Chương IV Luật doanh nghiệp 2014: Doanh nghiệp nhà nước

Chapter IV

STATE-OWNED COMPANIES

Article 88. Regulations applied to state-owned companies

1. State-owned company shall be organized and administered in accordance with this Chapter, corresponding regulations in Section 2 Chapter III, and other relevant regulations of this Law. In case of any discrepancy between Chapter IV and Chapter III and other regulations of this Law, this Law shall prevail.

2. Regulations of Section 1 of Chapter III and Chapter V of this Law shall apply to administration of wholly state-owned companies.

Article 89. Organizational structure

The agency that represents the state ownership (hereinafter referred to as representative agency) shall decide whether to operate the state-owned company in the form of a limited liability company using one of the two models prescribed in Clause 1 Article 78 of this Law.

Article 90. The Board of members

1. The Board of members, on behalf of the company, shall exercise the company’s rights and obligations in accordance with this Law and relevant regulations of law.

2. The Board of members consists of not more than 07 people, including the Chairperson and other members. Members of the Board of members are standing members, designated, dismissed, commended, and disciplined by the representative agency.

3. The term of office of the Chairperson and other members shall not exceed 05 years. Members of the Board of members may be re-designated with a term limit of 02 terms.

Article 91. Rights and obligations of the Board of members

1. The Board of members, on behalf of the company, shall perform the rights and obligations of the owner, shareholders, members to the companies under the ownership of the company or the shares/stakes of which are held by the company.

2. The Board of members has the following rights and obligations:

a) Decide the contents prescribed in the Law on management and use of state capital for investment in enterprises;

b) Decide the establishment, restructuring, dissolution of branches, representative office, and financially dependent units;

c) Decide annual business plans, market development policies, marketing, and technology of the company;

d) Organize internal audits and decide establishment of the internal audit unit.

dd) Perform other rights and obligations prescribed by this Law, relevant regulations of law, and the company’s charter.

Article 92. Conditions and standards of members of the Board of members

A member of the Board of members must:

1. has qualifications and actual experience of the business administration or of the enterprise’s business lines.

2. Not be a spouse, birth parent, adoptive parent, birth child, adopted child, sibling, brother-in-law, sister-in-law of the head or deputy head of the representative agency, another member of the Board of members, the Director/Deputy Director or General Director/Deputy General Director, the Chief accountant, or a Controller of the company.

3. Not be an official of a regulatory body, political organizations, socio-political organizations, or not be a manager of a subsidiary.

4. Not ever be discharged from the position of the Chairperson of the Board of members, member of the Board of members, the company's President, Director/General Director, Deputy Director/Deputy General Director of a state-owned company.

5. satisfy other standards and conditions prescribed by the company’s charter.

Article 93. Discharge and dismissal of members of the Board of members

1. The Chairperson and a member of the Board of members shall be discharged from his/her position if such person:

a) fails to satisfy the standards and requirements in Article 92 of this Law;

b) tenders a resignation and the resignation is accepted in writing by the representative agency;

c) receives a decision on resignation or retirement;

d) is not capable of the given tasks or legally incompetent;

dd) is not healthy enough or does not have sufficient prestige to hold the position of member of the Board of members.

2. The Chairperson and a member of the Board of members shall be dismissed in the following cases:

a) The company fails to achieve annual targets; fails to maintain and develop capital at the request of the representative agency without justifiable explanation or the explanation that is accepted by the representative agency.

b) The person is prosecuted and is declared guilty by the Court;

c) The person is not honest during the performance of his/her rights and duties; abuses of power or position; uses the company’s property for self-seeking purpose or serve the interests of another entity; provide false information about the company’s business outcomes.

3. Within 60 days from the day on which the decision on dismissal or discharge is issued, the representative agency shall consider appointing another person.

Article 94. Chairperson of the Board of members

1. The Chairperson of the Board of members shall be designated by the representative agency. The Chairperson of the Board of members must not concurrently hold the position of Director/General Director of the company or other enterprises.

