Thông tư 05/2012/TT-BNG hướng dẫn Nghị định 12/2012/NĐ-CP về tổ chức phi chính phủ

CIRCULAR

GUIDING IMPLEMENTATION OF THE GOVERNMENT’S DECREE NO. 12/2012/ND-CP, OF MARCH 01, 2012 ON REGISTRATION AND OPERATION MANAGEMENT OF FOREIGN NON-GOVERNMENTAL ORGANIZATIONS IN VIETNAM 

Pursuant to the Law on Government organization, of December 25, 2001;

Pursuant to the Decree No. 15/2008/ND-CP, of February 04, 2008 defining the functions, tasks, powers and organizational structure of the Ministry of Foreign Affairs;

Pursuant to the Government’s Decree No. 12/2012/ND-CP, of March 01, 2012 on registration and operation management of foreign non-governmental organizations in Vietnam;

The Minister of Foreign Affairs promulgates Circular guiding implementation of the Government’s Decree No. 12/2012/ND-CP, of March 01, 2012 on registration and operation management of foreign non-governmental organizations in Vietnam (hereinafter referred to as the Decree) as follows:

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application (specified in Article 1 of the Decree):

1.The Decree applies to Ministries, branches, provincial People’s Committees, local agencies managing foreign non-governmental organizations(NGOs), Vietnamese partner agencies, non-governmental organizations, non-profit organizations, social funds, private funds or other social or non-profit organizations, which are established under foreign laws and carry out development assistance and humanitarian aid activities not for profit or other purposes in Vietnam.

2.The Decree does not apply to individuals conducting charitable, humanitarian activities in Vietnam.

Article 2. General provisions on registration for foreignNGOsin Vietnam (specifiedinfrom Article 5 to Article 15 of the Decree): 

1. Pursuant to the Ordinance on conclusion and implementation of international agreements promulgated on 20thApril, 2007 of the Standing committee of the National Assembly, before implementing activities in Vietnam, heads of foreignNGOs need conclude “Frame Agreement” with Vietnamese competent agencies, organizations (being Vietnamese agencies specified in Article 1 of the Ordinance), in which stating clearly rights, duties, commitments for activities, humanitarian, development of such organizations in Vietnam. If a foreignNGOhas no Vietnamese partner agency to conclude “Frame Agreement”, the standing agency of committee will be agency concluding “Frame Agreement” and must take opinion in writing of the Ministry of Foreign Affairs before concluding.

2.To complete and submit valid dossier of registration to the Standing agency of theCommitteeforForeign NGOAffairsin order to implement procedures as prescribed from Article 6 to Article 14 of the Decree.

3.The Ministry of Foreign Affairs shall consider, grant, extend, amend, supplement or withdraw the Registration on the basis of appraisal opinion of members of the Committee. The foreign NGOs are only permitted to implement activities after being granted certificate of registration, except cases specified in clause 1, Article 8 of this Circular.   The foreign NGOs conducting activities when having not yet registered, the Standing agency or competent relevant agencies shall request such organizations temporarily stop their activities within 15 days, in order to do procedures for registration and when being granted the certificate of registration, they can continue activities.

4.Ministries, sectors and localities and Vietnamese partners are not permitted to implement activities cooperating with foreign NGOs when such organizations have not yet registered as prescribed, except cases specified in clause 1, Article 8 of this Circular.

Article 3. The process of appraisal and grant of new registration and extension, supplement, amendment of kinds of registration:

a) Within 35 working days, as from fully receiving the valid dossier, the standing agency of Committee ask for consults of relevant agencies and People’s Committee of province where the foreign NGO anticipated to register for operation. Agencies being consulted must answer within 20 working days.

b) When receiving relevant opinions, the standing agency of Committee shall transfer dossier of foreign NGO and appraisals of relevant agencies, opinion of People’s Committee of province where the foreign NGO anticipated to register for operation, to the Ministry of Foreign Affairs for consideration.

c) Within 10 working days, as from fully receiving the valid dossier as stated in item b, clause 1, Article 3 above, the Ministry of Foreign Affairs shall consider and submit to competent authority for decision (problems which fall beyond competence of the Ministry of Foreign Affairs shall be submitted to the Prime Minister for consideration and decision). 

d) The Ministry of Foreign Affairs shall transfer result to the standing agency of Committee to notify result in writing to the foreign NGO.

Chapter 2.

PROCEDURES FOR REGISTRATION APPLIED TO FOREIGN NGOS IN VIETNAM

Article 4. Agencies granting registration certificate and agencies receiving, returning results of registered dossiers (specifiedinfrom Article 5 to Article 15 and clause 3 Article 24 of the Decree)

1.The Ministry of Foreign Affairs is agencynewlygranting, extending, amending, supplementing and withdrawing kinds of registration certificate of the foreign NGOs in Vietnam (Forms of kinds of registration certificate specified in Annex No. 1, 2 and 3).

