COUNCIL
OF MINISTERS
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|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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|
No.
322-HDBT
|
Hanoi,
October 18, 1991
|
DECREE
ON SPECIAL EXPORT PROCESSING ZONES THE COUNCIL Of MINISTERS
Pursuant to the Law on Organization
of the Council of Ministers dated 4 July 1981;
Pursuant to the Law on foreign Investment in Vietnam dated 29 December 1987;
In order to encourage and create favorable conditions for foreigners investing
capital, advanced technology and industry in the industrial zones of Vietnam
for the purpose of production of export goods, the effective exploitation of
labor, and the development of advanced technology and industry ;
On the proposal of the Chairman of the State Committee for Co-operation and Investment.
DECREES
Article 1
To promulgate in conjunction with this Decree, regulations
on special export processing zones in Vietnam.
Article 2
Ministers, chairmen of the State Committees, heads of other
bodies of the Council of Ministers, and chairmen of the people's committees of
the provinces and cities under central authority shall be responsible for the
implementation of this Decree.
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This Decree shall be of full force and effect as of the date
of its signing.
FOR
THE COUNCIL OF MINISTERS
VICE CHAIRMAN
Vo Van Kiet
REGULATIONS
ON SPECIAL EXPORT PROCESSING ZONES IN VIETNAM
(Issued in conjunction with Decree No. 322-HDBT of the Council of Ministers
dated 18 October 1991)
Chapter 1
GENERAL PROVISIONS
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Special export processing zones are industrial zones under
central authority which are dedicated to the production of goods for export and
provision of services relating to the export of goods, which zones shall be
established and administered in accordance with these regulations.
Article 2
Special export processing zones shall be established by
the Government of Vietnam at locations convenient for the production of goods
for export and for their actual export. The are of the zones shall be defined
by a geographical border determined in acc ordance with the decision for their
establishment.
Article 3
The Government of Vietnam shall ensure the fair and
equitable treatment of investors who invest in special export processing zones.
The
provisions which guarantee investment that are stipulated in articles 21, 22,
25 of the Law on foreign Investment in Vietnam shall also apply to investors
who invest in special export processing zones.
Investors who
invest in special export processing zones shall be entitled to all the privileges
stipulated in these Regulations.
Article 4
Investors shall be permitted to operate within special
export processing zones in the following areas:
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2. Providing
services in relation to the above activities and to export.
Article 5
The following persons and organizations may invest in
special export processing zones:
1. foreign
economic organizations and individuals.
2. overseas
Vietnamese (including individuals and economic organizations which are legal
entities).
3. Vietnamese
economic organizations from all sectors of the economy and which are legal
entities.
Article 6
The management body of a special export processing zone is
the management committee of a special export processing zone.
Article 7
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A joint
venture enterprise which carries on the business of construction of
infrastructures within special export processing zones shall be established and
shall operate in accordance with the provisions of the Law on foreign
Investment in Vietnam and Decree No.28-HDBT dated 5 February 1991 of the
Council of Ministers. The rights and obligations of each enterprise shall be
stipulated in the investment licence granted by the State Committee for
Co-operation and Investment.
Article 8
Investment in a special export processing zones shall be
subject to the following requirements:
1. In respect
of a production factory: products are to be sold in foreign markets; priority
shall be given to the employment of Vietnamese citizens and foreigners shall
only be employed in respect of those jobs which Vietnamese workers are unable
to per form; production shall not cause pollution to the environment.
2. In respect
of service businesses such as transport, loading and unloading, repairs,
insurance, banking: to provide effective support to import and export
production activities in the special export processing zones.
Article 9
Forms of investment in special export processing zones may
include:
1. The
establishment by investors of an enterprise with one hundred (100) per cent
foreign owned capital.
2. The
formation of a joint venture enterprise between a foreign party (or parties)
and a Vietnamese party (or parties)
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Chapter II
ENTERPRISES OF A SPECIAL
EXPORT PROCESSING ZONES
Article 10
An enterprise of a special export processing zones shall be
established in the form of limited liability company.
An enterprise
of a special export processing zones shall be a legal entity in accordance with
the law of Vietnam and shall operate in accordance with the provisions of the
Law on foreign Investment in Vietnam and the Regulations on Special export
processing Zones.
