Lack of legal basis for officials to participate in contributing capital, managing and operating enterprises

ANTD.VN - Current regulations do not allow civil servants who are not eligible to establish, participate in the management and operation of enterprises, but the Ministry of Science and Technology has proposed this content.

Need to clarify regulations allowing civil servants to contribute capital to establish enterprises

The Ministry of Science and Technology is seeking comments on a draft Decree detailing the establishment or participation in the establishment of enterprises, and capital contribution to enterprises to commercialize the results of scientific research and technology development.

Chapter IV of the Draft stipulates that public employees can register to contribute capital to establish enterprises and participate in the management and operation of enterprises.

According to the Vietnam Federation of Commerce and Industry (VCCI), this regulation is consistent with Clause 4, Article 23 of the 2024 Capital Law but is not consistent with the 2020 Enterprise Law.

In the proposal to draft the amendment to the Enterprise Law, it was also proposed to amend the subject that is allowed to participate in the establishment of enterprises, which is civil servants. However, until the time the amended Enterprise Law is passed, the legal documents guiding business registration are still stipulating that civil servants are not allowed to establish, participate in the management and operation of enterprises.

Therefore, when this Decree comes into effect, there will be a lack of legal basis to implement this provision.

Therefore, VCCI requests the Ministry of Science and Technology to study the time when this provision takes effect.

In addition, regarding contributed capital and valuation of contributed capital, according to the provisions of the Enterprise Law 2020, “the contributed capital when establishing an enterprise must be valued by members and founding shareholders according to the principle of consensus or by a valuation organization. In case of valuation by a valuation organization, the value of the contributed capital must be approved by more than 50% of the members and founding shareholders” (Clause 2, Article 36).

Chapter II of the Draft stipulates capital contribution assets and valuation of capital contribution assets in the direction of determining the types of capital contribution assets and the method of valuation of capital contribution assets. According to VCCI, this is suitable for the case of public establishments establishing enterprises - the valuation of capital contribution assets is determined by the owner or hired by a valuation organization.

In the case of participating in the establishment or capital contribution to an enterprise, the valuation of contributed assets must be approved by more than 50% of the members and founding shareholders.

Thus, the results of the valuation of contributed assets in the case of a public institution contributing capital to an enterprise must consider whether the shareholders and other members approve the valuation or not.

Therefore, to ensure consistency and convenience in the application process, VCCI recommends that the drafting committee study to resolve the following case: When a public facility participates in contributing capital, establishing an enterprise and conducting valuation according to the provisions of this Decree, is this valuation automatically recognized as the value of the contributed capital or does it require the consent of the founding members and shareholders?

In case the founding members and shareholders do not agree with the valuation value of the contributed capital assets, does the public institution have to re-evaluate or agree with the founding members and shareholders of the enterprise?

Source: https://www.anninhthudo.vn/thieu-co-so-phap-ly-de-vien-chuc-tham-gia-gop-von-quan-ly-dieu-hanh-doanh-nghiep-post606586.antd