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THE
MINISTRY OF SCIENCE AND TECHNOLOGY
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom - Happiness
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No.
01/2011/TT-BKHCN
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Hanoi,
March 16, 2011
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CIRCULAR
GUIDING THE ESTABLISHMENT AND OPERATION REGISTRATION OF
SCIENCE AND TECHNOLOGY ORGANIZATIONS (STOS) WITH FOREIGN OWNED CAPITAL, OF
REPRESENTATIVE OFFICE, BRANCH OF FOREIGN STOS IN VIETNAM
Pursuant to
Law on Science and Technology dated july 09,2000;
Pursuant to Decree No. 81/2002/ND-CP dated
October 17,2002 of the Government detailing a number of Articles of Law on Science and Technology;
Pursuant to Decree No. 80/2010/ND-CP dated July
14, 2010 of the Government providing for coordination, investment with
foreigners in Science and Technology field;
Pursuant to Decree No. 28/2008/ND-CP dated March
14, 2008 of the government providing for function, duties, authorities of
organizational structure of Ministry of Science and Technology,
Minister of Science and Technology guides the establishment and operation
registration of STOS with foreign owned capital, of representative office,
branch of foreign STOS in Vietnam as follows:
Chapter I
GENERAL PROVISIONS
Article 1. Scope and subjects of application
This Circular
guides the establishment condition and operation registration procedures of
science research organizations, technology development and science research
organizations, technology and science service organization with foreign owned
capital in Vietnam (hereinafter collectively called as STOS with foreign owned
capital); procedure for establishment, rights and obligations of representative
office, branch of foreign STOS in Vietnam.
Article 2. Using language and form of dossier
application
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Dossiers
granted or certified by the foreign competent agencies must be translated into
Vietnamese and be been consular legalization.
2. Dossiers
requesting for establishment and operation registration of STOS with foreign
owned capital, dossier requesting for granting license of establishing
representative office, branch of foreign STOS in Vietnam applied directly or
via postal system to Ministry of Science and Technology.
Chapter II
CONDITIONS FOR
ESTABLISHMENT AND PROCEDURES OF OPERATION REGISTRATION OF STOCKS WITH FOREIGN
OWNED CAPITAL IN VIETNAM
Article 3. Condition for establishment of STOS with
foreign owned capital
STOS with
foreign owned capital is established if it satisfies fully conditions provided
in Article 13 Decree No.80/2010/ND-CP dated July 14, 2010 of the Government
providing for coordination, investment with foreigners in
Science and Technology field (hereinafter abbreviated as Decree No.80).
Clause b, c, d Article 13 Decree No.80 is guided specifically as follows:
1.
Organization’s operation Charter must have fully basic contents under provision
in Annex I enclosed with this Circular, in which operation domains need to be
written clearly, specifically, suitable to regulations of Vietnam law.
2. Conditions
on science and technology human resource, head office and technical material
facilities applied according to provisions in Article 5 and
Article 6 Circular No.02/2010/TT-BKHCN dated March 18, 2010 of Minister of
Science and Technology guiding for establishment and operation registration of
STOS (hereinafter abbreviated as Circular No. 02).
For the case
STOS who are the organizations jointed between Vietnamese organizations,
individuals and foreign organizations, individuals, contribution capital of the
foreign side must be at least 10% of total operation registration capital of
the organization and must be not lower 100.000.000 dong.
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1.
Organizations, individuals apply dossiers requesting for establishment to the
science and technology operation registration office (hereinafter called as
Registration Office) under Ministry of Science and Technology’s management.
Orders,
procedures for issuing decision of establishment are implemented according to
provision in Article 14 and Article 15 Decree No. 80, except special cases,
Ministry of Science and Technology submits Prime Minister for consideration,
decision.
2.
Registration Office is responsible for being contact point of receipt and
appraising establishment dossier of STOS with foreign owned capital.
a) For STOS
with foreign owned capital under establishment authority of Prime Minister,
Registration Office compiles appraising report and reports to Minister of
Science and Technology for submitting to Prime Minister.
