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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY XAYKHAM VANNAXAY COMPLETION OF ENTERPRISE LAW IN LAO PEOPLE’S DEMOCRATIC REPUBLIC – THEORETICAL AND PRACTICAL ISSUES SPECIALTY : ECONOMIC LAW CODE : 9380107 SUMMARY OF LAW DOCTORAL DISSERTATION HANOI - 2018 The work is completed at: HANOI LAW UNIVERSITY Supervisor: 1. Assoc. Prof. Dr. TRAN NGOC DUNG 2. Assoc. Prof. Dr. NGUYEN THI VAN ANH First opponent: Assoc. Prof. Dr. Nguyen Nhu Phat Second opponent: Assoc. Prof. Dr. Duong Dang Hue Third opponent: Dr. Nguyen Van Cuong The dissertation will be defensed before Examination Council at Hanoi Law University At............ on............. day of.......... 20... The dissertation can be found at: 1/ National Library of Vietnam 2/ Library of Hanoi Law University 1 INTRODUCTION 1. The urgency of the topic In the process of development of market economy with the orientation of socialist, it is necessary to define that recognition, and protection of multi-ownership regime and development of enterprises belonging all economic sectors are important factors, and Laos nowadays is very interested in development and completion of enterprise law. The legal issues on establishment, organization, management, reorganization of the enterprise are specified in a variety of documents, especially in Enterprise Law (2013). However, apart from achievements, these documents also have many disadvantages and shortcomings on legal contents and legislative techniques which are reasons causing restraint of product development and business of enterprises, inappropriate distribution of resources, negative effects for production, business and equality in the business environment. Through the situations mentioned above, it can be found that many issues need to be solved. Especially, it is essential to research carefully law issues for the establishment, organization – management, re-organization, dissolution of enterprises and suggest specific directions and solutions for completion of enterprise law in Laos in the future. Besides, in the current trend of globalization, it needs to be aware that learning of experience from other countries is an effective method to complete enterprise law of Laos, it not only guarantees effective adjustment of law for activities of enterprise but makes harmony between national law and other countries’ law. Therefore, postgraduate makes the decision to choose a topic of “Completion of enterprise law in Lao People’s DemocraticRepublic –Theoretical and practical issues” for her law thesis title. 2. Research subject and scope of the thesis 2.1. Research subject Research subjects are theoretical issues on enterprise and enterprise law; the system of provisions in the current laws of Laos for enterprise and reality of execution for enterprise law of Laos in terms of establishment, organization -management, reorganization, dissolution. 2.2. Scope of the thesis - The scope of the thesis is very diverse, covering a variety of specialties in term of the economic sector such as enterprise law, investment law, financial law, security law, v.v... However, in the study scope of this thesis, it only focuses on researching provisions for the establishment, organization – management, re-organization, 2 dissolution of enterprises in the Enterprise Law (2013) and legal guideline document of Enterprise Law (2013). - In terms of space, the thesis pays attention to research on provisions of enterprise law of Laos; but, it stills analyzes and gives opinions for legal provisions of some other countries. Study of enterprise law provisions in other countries aims to take experience for the development and completion of enterprise law in Laos. - In terms of time, the thesis focuses on researching current legal provisions to assess accurately reality of enterprise law in Laos. However, in order to ensure the feasibility of recommendations, the thesis also researches on a process of operation and development for the system of enterprise law in Lao People’s Democratic Republic. 3. Research objective and mission The research objective is to suggest specific directions and solutions in order to complete law and enhance the efficiency of enterprise law execution in Lao People’s Democratic Republic. In order to get Research objective above, the author of the thesis does the following missions: - The thesis researches systematically on theoretical issues for enterprise and enterprise law. - The thesis researches on the process of formation and development analyze dominant factors and specify basic contents of enterprise law in Lao People’s Democratic Republic. - The thesis studies models and legal provisions of some countries around the world to compare, assesses and then takes valuable experiences for the process of development of enterprise law in Laos. - The thesis researches systematically on realistic enterprise law of Lao People’s Democratic Republic in terms of establishment, organization - management, reorganization, dissolution; then indicates advantages, successes as well as disadvantages, shortcomings of this legal system and reality of execution for provisions of enterprise in Laos. - The thesis suggests directions and proposes solutions to complete law and enhance efficiency for execution of enterprise law in Lao People’s Democratic Republic. 