2. The Chairperson of the Board of members has the following rights and obligations:

a) Build up quarterly and annual operation plans of the Board of members;

b) Prepare agenda, documents serving the meeting, or absentee voting of the Board of members;

c) Convene and chair meetings of the Board of members or carry out the absentee voting;

d) Organize the implementation of Resolutions of the representative agency and the Board of members;

dd) Organize supervision, directly supervise and assess achievements of strategic targets, the company’s performance, the Director’s or General Director’s performance;

e) Provide, disclose information about the company in accordance with law; take responsibility for the sufficiency, accuracy, truthfulness, and systematicness of the information disclosed;

g) Perform other rights and obligations prescribed by this Law, relevant regulations of law, and the company’s charter.

3. Apart from the cases mentioned in Article 93 of this Law, the Chairperson of the Board of members might be dismissed or discharged from duty if failing to perform the duties mentioned in Clause 2 of this Article.

Article 95. Rights and obligations of other members of the Board of members

1. Attend meetings of the Board of members, discuss, make proposals, and vote on the issues within the competence of the Board of members.

2. Inspect, consider, examine, copy logbooks, monitor transactions, accounting books, annual financial statement, minutes of meetings of the Board of members, and other documents of the company.

3. Perform other rights and obligations prescribed by this Law, relevant regulations of law, and the company’s charter.

Article 96. Responsibilities of the Chairperson and other members

1. Comply with law, the company’s charter, and decisions of the company’s owner.

2. Perform the given rights and obligations in an honest, careful manner to serve the best legitimate interests of the company and the State.

3. Act in the best interest of the company and the State; do not use the company’s business opportunities, information, secrets; do not abuse power or position; not use the company’s property for self-seeking purpose or serve the interests of another entity;

4. Provide the company with timely, sufficient, and accurate information about the enterprises they and their related person own or have shares or stakes; Such information shall be posted at the company’s headquarter and branches.

5. Comply with Resolutions of the Board of members.

6. Take personal responsibilities for taking advantage of the company’s name to commit violations of law; do business or make transactions that does not serve the company’s interest and cause damage to other people; pay undue debts when the company is facing financial risks.

7. Any member of the Board of members that discovers another member’s violations against his/her obligations shall send a written report to the representative agency, request a termination of the violations and remedial measures.

Article 97. Working conditions, requirements and methods for convening meetings of the Board of members

1. The Board of members shall work as a group; at least a meeting shall be held in a quarter to consider deciding the issues within its competence. With regard to the issues that do not need discussing, the Board of members may carry out absentee voting according to the company’s charter.

The Board of members may convene extraordinary meetings to resolve urgent issues at the request of the organization that represents the company’s owner or at the request of the Chairperson of the Board of members or when it is requested by more than 50% of members of the Board of members, by the Director/General Director.

2. The Chairperson of the Board of members or a member authorized by the Chairperson of the Board of members shall prepare the agenda, documents, convene and chair meetings of the Board of members. Members of the Board of members are entitled to propose meeting contents in writing. Contents and documents of the meeting shall be sent to members of the Board of members and invited participants (if any) at least 03 days before the meeting date. Documents related to proposed amendments to the company’s charter, the company’s development orientation, restructuring or dissolution of the company must be sent to the members at least 05 days before the meeting date.

3. The invitations may be made in writing, by phone, fax, or another electronic medium, and sent directly to each member of the Board of members and invited participants. The invitation must specify the time, location, and contents of the meeting. Online meetings may be held where necessary.

4. A meeting of members of the Board of members is considered valid when it is attended by at least 2/3 of members of the Board of members. A Resolution of the Board of members is ratified when it is voted for by more than half of the participating members; in the event of equal votes, the Chairperson of the Board of members or a person authorized to chair the meeting by the Chairperson of the Board of members shall have the casting vote. Members of the Board of members may reserve their opinions and submit a proposal to the representative agency.

5. In case of absentee voting of members of the Board of members, the Resolution of the Board of members shall be ratified when it is approved by a majority of the members.

