• Initial capital contribution: When a joint-stock company is established, the company owner must have some initial capital contributed by the founding member.
• Capital from undistributed profits: when the company is profitable, the company can use part of the profits to reinvest and expand production and business.
• Issuing new shares: This is an important type of securities exchanged and traded on the stock market.
• Issuing preferred shares: this type of stock usually accounts for a small proportion.
• Mobilizing loans of joint-stock companies: including bank credit capital and commercial credit capital.
• Issuance of corporate bonds: corporate bonds take many different forms. These are fixedinterest bonds and variable-yield bonds.
• Raising capital in the stock market.
Legal Trouble and Solution of Company law.
Problem : Proposal for dispute resolution through the court
Company AB was established on February 1, 1992, under Decision No. 38 / GP-UB of Ho Chi Minh City People's Committee. According to the company's charter, the operation time is 30 years. The charter capital is VND 470,000,000 divided makes 470 parts. Each share is worth VND 1,000,000 contributed by 8 capital contributors. Up to now, the company has changed its members 4 times. However, the charter and the charter capital of the Company remain unchanged. Currently, only two members participate. it is Mrs. A and Mr. B. Each person contributes 50% of the capital. The Chairman of the Board of members is Mr. B. The company contracts to hire Ms. C as director. During the operation until 2003, there was a conflict between the members and the company about the distribution of benefits. after that, the parties could not resolve themselves and became a dispute. Ms. A has filed a lawsuit against Company AB to the People's Court of Ho Chi Minh City. She asked the Company to pay profits and provide documents (reports) showing the operation situation of the Company since 1998 now. After that, Ms. A continued to file a lawsuit against Company AB to the People's Court of Ho Chi Minh City. She requests a 50% withdrawal of the charter capital in all AB Company assets and is distributed profits until the date of the withdrawal.
In the minutes of working between the People's Court of Ho Chi Minh City, Ms. A asked to withdraw all of the capital, or transfer to other members at the agreed price. If not transferable to other members, the company must be dissolved.
At the meeting of company members, the Minutes of the conciliation failed. Ms. A has informed that someone agrees to buy back 50% of her share for VND 25,000,000,000. but Mr. B disagrees with Mrs. A's assignment to people outside the Company. Mr. B did not buy nor recommend anyone because the price is unreasonable. Meanwhile, Company D agrees to repurchase Mrs. A's capital in Company AB at an agreed price of VND 22,500,000,000.
Company D agrees to replace Ms. A as a member of Company AB. Company D will bear all responsibilities and obligations of Ms. A in Company AB.
Solution
In the appellate economic judgment, the Court of Appeal of the Supreme People's Court in Ho Chi Minh City decided to reject Ms. A's request. Besides, the judgment also decides the costs of first-instance and appellate trial of the involved parties by the law. the head of the Supreme People's Procuracy has determined that:
According to the 1999 Enterprise Law, the Charter of Company AB made on January 9, 1990, it is no longer suitable. because initially AB Company was established with 8 members contributing VND 470,000,000. after 4 times of changing and transferring shares between the members of the company. however, the company's charter remained unchanged. By 1997, Company AB had only two members. That was Mrs. A and Mr. B. Now Mr. B is still the Chairman of the Board of Members. The charter of Company AB provides for the transfer of capital. But according to the 1999 Enterprise Law, the AB company's Charter is considered invalid. Therefore, resolving disputes between members of the Company on changing members and transferring contributed capital must be based on the 1999 Enterprise Law and not on the Company's Charter.
Article 32 of the 1999 Enterprise Law stipulates the transfer of capital in a limited liability company as follows: "A member of the company ... has the right to transfer part or all of his / her contributed capital to another person according to the regulations the following:
1. A member wishing to assign a part or the whole of his / her contributed capital must offer to sell such capital to all remaining members in proportion to their share of capital in the company under the same conditions.
2. Transferred to non-members only if the remaining members of the company do not buy or do buy not all.
Thus, From this judgment, the Supreme People's Procuracy issues a decision. According to the Enterprise Law 1999 applied by the Court of Appeal. Ms. A's decision to dismiss the lawsuit is not legal. Moreover, Article 35 of the Law on Enterprises does not provide any point that the Board of Members has the rights and obligations to decide the transfer of capital contribution. together with Article 32 of the Enterprise Law, it is legal to accept Ms.
A to transfer her capital contribution to Company D.
Labor Law
Apply problem in the company
Mr. M works for Company X under a labor contract with a definite term of 24 months, effective from June 1, 2007, position: accountant, salary under labor contract is 8. VND million / month, the content of the job is based on the job description attached at the labor contract, taking a weekly break on Sunday. In the labor contract, the parties agree as follows: '' The company does not pay social insurance, health insurance, unemployment insurance for employees but pays social insurance premiums into salaries for its employees monthly. The level of payment of social insurance, health insurance, and unemployment insurance premiums is not lower than the regional minimum wage ''.
At the end of the contract, Company X extended the term of the labor contract with Mr. M for another 24 months with the labor contract annex. Following that, Mr. M and Company X sign a labor contract with a definite term of 24 months, effective from July 1, 2011. At the end of the contract term, Company X and Mr. A do not sign any more labor contracts and Mr. M continues to work for the Company.
