THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No: 23/2007/ND-CP
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Hanoi,
February 12, 2007
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DECREE
DETAILING THE COMMERCIAL LAW REGARDING
GOODS PURCHASE AND SALE ACTIVITIES OR GOODS PURCHASE AND SALE RELATED
ACTIVITIES OF FOREIGN-INVESTED ENTERPRISES IN VIETNAM
THE GOVERNMENT
Pursuant to the
December 25, 2001 Law on Organization of the Government;
Pursuant to the June 14, 2005 Commercial Law;
At the proposal of the Minister of Trade,
DECREES:
Chapter
I
GENERAL
PROVISIONS
Article
1.- Governing
scope
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Article
2.- Subjects of application
This Decree applies to
foreign-invested enterprises, and organizations and individuals involved in the
management of goods purchase and sale activities or goods purchase and sale
related activities of foreign-invested enterprises in Vietnam.
Article
3.- Interpretation
of terms
In this Decree, the
terms below are construed as follows:
1. Goods purchase and
sale activities or goods purchase and sale related activities means import,
export, distribution and other activities specified in Chapters IV, V and VI of
the Commercial Law.
2. Import and export
means activities specified in Article 28 of the Commercial Law.
3. Right to export
means the right to purchase goods in Vietnam for export, including the right to
have one's name written in the exports declaration in order to carry out, and
take responsibility for, export-related procedures. The right to export
excludes the right to establish a network for purchasing goods in Vietnam for
export, unless otherwise provided for by Vietnamese law or treaties to which
the Socialist Republic of Vietnam is a contracting party.
4. Right to import
means the right to import goods from foreign countries into Vietnam for sale to
traders that have the right to distribute those goods in Vietnam; the right to
import includes the right to have one's name written in the imports declaration
in order to carry out, and take responsibility for, import-related procedures.
The right to import excludes the right to establish, or participate in, a goods
distribution system in Vietnam, unless otherwise provided for by Vietnamese law
or treaties to which the Socialist Republic of Vietnam is a contracting party.
5. Distribution means
activities of goods whole-sale, retail, purchase and sale agency, and
commercial franchise as provided for by Vietnamese law.
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7. Wholesale means the
sale of goods to traders or other organizations, excluding the sale of goods
directly to the end consumer.
8. Retail means the
sale of goods directly to the end consumer.
9. Retail
establishment means an enterprise-owned unit that retails goods.
Article
4.- Conditions for a foreign-invested
enterprise to be granted a permit for dealing in goods purchase and sale
activities or goods purchase and sale related activities in Vietnam
1. Conditions for a
foreign-invested enterprise to be granted a permit for dealing in goods
purchase and sale activities or goods purchase and sale related activities in
Vietnam include:
a/ Being an investor
from a country or territory which has acceded to a treaty to which the
Socialist Republic of Vietnam is a contracting party and under which Vietnam
has committed to open its market for goods purchase and sale activities or
goods purchase and sale related activities;
b/ Making investment
in a form conformable with the roadmap already committed in treaties to which
the Socialist Republic of Vietnam is a contracting party and compliant with
Vietnamese law;
c/ Dealing in goods or
services in accordance with Vietnam's market-opening commitments and Vietnamese
law;
d/ Operating within a
scope compliant with Vietnam's market-opening commitments and Vietnamese law;
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2. The Minister of
Trade shall announce the roadmap already committed in treaties to which the
Socialist Republic of Vietnam is a contracting party and the conditions
specified in Clause 1 of this Article.
3. For foreign
investors not defined at Point a, Clause 1 of this Article, before a competent agency
grants a business permit, the Minister of Trade shall, on a case-by-case basis,
consider and approve goods purchase and sale activities or goods purchase and
sale related activities.
Article
5.- Competence to grant a permit for
dealing in goods purchase and sale activities or goods purchase and sale
related activities and a permit for setting up a retail establishment
1. Provincial-level
People's Committees shall grant permits for dealing in goods purchase and sale
activities or goods purchase and sale related activities (below referred to as
business permits for short) to foreign-invested enterprises already granted
investment certificates or investment licenses (collectively referred to as
investment certificates) after obtaining the Trade Ministry's written approval.
2. A foreign investor
that invests in goods purchase and sale activities or goods purchase and sale
related activities in Vietnam for the first time shall submit the dossier for
carrying out investment procedures to the investment-managing state agency.
This agency shall consult the Ministry of Trade and grant investment
certificates for goods purchase and sale activities or goods purchase and sale
related activities only after obtaining the Trade Ministry's written approval.
In this case, the investment certificate is as valid as the business permit.
Investment procedures shall be carried out in accordance with the Investment
Law.