In case
Ministry of Science and Technology assigned by Prime Minister for approving
operation Charter of STOS with foreign owned capital, with 15 days since the
date of being assigned, Registration Office submits to Minister of
Science and Technology for issuing decision of approving operation Charter of
STOS with foreign owned capital.
b) For STOS
with foreign owned capital under establishment authority of Minister of Science
and Technology, Registration Office appraises and submits to Minister of
Science and Technology for issuing decision of establishment and decision of
approving operation Charter of STOS with foreign owned capital.
c) When any
change to operation Charter, STOS with foreign owned capital sends written
request enclosed with draft of Chapter to the Registration Office. With 15
working days, the Registration Office submits to Minister of Science and
Technology for decision of approving supplementing, modifying Charter or
reports to Minister for submitting to Prime Minister for decision under his authorities.
3. Duration
of appraising dossier requesting for establishing STOS with foreign owned
capital, when necessary, the Registration Office has the rights:
a) Collecting
experts’ opinions for dossier consideration, valuation of the organization’s capacity.
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c) Submitting
to Minister of Science and Technology official letter asking for opinions of relevant
agencies, organizations for operation domains which the state stipulates
private conditions.
d) Submitting
to Minister of Science and Technology the decision of establishing the council
of appraising establishment dossier; attendants of the council include prestige
and qualified managers, experts, scientist in relevant domains.
Article 5. Operation registration of STOS with foreign
owned capital
1. STOS with
foreign owned capital applies dossier of operation registration to the
Registration Office after being made decision to establish and approved Charter
under authorities by the Prime Minister or the Ministry of Science and
Technology.
2. Conditions
and dossiers of operation registration of STOS with foreign owned capital are
implemented under provision in Article 3, 4, 5, 6 of the Circular No.02.
3. STOS with
foreign owned capital pays fees, charges under provision in Circular
No.187/2009/TT-BTC dated September 29, 2009 of Ministry of Finance providing
for rates, collection regime, remittance and management, use of fees for
appraising of conditions of science and technology activities and charges for
granting science and technology operation registration Certificate.
Article 6. Science and technology operation
registration Certificate
1. Science
and technology operation registration Certificate granted by Ministry of
Science and Technology to the STOS with foreign owned capital according to
standard form provided in Annex II enclosed with this Circular.
2. Time-limit
of the science and technology operation registration Certificate is in
accordance with the time of project implementation written in the
organization’s investment Certificate.
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3. Provisions
on use, re-registration, supplementing, modifying registration, withdrawal,
cancellation to valid of the science and technology operation registration
Certificate of the STOS with foreign owned capital implemented according to
provisions in Article 8 and Article 9 of Circular No.02.
Article 7. Operation registration of representative
office, branch of STOS with foreign owned capital
1. STOS with
foreign owned capital registers for operation of its representative office,
branch at Departments of Science and Technology in which its representative
office, branch located.
2. Conditions
and operation registration dossiers of representative office, branch of STOS
with foreign owned capital, orders, procedures of registration and withdrawal,
cancellation to valid of operation Certificate implemented according to
provisions in Article 11 and Article 12 of this Circular No. 02.
3. When STOS
with foreign owned capital conducts operation registration of representative
office, branch must pay fees, charges under provision in Circular
No.187/2009/TT-BTC dated September 29, 2009 of Ministry of Finance providing
for rates, collection regime, remittance and management, use of fees for
appraising of conditions of science and technology activities and charges for
granting science and technology operation registration Certificate.
Chapter
III
REPRESENTATIVE OFFICES,
BRANCHES OF FOREIGN STOS IN VIETNAM
Article 8. Establishment condition and dossier
requesting for granting license of establishing representative office, branch
of foreign STOS in Vietnam.
1.
Representative offices, branches of foreign STOS in Vietnam are established if it
satisfies fully establishment conditions and dossiers provided in Article 26
and Article 27 of Decree No.80.
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Article 9. Contents of License of establishing
representative offices, branches of foreign STOS in Vietnam
1. License of
establishing representative offices, branches of foreign STOS in Vietnam
granted by Ministry of Science and Technology and must have the following main
contents:
a) Name,
office’s address of the representative office, branch.
b) Name,
office’s address of foreign STOS.
c)
Information of head of the representative office, branch.
d) Operation
contents of the representative office, branch.
đ) Amount of
Vietnamese and foreigners work at the representative office, branch.
e) Number,
date of issuance and time-limit of License.
2. License of
establishing representative office, branch of foreign STOS in Vietnam granted
under standard form provided in Annex IV enclosed with this Circular.
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1.
