Luận án Địa vị pháp lý của doanh nghiệp xã hội theo pháp luật Việt Nam

Nội dung text: Luận án Địa vị pháp lý của doanh nghiệp xã hội theo pháp luật Việt Nam

1. BỘ GIÁO DỤC VÀ ĐÀO TẠO BỘ TƯ PHÁP TRƯỜNG ĐẠI HỌC LUẬT HÀ NỘI THÔNG TIN TÓM TẮT VỀ NHỮNG ĐIỂM MỚI CỦA LUẬN ÁN Đề tài luận án: “Địa vị pháp lý của doanh nghiệp xã hội theo pháp luật Việt Nam” Chuyên ngành: Luật Kinh tế; Mã số: 9.38.01.07 Cơ sở đào tạo: Trường Đại học Luật Hà Nôi Luận án là công trình khoa học, nghiên cứu một cách sâu sắc, toàn diện và có hệ thống về địa vị pháp lý của doanh nghiệp xã hội theo pháp luật Việt Nam hiện nay. Luận án có những điểm mới về mặt lý luận và thực tiễn như sau: 1. Về mặt lý luận - Luận án góp phần làm sâu sắc hơn những vấn đề lý luận về doanh nghiệp xã hội và địa vị pháp lý của doanh nghiệp xã hội như cơ sở ra đời và phát triển của doanh nghiệp xã hội trên thế giới và ở Việt Nam; khái niệm, đặc điểm, các loại hình doanh nghiệp xã hội và vai trò của doanh nghiệp xã hội trong thực tiễn. - Luận án góp phần làm rõ hơn những vấn đề lý luận về địa vị pháp lý của doanh nghiệp xã hội như khái niệm, đặc điểm địa vị pháp lý của doanh nghiệp xã hội, các yếu tố cấu thành địa vị pháp lý của doanh nghiệp xã hội và các yếu tố ảnh hưởng đến địa vị pháp lý của doanh nghiệp xã hội. 2. Về mặt thực tiễn - Luận án góp phần làm rõ thực trạng các quy định về địa vị pháp lý của doanh nghiệp xã hội theo pháp luật Việt Nam; thực tiễn tổ chức, hoạt động của doanh nghiệp xã hội ở Việt Nam và thực tiễn thực hiện các quy định về địa vị pháp lý của doanh nghiệp xã hội kể từ khi Luật Doanh nghiệp năm 2014 có hiệu lực đến ngày 01 tháng 5 năm 2021. - Luận án chỉ ra những nguyên nhân chủ yếu dẫn đến những khó khăn, bất cập trong quá trình tổ chức hoạt động của doanh nghiệp xã hội và thực tiễn thực hiện các quy định pháp luật về doanh nghiệp xã hội ở Việt Nam thời gian qua. Trên cơ sở đó, luận án đề xuất định hướng và một số giải pháp tăng cường địa vị pháp lý của doanh nghiệp xã hội ở Việt Nam hiện nay. Hà Nội, ngày 29 tháng 11 năm 2021 Nguyễn Thị Diễm Anh
2. MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY SUMMARY OF NEW POINTS OF THE THESIS Thesis topic: "Legal status of social enterprises under Vietnamese law" Specialization: Economic Law; Code: 9.38.01.07 Training institution: Hanoi Law University The thesis is a scientific work, researching deeply, comprehensively and systematically about the legal status of social enterprises under current Vietnamese law. The thesis has new theoretical and practical points as follows: 1. Theoretically - The thesis contributes to deepening the theoretical issues of social enterprises and the legal status of social enterprises as the basis for the birth and development of social enterprises in the world and in Vietnam; concepts, characteristics, types of social enterprises and the role of social enterprises in practice. - The thesis contributes to clarifying theoretical issues about the legal status of social enterprises such as the concept and characteristics of the legal status of social enterprises, the elements constituting the legal status of social enterprises. social enterprises and factors affecting the legal status of social enterprises. 2. In terms of practice - The thesis contributes to clarifying the current status of regulations on the legal status of social enterprises under Vietnamese law; the practice of organization and operation of social enterprises in Vietnam and the practice of implementing regulations on the legal status of social enterprises since the 2014 Enterprise Law took effect until May 1, 2014. 2021. - The thesis points out the main causes leading to the difficulties and inadequacies in the process of organizing and operating social enterprises and the practical implementation of legal regulations on social enterprises in Vietnam during the past time. On that basis, the thesis proposes orientations and some solutions to strengthen the legal status of social enterprises in Vietnam today. Hanoi, November 29, 2021 Nguyen Thi Diem AnH
3. MINISTRY OF EDUCATION AND TRAINING MINISTRY JUSTICE HANOI LAW UNIVERSITY LEGAL LOCATION OF SOCIAL ENTERPRISES UNDER THE LAW OF VIETNAM Specialization: Economic Law Code: 9.38.01.07 THESIS SUMMARY DOCTORATE IN JURISPRUDENCE HÀ NỘI – 2020