3. When a foreign
investor invests in import or export activities only or when a foreign-invested
enterprise applies for additional import or export activities only but not for
goods distribution or goods purchase and sale activities or goods purchase and
sale related activities, the investment-managing state agency shall, based on
the market-opening roadmap committed in treaties to which the Socialist
Republic of Vietnam is a contracting party, grant or supplement the investment
certificate without having to obtain the Trade Ministry's approval.
4. A foreign-invested
enterprise which already has the right to distribution may set up the first
retail establishment without having to carry out the procedures for application
for a permit up for setting up a retail establishment according to the
provisions of this Decree. The provincial-level People's Committee shall, under
the Trade Ministry's guidance, decide on the setting up of other retail
establishments, in addition to the first one, according to the order and
procedures specified in this Decree.
Article
6.- Observance of relevant provisions of
law
1. Apart from the
rights and obligations defined in this Decree, foreign-invested enterprises
shall also observe the provisions of the Enterprise Law, the Investment Law and
relevant laws.
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3. When carrying out
the procedures for grant, re-grant or modification of business permits or
permits for setting up retail establishments, foreign-invested enterprises
shall pay fees according to the Finance Ministry's regulations.
4. When necessary,
foreign-invested enterprises are obliged to report or supply documents on, or
explain issues related to their activities at the request of competent state
management agencies according to Vietnamese law.
Chapter
II
PROCEDURES
FOR GRANT OF A BUSINESS PERMIT
Article
7.- Dossier of application for a business
permit
1. A written
application for a business permit, made according to a form set by the Trade
Ministry.
2. A written
explanation about the satisfaction of conditions set at Points a, b, c and d,
Clause 1, Article 4 of this Decree.
3. Planned goods
purchase and sale activities and goods purchase and sale related activities of
the enterprise.
4. A copy of the
investment certificate.
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1. An enterprise shall
submit 03 sets of dossier, including 01 original, to the People's Committee of
the province or centrally run city where the enterprise is headquartered.
2. Within 03 working
days after receiving the dossier, the dossier-receiving agency shall verify the
validity of the dossier and send that dossier to the Trade Ministry for
comments. If the dossier is invalid, the dossier-receiving agency shall notify
in writing the investor of such invalidity for modification of the dossier.
3. Within 15 working
days after receiving the dossier, the Trade Ministry shall send its written
comments on issues falling within its management competence.
4. Within 15 working days
after receiving the Trade Ministry's comments, the provincial-level People's
Committee shall decide to grant a business permit.
If refusing to grant a
business permit, the dossier-receiving agency shall notify in writing the
enterprise of such refusal and clearly state the reasons therefor.
5. Within 07 working
days after granting a business permit, the dossier-receiving agency shall send
copies of that permit to the Trade Ministry and the People's Committee of the
province or centrally run city where the enterprise is headquartered.
Article
9.- Contents and valid duration of a
business permit
1. Contents of a
business permit cover:
a/ Name and address of
the head office of the enterprise;
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c/ Validity duration
of the business permit.
2. For cases defined
in Article 5 of this Decree, the validity duration of the business permit shall
be the same as the investment project's operation duration written in the
investment certificate.
Article
10.- Modification of a business permit
1. A foreign-invested
enterprise shall carry out the procedures for modification of the business
permit at the business permit-granting agency if wishing to modify one of the
contents specified at Point or b, Clause 1, Article 9 of this Decree.
2. A dossier of
application for the modification of a business permit comprises:
a/ A written
application for modification of the business permit, made according to a form
set by the Trade Ministry;
b/ A copy of the
granted business permit.
3. Within 10 working
days after receiving the enterprise's complete and valid dossier as stipulated
in Clause 2 of this Article, the business permit-granting agency shall modify
the business permit if such application for modification complies with
Vietnamese law and treaties to which the Socialist Republic of Vietnam is a
contracting party. If refusing to modify the business permit, the business
permit-granting agency shall notify in writing the enterprise of such refusal
and clearly state the reasons therefor.
4. When receiving the
modified business permit, the enterprise shall turn in the original of the old
business permit to the business permit-granting agency.
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1. A business permit
shall be re-granted when it is lost, torn, damaged, burnt, or otherwise
destroyed.
2. When a business
permit is lost, the enterprise shall report such loss to the Public Security
agency of the locality where the permit is lost and to the business
permit-granting agency and announce the loss on the mass media for three
consecutive times. After 30 days from the date of the first-time announcement,
the enterprise shall send an official letter requesting the business
permit-granting agency to re-grant the permit.
3. A dossier of
application for the re-grant of a business permit comprises:
a/ A written
application for re-grant of the business permit, made according to a form set
by the Trade Ministry;
b/ The Public Security
agency's certification of the declaration of the loss of the business permit; a
written explanation about the reasons why the permit is torn, damaged, burnt,
or otherwise destroyed.
4. Within 07 working
days after receiving the complete and valid dossier, the business
permit-granting agency shall re-grant the business permit.
