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Commercial Law 1
Commercial Law 1
Loại hình
kinh doanh nào mang lại nhiều lợi ích hơn?
- Giống nhau:
Đều là loại hình doanh nghiệp do một chủ sở hữu sáng lập;
Cả hai loại hình doanh nghiệp đều không được phát hành cổ phiếu;
Không được chuyển nhượng vốn/thêm thành viên. Nếu chủ sở hữu muốn chuyển
nhượng/ nhận thêm phần vốn góp thì đều phải làm thủ tục chuyển đổi loại hình
doanh nghiệp.
-Same:
A limited liability company will offer more benefits than a sole proprietorship. The advant
ages of a limited liability company are as follows:
An LLC provides its members with limited personal liability relating to the
company's business debts.
It is fairly easy to organize and get up and running.
It offers the flexibility to opt for pass-through taxation or to elect corporate
taxation (as an S Corporation or C Corporation).
Its pass-through taxation prevents double taxation—that is, paying taxes twice,
once on LLC profits and then again, on profits that individual members receive.
Many business expenses can be written off as business deductions, thus lowering
taxable income; these deductions are taken on the LLC or personal return
(depending on the taxation method chosen, corporate or pass-through).
An LLC can be run by its members or members can hire a manager to handle day-
to-day affairs. Some members may choose to be more or less involved than others.
The LLC designation can lend greater credibility to a sole proprietorship or
partnership.
Less record-keeping is required compared to corporations, which means greater
focus can be maintained on the goals of the business.
In addition, the owner of a sole proprietor has unlimited responsibility in business, which
means that in the process of production and business, if the business is at a loss, the
investor must bring all assets under his ownership to pay off the debt until the end of the
debt, including assets put into business or civil assets. Meanwhile, the owner of a 1-
member limited liability company is only limited liable, so a private enterprise carries
more risks than a 1-member limited liability company.
Câu 2: Phân biệt các loại hình công ty: TNHH 2 tvien trở lên, Cty hợp danh, Công ty
cổ phần, Doanh nghiệp nhà nước và doanh nghiệp có vốn nhà nước.
Limited liability Partnership Joint stock State-owned
company company enterprise
Concept - Members may be - a/ at least 2 - The charter capital - enterprise of
organizations / members being co- is divided into which the
individuals; owners of the equal portions State holds
- the number must partnership who called shares more than 50
not exceed 50; jointly conduct - Shareholders may percent of
- Members must business under one be charter
be liable for the common name organizations or capital.
debts and other (below referred to as individuals; the
property general partners). minimum
obligations of the - may have limited number of
enterprise within partners shareholders is
the amount of - General partners three and there
capital must be individuals is no restriction
contributed to the who are liable for on the
enterprise, except the obligations of maximum
the case specified the partnership with number;
in the Law all of their personal - Shareholders are
- The contributed assets liable for debts
capital amount of - Limited partners and other
each member must only be liable property
may only be for the debts of the obligations of
transferred in partnership within the enterprise
accordance with the limit of the only within
the Law capital amount they their amounts
- has the legal have contributed to of capital
person status the partnership. contributed to
from the date it is - A partnership has the enterprise;
granted an the legal entity - Shareholders may
enterprise status from the date freely assign/
registration of registration transfer their
certificate. certificate. shares to other
- may not issue its - Partnerships shall persons except
shares (but may not issue securities the cases
issue bonds) of any type. specified in this
- (như c1) Law.
- has legal entity
status from the
date of grant of
the enterprise
registration
certificate.
- May issue all
types of shares,
bonds and other
kinds of
securities to
raise funds
Character (như 1) - 2 or more than 2 - Limited liability - More than
istics general partners + for the 50% capital
May have limited company loss come form
partners - Shares can be state budget;
- General partner = freely - Limited
Jointly Unilimited transferred (via liability or
Liability security Joint stock
- Legal person/ legal exchange company
entity status - Legal entity status - Most of them
- Not any stocks - May issue shares are public
issued to increase corporation
- General partners company - Requiring
have unlimited and capital more
joint liability transparent
- Limited partners
have limited liability
Legal - A group of single -
nature traders
- Jointly conducting
busines
- General partners are
jointly liable for the
loss (Unlimited) in
term of their
personal assest
- At leat 2
representatives
(general parners)
Câu 5: nêu ưu và nhược của từng loại hình công ty
Sole proprietorship
- Ưu:
+ Sole proprietors can easily adapt to the market and adjust their business operations
to suit market needs. This helps private enterprises compete with larger businesses and
thrive in a constantly changing business environment.
+ High confidentiality: Because private businesses are typically smaller and not as
public-facing as larger businesses, they are able to keep information about their
business operations more secret.
+ Personal responsibility: The owner is responsible for all debts or losses incurred by
the business, including lawsuits.
