Assets contributed as capital in enterprises are amounts of money and valuables of people who have contributed capital to the charter capital at the beginning of the establishment of the enterprise or in the process of the enterprise’s operation “raising” the charter capital by contributing capital to the enterprise capital from those who have contributed capital or mobilized from other organizations and individuals.
The law prescribes assets for capital contribution, including Vietnam Dong, freely convertible foreign currencies, gold, land use rights, intellectual property rights, technology, technical know-how, and other identifiable assets in Vietnam Dong.
For non-monetary assets such as Vietnam Dong, freely convertible foreign currency, gold, etc., when transferring ownership of such property, the property owner must conduct a valuation to determine the price. the monetary value of that property and carry out the procedures to transfer the rights to the company in accordance with the law (in case the property has registered ownership), so that the company (legal entity) can enjoy the rights of the owner legally, in addition to the purpose of recording the change of ownership, it is also a method to help state agencies or honest third parties verify legal ownership to ensure the rights and interests of the owner. legitimate interests of the parties when participating in civil transactions.
According to the provisions of Article 35, Law on Enterprise 2020, “For assets with registered ownership or land use rights, the capital contributor must carry out procedures to transfer ownership of that property or land use rights to the company. The transfer of ownership rights, the transfer of land use rights for assets contributed as capital is not subject to registration fees. For assets without registration of ownership, the capital contribution must be made by handing over the assets and assets contributed as capital, certified in writing. The capital contribution is only considered as complete payment when the legal ownership of the assets contributed as capital has transferred to the company”.
For assets contributed as capital for which valuation procedures are required, the parties may conduct the valuation by consensus or by a valuation organization. In the case of a valuation organization, the value of assets contributed as capital must be approved by more than 50% of the members and founding shareholders. In case the contributed capital asset is valued higher than its actual value at the time of capital contribution, the founding members and shareholders jointly contribute an additional amount equal to the difference between the assessed value and the value of the contributed capital asset and the actual value of contributed capital assets 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.
In case the parties contribute capital in the course of operation, it will be agreed upon by the Owner, the Members’ Council for a limited liability company, a partnership, the Board of Directors for a joint-stock company, and the capital contributor price or by a valuation organization. In case the valuation organization makes a valuation, the value of assets contributed as capital must be approved by the capital contributor and the owner, the Members’ Council, or the Board of Directors. In case the asset contributed as capital is valued at a higher value than its actual value at the time of capital contribution, the capital contributor, owner, member of the Members’ Council, for limited liability companies and partnerships, members 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 valuation of assets contributed as capital higher than the actual value.
Besides, according to the provisions of the Law on Civil Code 2015, after making a capital contribution to form the company’s assets, all capital contributed assets of the owners in the management, use, determination acquired the common property will become the property of common ownership in part.
Article 209 of the Law on Civil Code 2015 stipulates that “Shared ownership by part is common ownership in which the ownership portion of each owner is determined for the common property. Each joint owner in part has rights and obligations to the property under common ownership in proportion to his or her share of ownership rights, unless otherwise agreed”.
The joint owners jointly manage the common property on the principle of consensus, unless otherwise agreed or otherwise provided for by law.
Each part of the common property has the right to exploit the utility, enjoy the benefits and profits from the common property in proportion to its share of ownership.
The disposition of property under common ownership is specified in Article 218 of the Law on Civil Code 2015 as follows:
- Each joint owner in part has the right to dispose of his share of ownership;
- In case a common owner sells a portion of his/her ownership rights, the other co-owners have the right of priority to purchase. Within 03 months for common property which is immovable property, 1 month for movable property, from the date on which other common owners receive notice of the sale and conditions of sale without a common owner. If anyone buys it, the owner has the right to sell it to someone else. The notice must be in writing, and the conditions of sale to other joint owners must be the same as those of the sale to a non-common owner. In case of selling a part of ownership, but there is a violation of the right of priority to buy, within 3 months from the date of detecting the violation of the right of priority to buy, the joint owner of the part has the right to request the Court to the judgment transfers to itself the rights and obligations of the buyer; the party at fault causing damage must compensate for the damage;
- Where one of the joint owners of immovable property gives up his share of the ownership right or when this person dies without an heir, that part of ownership belongs to the State;
- Where one of the joint owners of movable property gives up his share of the ownership rights, or when this person dies without an heir, that part of ownership shall be jointly owned by the remaining persons;
- In case all owners give up their share of ownership rights to common property, the establishment of ownership rights shall comply with the law on ownership of derelict property, property owner unknown.
The division of common property and termination of common property is prescribed in the Law on Civil Code 2015 as follows: “In case of divisible common ownership, each joint owner has the right to request division of the common property; if the status of common ownership must be maintained for a period of time as agreed upon by the joint owners or as prescribed by law, each joint owner has the right to claim the division of the common property only upon the expiration of such period; when the common property cannot be divided in kind, the common owner may request the division of the right to sell part of his/her ownership rights, unless otherwise agreed by the common owners;
In case someone requests one of the joint owners to perform the payment obligation and that joint owner has no separate property or the separate property is not enough for payment, the claimant has the right to request a division of the payment common property and participate in the division of common property. If the share of ownership cannot be divided in kind or this division is opposed by the remaining joint owners, the obligee shall have the right to request the obligor to sell his/her share of the ownership right to fulfill the payment obligation.
The termination of joint ownership in the following cases:
- Common property has been yet;
- One of the joint owners is entitled to the entire joint property;
- The common property no longer exists;
- Other cases as prescribed by law.
Above is the article on “RIGHTS OF OWNER’S CAPITAL CONTRIBUTION IN THE ENTERPRISE” of Apra Law Firm. If you have questions or comments about the issues mentioned in the article and need to be answered, please contact the hotline for advice and support.
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