Article 11
In order to establish an enterprise in a special export
processing zones, the investors shall submit an application accompanied by the
requisite information to the management committee of the special export
processing zones. Within three months of its receipt of the application and
accompanying information, the management committee of the special export
processing zones shall notify the investor of its decision. Where the
application is accepted the management committee of the special export
processing zones shall issue the investor with a business licence and
certificate of registration of the charter of the enterprises.
The
information accompanying the application shall be registered with the
management committee of the special export processing zone
Article 12
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Article 13
The duration of operation of an enterprise within a special
export processing zone shall not exceed fifty (50) years form the date on which
the enterprise is issued with a business licence by the management committee of
the special export processing zone.
Where the
duration of operation of the enterprise has expired and the enterprise wishes
to continue operating within the special export processing zone, it may apply
to management committee of the special export processing zone for an extension
to its operation. Where the application is approved the enterprise shall not be
required to re-register its charter.
Article 14
Enterprises of special export processing zone shall be
permitted to conduct business in accordance with the provisions of the Law on
foreign Investment in Vietnam, the Regulations on Special export processing
Zones and the provisions contained in its business licence.
Article 15
In accordance with the principle of autonomy in its
business operations, enterprises of special export processing zones shall have
the following rights:
1. To lease
land located within the special export processing zone, build houses, plan and
construct projects, and conduct business in accordance with the provisions of
its business licence.
2. To use the
infrastructure and the services provided by the special export processing zones
and to pay fees in respect of that use.
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4. To import
equipment, raw materials, and other materials required for its business
operations in accordance with the provisions of its business licence.
5. To export
products to foreign markets, and provide services in relation to the export of
products.
6. To fix the
price of products and services on an agreement basis.
7. To employ
workers and employees to work at the enterprise.
Article 16
Enterprises of special export processing zones shall have
the following obligations:
1. To comply
with the Regulations on Special export processing Zones, the Law on foreign
Investment in Vietnam and the Laws of Vietnam.
2. To perform
the financial obligations owed to the Government of Vietnam as stipulated in
the Regulations on Special export processing Zones.
3. To open
and maintain accounts at Vietnamese banks or joint venture banks between
Vietnam and a foreign country or at branches of foreign banks operating in Vietnam.
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5. To insure
assets and other risks within their business.
6. To ensure
labor safety and industrial hygiene, the protection of the environment and
ecology of the special export processing zones, and the implementation of fire
prevention measures.
Chapter III
LEASE OF LAND, BUILDING,
PLAN, AND CAPITAL CONTRACTION
Article 17
The land located within special export processing zones is
owned by the State of Vietnam.
Article 18
Investors shall be entitled to lease land within a special
export processing zone for the purpose of construction of the buildings and
plant necessary for their business.
Article 19
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Article 20
Where the construction of buildings and plant requires the
use of the land in stages, investors shall be permitted by the management
committee to lease the total area of land required on the basis that all of
that area shall be used within a maximum period of three years. Where, due to
force major or other legitimate reasons, the enterprise does not complete its
proposed plan of construction, it shall apply to the management committee of
the special export processing zone for an extension of the duration of the
construction period before the stipulated period expires.
Where the
stipulated period expires and the duration of the construction period of the
enterprise has not been extended, the management committee of the special
export processing zone may recover the unused land, in respect of which the
enterprise shall not be refunded rent paid.
Article 21
Investors may lease or buy buildings and plant constructed
within a special export processing zone by the Government of Vietnam or by a
joint venture enterprise engaged in the business of infrastructure
construction.
Article 22
The construction of buildings and plant within a special
export processing zone shall take place in accordance with the scheme and
design of the special export processing zone.
Article 23
Investors may themselves build or accept tenders for the
construction of buildings and plant. The tenders of Vietnamese constructions
for a project shall be given priority.
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Measures shall be taken in respect of construction projects
within special export processing zones to ensure quality, the supply and usage
of water, fire prevention, fire fighting, and the protection of the environment
and ecology.
Article 25
A joint venture company which carries on the business of
infrastructure construction within a special export processing zone, and leases
land, buildings and plant within the special export processing zone shall do so
in accordance with the provisions of t he investment licence issued by the
State Committee for Co-operation and Investment.
On the basis
of the uniform scheme of the management committee of the special export
processing zone, enterprises which conduct the visions of infrastructure
construction may seek investment by other investors into the v for
infrastructure projects and to lease buildings and plant.