4. 1 PREAMBLE 1. The urgency of the topic research Sustainable development of the country is one of the very important issues that the Party and State of Vietnam have paid special attention to in recent times. The Party's platform for building the country in the transition to socialism clearly states that sustainable development is an overarching goal, not just a task of a ministry, branch or field, not just a matter of policy. economic issues, growth quality, but also social, environmental, cultural and human issues. The recognition of Social Enterprises in the Enterprise Law 2014 and now the Enterprise Law in 2020 has demonstrated the high determination of the Party and State in implementing the country's sustainable development strategy in the period. 2011 - 2020 and now the period 2021 - 2025. In the condition that the State still does not have enough resources to effectively solve social and environmental problems to ensure social security for the people, mobilizing and encouraging all resources to jointly support Sharing difficulties with the State in a stable and effective manner is an inevitable and essential need for the country's sustainable development. The Enterprise Law 2014 and its guiding documents and now the Enterprise Law 2020 and guiding documents have created a legal framework for Social Enterprises to be established and organized. work. However, through the actual implementation, the law on Social Enterprises in Vietnam in general and the regulations on the legal status of Social Enterprises in particular have revealed certain limitations, causing obstacles to the development of social enterprises. to the birth and development of Social Enterprises. Up to now, there have been many domestic and foreign studies on theoretical and practical issues of Social Enterprises, the legal status of Social Enterprises according to Vietnamese law from different angles and perspectives. These researches have achieved remarkable results in terms of theory and practice, but have been widely and narrowly distributed and published in many journals, textbooks, books, conference proceedings, etc. However, up to this point, there has been no research on the theoretical and practical issues of the legal status of Social Enterprises under Vietnamese law in a specific and comprehensive manner. Stemming from the above reasons, the PhD student realizes that continuing to study theoretical and practical issues on the legal status of Social Enterprises is very necessary and important in the context of social enterprises. now. Therefore, the PhD student has chosen the topic "Legal status of social enterprises under Vietnamese law"
5. 2 to Research within the framework of the doctoral thesis in jurisprudence in order to find solutions to strengthen the legal status of Social Enterprises in Vietnam, contributing to promoting the development of Social Enterprises in Vietnam. 2. Research purpose and tasks 2.1. Research purposes The thesis further clarifies theoretical and practical issues about the legal status of Social Enterprises in Vietnam today, from which, proposes orientations and some solutions to strengthen the legal status of Social Enterprises in Vietnam. social enterprises in Vietnam, contributing to promoting social enterprises in Vietnam to develop strongly in the coming time. 2.2. Research mission Firstly, making an overview of the research situation at home and abroad related to the thesis topic, thereby specifying the issues that the thesis inherits, the issues that will be researched in the future. the content of the Thesis; clearly define the research theories, research questions and hypotheses as well as the research approach of the thesis. Second, the thesis clarifies the theoretical issues about the legal status of Social Enterprises in Vietnam. At the same time, in order to deepen the research issues, the thesis also studies the legal experience of Social Enterprises in some countries around the world on this issue. Third, the thesis analyzes and evaluates the current legal status of Social Enterprises in accordance with current Vietnamese laws and the actual implementation of these regulations; analyze and evaluate the actual organization and operation of Social Enterprises from the effective date of the 2014 Enterprise Law to May 1, 2021; point out the advantages, disadvantages, problems and causes leading to those inadequacies and limitations. Fourth, from theoretical and practical studies, the thesis proposes orientations and some solutions to strengthen the legal status of Social Enterprises in Vietnam. 3. Object and scope of research 3.1. Research subjects The research object of the thesis is the theoretical and practical issues of Social Enterprises, the system of legal regulations guiding the implementation and related to the legal status of Social Enterprises in Vietnam today. 3.2. Research scope
