the first month of
the next quarter, competent licence-issuing bodies shall report to the
Ministry of Trade on the status of issuance, re-issuance, amendment and revocation of licences to
projects investing in trading and activities directly related to trading on standard Form BC issued
with this Circular.
V. Implementing
Provisions
1. This Circular shall be
of full force and effect after 15 days from the date of its publication in the Official Gazette.
2. Any difficulties during
implementation of this Circular should be reported to the Ministry of Trade for resolution.
The Minister of Trade
Deputy Minister
LE DANH VINH
Appendix MD-1
Request for
Issuance of Business Licence
Name of enterprise
SOCIALIST REPUBLIC OF VIETNAM
Independence -
Freedom Happiness
REQUEST FOR
ISSUANCE OF BUSINESS LICENCE
To: (The competent licence-issuing
body)
1. Name of Enterprise: (print
in capital letters):
...................................................................................
Investment
Certificate/Investment Licence No.
. issued by
.date of issuance
..
...
Head office address: (complete
in full the number of the house and street, ward, district and city or
province)
.
Telephone number: ..
..
Fax:
.. Email:
. Website if any)
.
..
2. Legal representative of
the enterprise:
Full name:
Male/Female
Position:
People's identity card
number:
Date issued:
...
..
Issuing Body:
.......
Other personal legal
identification (if no people's identity card) (specify
the type of certificate, its number,
place of issuance
and date of issuance)
.
Place of registration of
residential address:
Current address:
..
Requests issuance
of a business licence with the following contents:
I.
II.
...
(Record
the trading activities and activities directly related to trading in accordance
with Article 3.1 of Decree 23. In the
case of a request to establish an initial retail sales outlet, record the
following additional items:
III. Establishment of a
retail sales outlet:
.
1. Name of the retail
sales outlet (print
in capital letters):
2. Address (complete
in full the number of the house and street, ward, district and city or province)
Telephone number: ..
..
Fax:
.. Email:
. Website if any)
..
3. Person to be head of
the retail sales outlet:
Full name (print
in capital letters):
. Male/Female:
People's identity card
number:
Date issued:
...
..
Issuing Body:
.......
Other personal legal
identification (if no people's identity card) (specify
the type of document, its number, place of issuance
and date of issuance)
.
Place of registration of
residential address:
Current address:
..
4. Operational items of
the retail sales outlet:
..
I and other members
undertake to be wholly responsible before the law for the legality, accuracy and truthfulness of the items
in this application for issuance of a business licence.
Date:
LEGAL
REPRESENTATIVE OF THE ENTERPRISE
(Full
name, signature and seal)
Documents enclosed:
1.
2.
.
Appendix BC
Report by Licence-issuing
Bodies
Name of licence-issuing
body SOCIALIST
REPUBLIC OF VIETNAM
Independence -
Freedom Happiness
To: The Ministry of Trade
STATUS OF
ISSUANCE, AMENDMENT, ADDITION AND WITHDRAWAL OF LICENCES FOR INVESTMENT
PROJECTS IN ACTIVITIES OF TRADING AND ACTIVITIES DIRECTLY RELATED TO TRADING
(From
date until
date)
1. Status of issuance of
licences
|
Sector |
Name of
Enterprise |
Investment
Capital |
Nationality of
the
foreign party |
|
Export, import |
|
|
|
|
Distribution
- Wholesaling
- Retailing
- Retail sales outlets |
|
|
|
|
Other Services
- Commercial
assessments |
|
|
|
2. Status of amendments of
and additions to licences
|
Sector |
Name of
Enterprise |
Investment
Capital |
Nationality of
foreign party |
Contents
amended or
added |
|
Export, import |
|
|
|
|
|
Distribution
-
Wholesaling
-
. |
|
|
|
|
|
Other Services:
- Commercial
assessment
-
.. |
|
|
|
|
3. Status of withdrawal of
licences
|
Sector |
Name of
Enterprise |
Investment
Capital |
Nationality of
foreign party |
Reason for
withdrawal of
licence |
|
Export, import |
|
|
|
|
|
Distribution
-
Wholesaling
-
. |
|
|
|
|
|
.. |
|
|
|
|
4. Operational status of
enterprises which have already been licensed.
5. Proposals and
recommendations
Person preparing the
report:
Contact telephone number:
HEAD OF LICENCE-ISSUING
BODY
(Print
full name and sign and seal)
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