VCCI: Need to reflect the true nature of commercialization of scientific research results

The Ministry of Science and Technology is seeking comments on the 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 (referred to as the Draft).

Commenting on the draft, the Vietnam Federation of Commerce and Industry (VCCI) said: Clause 4, Article 3 of the Draft stipulates that "Commercialization of scientific research and technological development results is understood as bringing scientific research and technological development results into life to serve economic and social development" which does not seem to be completely close to the concept of "commercialization".

In economic terms, “commercialization” is often understood as the process of converting scientific research and technological development results into products or services that can be sold on the market, with the aim of generating profits and expanding the market. The goal of “commercialization” is not only to serve economic and social development, but also includes the effective application and business of these products.

According to VCCI, it is necessary to reflect the true nature of the commercialization process, including both business aspects and creating market value.

Therefore, VCCI recommends that the Drafting Committee consider amending and supplementing this regulation to clarify it to properly reflect the nature of the commercialization process, including business aspects and creating market value.

Regarding the relationship between the provisions in the draft and the provisions of the law on enterprises, the draft has provisions related to the establishment, participation in the establishment of enterprises, and capital contribution to enterprises to commercialize the results of scientific research and technology development.

Therefore, according to VCCI, it is necessary to consider the relationship with the law on enterprises. The Drafting Committee is requested to consider and review the following issues to ensure consistency in the legal system.

Specifically, 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 the capital contribution and the 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. 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 other shareholders and members approve the valuation or not.

To ensure consistency and convenience in the application process, VCCI recommends that the Drafting Committee study to resolve the following cases:

When a public institution contributes capital, establishes an enterprise and conducts valuation according to the provisions of the 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 of the contributed capital, does the public institution have to re-evaluate or agree with the founding members and shareholders of the enterprise?

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.

VCCI believes that this is consistent with Clause 4, Article 23 of the Capital Law 2024 but not consistent with the Enterprise Law 2020. In the proposal to draft an amendment to the Enterprise Law, it also proposed to amend the subject of the enterprise that is allowed to participate in the establishment of an enterprise, which is civil servants. However, before the time the amended Enterprise Law is passed, 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 the provisions. This is the reason why VCCI requested the Drafting Committee to study the time when the above provision comes into effect.

In addition, VCCI also commented on the principles of using public assets to establish, participate in establishing, contribute capital to enterprises and value assets as intellectual property rights (Article 9).

Moonlight