4. Methodology and Research methods of the thesis In order to research on the chosen topic, the author of the thesis uses the methodology of dialectical materialism of Marxist theory. This is the main method 3 which is used throughout the research process of the thesis to make objectively and honest assessments, scientific conclusions. From that general methodology, the author uses specific research methods in accordance with research contents such as the method of analysis, synthesis, statistics, logic, history, comparison, correlation, etc… to clarify research issues. In which: - Methods of analysis, logic, and synthesis are used in the entire content of the thesis; - Methods of history, correlation are used in contents that research on formation and development history of enterprise law in Lao People’s Democratic Republic in the periods; - Method of comparison is used in contents that research on model and law for enterprise in some countries around the world; - Method of statistic is used in contents of enterprise law reality assessment in Laos at Chapter 2 of the thesis. These modern research methods ensure accuracy for research results of the thesis. 5. New scientific contributions of the dissertation The results of the thesis are an inheritance, selection, and development of theoretical issues on enterprises and enterprise law in Lao People’s Democratic Republic. This thesis contributes several new achievements for legal science as follows: First of all, this thesis is a comprehensive and general study works for theoretical issues of enterprise and enterprise laws, as well as the reality of enterprise law in Laos. Secondly, the thesis has analyzed and argued the development of law for enterprises in Laos and its dominant factors. The enterprise law is a part of business law. The formation and development of enterprise law are subjected deep dominance by economic facilities, development level of market and other factors of superstructure: political regime, cultural tradition, business customs and practices of Laos. Thirdly, the thesis detects inadequate provisions for enterprise law in Lao People’s Democratic Republic in this current period, which is the basis for assessing the reality of current enterprise law in Laos to research and make specific, appropriate directions and solutions in order to complete enterprise law of Laos. Fourthly, the thesis has proposed directions and solutions to complete and enhance efficiency for execution of enterprise law in Lao People’s Democratic Republic. The suggested directions and solutions are highly feasible to contribute 4 development and completion of enterprise law of Laos in general and provisions in Enterprise Law (2013) of Laos in particular. 6. Dissertation structure Structure of the thesis consists of: - Introduction. - Overview of research relating to the topic. - The content of the thesis includes three following chapters: Chapter 1. Theoretical issues on enterprise and enterprise law. Chapter 2. Legal reality and practice of Enterprise law execution in Lao People’s Democratic Republic Chapter3. Directions and solutions for completion of law and efficiency enhancement of enterprise law execution in Lao People’s Democratic Republic - Conclusion. - List of public works. - List of references. 5 OVERVIEW OF RESEARCH RELATING TO THE TOPIC 1. SCIENTIFIC RESEARCH WORKS RELATED WITH THESIS After learning about research situation in relation to the thesis, the author finds that Topic of “Completion of enterprise law in Lao People’s Democratic Republic – Theoretical and practical issues” has not been researched yet at the level of law doctor. However, through long-term development in the world as well as in Laos and Vietnam, the completion of enterprise law has been discussed by many scientists with a variety of forms from curriculum books; reference books; some scientific topics; theses; articles on the scientific magazine and conference... Research works can be divided into two groups including scientific works in Vietnam and Scientific works in other countries (mainly in Lao People’s Democratic Republic). In which: First of all, research on enterprise law is not new in Vietnam. Vietnamese scholars have researched on completion of enterprise law comprehensively in terms of various aspects with diverse forms. This is an important reference source for the author of this thesis. Secondly, research on enterprise law is not new in the world. But, in Lao People’s Democratic Republic, in addition to a young history of formation and development for enterprise law, the State of Laos also lack interests in enterprises. Therefore, the enterprise law in Laos is not interested in research. In this current period, there is no comprehensive study on enterprise law as well as completion of enterprise law in Laos. The works which are in form of books just mention basic issues of enterprise law while the works in form of thesis, newspapers, and magazines research deeply on some specific aspects of enterprise law. 2. ASSESSMENT FOR RESEARCHED ISSUES IN RELATION TO THESIS The author of this thesis found that: At different levels, all scientific works above cover research results in relation to the content of the thesis. 