In business establishment activities, capital contribution is a mandatory obligation that investors must perform in accordance with the law. According to the concept in Clause 18, Article 4 of the Enterprise Law 2020, “Capital contribution is the contribution of assets to form the charter capital of the company, including capital contribution to establish the company or additional contribution to the charter capital of the company already approved. establish.” Thus, the Enterprise Law 2022 clearly states that the contribution of capital is the contribution of assets. In today’s article, Vo Consultants will provide more details about “assets contributed as capital when establishing a business”.

Assets allowed to contribute capital:

According to the provisions of Article 1, Article 34 of the Law on Enterprises 2020, the property contributed as capital is Vietnam Dong, freely convertible foreign currency, gold, land use rights, intellectual property rights, technology, and secrets. technical decisions, other assets that can be valued in Vietnam Dong”.

Thus, the law has a fairly detailed list of the types of assets that are allowed to be used for capital contribution, including:

– Vietnamese Dong;

– Freely convertible foreign currencies;

– Gold;

– Land use rights;

– Intellectual property rights, technology, technical know-how;

– Other assets.

The addition of the phrase “other property” in the types of assets entitled to contribute capital shows that the law of business is open, facilitating the diversity of assets in capital contribution activities, from This creates favorable conditions for investors. In fact, many investors contribute capital to enterprises with other assets such as: Production lines; Car; Construction…

However, it is also in this provision that the Law on Enterprises also sets out the mandatory “properties” of assets contributed as capital:

This property can be valued in Vietnam Dong;

This property must be under the lawful ownership or lawful use right of the investor making the capital contribution.

Transfer of ownership of contributed assets:

According to the list of assets entitled to make capital contribution mentioned in Section 1, we can see that these assets can be classified into two groups: (1) Group of assets with registered ownership: Right to use use of land, vehicles, intellectual property rights…; (2) Groups of assets without registration of ownership: Vietnam Dong, freely convertible foreign currencies, gold, production lines, etc. Depending on the assets contributed as capital, they belong to group (1) or group (2). mentioned here, the transfer of ownership of contributed assets also has differences.

For groups of assets with registered ownership rights, based on Article 35 of the Enterprise Law 2022, the transfer of ownership rights is stipulated that “the capital contributor must carry out procedures to transfer the ownership of that property or the land use right. to the company in accordance with the law. The transfer of ownership or land use rights to assets contributed as capital is not subject to registration fees;”.

For the group of assets without registration of ownership, also in Article 35 of this Law on Enterprises 2022, “the capital contribution must be made by handing over the contributed assets certified in writing, except for the Cases are made through the account. As for the group of unregistered assets, we can almost divide them into two subgroups: assets that must be delivered and transferred and assets that can be transferred (freely convertible foreign currency). Therefore, the law stipulates that the transfer of ownership rights to this property is to deliver the property, except in the case of transfer. Unlike registered assets, which can determine the transfer of ownership through registration procedures with competent state agencies, transferable accounts can confirm the time of transferring assets contributed as capital. Through transfer information, the Law on Enterprises also requires that for assets transferred by ownership in the form of delivery, there must be a “Receipt of delivery and receipt of assets contributed as capital” with all the contents as prescribed by law.

Moreover, applicable to all groups of assets, “The capital contribution is only considered as complete payment when the legal ownership of the assets contributed as capital has transferred to the company.”

Valuation of contributed assets:

According to Article 36 of the Enterprise Law 2020, if the assets contributed as capital are not Vietnam Dong, freely convertible foreign currencies or gold, they must be valued and expressed in Vietnamese Dong.

This valuation will be determined by the founding members and shareholders according to the consensus principle. Or by the price appraisal organization, in case if the price appraisal organization conducts the appraisal, “the value of assets contributed as capital must be approved by more than 50% of the members, founding shareholders”.

If the assets contributed as capital are valued higher than their actual value at the time of capital contribution, “the founding members and shareholders jointly contribute an additional amount equal to the difference between the determined value and the value of the assets contributed as capital.” the actual price and value of the assets contributed as capital at the time of valuation completion; at the same time jointly responsible for damage caused by intentionally valuing the assets contributed as capital higher than the actual value”.

Assets contributed as capital in the course of operation shall be agreed upon by the owner, the Members’ Council, for limited liability companies and partnerships, and the Board of Directors, for joint-stock companies, and capital contributors. or by a valuation organization.

