Chương 5 Luật Doanh nghiệp Nhà nước 1995: Tổ chức quản lý doanh nghiệp nhà nước

Chapter V

ORGANIZATION OF THE MANAGEMENT OF STATE ENTERPRISES

Article 28.-

1. The State corporation and major independent State company has the following managerial structure :

a/ Board of Management, Control Commission;

b/ The Director General or Director, and the assisting apparatus.

2. The State enterprises, that do not fall under the stipulations in Item 1 of this Article, shall have a director and an assisting apparatus. The form of organization of supervisory work at these enterprises is prescribed by the Government.

Section I. STATE ENTERPRISES WITH A BOARD OF MANAGEMENT

I. BOARD OF MANAGEMENT AND CONTROL COMMISSION

Article 29.- The Board of Management performs the function of managing the activities of the enterprise, and is responsible to the Government, or a State management body delegated by the Government, for the development of the enterprise in accordance with the objectives assigned by the State.

Article 30.- The Board of Management has the following tasks :

1. To receive capital, land, natural resources and other resources assigned to the enterprise by the State;

2. To submit to the Head of the State management agency which decides to establish the enterprise, for approval of the statute of the business, strategy, the overall planning and the long-term and 5-year development plans, except for the important enterprises where these questions shall be decided by the Prime Minister;

3. To submit to the Head of the State management agency assigned by the Government the draft plans on joint ventures, contribution of capital, and various investment projects of the enterprise;

4. To submit to the Prime Minister, or to his delegate, proposals in relation to the appointment, dismissal, commending/awarding, and discipline of the Director General or Director of the enterprise;

5. To submit to the Head of the State managerial agency empowered by the Government, proposals on the appointment, dismissal, commendation/award or discipline concening the Deputy Director General or Deputy Director, and the Chief Accountant of the enterprise at the request of the Director General or Director;

6. To submit to the Head of the competent State managerial agency for approval the yearly fiscal settlement of accounts of the enterprise;

7. To approve the draft plans for the utilization, preservation and development of capital, and for the utilization of after-tax profits proposed by the Director General or Director; to pass the yearly fiscal settlement of accounts of the member companies (if any); to publicize the financial reports as prescribed by the Government;

8. To decide on the draft plan for mobilization of capital for business operation without changing the form of ownership;

9. To approve the draft plan for managerial organization, business organization, the managerial staff, the plan for personnel training, and the statute of the component units (if any); to propose the establishment, splitting, merging and dissolution of component units (if any) as prescribed by law;

10. To appoint, dismiss, commend/award, and discipline the directors of the component units (if any) at the request of the Director General;

11. To control and supervise the Director General or Director, the component units (if any) in the utilization, preservation and development of capital; to discharge the obligations towards the State, to achieve the objectives assigned to the enterprise by the State, and to carry out other decisions of the Board of Management.

Article 31.-

1. The Board of Management comprises the Chairman, the Director General or Director, and a number of other members. Depending on the scope and type of enterprise, the Government shall decide on the number of members of the Board of Management.

The Board of Management comprises both full-time members and part-time members who also assume other responsibilities. The Chairman of the Board of Management is a full-time member of the Board.

The Chairman is responsible for organizing the discharge of duties and exercising the powers of the Board stipulated in Article 30 of this Law.

2. The Chairman and other members of the Board of Management shall be proposed by the person who has proposed the establishment of the enterprise to the Prime Minister or his delegate, for appointment, dismissal, commendation/award or discipline.

The term of a member of the Board of Management is 5 (five) years. The members of the Board may be re-appointed. The Chaiman of the Board must not cumulate the function of General Director or Director.

3. The Board of Management uses the apparatus and seal of the enterprise to perform their duties.

Article 32.- The members of the Board of Management shall have to meet the following criteria and conditions:

1. To have the Vietnamese citizenship and a permanent residence in Vietnam;

2. To be healthy, have good ethical qualities, be honest, integral and a high sense of law observance;

3. To be competent in business and business organization and management;

4. They shall not assume leadership responsibilities in the State apparatus;

5. The members of the Board of Management, the Director General, the Directors of enterprises which are declared bankrupt, shall comply with Article 50 of the Law on Business Bankruptcy;

6. The Chairman of the Board of Management, the Director General or Director are not allowed to establish or hold any managerial or executive post of a private company, limited company or stock company, and not allowed to have economic contractual relationship with any private company, limited company or stock company where managerial or executive posts are held by their spouse, parents, or sons or daughters.

The wife, husband, son, daughter, brother or sister of anyone holding one of the above-mentioned posts are not allowed to hold such offices as chief accountant, cashier in the same enterprise or in a member company (if any).

Article 33.- Working regime of the Board of Management:

1. The Board of management works according to the collective system; holds periodical meetings every quarter to consider and decide on matters related to its duties and powers. It may hold emergency meetings to handle urgent problems of the enterprise at the request of the Chairman of the Board, or by the Director General or the Director, or by more than 50% (fifty percent) of the Board members;

2. The Chairman, or any member of the Board of Management delegated by the Chairman, is to convene and chair the meeting;

3. A meeting of the Board of Management is considered as legal, if at least 2/3 (two thirds) of its members are present; a resolution or decision of the Board of Management is effective, if it has the vote of more than 50% (fifty per cent) of the Board members. Members of the Board of Management may make reservations in regard to their viewpoints;

4. The contents and conclusions of the meetings of the Board of Management must be recorded in minutes; the resolutions and decisions of the Board are binding for the enterprise;

5. The operational costs of the Board of Management including the salary and allowances, are accounted for in the management cost of the enterprise. The Director General or the Director has to ensure the necessary conditions and means for the work of the Board of Management.

Article 34.- Members on the full-time list of the Board of Management shall receive a base salary on the same scale of salary as State employees, and in conformity with the system of salary allowance in the State enterprise prescribed by the Government, and bonuses corresponding to the results of the enterprise operations. The members of the Board of Management that cumulate responsibilities, shall receive responsibility allowances as prescribed by the Government, and receive bonuses corresponding to the results of the enterprise operations.

Article 35.- The members of the Board of Management are jointly responsible to the person who has issued the decision on the appointments, and to law for the decisions adopted by the Board; in the event of breach of the enterprise statute, or issue of decisions above their competency, or abuse of power which cause losses to the enterprise and to the State, they must take responsibility for and pay material damage for the losses they have caused as prescribed by law.

Article 36.-

1. The Board of Management sets up a Control Commission to assist it in controlling and supervising the executive work of the Director General or Director, the enterprise apparatus and the component unit (if any) in financial operations, and assuring their compliance with the enterprise statute, the resolutions and decisions of the Board of Management, and with law.

2. The Control Commission performs the duties assigned by the Board of Management, report and is answerable to the Board of Management.

3. Operational costs, including salary and working conditions of the Control Commission, are covered by the enterprise.

II. THE DIRECTOR GENERAL OR DIRECTOR, AND THE ASSISTING APPARATUS

Article 37.- The Director General or Director is to be appointed or dismissed by decision of the Prime Minister or his delegate, at the request of the Board of Management.

The Director General or Director is the legal representative of the enterprise, and takes responsibility before the Board of Management, the person that issued the decision on his or her own appointment, and before law in respect to the management of enterprise operations. The Director General or Director holds the supreme managerial power in the enterprise.

The Deputy Director General or Deputy Director assists the Director General or the Director in the administration of the enterprise in accordance with the assignment of work and delegation of powers by the Director General or the Director, is held responsible to the Director General or the Director for the duties entrusted by the Director General or the Director, according to the assignment of work or delegation of powers.

The Chief Accountant assists the Director General or the Director of the enterprise in directing, organizing the accountancy and statistical work of the enterprise, and has the duties and powers as prescribed by law.

The office, and the technical and professional divisions (or sections) have the functions of counseling and assisting the Board of Management, the Director General or the Director in the managerial and executive work.

Article 38.- The Director General or Director of the enterprise has the following duties and powers:

1. Together with the Chairman of the Board of Management, sign the receipt of capital, land, natural resources and other resources for management and use, in conformity with the objectives and tasks assigned to the enterprise by the State; assign the resources received from the State to the component units (if any);

2. To use, preserve and develop capital, in accordance with the plan approved by the Board of Management;

3. To work out the development strategy, the long-term and yearly plans of the enterprise, investment projects, joint venture plans, the plan for organization, the plan for management work of the enterprise, the plan for personnel training, the plan for business coordination with the component units (if any) to submit to the Board of Management.