6. 3 About the content: The thesis focuses on researching theoretical and legal issues about the legal status of Social Enterprises in Vietnam in the context of the socialist- oriented market economy in Vietnam. . In terms of space and time: The thesis studies theoretical and practical issues about the legal status of Social Enterprises under Vietnamese law, especially since the 2014 Enterprise Law took effect. to May 1, 2021. In addition, the thesis also studies the legal experience of Social Enterprises in some countries around the world on this issue. 4. Methodology and research methods The thesis uses the method of dialectical and historical materialism of Marxism - Leninism, the lines and policies of economic and social development of the Party and State in the period of economic renewal according to the market mechanism to clarify the research content of the thesis. In addition, to clarify the research content, the thesis also uses the following traditional research methods: - Methods of analysis and synthesis: Used in all chapters to explain the problems of nature, the views related to the research problem, to evaluate the current situation, from there, to propose proposals. solutions to strengthen the legal status of Social Enterprises and improve the efficiency of implementation of these regulations in Vietnam. - Statistical method: Used to make statistics on the results of the organization and operation of Social Enterprises and the practice of implementing the legal status of Social Enterprises in Vietnam. - Comparative method: Used to compare the legal experience of some countries in the world in building the legal status of Social Enterprises. - Information processing method: Used to process documents referenced from books, newspapers, magazines, documents from ProQues, Springer and Google Scholar databases related to the research problem, from Thereby, a summary by topic within the limits of the research scope set forth, thereby affirming the novelty of the thesis's research content. - Historical method: Used to examine the process of formation and development of Social Enterprises in Vietnam and the process of strengthening the legal status of Social Enterprises in Vietnam. - In-depth interview method: Used to find out the practice of implementing regulations on legal status of some social enterprises in Vietnam in recent years. 5. New scientific contributions of the thesis Theoretically, the thesis contributes to deepening the theoretical issues of Social Enterprises and the legal status of Social Enterprises as the basis for the birth and
7. 4 development of Social Enterprises in the world and in Vietnam; concepts, characteristics, types of social enterprises and the role of social enterprises in practice. At the same time, the thesis also contributes to clarifying theoretical issues about the legal status of Social Enterprises such as the concept, characteristics of the legal status of Social Enterprises, constitutive factors and influences on social enterprises. to the legal status of Social Enterprises. In terms of practice, the thesis contributes to clarifying the current status of regulations on the legal status of Social Enterprises under Vietnamese law; the organization and operation of Social Enterprises in Vietnam and the practice of implementing regulations on the legal status of Social Enterprises since the 2014 Enterprise Law took effect until May 1, 2014. 2021. At the same time, point out the main causes leading to difficulties and inadequacies in the process of organization, operation and practical implementation of regulations on the legal status of social enterprises in Vietnam in recent time. via. On that basis, the thesis proposes orientations and some solutions to strengthen the regulations on the legal status of Social Enterprises in Vietnam today. 6. Scientific and practical significance of the thesis In terms of scientific significance, the research results of the thesis will contribute to clarifying theoretical issues for determining the legal status of social enterprises in Vietnam, creating a legal environment for enterprises. effectively, contributing to improving the efficiency of state management over the organization and operation of Social Enterprises in Vietnam. In terms of practical significance, the research results of the thesis will be a valuable reference in research to amend, supplement and perfect the law on social enterprises, as a document in teaching and learning. practice in legal and economic training institutions. 7. Structure of the thesis In addition to the introduction, the overview of the research situation, the conclusion and the list of references, the content of the thesis is structured in three chapters: Chapter 1: Theoretical issues of Social Enterprise and the legal status of Social Enterprise. Chapter 2: Current status of legal status of Social Enterprises in Vietnam and practical implementation. Chapter 3: Orientations and solutions to strengthen the legal status of Social Enterprises in Vietnam.