2.The standing agency of the Committee for Foreign NGO Affairs (the Vietnam union of friendship organizations) is agency receiving dossiers requesting for grant, extension, supplement, amendment, termination of operation and assuming the prime responsibility for, and coordinating with agencies being members of Committee to appraise dossiers and return results of consideration and approval of dossiers of the foreign NGOs in Vietnam. 

Article 5. Competence for signing on the applications fornewlygranting, extending, amending, supplementing and withdrawing registration certificates of the foreign NGOs in Vietnam (specifiedinfrom Article 5 to Article 15 of the Decree):

1.Applications fornewlygranting or upgrading registration certificate must be signed on by heads of foreign NGOs.

2.Applications for extending, supplementing, amending the registration certificate are signed by representatives of organizations whose name are written on the registration certificate or heads of foreign NGOs under authorization.

Article 6. Dossier ofrepresentatives of foreign NGOs in Vietnam upon requestingfornewlygranting, amending, supplementing kinds of registration certificates (specified in from Article 5 to Article 15 of the Decree):

1.Apart from documents are required to submit in according to the Decree, all dossiers of suggestion for appointing a new representative of a foreign NGO in Vietnam needs have an Appointing Decision  enclosed with a letter of introduction signed by head of such organization, a biography of person appointed as representative of organization in Vietnam and a copy of main information page in valid passport of such person (all documents in foreign languages must enclosed with a lawfully certified Vietnamese translation).

2.Dossiers need be lawfully certified including: Charter and paper certifying legal status of organization, judicial record of the person anticipated as representative office and project office representative chief or person nominated as representative in Vietnam by foreign NGO, which is consularly legalized as prescribed in the Government’s Decree No. 111/2011/ND-CP and the Circular No. 01/2012/TT-BNG of the Ministry of Foreign Affairs, guiding the Decree No.111/2011/ND-CP.   In case a person expected as representative office and project office representative chief or a person nominated as representative in Vietnam by foreign NGO live and work permanently in a country not country where he/she bears nationality, his/her judicial record must be consularly legalized in country where such person has lived and worked for 6 nearest months.   Dossiers as required by the Decree upon having Vietnamese translation, they need be notarized at Notarization Offices of origin countryor Vietnam.  (List of countries and kinds of papers being exempted form consularly legalized in Vietnam specified in the Annex 4).

3.The representative of organization in Vietnam only operates when being approved in writing by the Committee for Foreign NGO Affairs.

Article 7. Places laying project offices, representative offices of foreign NGOs

1.The project offices of foreign NGOs may beplacedin townships, district capitals of localities where have full advantage conditions for supervision, support to implement programs, projects and must be approved in writing by People’s Committees of relevant central-affiliated cities and provinces.

2.The project offices of foreign NGOs are not permitted to place at head office of local authorities.

3.Places laying representative offices of foreign NGOs must be approved in writing by People’s Committees of Hanoi, Da Nang and Hochiminh cities and not permitted to placed at head office of local authorities (specified in point d, Article 12 of the Decree).

4.Upon having request, foreign NGOs with Operation Registration Certificate shall be facilitated to have a working place.

Article 8. Conditions for grant of Operation Registration Certificate, Project office Registration Certificate and Representative Office Registration Certificate:

1.In special cases such as participation in urgent relief due to disasters, epidemics, wars, the Ministry of Foreign Affairs may issue a written approval for foreign NGOs to conduct some determined humanitarian and charitable activities before granting Registration Certificate.

2.Conditions for granting Representative Office Registration Certificate, clause c, item 1 Article 12 of the Decree No. 12/2012/ND-CP are guided specifically as follows:  The foreign NGOs have operated effectively in Vietnam for at least 02 consecutive years before submitting dossier for grant of Representative Office Registration Certificate.

Article 9. Time limits of kinds of Registration Certificates (specified in Articles 6, 7, 9, 10, 12, 13 of the Decree):

Time limits of kinds of Registration Certificatesbeing newly granted, supplemented, amended are guided specifically as follows:

1.Maximum time limit for Operation Registration Certificate is 3 years; Maximum time limit for Project Office Registration Certificate and Representative Office Registration Certificate is 5 years. Time limit in reality which is written in the Registration Certificate may be shorter than above-mentioned time limits, in conformity with time limits of programs, projects approved by competent authorities of Vietnam, financial ability of organizations and time limits of operation registration of foreign NGOs at place of establishing or having head office in case law of such countries have provision on time limit for operation registration of NGOs. 