A Resolution may be approved by using multiple copies of the same copy if each copy bears at least a signature of a member of the Board of members.

6. According to the contents and agenda of the meeting, where necessary, the Board of members is entitled or required to invite competent representatives from relevant agencies/organizations to attend the meeting and discuss the issues. Invited representatives of agencies/organizations may offer their opinions and may not vote. All opinions of invited representatives shall be written in the meeting minutes.

7. Contents of the issues discussed, opinions, voting result, decisions ratified by the Board of members, and conclusions of meetings of the Board of members shall be recorded in writing. The Chair and secretary of the meeting are jointly responsible for the accuracy and truthfulness of the meeting minutes. The minutes of the meeting must be completed and ratified before the end of the meeting. The meeting minutes must have the following content:

a) Time, location, purposes, agenda of the meeting; list of attending members; issues to be discussed and voted; summary of opinions of each member about each issue;

b) The numbers of affirmative votes and negative votes and abstentions (if applied)

c) The decisions ratified, full names and signatures of attending members.

8. Members of the Board of members are entitled to request the Director/General Director or Deputy Director/Deputy General Director, Chief accountant, and the managers of the company and subsidiaries of which 100% charter capital is held by the company, representatives of the company’s stakes in other enterprises to provide info, documents about their financial status and performance in accordance with the regulations on information provision promulgated by the Board of members or in accordance with the Resolution of the Board of members. The persons requested to provide information shall provide timely, sufficient, accurate information and documents at the request of members of the Board of members, unless otherwise decided by the Board of members.

9. The Board of members shall use the executive apparatus, assisting units (if any), and the company’s seal to perform their duties.

10. Operating cost of the Board of members, salaries, benefits, and other remunerations shall be included in the company’s administrative expense.

11. Where necessary, the Board of members shall seek opinions from Vietnamese and foreign consultants before deciding an importing issue within the competence of the Board of members. The consultancy cost shall be specified in financial management regulations of the company.

12. The Resolution of the Board of members shall be effective from the day on which it is ratified or from its effective date written therein, except for the cases in which it must be accepted by the representative agency.

Article 98. The company's President

1. The company's President shall be designated by the representative agency as prescribed by law. The term of office of the company's President shall not exceed 05 years with a term limit of two terms. Standards, conditions of the company's President, and cases in which the company's President is dismissed, discharged from duty shall comply with Article 92 and Article 93 of this Law.

2. The company's President shall exercise rights and obligations of the owner’s representative in accordance with the Law on management and use of state capital for investment in enterprises; other rights and obligations prescribed in Article 91 and Article 96 of this Law.

3. Salary, bonuses, and other benefits of the company's President shall be decided by the representative agency and included in the company’s administrative expense.

4. The company's President shall use the executive apparatus, assisting units (if any), and the company’s seal to perform his/her duties. Where necessary, the company's President shall consult with Vietnamese and foreign experts before deciding an importing issue within the competence of the company's President. The consultancy cost shall be specified in financial management regulations of the company.

5. The decisions mentioned in Clause 2 of this Article must be made in writing and bear the signature of the company's President, even if the company's President concurrently holds the position of Director/General Director.

6. A Decision of the company's President shall be effective from the day on which it is signed or from its effective date written therein, except for the cases in which it must be accepted by the representative agency.

7. Where the company's President is not present in Vietnam for more than 30 days, another person must be authorized in writing to perform some of the rights and obligations of the company's President’s; the authorization must be made in writing and a written notification shall be promptly sent to the representative agency. Other cases of authorization shall comply with the company’s rules and regulations.

Article 99. Director/General Director

1. The Director/General Director shall be designated by the Board of members or the company's President, or hired according to a personnel plan approved by the representative agency. A company shall have one or some Deputy General Director/Deputy General Director. The quantity of Deputy Director/Deputy General Director, the power to designate Deputy General Director/Deputy General Director shall be specified in the company’s charter. Rights and obligations of the Deputy Director/Deputy General Director shall be specified in the company’s charter or employment contract.