8. 5 OVERVIEW OF RESEARCH SITUATION RELATED TO THESIS THEME AND THEORETICAL BASIS OF RESEARCH 1. Research overview 1.1. Theoretical studies on social enterprises and the law on social enterprises The research works focus on clarifying a number of theoretical issues about Social Enterprises and the law of Social Enterprises such as: Concept, characteristics, birth and development, role of Social Enterprises. ; concept, characteristics and content of the law on social enterprises. Up to now, there is still no unified concept of Social Enterprise. Most authors believe that: Social enterprise is an organization that exists in different legal forms and operates not for the purpose of profit maximization. In addition to the same characteristics as Commercial Enterprises, Social Enterprises also have some specific characteristics such as: Having the goal of solving social and environmental problems for the benefit of the community; exist in various legal forms; was founded by social traders mainly; serve the needs of the bottom group of society. Law on Social Enterprises is a system of legal regulations promulgated by the State to regulate the organization and operation of Social Enterprises. The basic laws on Social Enterprises include: Establishment, reorganization, dissolution, bankruptcy of Social Enterprises; legal form of Social Enterprise; preferential policies, support social enterprises; Social Enterprise Management. 1.2. Research on the legal status of social enterprises The previous research works of the authors have focused on such contents as: Criteria for identifying Social Enterprises; preferential policies, support social enterprises; legal form of Social Enterprise; establishment, reorganization, dissolution, bankruptcy of social enterprises; rights and obligations of Social Enterprises; Social Enterprise Administration. Most of the authors believe that the current law on Social Enterprises in Vietnam has not really created a favorable legal framework to encourage Social Enterprises to be born, develop and fulfill the mission of Social Enterprises. it for the State and society. 1. 3. Proposals and recommendations to improve the legal status of social enterprises Most of the previous research works of the authors said that, in order to encourage Social Enterprises to be born, develop and fulfill its mission according to the expectations of the State and the social community in Vietnam. Nam, it is necessary to amend and supplement a number of provisions of the law on Social Enterprises. Proposals and recommendations to improve the legal status of Social Enterprises focus on the following
9. 6 main contents: Developing a definition of a Social Enterprise, further specifying preferential policies, and supporting enterprises. to expand the legal form for Social Enterprises. 2. Overview of the research situation Firstly, previous studies have outlined and generalized a number of theoretical issues about Social Enterprises, the law on Social Enterprises and the legal status of Social Enterprises, specifically. such as: concept, characteristics, birth, development, role of social enterprises; the concept and content of the law on social enterprises; concept, content, legal status of Social Enterprise. Second, previous studies have stated and analyzed briefly some contents of the current law on Social Enterprises in Vietnam such as: Criteria for identification of Social Enterprises; legal form of Social Enterprise; preferential policies, support social enterprises; establishment, reorganization, dissolution, bankruptcy of Social Enterprises, thereby proposing a number of recommendations to improve these regulations. 3. Issues that the thesis inherits The thesis inherits some theoretical issues about Social Enterprise; legal status of Social Enterprises and proposals and recommendations to improve the law on Social Enterprises such as: Birth and development of Social Enterprises; concept, characteristics, classification and role of Social Enterprise; The research results show the assessment of the legal status of Social Enterprises and recommendations for improvement. 4. The thesis issues continue to be researched Firstly, the thesis continues to clarify theoretical issues about Social Enterprises and the legal status of Social Enterprises such as: Basis of birth and development of Social Enterprises; advantages of Social Enterprises compared to some other organizations with the same social function as Social Enterprises. At the same time, analyze more deeply the role of Social Enterprises for the economy and society. Second, the thesis analyzes and clarifies issues related to the legal status of Social Enterprises, pointing out the causes of limitations and inadequacies in social enterprises. regulations of the law on Social Enterprises and the practice of implementing the legal status of Social Enterprises, thereby providing orientations and solutions to enhance the legal status of Social Enterprises. 5. Theoretical basis of research 5.1. Research theories