2.Time limit of Registration Certificate which is transfered from the prior license is the remaining time limit of prior granted license, unless the applying foreign NGO has other request in conformity with finance ability and programs, projects approved by competent authorities of Vietnam. 

3.Foreign NGOs shall require time limit of Registration Certificate and the Ministry of Foreign Affairs shall consider for decision.

Article 10. The temporary confirmation:

In some special cases (example: When procedures for appraisal cannot complete because dossier has not yet been full and valid due to force majeure) when the registration certification of foreign NGOs have not yet been extended, supplemented, amended timely under time limit, the Committee for Foreign NGO Affairs shall grant a confirmation with a defined time on situation that the registration certificate of organization is being considered for such foreign NGOs in order to facilitate for such organizations operate normally while waiting registration certificates being extended, supplemented and amended. (in according to Forms specified in Annex No. 3.1)

Article 11.In according to Article 15 of the Decree, conditions for Suspension of part or whole or termination of operation of foreign NGOs are guided for implementation as follows:

1.To be partly suspended when fail to implement properly commitments, insufficient financial ability, many projects which committed and be approved but fail to deploy implementation. 

2.To be suspended whole operation when fail to implement properly field, location, or fail to deploy activities in a long time (1 year).

3.To be terminated operation when breaching Article 4 of this Decree after having been reminded for many times.

Article 12. Grant of labor permits:

1.Under Article 20 of the Decree, foreign employees working for foreign NGOs must come the Departments of Labor, War invalids and Social Affairs of localities where foreign NGOs placed their head office, in order to apply for labor permit in according to current provisions of Vietnam, except for foreigners being the representative chiefs.

2.Grant of labor permit shall be applied under regulations being guided in the following legal documents and as prescribed by current law: i) The Decree No. 34/2008/ND-CP, of March 25, 2008 providing on employment and administration of foreigners working in Vietnam; ii) the Decree No. 46/2011/ND-CP, of June 17, 2011 amending and supplementing a number of articles of the Decree No. 34/2008/ND-CP and iii) the Circular No. 31/2011/TT-BLDTBXH, of November 03, 2011 of the Ministry of Labor, War invalids and Social Affairs guiding implementation of the Decree No. 34 and Decree No. 46.  

Article 13. Import of goods (specified in Article 22 of the Decree):

Import of goods shall apply under guides in the Joint Circular No. 03/2007/TTLT-BCT-BTC-BNG, of October 15, 2007 between the Ministry of Industry and Trade, the Ministry of Finance and the Ministry of Foreign Affairs and based on the Decree No. 73/CP, of July 30, 1994 and according to current legal documents guiding temporary import, import or purchase on free duty in Vietnam and export, re-export, transfer and destruction of items which are necessary to serve for work and living activities of diplomatic representations, foreign consulates, and representative offices of international organizations being enjoyed privileges and immunity in Vietnam.  

Article 14. The personal income tax for foreigners (specified in Article 23 of the Decree):

The personal income tax for foreigners shall be applied under guides in the following legal documents and as prescribed by current legal documents: i) the Law on personal income tax; ii) the Decree No. 100/2008/ND-CP, of September 08, 2008 detailing on the Law on personal income tax; iii) the Circular No. 55/2007/TT-BTC, of May 29, 2007 of the Ministry of Finance guiding personal income tax exemption for foreign experts who implement foreign non-governmental aid programs or projects in Vietnam; iv) the Circular No. 12/2011/TT-BTC, of January 26, 2011 amending the Circular No. 84/2008/TT-BTC, of September 30, 2008 of the Ministry of Finance, guiding implementation of a number of articles of the Law on personal income tax and amending the Circular No. 02/2010/TT-BTC, of January 11, 2010 of the Ministry of Finance.     

Article 15. Seals and accounts of foreign NGOs (specified in Article 21 of the Decree):

1.Under Article 21 of the Decree, foreign NGOs which have been granted Registration Certificate, are permitted to register and use seal and open accounts at banks which established and operated under current law of Vietnam.  

2.Registration of seals is applied under guidance in the Circular No. 07/2010/TT-BCA, of February 05, 2010 of the Ministry of Public Security, Government’s Decree No. 58/2001/NDCP, of August 24, 2001 on management and use of seal and the Decree No. 31/2009/ND-CP amending and supplementing the Decree No. 58.

Chapter 3.

RESPONSIBILITIES OF FOREIGN NGOS AND VIETNAM AGENCIES

Article 16. Notification of operation (specified in Article 17 of the Decree):

The written notification of operation of foreign NGOs is sent to state s focal agencies managing foreign affairs (Departments, Divisions of Foreign Affairs or Office of People’s Committee of provinces, cities) in central-affiliated cities and provinces relating to places where foreign NGOs have head office or activities, programs, projects expected going to implement.      