- Nhược:
+ Personalization: Private businesses are often highly personalized, because the owner is
the person behind the business decisions and works in the business. This can create
greater passion and commitment towards the business.
+ Difficulty in finding human resources: Private enterprises often cannot afford to pay as
high salaries as larger businesses, so they have difficulty finding and retaining good
employees.
Cty TNHN một thành viên
- Ưu:
+ Owned by an organization or individual, the owner will have full authority to decide on
all issues related to the company's operations and does not need to ask for opinions or
suggestions from other entities and management. Company management is also simpler
+ Having legal status, a business is recognized as a legal entity and can independently
participate in relationships on its behalf. This gives businesses stability in their legal life,
the legal entity does not encounter unexpected changes like a natural person, the legal
entity's operations last long and is not affected by events that happen to its members.
+ The owner only has limited liability within the scope of the company's charter capital
(Clause 1, Article 74 of the Enterprise Law 2020), so the owner's risks are limited when
conducting production and business activities.
+ Strict organizational structure, with a company President, Director or General Director.
In case the company is owned by an organization, it can also be organized according to
the model of a Board of Members (which elects a person to be the Chairman of the Board
of Members), Director or General Director (Article 79 of the Law on Enterprises). career
2020).
+ The company owner has the full right to transfer all or part of the company's charter
capital (Article 76 of the Enterprise Law 2020).
- Nhược:
+ The legal system regulating LLCs is more stringent than that of private enterprises.
+ Restricted in raising capital because the limited liability company is not allowed to issue
shares.
+ If there is a need to mobilize additional capital from other individuals or organizations,
procedures for converting the business type to a limited liability company with two or
more members or a joint stock company will have to be carried out.
- Hệ thống pháp luật điều chỉnh công ty TNHH MTV khắt khe hơn so với DNTN.
- Bị hạn chế trong việc huy động vốn bởi công ty TNHH MTV không được phát hành cổ phiếu.
- Nếu có nhu cầu huy động thêm vốn góp của cá nhân, tổ chức khác, sẽ phải thực hiện thủ tục chuyển đổi
loại hình doanh nghiệp sang công ty TNHH hai thành viên trở lên hoặc công ty cổ phần.
* THNN 2 thành viên
- Ưu điểm:
+ Having legal status (Clause 2, Article 46 of the Law on Enterprises 2020), the enterprise
is recognized as a legal subject and can independently participate in relationships on its
behalf. This gives businesses stability in their legal life, the legal entity does not encounter
unexpected changes like a natural person, the legal entity's operations last long and are not
affected by events that happen to its members.
+ Company members only have limited liability within the amount of capital contributed
to the company (Clause 1, Article 46 of the Enterprise Law 2020), so members' risks are
limited when conducting production and business activities.
+There are more owners than private enterprises and limited liability companies, so they
can have more capital. Therefore, having a financial position creates growth potential for
businesses. Comprehensive management capabilities due to more people involved in
running the business. Members inherently have different levels of knowledge. They can
complement each other in administrative skills.
Nhược
- The company's organizational structure is complex, so managing and operating a joint
stock company is also more difficult due to the very large number of shareholders, many
shareholders may not know each other and there may be division into Groups of
shareholders in the company oppose each other in terms of interests;
- For joint stock companies, it will be more difficult to make a decision whether it is about
corporate management or business because it must go through the Board of Directors,
General Meeting of Shareholders... So it is easy to ignore it. business opportunities for
businesses;
- Confidentiality in business and finance is limited because the company must disclose
and report to shareholders at annual meetings.
- In addition, when shareholders transfer shares, they must submit a personal income tax
declaration and pay personal income tax at a tax rate of 0.1% on the share transfer price
each time.
- Cơ cấu tổ chức công ty phức tạp, nên Việc quản lý và điều hành công ty cổ phần cũng khó khăn hơn do
số lượng cổ đông rất lớn, nhiều cổ đông có thể không quen biết nhau và có thể có sự phân hóa thành các
nhóm cổ đông trong công ty đối kháng nhau về lợi ích;
- Đối với công ty cổ phần sẽ khó khăn hơn khi đưa ra một quyết định nào đó dù là về quản lý doanh
nghiệp hay kinh doanh do phải thông qua Hội Đồng quản trị, Đại hội đồng cổ đông… Vậy nên rất dễ bỏ
qua những cơ hội kinh doanh cho doanh nghiệp;
- Khả năng bảo mật trong kinh doanh và tài chính bị hạn chế do công ty phải công khai và báo cáo với
các cổ đông ở các cuộc họp thường niên.
- Ngoài ra, khi các cổ đông chuyển nhượng cổ phần phải có nghĩa vụ nộp tờ khai thuế thu nhập cá nhân
và nộp thuế thu nhập cá nhân với thuế suất 0,1% trên giá chuyển nhượng cổ phần từng lần.