Chapter IV
ENTRY TO AND EXIT FROM
SPECIAL EXPORT PROCESSING ZONES
Article 26
Each special export processing zone shall be separated from
the territory adjacent to the zone by a system of fencing with gates for the
entry into and exit from the special export processing zone
Article 27
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Article 28
Vietnamese citizens and foreigners shall not be permitted
to live inside special export processing zones. Where due to the needs of their
work it is necessary for any of the above persons to live temporarily inside
the special export processing zones those persons shall require the permission
of the management committee of the special export processing zone.
Article 29
The entry to and exit from, travel and other activities
within a special export processing zone shall be stipulated in the charter of
the special export processing zone.
Chapter V
LABOR RELATION WITHIN
SPECIAL EXPORT PROCESSING ZONE
Article 30
Enterprises operating within special export processing
zones shall, in recruiting employees, give priority to Vietnamese employees,
and employ foreign employees only in respect of those jobs which the Vietnamese
employees are unable to perform.
Article 31
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Article 32
The amount of salary to be paid to Vietnamese workers and
employees working at enterprises which operate within special export processing
zones shall be agreed upon between the employees and a representative of the
enterprise and recorded in a labor contract.
Article 33
All provisions contained in the Regulations on Labor in
Enterprises with foreign Owned Capital which are not inconsistent with the
provisions of articles 31 and 32 of this Decree shall be applied to enterprises
operating within special export processing z ones
Chapter VI
EXPORT AND IMPORT OF
GOODS AND SERVICES
Article 34
Equipment, means of transport, materials, goods (commonly
referred to as goods, luggage and foreign currency) which are imported from
foreign countries into a special export processing zone (direct or via the
border ports of Vietnam) and from special expo rt processing zones to foreign
countries (direct or via the border ports of Vietnam) shall be subject to
customs inspection and control in accordance with provisions of the law on
Customs and to the payment of customs duty.
Article 35
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2. The
transport of export goods from the place of inspection by the customs office
within the special export processing zone to the ports of Vietnam and the
transport of import goods from the ports of Vietnam to the place of inspection
of the customs of fice within a special export processing zone shall take place
in containers, barrels, and bags affixed with the customs seal and escorted by
customs officers.
Article 36
Goods of enterprises operating within special export
processing zones which are sold or bought locally in Vietnam shall be regarded
as goods of Vietnam imported from, or exported to, a foreign country subject to
the laws on export and import of the Social ist Republic of Vietnam.
In this case
the purchaser and the vendor shall comply with customs formalities within the
special export processing zone and with the Law on Customs.
Article 37
1. The luggage and foreign currency of a foreigner working
within a special export processing zone (including investors and foreigners
working at enterprises which operate within a special export processing zone)
which are brought to Vietnam upon the for eigner entering Vietnam and taken to
a foreign country upon that foreigner leaving Vietnam shall be subject to the
customs formalities at the customs office located at the appropriate ports of
the Socialist Republic of Vietnam.
2. The
luggage and foreign currency of foreigners passing between special export
processing zones and the territory of Vietnam outside the special export
processing zones shall be subject to customs formalities at the place of
inspection of the custom of fices in the special export processing zone.
Article 38
Enterprises operating within special export processing
zones shall be permitted to sign contracts with economic organizations
belonging to all economic sectors within Vietnam for the processing of raw
materials into finished products and for the provision of service in accordance
with the provisions of the Government of Vietnam in relation to the processing
of materials and the provision of services between Vietnamese enterprises and
foreign enterprises.
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1. Customs formalities shall be conducted in public,
quickly and politely.
Customs
officers shall be responsible for assisting enterprises operating within
special export processing zones to carry out customs formalities.
2. The
customs inspection of goods and luggage carried out at a special export
processing zone shall be carried out in the presence of the owner or legal
representative of the owner.
3. The
director of the customs office located within a special export processing zone
shall have the power to request an extraordinary inspection of goods stored in
a warehouse of an enterprise operating within that special export processing
zone where h e reasonably believes that those goods have been illegally
exported or imported.
4. The head
of the customs office at each port and the higher authorities shall have the
power to conduct a search in accordance with the provisions of the laws of
Vietnam on customs where they reasonably believe that goods, foreign currency,
or Vietnamese currency has been exported, imported, or brought out of, or into,
a special export processing zone, illegally.
Article 40
Goods transported from one special export processing zone
to another located within the territory of Vietnam shall be exempt from export
and import duties and shall take place in containers and barrels affixed with
tickets and the customs seal and escorted by customs officers.