2. The Director/General Director shall run the company’s everyday operation and has the following rights and obligations:

a) Organize the implementation of the company’s business plans and investment plans and assess the results thereof;

b) Organize the implementation of Resolutions of the Board of members, the company's President, and the representative agency; assess the result thereof;

c) Decide the company’s everyday tasks;

d) Promulgate the company’s rules and regulations, which have been approved by the Board of members or the company's President;

dd) Sign contracts, agreements on behalf of the company, except for those within the competence of the Chairperson of the Board of members or the company's President;

e) Designate, hire, dismiss, discharge from duty, terminate employment contracts with the company’s managers, except for those under the management of the Board of members or the company's President;

g) Hire employees;

h) Make and submit quarterly, annual reports on achievement of business targets, annual financial statement to the Board of members or the company's President;

i) Propose restructuring plan where necessary;

k) Propose distribution and use of post-profit and other financial obligations of the company;

l) Perform other rights and obligations prescribed by law and the company’s charter.

Article 100. Standards and conditions of Director/General Director

The Director/Deputy Director must:

1. Has qualifications and actual experience of the business administration or of the company’s business lines.

2. Not be a spouse, birth parent, adoptive parent, birth child, adopted child, brother, sister of the manager of head or deputy head of the representative agency.

3. Not be a spouse, birth parent, adoptive parent, birth child, adopted child, brother, sister of the manager of any member of the Board of members.

4. Not be a spouse, birth parent, adoptive parent, birth child, adopted child, brother, sister of the Deputy Director/Deputy General Director or Chief accountant of the company.

5. Not be a spouse, birth parent, adoptive parent, birth child, adopted child, brother, sister, brother-in-law, sister-in-law of the company’s Controller.

6. Not concurrently hold the position of official in a regulatory agency, political organization, or socio-political organization.

7. Not ever be discharged from the position of the Chairperson of the Board of members, member of the Board of members, the company's President, Director/General Director, Deputy Director/Deputy General Director of another state-owned company.

8. Not concurrently hold the position of Director/General Director of another enterprise.

9. Satisfy other standards and conditions prescribed by the company’s charter.

Article 101. Dismissal, discharge from duty of Director/General Director and other managers

1. The Director/General Director shall be dismissed when he/she:

a) fails to satisfy the standards and requirements in Article 100 of this Law;

b) tenders a resignation.

2. The Director/General Director shall be discharged from duty in the following cases:

a) The enterprise fails to preserve the capital as prescribed by law;

b) The enterprise fails to achieve annual business targets;

c) The qualifications and competency of the Director/General Director do not meet the requirements for the new business plan and development strategy of the enterprise.

d) The enterprise commits violations of law or its business operation is against the law;

dd) Any of the manager’s duties is violated according to Article 96 of this law;

e) Other cases prescribed by the company’s charter.

3. The cases in which the Deputy Director/Deputy General Director, Chief accountant, and other managers are dismissed and discharged from duty shall be specified by the company’s charter.

Article 102. Control Board

1. Depending on the scale of the company, the representative agency shall appoint 01 Controller or establish a the Control Board that consist of 03 – 05 Controllers. A controller of a company has a term of office of up to 05 years with a term limit of 02 terms.

2. The Control Board has the following rights and obligations:

a) Supervise the implementation of development plans, business plans, achievement of strategic targets and planned targets of the company;

b) Supervise, assess the performance of rights and obligations of members of the Board of members, the Board of members, Director/General Director of the company;

c) Supervise, assess the effect and conformity with regulations on internal audit, risk management and reduction, reporting, and other administrative regulations of the company;

d) Supervise the legitimacy, systematicness, and truthfulness of accounting works, accounting books, financial statements, appendices and relevant documents;

dd) Supervise transactions between the company and related parties;

e) Supervise implementation of major projects of investment, major or unusual purchases, sales, and other transactions of the company;

g) Make and send report on assessment, proposals mentioned in Points a, b, c, d, dd, and e of this Clause to the representative agency and the Board of members;

h) Perform other rights and obligations at the request of the representative agency or according to the company’s charter.

