Conditions, sequence, and procedures for applying for Certificate of satisfaction of security and or

Legal situation: Hello FDVN, I have established a company for hotel business, and now the government requires me to apply for a security certificate. I want to know if it is mandatory for my case to apply for a certificate of satisfaction of security and order conditions. If yes, what are the procedures for obtaining it?

 

 Answer:

 

Thank you for sending your question to FDVN Law Firm ("FDVN"). Regarding your consultation requests, after researching relevant legal regulations, FDVN has the following exchanges to share:

 

1. Is it mandatory to have a security certificate for hotel business?

 

According to Clause 1,  Article 48, of the Law on Tourism 2017, hotels are one of the types of tourist accommodation.

 

Clause 22, Article 3 of Decree No. 96/2016/ND-CP dated July 1, 2016, issued by the Government, regulates business investment activities subject to security and order conditions and management scope as follows:

 

“22. Accommodation services, consisting of: Accommodation establishments as referred to by regulations of the Law on Tourism and other types of accommodation renting services (on an hour or overnight basis) provided on the land or on cruise ships. Leasing of houses by organizations or individuals to Vietnamese people or foreigners (with house lease agreements) for the purpose of residence, study or working is not governed by this Decree.”

 

Continue, point m, Clause 1,  Article 8 Decree 96/2016 ND/CP stipulates that:

 

“Article 8. Business sectors requiring security and order guarantee plan”

 

m) Accommodation service (if the business establishment is an enterprise)”

 

Therefore, for the case of operating accommodation services like yours, it is mandatory to have a certificate certifying compliance with security and order requirements.

 

2. Security and order requirements for accommodation service businesses

 

 Based on Article 7 of Decree No. 96/2016/ND-CP dated July 1, 2016, issued by the Government, accommodation service businesses must meet the following security and order requirements:

 

“1. A business establishment must be registered, licensed or established under the law of Vietnam.

 

2. The person in charge of security and order of a business establishment must not be one of the following subjects:

 

a) Vietnamese citizens:

 

A person has been criminally prosecuted and being under the investigation, prosecution or adjudication by a Vietnamese or foreign procedural body.

 

A person has a criminal record on infringing upon the national security or deliberate commission of a crime liable to a prison term of 03 years or more which has not yet been expunged; or is suspended from serving a prison sentence; or is serving a non-custodial rehabilitation; or is under the mandatory supervision, or the prohibition from residence or holding certain position or running a business sector subject to security and order conditions upon the court’s decision.

 

A person is liable to the compulsory educational measures at the community; is waiting for a decision on imposition of an administrative penalty granted; is addicted to drug; is suspended from the compliance with a decision on serving a sentence in correctional institution or rehabilitation center; or has faced an administrative penalty but the period for being considered as not yet facing an administrative penalty is not satisfactory as regulated;

 

b) Vietnamese people who hold foreign passport and reside abroad, and foreigners:

 

A person is not permitted by a competent authority of Vietnam to stay in Vietnam.

 

3. Conditions on fire prevention and fighting have been satisfied as referred to by the law on fire prevention and fighting.”

 

3. Documentation for issuing a certificate of compliance with security and order requirements

 

Based on Article 19 of Decree No. 96/2016/ND-CP, the documentation required for issuing a new certificate of compliance with security and order requirements for accommodation establishments includes the following:

 

• The application form for issuance of Certificate of satisfaction of security and order conditions made by the business establishment (Form No. 03 in the Appendix issued with Decree 96/2016/ND-CP).
• Legitimate copy of Business registration certificate; Certificate of enterprise registration.
• Legitimate copies of documents proving the satisfaction of fire safety conditions.
• The curriculum vitae (Form No. 02 stated in the Appendix issued with Decree 96/2016/ND-CP), enclosed with the Criminal record statement or Individual declaration (Form No. 02b stated in the Appendix issued with Decree 96/2016/ND-CP), of the person in charge of security and order of the business establishment.

 

4. Order and procedures for implementation

 

Based on Article 23 of Decree No. 96/2016/ND-CP, the sequence of procedures for issuing a certificate of compliance with security and order requirements is as follows:

 

Sequence and procedures for submitting documentation:

 

Submit a set of documents to the competent Police authority: For accommodation service businesses rated from 5 stars and above, submit to the Department of Administrative Management of Social Order under the Ministry of Public Security; For other accommodation service businesses, submit to the Division of Administrative Management of Social Order under the Provincial Police Department; Non-enterprise accommodation establishments should submit to the District Police Department.

 

Methods of submitting documentation:

• Submit directly to the competent Police authority.
• Send via postal services through the business establishment.
• Submit through the electronic information portal for the management of investment and business activities subject to security and order conditions, under the Ministry of Public Security.

 

For the method of submitting documentation through the electronic information portal for the management of investment and business activities subject to security and order conditions under the Ministry of Public Security, upon receiving the certificate of compliance with security and order requirements, the business establishment must transfer the entire documentation requesting the issuance of the certificate to the competent Police authority.

 

Timeframe for implementation:

 

The deadline for issuing the certificate of compliance with security and order requirements shall not exceed 05 working days from the date of receiving a complete and valid documentation.

 

 In case the certificate of compliance with security and order requirements is not issued, the Police authority must provide a written response to the business establishment within 04 working days from the date of receiving the documentation, stating the reasons.

 

The above is the advisory opinion of FDVN based on research of relevant legal regulations. We hope that the advice from FDVN will be helpful to you.

 

 By Tran Van Huong - FDVN Law Firm

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Legal situation: A foreign investor wants to contribute capital to invest or establish an enterprise in Vietnam, specifically my boss as a Japanese plans to invest to the Vietnamese market. Does the Vietnamese law allow a foreign investor to contribute capital or establish an enterprise by foreign currency such as Japanese yen?