2.1. Theoretical issues 2.1.1. Definition of enterprise With the nature of an eco-social object, a definition of enterprise is a research object of multi-scientific industries, including legal science. Beside definition of enterprise, today there are many issues that are not solved completely both in terms of theory and reality. Current law in Laos also gives a legal definition for the enterprise. 6 Thus, the enterprise is an economic organization with its own name, assets, stable transaction office, and has a business registration certificate in accordance with legal provisions in order to do business activities. Meanwhile, by the different approaches, the scientific researchers have suggested different opinions about enterprise. Therefore, there is no consistency for definition of enterprises in Laos and this is an unanswered issue for the author to conduct the study. 2.1.2. Types of enterprises Determination of different types of enterprises has different purposes based on different criteria. Theoretical and practical research works on enterprises in Vietnam and other countries in the world has proposed popular methods of enterprise classification. However, in Lao People’ Democratic Republic, the researchers are not actually interested in and make deep research on the classification of enterprises, therefore, there is no appropriate explanation to serve completion of current enterprise law. 2.1.3. Legal issues on enterprises - On the aspect of the study, enterprise law is a very basic content in the program of study and education for the law, but, till now, there is no unanimous definition for it. This is one of the contents that the thesis has to clarify. - The system of enterprise law is a definition covering all constitutive parts which have a relationship with each other, create a law regime on the enterprise. The system of enterprise law needs to be approached from two aspects: a system of law documents on enterprise and system of the internal structure. However, no researchers of economic law in Laos mention all issues. For works in other countries (Especially in Vietnam), if they are applied in Laos, it is necessary to consider and adjust them inappropriate way. These are important the theoretical issues which have not been solved yet well, so theoretical basis for research works of enterprise law in Lao is not persuasive. 2.2. In term of the reality of enterprise law in Laos 2.2.1. History of formation and development for enterprise law in Laos In a period of feudalism, Laos forms provisions for adjusting organization and activities of enterprises. Through historic fluctuations, enterprise law in Laos had certain changes. Process of formation and development of enterprise law has an important impact on the content of enterprise law in each period, so most theses and research works of enterprise law in Laos has analyzed and synthesized that process mentioned above, which 7 is a basis to take lessons learned in line with reality to complete enterprise law in Laos in the future. 2.2.2. Assessment of enterprise law reality Enterprise Law(2013) of Laos has just been effective recently, the number of research works and assessment of enterprise law reality is quite a few. There are some works that mentioned this issue but they are quite basic and mostly compare new characteristics between Enterprise Law (2013) and Enterprise Law (2005) of Laos. Thus, the studies, analysis, and assessment of Enterprise Law (2013) reality in the current period, achievements, shortcomings and their reasons are still unanswered issues that the author needs to handle. In addition, research on the experience of enterprise law from several countries for obtaining lessons learned for completion of enterprise law in Lao People’s Democratic Republic is an important issue that this thesis needs to research. 2.3. Directions and solutions for completion of enterprise law in Lao People’s Democratic Republic The directions and solutions for completion of enterprise law have been researching by Vietnam and other countries. In Vietnam, there are deep research works and feasible solutions to complete Vietnam enterprise law in the context of international economic integration. Meanwhile, Lao People’s Democratic Republic now has no in-depth research works to suggest solutions for completion of enterprise law. Therefore, based on research basis of scientific works in Vietnam, the author will take lessons learned and give it to Laos for the application. 3. BASIC CONTENTS THAT NEED TO BE SOLVED IN THE THESIS 3.1. Theoretical issues The mission of thesis is to inherit, select and develop theoretical issues and take over opinions from researchers and shortcomings of enterprise law in Lao People’s Democratic Republic in the current period. The researches on reasonings of enterprise law as well as the process of enterprise formation and development in Laos through historic periods are a basis to assess the reality of enterprise law in Lao People’s Democratic Republic, and thence research and develop appropriate principles and completion. 