10. 7 To achieve the research purpose, the thesis is based on the following research theories: First, the theory of business and business: Second, the theory of entrepreneurial freedom Third, the theory of corporate social responsibility: Fourth, the theory of corporate governance: 5.2. Research question and research hypothesis Question 1: Currently, has the theoretical system of legal status of Social Enterprises been clarified in Vietnam? Research hypothesis: Currently in Vietnam, the theoretical system on the legal status of Social Enterprises has not been clarified in Vietnam. The second question: Are the regulations on legal status for Social Enterprises in Vietnam enough to ensure safety and promote Social Enterprises to be born and develop in Vietnam? Why? Research hypothesis: The current regulations on the legal status of Social Enterprises in Vietnam are not strong enough to create a favorable legal corridor to promote the establishment and development of Social Enterprises in Vietnam. . Because, the regulations on the legal status of Social Enterprises are very general, inconsistent and inconsistent among the legal branches in the economic legal system. The third question: What solutions should be taken to build and strengthen the legal status of Social Enterprises in Vietnam? What does the legal status model of Social Enterprises in Vietnam include? Research hypothesis: In order to build and strengthen the legal status of Social Enterprises, it is necessary to review, amend and supplement regulations on the legal status of Social Enterprises, and at the same time organize the implementation of the Law on Social Enterprises. these regulations to be effective in practice. The model of legal status of Social Enterprises in Vietnam includes five basic contents which are: Position, function and role of Social Enterprise; establishment, reorganization, dissolution, bankruptcy of social enterprises; rights and obligations of Social Enterprises; main preferential policies, support social enterprises to develop and manage social enterprises. 5.3. Research approach The thesis approaches the research topic from the perspective of a legal institution, including the following five basic contents:
11. 8 Firstly, the position, function and role of the Social Enterprise. Second, the legal provisions on the establishment, reorganization, dissolution and bankruptcy of social enterprises. Third, the legal provisions on the rights and obligations of Social Enterprises. Fourth, the legal provisions on preferential policies, supporting the development of social enterprises. Fifth, the legal provisions on the management of Social Enterprises. CONCLUSION OF OVERVIEW Chapter 1 THEORETICAL ISSUES ABOUT SOCIAL ENTERPRISES AND LEGAL LOCATION OF SOCIAL ENTERPRISES 1.1. Theoretical issues of social enterprise 1.1.1. The birth and development of social enterprises The relations of production based on the exploitation of labor as the main principle of capitalism have created very favorable conditions for the private economy to have the opportunity to be born, develop and accumulate early in the private society. copy. In the condition that the Governments of capitalist countries are almost overloaded with pressure to solve social and environmental problems in order to maintain social stability and contribute to improving the quality of life for the people. Some capitalists with their available economic potential did not hesitate to use part or all of the profits earned from business activities of companies and enterprises to share difficulties and burdens with investors. water. The world's first social enterprise appeared in London (United Kingdom) in 1665, then in turn was born in other countries based on certain economic and social bases. However, in the early 1980s, social enterprises in the world began to develop strongly in terms of scope, quantity, revenue and there were rich changes in legal form as well as field of operation. . In Vietnam, after transitioning to a market economy, the country has made great economic and social changes, which, in turn, contributes to creating basic economic and social factors for Social Enterprises. Associations in Vietnam have a basis for birth and development. However, it should also be noted that, in addition to economic and social bases, the birth and development of social enterprises cannot be without a very important basis, which is the mechanism of the State for enterprises. society. Compared to many other countries in the world, Social Enterprises in Vietnam were born later and divided into two basic stages, namely: The period starting from the beginning of 1976 to
12. 9 before the 2014 Enterprise Law came into effect. effective and the period from when the Enterprise Law 2014 took effect until now. 1.1.2. The concept and characteristics of social enterprises 1.1.2.1. Social enterprise concept Although there are many domestic and foreign authors giving different conceptions of Social Enterprises, however, up to now, there has not been a unified concept of Social Enterprises. When researching about Social Enterprises, most of the authors believe that, although Social Enterprises carry out business activities, its main goal is still to solve social and environmental problems because community interests and operate not for profit maximization. On the basis of inheriting different conceptions of Social Enterprise, the author believes that: "Social enterprise is an organization whose legal form is an enterprise, having both business and social functions. society, but operates not for profit maximization and always puts the responsibility of solving social and environmental problems on the top". 