In mid-2014, due to frequent conflicts with his direct manager, Mr. M was asked to switch to being a sales employee of the sales department. Based on this proposal, at the same time due to the lack of personnel, the Director of Company X issued a decision to transfer Mr. M to a sales staff within 6 months from July 1, 2014. During this time, Mr. M still obeyed the company's order of transfer and actively seeking other jobs.
After finding a new job, Mr. M applied to resign. In the resignation letter, Mr. M announced that he will not work at the Company after 45 days from the date of application and will hand over the work so that it does not affect the Company's general work. However, the direct manager (sales director) and director of Company X did not agree to let Mr. M leave because he could not find a new replacement, and Mr. M violated the agreement in the labor contract. Dynamic: unilaterally terminate the contract ahead of time without the consent of Company X.
Solution
- It is inconsistent with the provisions of Mr. M and company X that complies with the law based on Article 5 of Decree 05/2015 / ND-CP on fixing the term of a labor contract with the contract annex: The contract is only amended once by the appendix of the contract and must not change the type of contract entered into ”.
- After the expiry of the contract, Mr. M still works at the company, the next contract is the type of contract with an indefinite term (based on Clause 2, Article 22 of the 2012 Labor Code).
- The company does not pay insurance for Mr. M is not in accordance with the law based on the point I, clause 1, Article 23 of the 2012 Labor Code providing for the content of contractual labor.
- Mr. M's contract is a contract with an indefinite term based on Point a, Clause 1, Article 22 - Under Clause 3, Article 37 stipulating the right to terminate the labor contract of the
employee: "have the right to unilaterally terminate the labor contract, but must notify the employee at least 45 days in advance."
- Because Mr. M has informed the company that he will not work at the company after 45 days from the date of filing, and will hand over the work so that it does not affect the general work of the company. method of labor contract termination.
Dispute Resolution Methods Definition
Dispute settlement is the consideration by competent agencies and organizations to make decisions on handling civil, marriage and family disputes, business, trade and labor disputes, based on consideration of Data and evidence in the dispute to protect the legitimate rights and interests of individuals, agencies and organizations.
1. Negotiation: Bargaining is a negotiation aimed at reaching an agreement between the parties to address a issue, an informal type of dispute resolution, without the involvement of any State entity or third party.
2. Reconciliation : Mediation means that the disputing parties discuss together, agree to reach an agreement to resolve the disagreement between them and, through mediation, voluntarily implement the plan agreed upon.
3. Commercial Arbitration : The parties agree to put forward disputes that have or will arise between them to resolve at the Arbitration and the Arbitration after considering the dispute, will make a judgment enforceable against the parties.
4. Court : When a contract dispute arises, they may be settled at the Court if the parties fail to negotiate and mediate themselves. Disputes arising may be settled by the Court in accordance with economic or civil proceedings, depending on the nature of the contract which is economic or civil.
Problem
* Resolve the above problem
Mr. M and company X sign a labor contract within 24 months from June 1, 2007 and after the contract expires. Mr. M and company X continue to sign an extended contract for an additional 24 months from July 1, 2011. After the expiry of the contract, Mr. M continued to work for the company until mid-2014 when a conflict occurred with his manager in the company. Mr. M was asked to switch to the sales staff of the sales department. Based on this proposal, at the same time due to the lack of staff, the Director of Company X decided to transfer M to the sales staff within 6 months from July 1, 2014. During this time, Mr. M still Follow the transfer company's orders and actively look for other jobs. After finding a new job, Mr. M applied to resign. In his resignation letter, Mr. M stated that he will not work at the Company after 45 days from the date of application and will hand over the work so that it does not affect the Company's general work. However, the direct manager (sales director) and the director of Company X did not agree to let Mr. M leave because he could not find a new replacement and Mr. M violated the agreement in the case. labor contract. Dynamic:
unilaterally terminate the contract ahead of time without the consent of Company X.
Solution: Not in compliance with the regulations of Mr. M and the company X complies with the law based on Article 5 of Decree 05/2015 / ND-CP on fixing the term of labor contract with the appendix of contract. After the contract expires, Mr. M still works at the company, the next contract is a type of contract with an indefinite term (according to Clause 2, Article 22 of the 2012 Labor Code). The company does not pay Mr. M's insurance for non- compliance with the law based on point I, clause 1, Article 23 of the 2012 Labor Code stipulating the content of contract labor. Mr. M's contract is an indefinite contract based on
Point a, Clause 1, Article 22. According to Clause 3, Article 37 stipulates the right to terminate the labor contract of the employee: "has the right to unilaterally terminate the labor contract, but must notify the employee at least 45 days in advance". He informed the company that he will not work at the company after 45 days from the date of application, and will hand over the work so that it does not affect the general work of the company.
If Mr. M does not agree with the solution of his company, he should protect his rights by firstly Mr. M has the right to appeal to the company leader X and request resolution.
If company X fails to resolve Mr. M, he has the right to request a labor mediator to settle or file a lawsuit to request in dividual labor dispute settlement (pursuant to Article 200 Labor Code 2012)
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