3. Salaries, bonuses of Controllers shall be decided and paid by the representative agency.

4. Government shall elaborate this Article.

Article 103. Conditions and standards of Controllers

A Controller must:

1. Be professionally trained in finance, accounting, audit, law, business administration, and has at least 03 years’ experience; the Chief Controller must have qualifications and have at least 05 years’ experience of finance, accounting, audit, law, business administration

2. Not be a company’s employee.

3. Not be a spouse, birth parent, adoptive parent, birth child, adopted child, brother, sister, brother-in-law, sister-in-law of the following entities.

a) The head and deputy head of the representative agency;

b) Members of the Board of members of the company;

c) Deputy Director/Deputy General Director and Chief accountant of the company;

d) Other Controllers of the company.

4. Not concurrently hold the position of Director/General Director of another enterprise.

5. Not concurrently hold the position of Controller, member of the Board of members, member of the Board of Directors of a enterprise other than state-owned enterprises.

6. Satisfy other standards and conditions prescribed by the company’s charter.

Article 104. Rights of the Control Board and Controllers

1. Attend meetings of the Board of members, consultancies, official and unofficial discussions between the representative agency and the Board of members; enquire the Board of members, members of the Board of members, and Director/General Director about the plans, projects, development investment programs, and other decisions related to the company’s administration.

2. Examine accounting books, reports, contracts, transactions, and other documents of the company; inspect the administration of the Board of members, members of the Board of members, Director/General Director where necessary or at the request of the representative agency.

3. Examine, assess the business performance and financial status of the company, the effect of internal administration regulations of the company.

4. Request members of the Board of members, the Director/General Director or Deputy Director/Deputy General Director, Chief accountant, and other managers to report and provide information within the scope of management and investment, business operation of the company.

5. Request the company’s managers to report the financial status, business performance of subsidiaries where necessary for fulfillments of duties as prescribed by law and the company’s charter.

6. Report members of the Board of Members, Director/General Director, or other managers who act against their rights and obligations or are likely to do so; report violations against the law, regulations on economic management, the company’s charter, internal administration regulations to the representative agency, other members of the Control Board, and relevant individuals.

7. Request the representative agency to establish a unit specialized in consulting audit and assisting the Control Board in performance of their given rights and obligations.

8. Exercise other rights prescribed by the company’s charter.

Article 105. Working mode of the Control Board and Controllers

1. The Chief of the Control Board is the standing officer of the company; other members may participate in Control Boards of up to 04 state-owned companies, provided such participation is approved in writing by the representative agency.

2. Chief of the Control Board shall formulate monthly, quarterly, and annual working plan of the Control Board; assign tasks to each member.

3. Controllers shall independently and proactively perform the given tasks; propose off-plan tasks where necessary.

4. The Control Board shall hold at least one meeting a month to review and ratify reports on controlling result of the month, then submit them to the representative agency; discuss and ratify the next working plans of the Control Board.

5. A decision of the Control Board shall be ratified when it is approved by a majority of the attending member. Every opinion in contravention of the ratified decision must be accurately recorded and report to the representative agency.

Article 106. Responsibilities of Controllers

1. Comply with law, the company’s charter, decisions of the representative agency, and professional while performing the rights and obligations prescribed in this Law and the company’s charter.

2. Perform the given rights and obligations in an honest, careful manner to serve the best legitimate interests of the State and related parties.

3. Act in the best interest of the company and the State; do not use the company’s business opportunities, information, secrets; do not abuse power or position; do not use the company’s property for self-seeking purpose or serve the interests of another entity;

4. Fulfill other obligations prescribed in this Law and the company’s charter.

5. Any Controller that violates against the obligations prescribed in Clause 1, 2, 3, or 4 of this Article and causes damage to the company shall take personal responsibility or pay compensation for such damage; such Controller may also face disciplinary actions, administrative penalties, or criminal prosecution depending on the nature and severity of the violations.