8 3.1.1. Theoretical issues for enterprise Pursuant to current law in Laos, the definition of enterprise is not synonymous to the definition of the business object. The formation of enterprises originates from the implementation of business freedom right and contract freedom right of investors. After all, the law does not create forms of enterprises; its basic role is to record and ensure legal conditions for the existence and development of enterprises. Based on inheritance from previous works, the author will focus on clarifying the following issues: Definition and characteristics of enterprises; Types of enterprises; Role of enterprises for eco-social development. 3.1.2. Theoretical issues of enterprise law The enterprise law is a part of business law specifying organization and activities of an enterprise. In order to clarify the theoretical issues of enterprise law, the author will handle the following issues: - Definition and feature of enterprise law. - The general outline of structure and system for enterprise law. - Role of enterprise law. - The factors that have an impact on the process of development and completion of enterprise law. - The enterprise law of some countries (Singapore, Thailand, Vietnam)and lessons learned for Lao People’ Democratic Republic. 3.2. The reality of law and practice of execution for enterprise law in Lao People’s Democratic Republic The author of the thesis carries out survey, analysis, and assessment for the reality of enterprise law in Lao People’s Democratic Republic in the current period and comparison with the law in a previous period. Whereby, the issues which are studied include: - The Process of formation and development for a system of enterprise law in Lao People’s Democratic Republic. In which, the author divides the process of enterprise law formation and development in Lao People’s Democratic Republic into 4 periods, equivalent to each period of eco-social development of Laos. - The Reality of provisions for enterprise law in Lao People’s Democratic Republic in aspects: types of enterprises; right of establishment, capital contribution to the enterprise; record and procedures of enterprise establishment; rights and obligations of enterprises; internal organization, management of enterprises; reorganization, dissolution of the enterprise. 9 - The practice of enterprise law execution in Lao People’s Democratic Republic 3.3. Completion of enterprise law in Lao People’s Democratic Republic On the basis of theoretical and practical study for enterprise law, it can be found that completion of enterprise law in Lao People’s Democratic Republic is very essential to meet practical requirements of business activities, promote the development of the economy. In order to achieve this, it is necessary to refer recommended content of study works in Vietnam and other countries which can be applied for Laos as well as solutions in the scientific works of Laos still conform to current situations. The thesis develops directions to complete enterprise law. Based on directions for completion of laws mentioned, the author presents specific solutions in order to complete enterprise law in Lao People’s Democratic Republic. Moreover, the author also develops and suggests specific solutions for effective execution of Enterprise Law (2013) in practice. 3.4. Theoretical Foundations and Study questions The thesis has to answer the main questions: Question 1: What is the enterprise? What is the system of enterprise types in the law of Lao People’s Democratic Republic? Question 2: How many stages did the system of law in Lao People’s Democratic Republic pass? What are the characteristics of each stage? Question 3: What is the legal structure and content of enterprise law in Lao People’s Democratic Republic? Question 4: How is the execution of Enterprise Law in Lao People’s Democratic Republic (2013)? Question 5: Which solutions should be taken to complete the laws and enhancing the effectiveness of enterprise law in Lao People’s Democratic Republic? 10 Chapter 1 THEORETICAL ISSUES ON ENTERPRISE AND ENTERPRISE LAW In chapter 1, the author of this thesis focuses on research on the following contents: 1.1. THEORETICAL ISSUES ON ENTERPRISE 1.1.1. Definition and characteristics of enterprise 1.1.1.1. Definition of enterprise Currently, in the period of integration of Laos with aiming to make the theoretical basis for development and completion of enterprise law, the point of view on enterprise needs to be approached in accordance with the popular trend to meet requirements of industrialization and modernization. On the basis of consideration for enterprise definition at two perspectives: ecosociety and legality, along with factors of market economy, it can be found that: term of enterprise refers to an independent business subject which is established and operated in a variety of forms with different names, but this subject has to have enough legal characteristics and satisfy conditions specified by law. 1.1.1.2. The legal characteristics of enterprise In the market economy, legal nature of enterprise in general presents through following main characteristics: (1) The enterprise is an economic organization or production-business unit; (2) The enterprise