In the case of valuation by a valuation organization, the value of assets contributed as capital must be approved by the capital contributor and owner, by the Members’ Council or by the Board of Directors. In case the assets contributed as capital are valued higher than the actual value of such assets at the time of capital contribution, the capital contributors, owners, members of the Members’ Council, for limited liability companies and companies partnerships, members of the Board of Directors, for joint-stock companies, jointly contribute an additional amount equal to the difference between the assessed value and the actual value of the assets contributed as capital at the time of valuation completion; at the same time jointly responsible for damage caused by the intentional pricing of assets contributed as capital higher than the actual value.

Time limit for capital contribution:

According to the provisions of law in Article 47 of the Enterprise Law 2020, “Members must contribute capital to the company with all and the right types of assets as committed when registering for business establishment within 90 days from the date of issuance of the Certificate of Business Registration. business registration, excluding the time to transport, import assets contributed as capital, carry out administrative procedures to transfer property ownership”

If within this time limit, “the member has rights and obligations in proportion to the committed capital contribution ratio. A member of the company may only contribute capital to the company with an asset other than the committed one if it is approved by more than 50% of the remaining members.

In case, after the prescribed time of capital contribution, there are still members who have not contributed capital or have not fully contributed the committed capital, the following handling shall be made:

“Members who have not contributed capital as committed are automatically no longer members of the company;

Members who have not yet fully contributed the committed capital contribution shall have the rights corresponding to the contributed capital;

The uncontributed capital portion of members is offered for sale in accordance with resolutions and decisions of the Members’ Council.

In case there are members who have not contributed capital or have not fully contributed the committed capital amount, the company must register to change the charter capital, the proportion of capital contribution of the members equal to the contributed capital within 30 days from the date of registration. on the last day to fully contribute the capital contribution as prescribed. The members who have not contributed capital or have not fully contributed the committed capital amount shall be responsible in proportion to the committed capital contribution ratio for the financial obligations of the company arising in the period before the date of registration of the company. sign changes to the charter capital and the percentage of contributed capital of members.

In case the certificate of capital contribution is lost, damaged or otherwise destroyed, the member shall be re-issued with the certificate of capital contribution by the company according to the order and procedures specified in the company’s charter. “.

Administrative sanctions in capital contribution activities:

Administrative sanctions in capital contribution activities include the following two issues:

Time of capital contribution;

Wrong valuation of assets contributed as capital;

Penalties

Pursuant to Clause 3, Article 46 of Decree 122/2021/ND-CP specifically stipulates as follows: “A fine of between VND 30,000,000 and VND 50,000,000 shall be imposed for one of the following acts:

a) Failing to carry out the procedures for capital adjustment or change of founding members or shareholders as prescribed at the business registration office when the time limit for capital contribution has expired and the time for capital adjustment has expired due to members or shareholders. founding shareholders do not contribute enough capital but no founding members or shareholders fulfill their commitment to contribute capital;

b) Intentionally fixing the value of the assets contributed as capital to the wrong value”.

Remedial measures

Remedial measures for violations of the capital contribution deadline are specified at Point b, Clause 5, Article 46 of Decree No. 122/2021/ND-CP: “Forcing to carry out procedures for capital adjustment or change of members , founding partner”

For violations in the issue of mispricing assets contributed as capital, based on the provisions of Article 3, Article 36 of the Enterprise Law 2020, if the assets contributed as capital are valued higher than “the actual value of At the time of capital contribution, capital contributors, owners, members of the Members’ Council, for limited liability companies and partnerships, and members of the Board of Directors, for joint stock companies, are jointly involved. additional contribution equal to the difference between the assessed value and the actual value of the assets contributed as capital at the time of closing valuation; at the same time jointly responsible for damage caused by the intentional valuation of assets contributed as capital higher than the actual value.

Above are the sharing of Lawyers, providing information for the purpose of not consulting and not consulting opinions, Vo Consultants is not responsible in all cases.

For each specific case, please contact Vo Consultants for detailed advice.

Lawyers for business legal advice: 0909 865 891 – 0901 476 391

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Office address: 8th floor, Callary Building, 123 Ly Chinh Thang, Vo Thi Sau Ward, District 3, Ho Chi Minh City.

Best regards./.