Article 41
Any act which is committed in breach of the provisions of
this chapter shall, depending on the nature and degree of seriousness of the
breach, be regarded as a breach of customs formalities, customs inspection and
control, or as the smuggling or illegal transport of goods, foreign currency,
and Vietnamese currency over the border, and he dealt with in accordance with
the law on customs.
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MANAGEMENT OF FOREIGN
CURRENCY EXCHANGE
Article 42
Any foreigner conducting business within a special export
processing zone who brings foreign currency into Vietnam shall comply with
customs formalities at the customs office located at the port of his entry into
or exit from Vietnam and shall be permitted to take with him any sums of
foreign currency which remain unspent.
Article 43
Any foreign currency brought from the outside territory of
Vietnam into a special export processing zone or brought from a special export
processing zone into the outside territory of Vietnam shall be brought in
compliance with the Regulations of the Socialist Republic of Vietnam on foreign
Exchange.
Article 44
Vietnamese dong shall not be circulated within a special
export processing zone. All sales, purchases, payments, and assignments shall
take place using freely convertible currency.
Article 45
Enterprises operating within special export processing
zones which are exporting goods or providing services in return for foreign
currency shall deposit the foreign currency into an account maintained at a
bank. The expenses of enterprises shall be paid through the above account.
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Foreigners investing in special export processing zones
shall be permitted to transfer abroad the sums of money referred to in Article
22 of the Law on foreign Investment in Vietnam.
Article 47
Foreigners working at enterprises operating within special
export processing zones shall be permitted to transfer abroad their salary and
legitimate revenue in accordance with article 23 of the Law on foreign
Investment in Vietnam.
Chapter VIII
ACCOUNTS AND STATISTICS
REGIME AND FINANCIAL MATTERS
Article 48
Enterprises operating within a special export processing
zone shall apply the system of accounts and statistics stipulated in the
Ordinance on Accounting and Statistics dated 10 May, 1988.
Article 49
Enterprises operating within a special export processing
zone shall be subject to financial audit by a financial authority of Vietnam.
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Article 50
The account report of an enterprise operating within a
special export processing zone shall be submitted to the management committee
of the special export processing zone and the appropriate financial authority
within three months from the end of the financial year of the enterprise.
Article 51
1. Enterprises operating within special export processing
zones shall pay profits tax as follows:
(a) Ten (10)
per cent of profit in respect of a production enterprise.
(b) fifteen
(15) per cent of profit in respect of service enterprise.
2.
Enterprises operating within special export processing zones shall be exempted
from payment of corporate profits tax as follows:
(a) Production
enterprises shall be exempted for a period of four years from the year in which
the enterprise begins to earn profit.
(b) Service
enterprises shall be exempted for a period of two years from the year in which
the enterprise begins to earn profit.
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4. Where
investors reinvest profit earned back into an enterprise operating within a
special export processing zone or within the territory of Vietnam for a period
of three years or more, those investors shall be refunded by the tax authority
the profits tax paid in respect of that profit which has been reinvested.
Article 52
1. Enterprises operating within special export processing
zones shall be exempted from payment of import duty in respect of the import of
equipment, materials, and goods from a foreign country to the special export
processing zone, and shall be exempted from payment of export duty in respect
of goods or products exported to a foreign country.
2. Goods
produced or supplied from within special export processing zones which are sold
to a domestic market abroad from a domestic market within Vietnam shall be
subject to import and export duties in accordance with the law on import and
export duties on commercial goods of Vietnam. (Specific provisions shall be
made in respect of discarded material, defective products of enterprises within
the special export processing zone which are sold to the territory of Vietnam
and, food which is required for everyday living in the special export
processing zones which has been brought from the outside territory of Vietnam
into the special export processing zones)
Article 53
Houses and land located within a special export processing
zone shall be subject to the payment of tax on houses and land pursuant to the
law of Vietnam.
Article 54
Upon transferring their profits abroad, foreign investors
shall pay tax on the transfer at a rate of five per cent of the total amount of
profits transferred abroad.
Article 55
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Article 56
Enterprises operating within the special export processing
zones shall be required to pay customs duties, duty on registration, stamp
duties on certification, fees for the management and organization of the
special export processing zones, and other related fees in accordance with the
provisions in force at the locality where the special export processing zone is
located.