is a type of legal subject;(3) The enterprise is verified for status (establishment and business registration) in accordance with procedure specified by law; (4) The enterprise has business lines;(5) The enterprise must be an economic organization which is established and operated in certain legal form specified by law. 1.1.2. Classification of enterprise Classification of enterprise has a variety of purposes based on different criteria. The theories and practices for popular methods of enterprise classification: (1) Based on ownership characteristics and operation purpose of enterprise; (2) Based on legal status of enterprise; (3) Based on capacity for taking responsibility for assets (ability for taking responsibility for assets in business activities of enterprise owner); (4) Based on ownership mechanism and capital contribution measures; (5) Based on form types of organization and activity. According to provisions of Enterprise Law (2013), the types of enterprises in Laos are State enterprise; Private enterprise; Company Limited (including One 11 member Company Limited and Two members and more Company Limited); Jointstock Company; Joint Venture Company. 1.1.3. Role of the enterprise for eco-social development In the past years, the enterprises throughout the world in general and in Laos, in particular, have a rapid development for both scope and quality with the following important results: (1) The enterprise is the main area to make value-added and income for the economy and thence increase profit for the state budget. This profit increases quickly in recent years to facilitate investment and development of infrastructure, as well as the promotion of social activities (health, education, poverty reduction,...);(2) Handling of employment matter, increase in income, improvement of laborer s’s life; (3) The growth and development of enterprise is a decisive factor for high and stable growth of economy in the past years;(4) The development of enterprise has impact on restructuring in national economy and internal of every industry. 1.2. THEORETICAL ISSUES ON ENTERPRISE LAW 1.2.1. Definition and characteristics of enterprise law 1.2.1.1. Definition of enterprise law On aspect of the study, enterprise law is a very basic content in the program of study and education of law. However, until now, there is no unanimous concept for part of this law. From the perspective of theory, the definition of the enterprise can be approached in a wide or narrow meaning. On the basis of studies for these aspects, it can be defined as Enterprise law is a system of behavior principles approved or promulgated by State which adjusts social relationships arising from the process of a market participation, administrates activities and exit from the market of enterprises. 1.2.1.2. Characteristics of enterprise From the definition of enterprise law, we can take basic characteristics of enterprise law as follows: (1) Enterprise law is a constitutive part of economic law and an important legal institution of economic law; (2) Enterprise law is only formed and developed in the condition of the market economy with approval of State for business freedom of investors; (3) Content of enterprise law contains provisions for administrative procedure for enterprise, reflecting relationship between State and enterprise when enterprise performs freedom of business within the statutory framework; (4) Enterprise law is an element of superstructure, so it is under decisive control of economy. 12 1.2.2. The general overview of a system structure for enterprise law The system of enterprise law needs to be approached from two aspects: System of internal structure and system of a legal document on the enterprise. 1.2.2.1. The system of a legal document on enterprise The system of the legal document needs to be evaluated in two aspects: horizontal and vertical. By that approach perspective, we can define that enterprise law is a system of a legal document with different validity, covering legal norms on the enterprise. The legal documents on an enterprise may be very rich, diverse and promulgated at a different time, but all of them have a close relationship with each other and constitute a certain system. Center of law system on the enterprise is legal documents for an enterprise organization. The system of a legal document on the enterprise in Laos includes: - Constitution of Lao People’s Democratic Republic in 2015; - Law: Enterprise Law (2013), Law on Investment Encouragement (2009); Bankruptcy laws (1994); Land Law (2003); Labor Law (2012); Tax Law; and other specialized business laws. However, in relation to the research content of the thesis, it only researches on provisions in Enterprise Law (2013); - Sub-Law document: From date of Enterprise Law (2013) promulgation to now, Government of Laos has just promulgated Decree no. 22/2015/GOV dated 20/02/2015 regulating on the guideline of Business Registration without promulgating Decree of guidelines on other relevant issues specified in Enterprise Law (2013). Therefore, in relation to study content, the thesis will research on provisions of Decree no. 22/2015/GOV along with legal documents promulgated before Enterprise Law (2013) for relevant issues. 