Article
12.- Goods purchase and sale activities or
goods purchase and sale related activities
1. Goods purchase and
sale activities or goods purchase and sale related activities of a
foreign-invested enterprise must be specified in the business permit,
specifically:
a/ Goods purchase and
sale activities or goods purchase and sale related activities permitted to be
carried out;
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c/ Goods purchase and
sale related services permitted to be provided.
2. A foreign-invested
enterprise may carry out only activities indicated in its business permit.
3. An enterprise may
deal in goods or services which are by law subject to conditional business only
when it fully meets the conditions provided for by Vietnamese law.
Chapter
III
PROCEDURES
FOR GRANT OF A PERMIT FOR SETTING UP A RETAIL ESTABLISHMENT
Article
13.- Dossier of application for setting up
a retail establishment
1. A written
application for setting up a retail establishment in Vietnam, made according to
a form set by the Trade Ministry, indicating:
a/ Name and address of
the head office of the enterprise;
b/ Name(s) and
address(es) of the retail establishment(s) already set up;
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d/ Activities of the
retail establishment;
e/ Full name, place of
residence, identity card or passport number, or other lawful personal
identification papers of the head of retail establishment;
f/ Full name and
signature of the representative at law of the enterprise.
2. A copy of the
business permit.
Article
14.- Process of granting a permit for
setting up a retail establishment
1. An enterprise shall
submit 03 sets of dossier, including 01 original, to the People's Committee of the
province or centrally run city where the retail establishment is planned to be
located.
2. Within 03 working
days after receiving the dossier, the dossier-receiving agency shall verify the
validity of the dossier and send that dossier to the Trade Ministry for
comments. If the dossier is invalid, the dossier-receiving agency shall notify
in writing the investor of such invalidity for modification of the dossier.
3. Within 15 working
days after receiving the dossier, the Trade Ministry shall send its written
comments on issues falling within its management competence.
4. Within 15 working
days after receiving the Trade Ministry's comments, the provincial-level
People's Committee shall decide to grant the permit for setting up a retail
establishment, When necessary, this time limit may be extended for no more than
30 days.
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5. Within 07 working
days after granting a permit for setting up a retail establishment, the
dossier-receiving agency shall send copies of such permit to the Trade Ministry
and the People's Committee of the province or centrally run city where the
enterprise is headquartered.
Article
15.- Contents and validity duration of a
permit for setting up a retail establishment
1. Contents of a
permit for setting up a retail establishment cover:
a/ Name and address of
the head office of the enterprise;
b/ Name and address of
the retail establishment;
c/ Activities of the
retail establishment;
d/ Full name, place of
residence, identity card or passport number, or other lawful personal
identification papers of the head of the retail establishment;
e/ Validity duration
of the permit.
2. For the case
defined in Clause 4, Article 5 of this Decree, the validity duration of a
permit for setting up a retail establishment shall be the same as that of the
business permit.
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1. Within 10 days
after deciding to change any of the contents specified at Point a, b, c or d,
Clause 1 of Article 15, a foreign-invested enterprise shall carry out the
procedures for modification of a permit for setting up a retail establishment.
2. A dossier of
application for the modification of a permit for setting up a retail
establishment comprises:
a/ A written
application for the modification of a permit for setting up a retail
establishment, made according to a form set by the Trade Ministry, clearly
indicating the to be-modified contents;
b/ A copy of the
granted permit.
3. Within 10 working
days after receiving the complete and valid dossier as stipulated in Clause 2
of this Article, the agency granting a permit for setting up a retail
establishment shall modify that permit.
4. When receiving the
modified permit, the foreign-invested enterprise shall turn in the original of
the old permit to the permit-granting agency.
Article
17.- Re-grant of a permit for setting up a
retail establishment
1. A foreign-invested
enterprise shall be re-granted a permit for setting up a retail establishment
when that permit is lost, torn, damaged, burnt, or otherwise destroyed.
2. The dossier and
procedures for re-grant of a permit for setting up a retail establishment shall
be the same as those for re-grant of a business permit as specified in Article
11 of this Decree.
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IMPLEMENTATION
PROVISIONS
Article
18.- Handling of violations
1. Depending on the nature
and severity of their violations, foreign-invested enterprises shall be
administratively handled according to the law on handling of administrative
violations. If committing serious violations, they shall have their business
permits or permits for setting up retail establishments revoked.
2. When there are
enough criminal elements in an act of violation, the violator shall be examined
for penal liability according to law.
Article
19.- Implementation effect
This Decree takes
effect 15 days after its publication in "CONG BAO."
Article
20.- Organization of implementation
1. The Ministry of
Trade shall guide the implementation of this Decree.
2. The Ministry of
Finance shall specify the levels and management of fees for grant, re-grant or
modification of business permits or permits for setting up retail
establishments.
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ON
BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung