Chương 3 Luật Doanh nghiệp Nhà nước 1995: Thành lập, tổ chức lại, giải thể, phá sản doanh nghiệp nhà nước

Chapter III

ESTABLISHMENT, REORGANIZATION, DISSOLUTION AND BANKRUPTCY OF A STATE ENTERPRISE

Section I. ESTABLISHMENT OF THE ENTERPRISE AND BUSINESS REGISTRATION

Article 13.- The establishment of a State enterprise is allowed in key and important sectors or areas likely to open the way and create conditions for other economic sectors to develop, promote the quick and sustainable development of the economy, regularize and guide the market economy along the socialist orientation.

The sectors and areas to be given priority at the time of the establishment of a new State enterpris in each period shall be decided by the Government.

Article 14.-

1. The Head of the foundering agency of a State enterprise is the person who proposes and organizes the filling of the procedure for the establishment of such an enterprise.

2. The proposing person must compile and submit a dossier to that effect to the person having the right to decide the establishment of such an enterprise. The dossier includes:

a/ A report proposing the establishment;

b/ The plan of establishment;

c/ The proposed level of the statutory capital;

d/ The draft statute of the enterprise;

e/ Request for land use by the enterprise.

Article 15.-

1. The Prime Minister decides the establishment or empowers the Minister of the controlling Ministry, or the President of the People's Committee of the province or city under the Central Government, to decide the establishment of State corporations, or independent State enterprises of a large size or of importance.

2. The Minister of the controlling Ministry, the President of the People's Committee of the province or city under the Central Government shall decide the establishment of State enterprises not defined in Item 1 of this Article, as assigned by the Government.

Article 16.-

1. Before deciding to establish a State enterprise, it is necessary to set up an Appraisal Committee to consider the conditions stipulated in Item 2 of this Article. The Government provides regulations for the establishment, composition and working regime of the Appraisal Committee, and for the appraisal order concerning the State enterprise.

2. The conditions to consider a decision on the establishment of a State enterprise include:

a/ A duly formed dossier as prescribed by Item 2 of Article 14 of this Law;

b/ The plan for its establishment must ensure its feasibility and effectiveness, and be in keeping with the strategy and planning for socio-economic development laid down by the State, and satisfies the requirements of technology and the State regulations on environmental protection as well as other provisions of law;

c/ The level of the statutory capital is compatible with the scope, branch, business line, area of operation, and is not inferior to the prescribed capital defined by the Government; availability of a certificate issued by a financial agency about the source and level of the allocated fund;

d/ The draft statute of the enterprise shall not vary with the provisions of this Law and other provisions of laws with regard to State enterprises;

e/ The availability of a confirmation of approval by the competent State agency related to the site of the head office, and the location of production and business operations.

3. On the basis of a written conclusion by the Appraisal Committee, the person having the right to decide the establishment of a State enterprise shall issue a decision to this effect; in the event of non-approval, a written reply must be issued not later than 30 (thirty) days after receipt of the duly formed dossier.

4. The appointment of the Chairman and of all members of the Board of Management (if any), the Director General or Deputy Director General must be made within no more than 30 (thirty) days after the decision to establish the enterprise is made.

Article 17.-

1. The enterprise shall register at the State Planning Committee of a province or city under the Central Government where the head office of the enterprise is located.

The dossier for business registration includes: the decision on the establishment, the business statute, the certificate of the right of use of the head office of the enterprise, the decision to appoint the Chairman and members of the Board of Management, the Director General or Director of the enterprise.

2. Within 60 (sixty) days after the decision to establish the enterprise is issued, the enterprise must make a business registration.

3. The State enterprise has a legal person status after obtaining the certificate of business registration.

Article 18.- Within 30 (thirty) days after obtaining the certificate of business registration, the enterprise must announce in 5 consecutive issues of a daily newspaper at the central or local level the following main points:

1. The name and main office of the enterprise, names and surnames of the Chairman and members of the Board of Management (if any), and the Director General or the Director;

2. The name of the Government body issuing the decision, and the date of issue of the decision to establish the enterprise, the date and number of the business registration;

3. The statutory capital;

4. The number of its bank account; numbers of telephone, telex and fax (if any);

5. Business area, business lines and activities;

6. Date of commencement of business and term of operation.

Article 19.-

1. If a State enterprise wants to set up a branch in another province or city under the Central Government, it must have an operational plan for the branch, and obtain a written authorization by the President of the People's Committee of the province or city under the Central Government where the branch is to be located.

The State enterprise branch is not a legal person; the State enterprise takes a civil responsibility for its branch.

2. If the State enterprise opens a representative office in another province or city under the Central Government, this office must register with the People's Committee of the province or city under the Central Government where it is located.

3. The establishment of a branch or a representative offcie of a State enterprise in a foreign country shall conform with government regulations.

Section II. REORGANIZATION, DISSOLUTION AND BANKRUPTCY OF A STATE ENTERPRISE

Article 20.-

1. The measures to reorganize an enterprise include: merger with another State enterprise, splitting the State enterprise, and other measures to change the operational objectives and organizational pattern of the enterprise.

2. The person who has proposed the establishment of a State enterprise, shall have to work out a draft plan for reorganization of the enterprise. The person who has decided the establishment of the State enterprise, has to set up an Appraisal Committee for the enterprise's reorganization plan, and to issue a decision on the reorganization of the enterprise.

3. The adoption of measures for reorganizing the important State enterprises which directly cater for defense, security and public service is at the discretion of the Prime Minister.

Article 21.- If the reorganization of State enterprises involves modifications of the business objective and lines or the statutory capital, the enterprise has to fill the procedures for renewing the registration, or complementary registration with the agency with authority in business registration.

Article 22.- A State enterprise is liable to dissolution in the following cases:

1. Expiry of term of operation mentioned in the decision on establishment with no application for extension;

2. The enterprise has been incurring prolonged losses, but has not yet become insolvent;

3. The enterprise has failed to fulfil the tasks assigned by the State after having taken the necessary measures;

4. To keep the enterprise operating further is unnecessary.

Article 23.-

1. The person who has decided the establishment of a State enterprise has the right to decide its dissolution.

2. The person who has decided the establishment of the enterprise, has to set up a Dissolution Committee. This Committee performs the function of consultant to the person who decided the establishment of the enterprise, regarding the decision on its dissolution, and on how to carry out the decision on its dissolution. The composition and working statute of the Dissolution Committee, the order and procedures for carrying out the decision on dissolution of the enterprise are prescribed by the Government.

3. All claims related to the dissolution of the State enterprise shall be settled as prescribed by law.

Article 24.- The handling of the bankruptcy of a State enterprise shall be carried out in accordance with the Law on Business Bankruptcy.