1.2.2.2. The internal structure of the system of a legal document on enterprise In term of internal structure, the system of law on the enterprise is constituted by norms, legal institutions in relation to enterprise organization (market participation, administration of enterprise and market exit). Groups of basic norms for enterprise law are: - Provisions of legal characteristics of enterprise types. - Provisions of enterprise establishment and business registration. - Provisions of rights and obligations for enterprises. - Provisions of enterprise organization and management. - Provisions of enterprise re-organization and dissolution. 13 1.2.3. Role of law on enterprise In the market mechanism, the existence of law is a demand originated from requirements of the economic relationship. Role of law on enterprise is shown in the following aspects: (1) The most important role of enterprise law is to protect enterprise, but, in fact, its mission is to protects investors, which is the most important purpose of enterprise law; (2) Enterprise law ensures right of freedom for individuals, organizations in establishment of enterprise and right of freedom for enterprises in organization and business; (3) Enterprise law ensures ownership of capital and asset in business of investors; (4) Enterprise law ensures that business activities will operate in accordance with market rules; (5) Enterprise law contributes to handling social issues. 1.2.4. The factors that afect to development and completion of enterprise law Enterprise law is an important constitutive part of the system of economic law in each country. However, in each period of history, depending on economy, politics, culture, and society, the enterprise law in each country has own provisions. On the other hand, the basis for building enterprise law content is an overall and comprehensive evaluation of influence factors. So what are these factors in Laos? In order to answer this question belonging framework of this thesis, the author will carry out assessment by the following factors: (1) Nature of economy; (2) Conversion nature of economic mechanism; (3) Laos economy in the context of international integration; (4) Conditions of history, culture, eco-society. 1.3. ENTERPRISE LAW OF SOME COUNTRIES AND LESSONS LEARNED FOR LAO PEOPLE’S DEMOCRATIC REPUBLIC Study of enterprise law in other countries helps State, Government and competent agencies and enterprises of Laos take lessons learned to continue the development and completion of enterprise law of Laos. The author conducts research on enterprise law in the following countries: 1.3.1. Enterprise law of Singapore Singapore Law of business organization form includes written law and unwritten law (cause). The main source of enterprise law in Singapore is Company Law 1967 (almost revised annually). In addition, Singapore has also promulgated a series of other legal documents regulating business forms such as the Business Registration Act (Act No 32 - Proceedings of 2004), Acton Partnerships (Act No 391 - Proceedings of 1994); Limited Liability Partnerships Act (Act No. 163A - Proceedings of 1994); Limited Partnerships Act 2008 (Act No. 35 of 2008), Law on Bankruptcy (Act No. 20 - Proceedings of 2000)… 14 1.3.2. Enterprise law of Thailand Thailand is one of the countries belonging to Southeast Asia has a system of law based on a system of civil law, but it is still affected by common law and traditional Thailand law. The main source of enterprise law in Thailand is Company Law (1993); Act on Partnership(1993). 1.3.3. Enterprise law of Vietnam As a close neighbor as well as friends of Laos, Laws of Vietnam and Laos have certain similarities. It also goes through a process of formation and development over time with different political, economic and social conditions. The main source of enterprise law in Vietnam is Enterprise Law (2014). The Enterprise Law (2014) has new regulations to create a more conducive business environment for enterprises, with important breakthrough regulations that Lao law can learn. 1.3.4. Lessons learned for Laos in the development and completion of enterprise law Through the study on enterprise law of the countries mentioned above, the author of the thesis has taken some lessons learned for further development and improvement of enterprise law of Laos including: - The establishment of a flexible legal framework with diversified business forms and open administrative procedures has created basic premises for both domestic and foreign investors in the countries around the world invest capital. - Respect and facilitate development for the private economic area. - Enterprises need to become a "model" for law drafting in the spirit of democracy with content that conforms to reality, market mechanism, and international common practice, and government's determination in implementing the organization coupled with the widespread support of people. - When developing the Enterprise Law, it is necessary to ensure the uniformity of the legal system, which is a decisive factor in the development of the legal framework. - It is necessary to expand and ensure the freedom of business for individuals and organizations. - The enterprise