Chapter IX
STATE ORGANIZATION AND
MANAGEMENT OF SPECIAL EXPORT PROCESSING ZONE
Article 57
The management committee of a special export processing
zone shall have the following responsibilities and powers:
1. To
establish a scheme for the development and operation of the special export
processing zone and to promote construction and investment within the special
export processing zone.
2. To
establish and implement the rules of the special export processing zone.
3. To
exercise the powers delegated by the State Committee for Co-operation and
Investment, to examine investment projects within the special export processing
zone, and grant business licenses (except in respect of those joint venture
enterprises carrying on the business of infrastructure construction within
special export processing zones as referred to in article 8 of these
regulations and other projects which take place within the area of banking).
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5. To manage
the administration of the activities taking place within the special export
processing zone .
6. To issue a
certificate of origin of goods and other certificates within the power of the
management committee.
7. To monitor
and inspect the use of business licenses.
8. To act as
a mediator in labor disputes and in disputes arising from economic contracts on
the request of the parties to the dispute.
9. To ensure
that all activities within the special export processing zone comply with these
regulations and the charter of the special export processing zone.
Article 58
The management committee of a special export processing
zone shall include a head of the committee and a number of deputy heads and
members. The committee shall have its own seal.
The members
of the management committee of the special export processing zone shall be
appointed by the Chairmen of the Council of Ministers in accordance with the
proposals made by the Chairman of the Stare Committee for Co-operation and
Investment and the chairman of the people's committee of the province or city
where the special export processing zone is located.
Article 59
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2. Bodies
specialized in such areas as customs, tax, and public security within the
special export processing zones shall be established, instructed, and guided by
the appropriate specialized body at a higher level.
3. Where
necessary, the management committee of a special export processing zone may
establish a consulting committee which shall include representatives from the
enterprises operating within the special export processing zone and a number of
experts.
4. The banks and
the insurance company of Vietnam shall be permitted to establish branch offices
within the special export processing zones.
Article 60
1. The management committee of a special export processing
zone shall be responsible for preparing its budget.
2. The
revenue received by a special export processing zone shall be paid to the State
treasury. All expenses incurred by the zone shall be paid from the Stare
budget.
Article 61
The Stare Committee for Co-operation and Investment shall
be responsible for:
1. Examining
and approving operation projects and the charter of the special export
processing zone.
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3. Resolving
any matters which arise in relation to policy and laws and which are not within
the power of the management committee of the special export processing zone or
the people's committee at the locality at which the special export processing
zone is located.
Article 62
The people's committee of the provinces and cities at which
the special export processing zone is located shall be responsible for:
1. Resolving
any matters which arise in relation to the special export processing zone which
are within the scope of the power of the people's committee.
2. Nominating
members to be appointed to the management committee of the special export
processing zone.
3. Creating
conditions necessary in order for the management committee of the special
export processing zone to fully perform its duties as stipulated in article 59
of these regulations.
Article 63
Treatment of disputes within the special export processing
zones.
1. The
management committee of a special export processing zone shall be responsible
for the mediation of labor disputes between enterprises operating within the
special export processing zones and labor and disputes arising out of economic
contracts between enterprises operating within the special export processing
zone. Where such mediation is unsuccessful the labor disputes shall be brought
before the provincial people's court and the economic contract disputes shall
be brought to State arbitration fo r resolution in accordance with the laws of
Vietnam.
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Article 64
Any criminal offenses which are committed within a special
export processing zone shall fall within the jurisdiction of the people's court
in accordance with the provisions of the laws of Vietnam.
Chapter X
FINAL PROVISIONS
Article 65
Where any of the provisions of Decree No 28-HDBT dated 6
February 1991 are inconsistent with the provisions of this Decree in relation
to the same matter the provisions of this Decree shall apply.
Other
provisions relating to the operation of enterprises within a special export
processing zone which are not referred to in this Decree shall be applied in
accordance with the equivalent provisions of the Law on foreign Investment in
Vietnam and those of the above Decree.
Article 66
Any privileges to be granted pursuant to these Regulations
to an investor in a special export processing zone shall be observed by the
Government of Vietnam and also granted to those investors who were issue of
these provisions which may affect the benefits to which those investors are
entitled.
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The Ministries and the State Committees concerned, and the
people's committees of the provinces and cities where the special export
processing zone is established shall, pursuant to these regulations, be
responsible for making detailed provisions for their implementation.
The
management committee of a special export processing zone shall draft the
charter of the special export processing zone and submit it to the State
Committee for Co-operation and Investment for approval.