6. All incomes and benefits derived from the violations against obligations prescribed in Clause 1, 2, 3, or 4 of this Article shall be returned to the company.

7. Any member of the Control Board that discovers another member’s violations against his/her obligations shall send a written report to the representative agency, request a termination of the violations and remedial measures.

Article 107. Dismissal and discharge from duty of Controllers

1. A controller shall be dismissed when he/she:

a) no longer meets the standards and requirements in Article 103 of this Law;

b) tenders a resignation and the resignation is accepted by the representative agency;

c) is requested by the representative agency or another competent authorities to undertake other tasks;

d) Other cases prescribed by the company’s charter.

2. A controller shall be discharged from duty when he/she:

a) fails to fulfilled the given tasks and duties;

b) fails to perform his/her rights and obligations for 03 consecutive months, except for force majeure events;

c) commits serious violations or repeat violations against Controllers’ duties prescribed in this Law and the company’s charter;

d) Other cases prescribed by the company’s charter.

Article 108. Periodic information provision

1. The company must periodically provide the following information on its website and on the website of the representative agency:

a) Basic information about the company and the company’s charter;

b) Overall targets, specific targets of the annual business plan;

c) Report and summary of the annual financial statement which has been audited by a independent audit organization within 150 days from the end of the fiscal year;

d) Report and summary of the mid-year financial statement which has been audited by a independent audit organization; this information must be provided before July 31 every year;

The information to be provided mentioned in Point c and Point d of this Clause includes financial statements of the parent company and the consolidated financial statement;

dd) Report on implementation of the annual business plans and those of the latest 03 years before the reported year;

e) Reports on fulfillment of public duties given according to plan or bidding (if any) and other social duties;

g) Report on the company’s administration and organizational structure.

2. The report on the company’s administration shall contain the information below:

a) Information about the representative agency, the head and deputy head of the representative agency;

b) Information about the company’s manager, including his/her qualifications, professional experience, managerial positions they held, method of designation, current positions, their salaries, bonuses, method of payment of salaries and other benefits; their related persons and related interests to the company; the manager’s annual self-assessment;

c) Relevant decisions of the representative agency; decisions, Resolutions of the Board of members or the company's President;

d) Information about the Control Board, Controllers, and their activities;

dd) Information about Employee Congresses, average quantity of employees every year and on the reporting date; annual average salary and other benefits of an employee;

e) Report on conclusion of inspecting body (if any) and reports of the Control Board, Controllers;

g) Information about related parties of the company, transactions between the company and related parties;

h) Other information prescribed by the company’s charter.

3. Information reported and disclosed must be sufficient, accurate, and timely as prescribed by law.

4. The legal representative or an authorized person shall disclose information. The legal representative is responsible for the sufficiency, accuracy, truthfulness, and systematicness of the information disclosed.

5. Government shall elaborate this Article.

Article 109. Extraordinary information disclosure

1. Extraordinary information must be disclosed on the company’s website, publications, and posted at the company’s headquarter and business locations within 36 hours from the occurrence of any of the events below:

a) The company’s bank account is frozen or unfrozen;

b) Part of or all of the business operation is suspended; the Certificate of Business registration, license for establishment, license for establishment and operation, or any license related to the company’s business is revoked;

c) The Certificate of Business registration, license for establishment, license for establishment and operation, or any license/certificate related to the company’s operation is adjusted;

d) Replacement of managers, including members of the Board of members, the company's President, Director/General Director or Deputy Director/Deputy General Director, Chief Controller, Controllers, Chief accountant, Head of Finance and Accounting Department;

dd) There is a decision on disciplinary action, prosecution, a court’s sentence of decision against one of the enterprise’s manager;

e) The inspecting body or tax authority concludes that the enterprise commits violations of law;

g) There is a decision to change the independent audit organization or the financial audit is refused;

h) There is a decision on establishment, dissolution, amalgamation, merger, conversion of subsidiaries; decision on investment, capital decrease, or withdrawal capital in other companies.

2. Government shall elaborate this Article.