law of the countries has been gradually completed for the provisions on enterprise administration in the better protection for legitimate rights and interests of investors, making enterprises become a more secure and more attractive business tool. In the countries mentioned above, it can be found that Vietnam's political, social and economic conditions are quite comparable to Laos's political, social and economic 15 conditions. Therefore, the study and reference of Vietnam’s experience in the development and completion of enterprise law of Laos should be a priority. Conclusion of Chapter 1 On the basis of determining targets and tasks of the thesis, Chapter 1 has analyzed and systemized some major theoretical issues of the thesis, such as: Concept, characteristics, system of types, role of enterprise; Concept, characteristics, roles and structure of enterprise law; factors influencing the process of development and completion of enterprise law; Enterprise laws of some countries in the world, and thence, it has taken lessons learned for Laos. The contents of this study show that enterprise law in general and enterprise law of Laos, in particular, is governed deeply by economic basis. The content of enterprise law reflects the development level of the market. On the other hand, as a constituent part of the superstructure, enterprise law is closely related to and influenced by other parts of the superstructure, especially political regime. These factors have affected to the content of enterprise law and they are the basis for studying the current state of enterprise law in Laos as well as finding out the causes of shortcomings and limitations of this issue which is focused on research in the second chapter of this thesis. Chapter 2 REALITY OF LAW AND PRACTICE OF EXECUTION FOR ENTERPRISE LAW IN LAO PEOPLE’S DEMOCRATIC REPUBLIC In Chapter 2, the author pays attention to research on the following main contents: 2.1. PROCESS OF FORMATION AND DEVELOPMENT FOR ENTERPRISE LAW IN LAO PEOPLE’S DEMOCRATIC REPUBLIC In order to have a basis for assessing the current legal provisions on enterprises, the author studied and divided the process of formation and development of enterprise law in Lao People's Democratic Republic into 4 stages, equivalent to each period of Fsocio-economic development in Laos: - The period from 1975 to 1994 before Business Law(1994)was promulgated. - The period from date of Business Law (1994) promulgation to date before Enterprise Law (2005) was promulgated. - The period from date of Enterprise Law (2005)promulgation to date before Enterprise Law (2013) was promulgated. - The period from date of Enterprise Law (2013) promulgation to now. 16 Since the date of promulgation, Enterprise Law (2013) has made quite positive changes, contributing to the improvement of the business environment in Laos. In addition to the achievements, the content of legal provisions and implementation of Enterprise Law (2013) still have shortcomings, which requires quick and appropriate amendments and supplements with a complete legal framework for the establishment and operation of enterprises. These contents will be studied in the subsections below. 2.2. REALITY OF CURRENT LEGAL PROVISIONS ON ENTERPRISE 2.2.1. The Reality of provisions for types of enterprises According to Enterprise law (2013) of Laos, there are following types of basic enterprises in Laos: State enterprise (Article 196); Private enterprise (Clause 3 of Article 3); Joint Stock Company (Clause 4 of Article 3); Limited liability company (Clause 8 of Article 3); Partnership Company (Article 184 of Enterprise law). Based on the research, assessment of characteristics, constraints or advantages of each type of enterprises, it can be found that Laos’s provisions on various types of enterprises are quite similar to international common practices. However, distinction and adjustment for organization of enterprise types based on norms of ownership characteristics and economic elements lead to the following shortcomings: (1) Enterprise law does not ensure systematization and unification; (2) It does not create equal conditions and opportunities for investors in forms of various ownership types to join the market of enterprise administration and exit market, as well. (3) The perspective of enterprise classification based on current law leads to the inevitable consequence that there are many types of enterprises have the same nature, but they belong to a variety of ownership forms and economic elements, so they are treated unequally. 2.2.2. The reality of provisions on right of enterprise establishment and capital contribution to enterprise The right of enterprise establishment can be understood as the right of organization, individual on creating legal status through procedures of establishment and business registration. The author has studied and evaluated the provisions for rights of enterprise establishment and capital contribution to enterprise in terms of: (1) The subject has the right to establish and contribute capital to the enterprise; (2) On the right of choosing type and model of enterprise; (3) On the right of choosing lines of business; (4) On the right of choosing the location of head office or business location of the enterprise, and name of the enterprise; (5) On the right of carrying out capital contribution procedures for enterprise establishment. 