Article 17. Responsibility for reporting of foreign NGOs (specified in Article 18 of the Decree):

Periodically of 6 months and annually, Representative Office chief, Project Office chief or person authorized by foreign NGOs to do as representative of foreign NGOs in Vietnam shall coordinate with the Ministry of Finance, bank opening accounts of organizations in order to audit annually, report in writing on activities and situation of implementing aid programs, projects, (in according to Forms specified in Annex No. 5 enclosed with Vietnamese translations) to the Ministry of Foreign Affairs, the Committee for Foreign NGO Affairs and concurrently send to People’s Committees of central-affiliated cities and provinces in operating localities defined in Registration Certificate not later than on July 15 every year for the 6-month report and not later than January 15 of next year for the annual report.

Article 18. Responsibility for reporting of Vietnam agencies (specified in from Article 25 to Article 28 of the Decree):

Periodically of 6 months and annually, Ministers, Ministerial-level agencies, Governmental agencies, Central agencies of unions and central people organizations and People’s Committees of central-affiliated cities and provinces, the Ministry of Planning and Investment shall report activities and use of aid of foreign NGOs (in according to Forms specified in Annex No. 6), to the Ministry of Foreign Affairs not later than on July 20 every year for the 6-month report and not later than February 20 of next year for the annual report or as required for synthesizing and reporting to the Prime Minister.

Article 19. Responsibility for reporting of Vietnam partner agencies (specified in clause 3, Article 29 of the Decree):

Periodically of 6 months and annually, the Vietnam partner agencies send written reports on activities and situation of implementing aid programs, projects (in according to the Form specified in Annex No. ) To the Ministry of Foreign Affairs and concurrently send to People’s Committees of central-affiliated cities and provinces at operating localities prior determined in Registration Certificate not later than on July 15 every year for the 6-month report and not later than on January 15 of next year for the annual report.   

Article 20. Responsibility for management, inspection, supervision of Vietnam agencies (specified in from Article 25 to Article 28 of the Decree):

1.The Committee for Foreign NGO Affairs is responsible before the Prime Minister for appraisal, inspection, supervision and handling of violations of foreign NGOs.

2.Defining a unit to act as the focal point in the local state management to generally managing foreign NGOs (clause 4, Article 28 of the Decree):  Pursuant to the Decision No.67/2011/QD-TTg, of December 12, 2011 of the Prime Minister, promulgating regulation on unified management of external activities of People’s Committees of central-affiliated cities and provinces and the Joint Circular No. 02/2009/TTLT-BNG-BNV,of May 27, 2009 between the Ministry of Foreign Affairs and Ministry of Internal Affairs on managing external operation at localities and documents amending, supplementing (if any), the provincial People’s Committees assign an agency in charge of foreign affairs to do as focal (serviceof or divisionof Foreign Affairs or Office of provincial People’s Committee), which having a deputy chairperson of provincial People’s Committee directly being charge of general regulation of management amongservices, divisions, sectors in localities and support the Ministry of Foreign Affairs in management of activities of non-governmental foreign organizations in nationwide.     

3.The relevant services, divisions, sectors attached the provincial People’s Committees shall coordinate with agencies managing foreign affairs in localities (Services, divisions of foreign affairs or Office of People’s Committee) in management, inspection, supervision and report to the Ministry of Foreign Affairs and Committee for Foreign Non-Governmental Organization Affairs.

4.The state management agencies of foreign affairs (services, divisions of foreign affairs or Office of People’s Committee) in central-affiliated cities and provinces are responsible for state management relating to foreign non-governmental work  in their localities, coordinate with local services, divisions, sectors in management of operation of foreign non-governmental organizations, advise for provincial People’s Committees in foreign non-governmental work and take responsibility before provincial People’s Committee in managing foreign non-governmental organizations.    

Chapter 4.

ORGANIZATION FOR IMPLEMENTATION

Article 21.Commendation, handling of violations (specified in Article 31 of the Decree):

1. The foreign non-governmental organizations are considered for commendation on the basis of having reports of assessment and proposal of localities where such organizations operating or of agencies being partners of Vietnam.  

2.Apart from provisions in clause 2, Article 31 of the Decree, the Committee for foreign non-governmental organization affairs shall be agency receiving dossier of appeal of foreign non-governmental organizations if any.

Article 22. Effectiveness:

1.This Circular takes effect after 45 days as from the day of signing.

2.In the course of implementation, any arising problems should be reported to the Ministry of Foreign Affairs for research and additional guidance promptly.