Registration Office is responsible for being contact point to receive and
appraise dossier requesting for granting License of establishing representative
offices, branches of foreign STOS in Vietnam.
2. After
receiving complete and regular dossier, Registration Office considers dossier,
submits to Minister of Science and Technology official letter aiming to ask for
opinions of the People’s Committees of centrally-affiliated cities and
provinces in which foreign STOS locate its representative offices, branches and
relevant Ministries, agencies for the following issues:
a) Operation
situation of relevant foreign STOS in localities (if any) and opinions of the
People’s Committees of centrally-affiliated cities and provinces in which foreign
STOS locate its representative office, branch.
b) Operation
situation of foreign STOS having programs, projects relating to Ministries,
Branches (if any).
c) Examining
elements of identity of persons expected to be heads of representative offices,
branches in Vietnam (when necessary).
3. Dossier
consideration duration of requesting for extending, supplementing, modifying
License, Ministry of Science and Technology has the right to request the
foreign STOS to show relevant documents in order to prove in case some
information in dossier need to be made clearly.
4. Dossier
consideration duration of requesting for extending, supplementing, modifying
License, when necessary, within 10 working days from the date of dossier
receipt, Ministry of Science and Technology presides over coordinate with
relevant Ministries, agencies assigning mission delegation to appraise at site
of the representative offices, branches.
5. The
foreign STOS conducting establishment registration of representative office,
branch in Vietnam pays fees, charges according to provisions in Circular
No.166/2010/TT-BTC dated October 27, 2010 of Ministry of Finance guiding rates,
collection regime, remittance and management, use of fees for appraising
of conditions of science and technology activities and charges for granting
License of establishing the foreign STOS’ representative offices, branches in
Vietnam.
Article 11. Rights and obligations of representative
offices, branches of foreign STOS in Vietnam
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2.
Representative offices, branches of foreign STOS in Vietnam implement report
regime in writing periodically annual to Ministry of Science and Technology on
its operation situation in Vietnam under standard form provided in Annex V
enclosed with this Circular and are responsible for the report, providing
documents or explaining the issues relating to operations of representative
offices, branches to Ministry of Science and Technology at request.
Article 12. Recruitment and management of staffs at
representative offices, branches of foreign STOS in Vietnam
1. The
quantity of foreigners and Vietnamese work at the representative offices,
branches is the officials, staffs who work regularly within the time-limit of
License of establishing the representative offices, branches of
foreign STOS in Vietnam and not exceed the quantity provided in the License.
2. In case
representative offices, branches of foreign STOS in Vietnam are established
according to programs, research, coordination projects with partners who are
Ministries, branches, the People’s Committees of centrally-affiliated cities
and provinces of Vietnam, it is necessary to stipulate specifically in the
agreement the quantity of foreign employees and their working time-limit at the
representative offices, branches in Vietnam. This Agreement is one of
foundations enable Ministry of Science and Technology granting License of
establishing representative offices, branches of foreign STOS in
Vietnam.
3. Recruiting
foreigners to work at the representative offices, branches of foreign STOS in
Vietnam implemented according to provisions of law on recruitment and
management of foreigners working in Vietnam.
4. Operation
duration in Vietnam, if any change to personnel recruited to work at
representative offices, branches, within 10 days since the date of change,
representative offices, and branches must send report enclosed with copies of
relevant documents to the Registration Office.
In case
representative offices, branches of foreign STOS in Vietnam have demand of
changing the quantity of foreign staffs, it requires to be permitted by the
competent state agencies.
Chapter IV
IMPLEMENTATION PROVISIONS
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1.
Registration Office shall review all science and technology operation
registration Certificates issued before the effective date of this Circular,
notifies in writing to STOS with foreign owned capital for carrying out
procedures to register for re-granting science and technology operation
registration Certificates under provisions in this Circular.
Notification
of Ministry of Science and Technology sending to STOS not exceed 03 times, once
30 days away from each other. Past the notified time limit, if the STOS fails
to carry out procedures to register for re-granting science and technology
operation registration Certificates under provisions in this Circular, the
Registration Office submits to Minister of Science and Technology for carrying
out procedures for cancellation to such Certificate’s valid under regulations.