 

FDVN’s opinion:

 

Thank you for sending your question to FDVN Law Firm (“FDVN”). Regarding your consulting request, after researching relevant legal provisions, FDVN has the following response:

 

According to Clause 23, Article 3 of the Law on Investment 2020: “Investment capital means money and other assets prescribed by the civil law and international treaties to which the Socialist Republic of Vietnam is a signatory for the purpose of carrying out business investment activities.”

 

According to Clause 1 Article 34 of the Law on Enterprise 2020: “Contributed assets include VND, convertible foreign currencies, gold, land use right (LUR), intellectual property rights, technologies, technical secrets, other assets that can be converted into VND”.

 

According to Point a, Clause 1, Article 4 of the Ordinance on foreign exchange control No. 28/2008/PL-UBTVQH11, foreign currency means: “Currencies of other nations or the common European currency and other common currencies used in international and regional payments (hereinafter referred to as foreign currency);”

 

In addition, according to Clause 1, Article 4 of Circular No. 06/2019/TT-NHNN dated June 26^th, 2019 of the State Bank of Vietnam guiding the foreign exchange management for the foreign direct investment in Vietnam, specifically:

 

“1. Foreign and Vietnamese investors are allowed to contribute capital in foreign currencies and Vietnamese dong according to registered amount in the investment registration certificate, notice of the foreign investor’s eligibility to contribute capital or purchase shares/stakes, license of establishment and operation in accordance with specialized law, signing of PPP contracts with competent authorities and other documents which can prove the compliance with law of capital contribution of foreign investors;"

 

Therefore, after comparing to the above provision, it can be seen that a foreign investor namely your boss can contribute capital in foreign currency (Japanese yen) or Vietnamese dong, which is according to the capital level contributed by an investor as stated in the Investment Registration Certificate, as well as the Establishment and Operation licenses in accordance with specialized law (applied to enterprises invested directly by foreign investment capital establishing and operating in accordance with specialized law).

 

The above is FDVN’s legal opinion related to your consulting request based on researching legal provision. We hope FDVN’s opinion will be helpful to you.

 

According to Nguyễn Vân Anh – FDVN Law Firm

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No. 122 Dinh Bo Linh Street, Binh Thanh District, Ho Chi Minh City

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Legal situation: Due to facing troubles in business, my company wants to suspend business for 02 years. I would like to understand the procedures for suspending business. Does my company need to submit a tax report or carry out tax finalization?

 

I am looking forward to your response soon. Thank you so much.

 

FDVN’s opinion:

 

Thank you for sending your question to FDVN Law Firm (“FDVN”). Regarding your consulting request, after researching relevant legal provisions, FDVN has the following response:

 

1. Procedures, dossier for suspending business

 

It is stipulated in Clause 1, Article 206 of the Law on Enterprises 2020 and its guidance prescribed in Article 66 of Decree No.01/2021/ND-CP. Accordingly, an enterprise suspending business has to carry out the following specific procedures:

 

- Send a written notification to the business registration Office where the enterprise is located at least 03 working days before the planned date of business suspension.

 

- A dossier is required to prepare:

 

+ A suspension notification;

 

+ A resolution or decision and the copy of the minutes of meeting of the Board of Members of the multi-member limited liability company or partnership, or of the Board of Directors of the joint-stock company, or the resolution or decision of the owner of the single-member limited liability company on business suspension;

 

+ In case the enterprise authorizes others to carry out the procedure, it is required to have a letter of authorization or an authorization contract enclosed with a copy of the authorized person's ID card.

 

- Regarding the procedure:

 

After receiving the dossier for enterprise registration, the Business Registration Office shall give a confirmation slip, examine the validity of received documents, and issue a certification that the enterprise has registered the business suspension within 03 working days from the receipt of satisfactory documents.

 

If the enterprise is still suspended after the notified suspension period, another notification must be sent to the Business Registration Office at least 03 days before the planned date of suspension. Each notified suspension period must not exceed one year.

 

2. Does an enterprise suspending business submit a report or a dossier of tax finalization?

 

This marrter is stipulated in Clause 2 Article 4 Decree No.126/2020/ND-CP guiding the Law on Tax Management:

 

“2. During business suspension:

 

a) The taxpayer is not required to submit tax declaration dossiers, unless the suspension begins in the middle of a monthly/quarterly/annual tax period, in which case the tax declaration dossier of that month/quarter/year must be submitted.

…

c) The taxpayer must not use invoices and are not required to submit invoice use reports. In case the taxpayer is permitted by the tax authority to use invoices in accordance with invoice laws, the taxpayer shall submit the tax declaration dossier and invoice use reports as per regulations.

 

d) The taxpayer shall implement the tax authority’s decisions and notices of debt collection, enforcement of tax decisions, inspection of compliance to tax laws and administrative penalties for tax offences in accordance with the Law on Tax administration.”

 

Therefore, during business suspension, the enterprise is not required to submit tax declaration dossier, unless the suspension begins in the middle of a monthly/quarterly/annual tax period, in which case the tax declaration dossier of that month/quarter/year must be submitted.

 

The above is FDVN’s legal opinion related to your consulting request based on researching legal provisions. We hope FDVN’s opinion will be helpful to you.

 

According to Trần Thị Hạ – FDVN Law Firm.

CONTACT US:

 

Lawyers in Da Nang:

99 Nguyen Huu Tho, Quan Hai Chau, Da Nang city

Lawyers in Hue:

56A Dien Bien Phu, Hue City, Thua Thien Hue

Lawyers in Ho Chi Minh City:

No. 122 Dinh Bo Linh Street, Binh Thanh District, Ho Chi Minh City