1.1.2.2. Features of social enterprises In addition to the characteristics of a commercial enterprise such as: Being an economic organization with its own name; have property; have a transaction office; have a business purpose; If registered and established according to the provisions of law, social enterprises also have their own characteristics derived from their own characteristics, specifically as follows. Firstly, Social Enterprises perform two functions at the same time, which are business functions and social functions. Second, Social Enterprises always put the goal and mission of solving social and environmental problems on the top. Third, Social Enterprises use part or all of profits from business activities to reinvest to solve social problems. Fourth, the subjects of establishing Social Enterprises are mainly social entrepreneurs. Fifth, Social Enterprises exist in many different legal forms and often serve the needs of disadvantaged groups in society. 1.1.3. The role of social enterprises in the economy and society Being organized in the legal form as an enterprise, social enterprises also have certain roles to the economy and society like commercial enterprises, however, they derive from their own particularities. Therefore, compared to commercial enterprises,
13. 10 the role of social enterprises in the economy and society is also different, specifically: Social enterprises share the financial burden with the State to solve them. social and environmental issues and towards vocational training, job creation, and improvement of life for low-income people, the disadvantaged in society (the subjects that Social Enterprises often tend to skip direction). In addition, social enterprises also contribute to environmental protection, improve the quality of education and health care, and meet the needs of the community, especially the poor, low-income people and people. disadvantage in society. 1.2. Some theoretical issues about the legal status of social enterprises 1.2.1. Concept, legal status characteristics of social enterprises 1.2.1.1. The concept of legal status of social enterprises The term "legal status" or "legal status of an Enterprise" is often mentioned in legal science. However, up to now, Vietnam has not had a legal definition of "legal status" or "legal status of an enterprise". On the basis of inheriting different conceptions of the meaning of these two terms, and at the same time from the characteristics of Social Enterprises, the author believes that: "The legal status of social enterprises is total. rights and obligations of enterprises in the process of organization and operation of enterprises, thereby distinguishing social enterprises from other types of enterprises”. 1.2.1.2. Features of legal status of social enterprises Firstly, the legal status of Social Enterprises is an intersection between the legal status of economic organizations and social organizations. Second, the legal status of Social Enterprises is determined based on the legal form and specific characteristics of Social Enterprises. Third, in the process of organization and operation, Social Enterprises enjoy a number of incentives and support from the State and the community. 1.2.2. Elements constituting the legal status of social enterprises First, the structural elements in terms of form. Second, the constituent elements in terms of content. 1.2.3. Factors affecting the legal status of social enterprises One is political institutions. Second, economic institutions. Third, cultural traditions. CONCLUSION CHAPTER 1 Chapter 2
14. 11 THE STATUS OF THE LEGAL LOCATION OF SOCIAL ENTERPRISES FOLLOWING VIETNAM LAW AND IMPLEMENTATION PRACTICES 2.1. Current status of legal status of social enterprises according to current Vietnamese law 2.1.1. Legal regulations on identification of social enterprises - According to Clause 1, Article 10 of the Enterprise Law 2020, a social enterprise must meet the following criteria: Being an enterprise registered for establishment under the provisions of the Enterprise Law; whose operational objective is to solve social and environmental problems for the benefit of the community; use at least 51% of the total annual profit of the enterprise for reinvestment to achieve the social and environmental goals as registered. - Regulations on identification of Social Enterprises have an important meaning in contributing to raising awareness of the social community towards this business model. However, it still lacks comprehensiveness because it has not yet reflected the essential attributes, as well as the most common and basic relationships of Social Enterprises in the objective world. - Agencies competent to issue legal documents in Vietnam can refer to the experience of some countries such as Canada, Korea, Italy, Lithuania, Thailand, and the United Kingdom to develop regulations. Meaning of Social Enterprise. 2.1.2. Legal regulations on the legal status of social enterprises 2.1.2.1. Regulations on positions, functions and roles of Social Enterprises With the recognition that a social enterprise has a legal form "as an enterprise" and "has operational objectives to solve social and environmental problems for the benefit of the community", it can be understood that the law on social enterprises In Vietnam, it is now recognized that Social Enterprises have the position of Commercial Enterprises. Social enterprises have the role of commercial enterprises and social organizations, having both business and social functions. 2.1.2.2. Establishment, reorganization, dissolution, bankruptcy of social enterprises - Social enterprises are registered for establishment under the provisions of the Enterprise Law 2020 and Decree No. 01/2021/ND-CP dated January 4, 2021. The current Law on Social Enterprises recognizes that Social Enterprises can be reorganized through various forms of division and separation; amalgamation, merger.