2. The STOS
with foreign owned capital who established and registered for its operation
before the effective date of this Circular, must carry out procedures to
register for re-granting science and technology operation registration
Certificates under provisions in this Circular.
a) In case of
change of registration capital structure (the foreign side withdraws capital or
assign its capital to the Vietnam side), The STOS with foreign owned capital
must send official letter to Registration Office enclosed with meeting minute
of founding council/founders passing contents of capital withdrawal of the
foreign side or capital assignment of the foreign side to the Vietnam one.
After the foreign
side’s capital contribution is no longer, the STOS carries out procedures of
operation registration at Departments of Science and Technology of cities,
provinces in which such organizations locate its head office according to
provisions in point b, clause 3 of Circular No.02.
b) In case of
retaining the foreign side’s whole capital contribution, the STOS with foreign
owned capital must complete dossier of registration for re-granting under
regulations of this Circular.
Within 15
working days since the date of receipt of completed and regular dossier, the
Registration Office submits to Minister of Science and Technology for
re-granting the science and technology operation registration Certificate to
the organization under standard form provided in Annex II enclosed with this
Circular, and issuing decision of recognizing the organization and approving
operation and organization Charter.
3.
Representative offices, branches of foreign STOS in Vietnam granted License of
establishment are continued to operate in accordance with provision in the
License.
Article 14. Effect
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2. Annulling
provision on establishment of STOS with foreign owned capital in points a
clause 2, Article 1 Circular No. 02.
Implementation
duration, if there is any difficulty, agencies, organizations need to reflect
promptly in writing to the Ministry of Science and Technology for
consideration, decision./.
FOR
THE MINISTER
DEPUTY MINISTER
Nguyen Quan
ANNEX I
BASIC CONTENTS OF OPERATION CHARTER OF STOS WITH
FOREIGN OWNED CAPITAL
(Issuing together with Circular No. 01/TT-BKHCN dated March 16, 2011 of
Minister of Science and Technology)
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Chapter I.
General provisions
Name of STOS
with foreign owned capital: name in Vietnamese, name in foreign language (if
any), abbreviated name in Vietnamese or in foreign language (if any).
Head office:
address, telephone, facsimile number.
Legal basis
for organization and operation: Law on Science and Technology, Decree No.
81/2002/ND-CP dated October 17, 2002 of the Government providing in detail for
implementation of a number of Articles of Law on Science and Technology, Decree
No. 80/2010/ND-CP dated July 14, 2010 of the Government providing for
coordination and investment with foreigners in science and technology field and
the other relevant legal documents.
Chapter II.
Activity field, functions, duties and authorities
Operation
domains, functions, duties and authorities of STOS are defined by the
establishment organizations, individuals according to its targets, tasks,
complying with provision in Article 4 Decree No.80/2010/ND-CP dated July 14,
2010 of the Government providing for coordination and investment with
foreigners in science and technology field and suitable to other regulations of
Vietnam law.
Chapter
III. Organizational structure
Organizational
structure, forms of appointment, removal, duties and powers of titles in
managerial apparatus and the other agencies (founding council, council of
Institute/Center/…, science council, consultant council) of STOS.
Chapter
IV. Material facilities – technology and finance
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Chapter V.
Dissolve
Stipulate
clearly conditions, orders, and procedures of dissolve.
Chapter
VI. Implementation provisions
Effective
time of Charter, conditions for modifying and supplementing Charter.
PROVISION ON USE OF
SCIENCE AND TECHNOLOGY OPERATION REGISTRATION CERTIFICATE
STOS with
foreign owned capital must implement seriously the following provisions:
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2. Prohibit
repairing, erasing contents in the science and technology operation
registration Certificate.
3. Prohibit
permitting somebody to borrow, renting out the science and technology
operation registration Certificate.
4. To conduct
procedures of registration at the science and technology operation
registration Certificate-issuing agency when changing, supplementing one of
the contents written in the Certificate.
5. To conduct
procedures of re-granting science and technology operation registration Certificate
according to provisions if it is lost or torn.
PROVISION ON USE OF
LICENSE
Representative offices, branches of
foreign STOS must implement seriously the following provisions:
1. To present License at the
competent state agencies’ request.
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3. Prohibit permitting somebody to
borrow, renting out the License.
4. To conduct procedures of
registration for modifying, supplementing, re-granting and extending License as
provided.
5. If the License is lost or missed,
organizations of License must inform promptly to the Ministry of Science and
Technology.