4. To work out and submit to the Board of Management for approval, the technical and economic norms and criteria, and salary unit price in conformity with State prescription;

5. To make proposals concerning the appointment, dismissal, commendation/award and discipline involving the Deputy Director General or Deputy Director, the Chief Accountant of the enterprise, and the Directors of the component units (if any);

6. To decide the buying and selling prices of products and services in conformity with State prescriptions;

7. To inspect the performances of the component units (if any) with regard to the norms, criteria and unit price prescribed within the enterprise;

8. To appoint, dismiss, commend/award and discipline the Deputy Director, Chief Accountant of the component unit (if any) at the request of the Director of the component unit, and the chiefs and deputy chiefs of the technical and professional divisions or sections, and equivalent posts in the enterprise;

9. To organize the administration of the enterprise operations, with the aim of carrying out the resolutions and decisions of the Board of Management;

10. To report to the Board of Management and the competent State agency the results of business operations of the enterprise;

11. To submit to the control and supervision of the Board of Management, the Control Commission, the competent State agencies, in the discharge of his/her functions and duties prescribed in this Law. In case the view of the Director General or the Director varies with the resolutions and decisions of the Board of Management, the Director General or the Director has the right to make reservations of his/her views, and ask the competent State body to settle it; pending a decision of the competent State agency on the decision, he/she has to comply with the resolutions and decisions of the Board of Management;

12. He/she may take the necessary measures in emergency cases, and must immediately report to the Board of Management and the competent State agencies.

Section II. STATE ENTERPRISE WITHOUT BOARD OF MANAGEMENT

Article 39.-

1. The Director is to be appointed, dismissed, commended/awarded or disciplined by the person having decided on the establishment of the enterprise. The Director is the legal representative of the enterprise, and is responsible before the person having appointed him or her, and before law for the administration of the business operations of the enterprise. The Director has the supreme managerial power in the enterprise.

2. The Director must meet the criteria and conditions stipulated in Article 32 of this Law.

3. The Director has its base salary set in the same salary scale as State employees, and receives a salary and bonuses in accordance with the system of salary and bonus allowance in the State enterprise established by the Government, linked with the results of the enterprise operations.

4. The Deputy Director assists the Director in administering the enterprise in conformity with the assignment of work and delegation of powers, and is responsible to the Director for the duties entrusted him or her according to the assignment of work or delegation of powers.

5. The Chief Accountant assists the Director of the enterprise in directing and organizing the accountancy and statistical work of the enterprise, and is responsible to the Director for the duties entrusted by the latter according to the assignment of work or delegation of powers as prescribed by law.

6. The office and specialized or professional sections shall act as consultants and assistants to the Director in managing and directing the work at the enterprise.

Article 40.- The Director discharges his duties and powers stipulated in Items 6 and 8, Article 38 of this Law, in addition the following duties and powers:

1. To receive capital, land, natural resources and other resources assigned by the State for management and use, in accordance with the objectives and duties assigned to the enterprise by the State; to use, preserve and develop the capital;

2. To work out the development strategy, long-term and yearly plans of the enterprise, the plans for investment, the plan for joint venture, and the plan for managerial organization of the enterprise, and submit them to the competent State management agency;

3. To organize the administration of the enterprise operations;

4. To publicize all the technical-economic norms, product criteria, salary unit price in conformity with State regulations;

5. To propose, for approval by the person having decided on the establishment of the enterprise, the appointment, dismissal, commendation/award and discipline of the Deputy Director and the Chief Accountant;

6. To report to the competent State agencies the results of the enterprise business activities;

7. To submit to the control and supervision by the supervisory organization asigned by the Government and the competent State agencies, in the discharge of its functions and duties as provided for by this Law.

Section III. THE COLLECTIVE OF LABORERS IN THE STATE ENTERPRISE

Article 41.- The Congress of the workers and public employees is a direct form for the laborers in a State enterprise to take part in the management of the enterprise. The Congress exercises the following rights:

1. To take part in the discussion of questions related to the elaboration of a collective labor accord to be negotiated and signed by the representative of the laborers with the Director General or the Director of the enterprise;

2. To discuss and adopt the regime of use of the funds directly related to the interests of the laborers in the enterprise;

3. To discuss and make suggestions concerning the planning and plans, assessment of the results of production and business management, suggest measures for protection of labor, improvement of working conditions, of material and cultural life, sanitation, training and re-training of the laborers of the enterprise;

4. To present candidates for the Board of Management and the Control Commission.

Article 42.- The Vietnam General Confederation of Labor shall provide guidance on the organization and operation of the Congress of the workers and public employees in the State enterprise.