17 2.2.3. The reality of provisions for record and procedures of enterprise establishment The author has studied and assessed the advantages and disadvantages of provisions on records and procedures for enterprise establishment in the following aspects: (1) Conditions for registration of enterprise establishment; (2) Record and procedures for enterprise establishment. 2.2.4. The reality of provisions on the rights and obligations of enterprises The rights and obligations of the enterprise are the basic contents constituting the legal status of the enterprise. The rights and obligations of enterprises are determined by various regulations of economic law, but basically are provisions of rights and obligations in Enterprise Law (2013). The author has studied and evaluated: (1) The rights of enterprises that are regulated in Article 7 of Enterprise (2013). It can be seen that Laos law has not specified the rights of enterprises like Enterprise Law (2014) of Vietnam. The provisions of Article 7 of Enterprise Law (2013) in Laos are only the principles of ensuring business rights of enterprises; (2) On the obligations of enterprises defined in Article 6 of Enterprise Law (2013). 2.2.5. The reality of provisions on internal management organization for types of enterprises With the rapid development of enterprises both in terms of size and quantity, especially the formation of large-size enterprises, enterprise internal management organizations are increasingly attracting the interest of the business community and business lawmakers. The author has studied and assessed the advantages and disadvantages in the provisions on the organization of internal management for specific types of enterprises in Enterprises (2013) as follows: (1) State enterprises: The structure of State enterprises consists of administrative Council - the highest competent body of State enterprise, Director (General Director), auditor. (2) Private enterprise: The enterprise owner is the sole owner and the legal representative of that enterprise with full right to decide property as well as make a decision on the organization and management of the enterprise, he can manage his enterprise by himself or hire someone to manage. (3) Joint Stock Company: common structure of the joint stock company consists of the General Meeting of Shareholders, Administrative Council, Director (General Director) and auditor. (4) Company Limited: 18 - Two members and more Company limited: The internal management organization consists of Member Council, Director (General Director), Administrative Council and auditor. - One member company limited: the management of one member company limited is the manager (Director) (5) Partnership Company: Basically, the organizational structure of a partnership company consists of: Member Council and Director (General Director). 2.2.6. The reality of provisions on re-organization, dissolution of the enterprise 2.2.6.1. Provisions on re-organization of enterprise Re-organization of enterprises is to restructure the business so that it conforms to target that the enterprise selected. The author has studied and evaluated the provisions on the types of enterprise reorganization according to Enterprise Law in Laos (2013): (1) Business consolidation; (2) Merger of enterprises; (3) Business transformation. 2.2.6.2. Provisions on a dissolution of the enterprise Dissolution of an enterprise means the termination of existence for that enterprise according to the will of the enterprise or a competent body provided that the enterprise must ensure payment of all debts and other property obligations. Dissolution of the enterprise is defined in Article 58 of Enterprise Law (2013). The author has evaluated the provisions on the dissolution of enterprises in the following aspects: (1) On the dissolution cases, Laos prescribes two dissolution cases, namely: The voluntary and compulsory dissolution of enterprises; (2) On procedures for dissolution of enterprises. The dissolution of enterprises must comply with strict procedures prescribed by law. 2.3. PRACTICE OF EXECUTION FOR ENTERPRISE LAW 2.3.1. The general overview of Laos enterprises in recent time Over the past years, enterprises in the territory of the People's Democratic Republic have developed rapidly in terms of scale and quality. By 2014, Laos has 139.953 enterprises, of which 173 are State enterprises, accounting for 0.12 % of total enterprises. The author has submitted a general overview of Lao enterprise in recent years in terms of the number of operating enterprises; The number of enterprises which are dissolved or temporarily ceased for operation; the number of enterprises by industry; legal form of the registered enterprises; situation of labor usage in enterprises; Asset scope of the business. In particular, in term of legal form of the registered enterprises, the data shows that the form of limited liability companies still account for the largest proportion, the form of Joint-stock Company is increasingly
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