Nhà đầu tư nước ngoài là cá nhân có quốc tịch nước ngoài, tổ chức thành lập theo pháp luật nước ngoài thực hiện hoạt động đầu tư kinh doanh tại Việt Nam.
Tổ chức kinh tế là tổ chức được thành lập và hoạt động theo quy định của pháp luật Việt Nam, gồm doanh nghiệp, hợp tác xã, liên hiệp hợp tác xã và các tổ chức khác thực hiện hoạt động đầu tư kinh doanh.
Nhà đầu tư nước ngoài được phép thành lập tổ chức kinh tế tại Việt Nam, tuy nhiên trước đó nhà đầu tư nước ngoài phải đáp ứng đủ các điều kiện yêu cầu để được thành lập tổ chức kinh tế. Điều kiện đầu tư đối với nhà đầu tư nước ngoài là điều kiện nhà đầu tư nước ngoài phải đáp ứng khi thực hiện hoạt động đầu tư trong những ngành, nghề đầu tư có điều kiện đối với nhà đầu tư nước ngoài theo quy định tại các luật, pháp lệnh, nghị định, điều ước quốc tế về đầu tư. Theo Nghị định 118/2015/NĐ-CP hướng dẫn luật đầu tư, thì trước khi thành lập tổ chức kinh tế, nhà đầu tư nước ngoài phải đáp ứng được các điều kiện sau:
– Điều kiện về tỷ lệ sở hữu vốn điều lệ của nhà đầu tư nước ngoài trong tổ chức kinh tế;
– Điều kiện về hình thức đầu tư;
– Điều kiện về phạm vi hoạt động đầu tư;
– Điều kiện về đối tác Việt Nam tham gia thực hiện hoạt động đầu tư;
– Điều kiện khác theo quy định tại các luật, pháp lệnh, nghị định và điều ước quốc tế về đầu tư.
Thứ nhất, về phạm vi áp dụng của điều kiện đối với ngành nghề kinh doanh có điều kiện với các nhà đầu tư nước ngoài. Không phải mọi ngành nghề kinh doanh đều cho phép nhà đầu tư nước ngoài thành lập tổ chức kinh tế, luật chỉ quy định phạm vi hoạt động đầu tư của nhà đầu tư nước ngoài ở một số hoạt động như sau:
– Đầu tư thành lập tổ chức kinh tế;
– Đầu tư theo hình thức góp vốn, mua cổ phần, phần vốn góp trong tổ chức kinh tế;
– Đầu tư theo hình thức hợp đồng hợp tác kinh doanh;
– Nhận chuyển nhượng dự án đầu tư hoặc các trường hợp tiếp nhận dự án đầu tư khác;
– Sửa đổi, bổ sung ngành, nghề đầu tư kinh doanh của tổ chức kinh tế có vốn đầu tư nước ngoài.
Thứ hai, về tỷ lệ sở hữu vốn điều lệ
Nhà đầu tư nước ngoài được sở hữu vốn điều lệ không hạn chế trong tổ chức kinh tế, trừ các trường hợp sau đây:
– Tỷ lệ sở hữu của nhà đầu tư nước ngoài tại công ty niêm yết, công ty đại chúng, tổ chức kinh doanh chứng khoán và các quỹ đầu tư chứng khoán theo quy định của pháp luật về chứng khoán;
– Tỷ lệ sở hữu của nhà đầu tư nước ngoài trong các doanh nghiệp nhà nước cổ phần hóa hoặc chuyển đổi sở hữu theo hình thức khác thực hiện theo quy định của pháp luật về cổ phần hóa và chuyển đổi doanh nghiệp nhà nước;
– Tỷ lệ sở hữu của nhà đầu tư nước ngoài không thuộc quy định tại nêu trên thực hiện theo quy định khác của pháp luật có liên quan và điều ước quốc tế mà Cộng hòa xã hội chủ nghĩa Việt Nam là thành viên.
Thứ ba, về hình thức đầu tư, phạm vi hoạt động, đối tác Việt Nam tham gia thực hiện hoạt động đầu tư và điều kiện khác theo quy định của điều ước quốc tế mà Cộng hòa xã hội chủ nghĩa Việt Nam là thành viên.
Thủ tục thành lập tổ chức kinh tế của nhà đầu tư nước ngoài
Thủ tục thành lập tổ chức kinh tế của nhà đầu tư nước ngoài được quy định tại Điều 44 Nghị định 118/2015/NĐ-CP hướng dẫn thi hành luật đầu tư như sau:
Bước 1: Thực hiện thủ tục cấp Giấy chứng nhận đăng ký đầu tư theo quy định tại các Điều 29, 30, và 31 của Nghị định 118/2015/NĐ-CP;
Bước 2: Sau khi được cấp Giấy chứng nhận đăng ký đầu tư theo quy định tại Điểm a Khoản này, nhà đầu tư thực hiện thủ tục thành lập tổ chức kinh tế để triển khai dự án đầu tư và các hoạt động kinh doanh.
Trên đây là bài viết tư vấn về “Điều kiện đầu tư áp dụng đối với nhà đầu tư nước ngoài khi đầu tư tổ chức thành lập kinh tế” của Công ty Luật TNHH Apra. Quý khách hàng còn thắc mắc về các vấn đề nêu trên và cần được giải đáp, vui lòng liên hệ số hotline để được tư vấn và hỗ trợ.
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Mọi thông tin yêu cầu tư vấn xin vui lòng liên hệ:
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