Chương 2 Luật doanh nghiệp nhà nước 2003: Thành lập mới và đăng ký kinh doanh doanh nghiệp nhà nước

Chapter II

ESTABLISHMENT AND BUSINESS REGISTRATION OF STATE ENTERPRISES

Article 6.- Branches, domains, geographical areas, where new State companies can be established

1. New State enterprises can be established in the following branches, domains or geographical areas:

a) Branches and domains which supply essential products and services for the society;

b) Branches or domains where high technologies are applied, creating motive forces for fast development of other branches and domains as well as the entire economy, requiring big investments;

c) Branches and domains with high competitive edges;

d) Geographical areas being under exceptionally difficult socio-economic conditions, where other economic sectors do not invest in.

2. Branches, domains and geographical areas defined in Clause 1 of this Article and plannings on reorganization and development of State companies according to branches, domains or geographical areas shall be decided and periodically publicized by the Government.

Article 7.- Proposing the establishment of new State companies

1. The ministers, the heads of ministerial-level agencies, the heads of Government-attached agencies, the presidents of the People's Committees of the provinces or centrally-run cities (hereinafter called the provincial-level People's Committee presidents) shall be the persons who propose the establishment of new State companies (hereinafter called the proposers).

2. The proposers must base on the lists of branches, domains and geographical areas to be considered for establishment of new companies as prescribed in Article 6 of this Law and the plannings on reorganization and development of State companies within the whole national economy, branches, provinces and centrally-run cities, which have been already approved by the Government according to the provisions at Point a, Clause 1,
Article 65 of this Law, to elaborate schemes and dossiers for establishment of new State companies and submit them to the Prime Minister for decision as provided for in Article 9 of this Law.

3. The schemes on establishment of new State companies must contain the following principal contents:

a) The necessity to set up the companies; lists of products and/or services to be provided by the companies; the market situation, market demands and prospect for each type of products, services provided by the companies; the capability to consume the companies' products and/or services and the feasibility studies on competitiveness of the companies' products and/or services;

b) Locations for the companies' headquarters or locations for construction of production and/or business establishments and the land areas under use;

c) The capability to provide labor, raw materials, materials, energy and other necessary conditions for the companies to operate after they are set up;

d) The projected total investment capital; the initial investment capital sources of the State; sources and forms of mobilization of the remaining capital amounts; schemes for repayment of mobilized capital; demands and measures to create working capital for the companies;

e) The socio-economic efficiency feasibility study and the compatibility of the establishment of companies with the plannings, strategies for development of branches, domains and economic regions;

f) The report on environmental impact assessment and measures for environmental protection;

g) The projected organizational and managerial model for the companies and operation duration;

h) For companies which need to invest in the construction upon their establishment, the establishment schemes must also include projects on investment in the establishment. The contents of projects on investment in establishment of new State companies shall comply with the legislation on investment.

4. The dossiers on establishment of new State companies shall each include:

a) The report proposing the establishment of company;

b) The scheme on establishment of new company prescribed in Clause 3 of this Article;

c) The draft charter of the company;

d) The written application for land assignment or land lease;

e) The written application for investment preferences as prescribed by legislation on investment promotion (if any).

5. The company's charter must at least contain the following contents:

a) The names, addresses, head-office, telephone numbers, fax numbers, email of the company, branches, representative offices (if any);

b) Business objectives and lines;

c) The charter capital;

d) The relationship between the company and the agency or organization authorized to be representative of the company's owner;

e) The company's organizational and managerial structure;

f) The company's representative at law;

g) The principles on use of the company's profits;

h) Cases of reorganization, dissolution, ownership conversion and procedures for liquidation of the company's assets;

i) The procedures for amendment, supplementation of the company's charter;

j) Other regulations which are decided by the agency or organization authorized to be representative of the company's owner but must not contravene law provisions.

Article 8.- Conditions for establishment of new State companies

The decisions to establish new State companies must be based on the following conditions:

1. Having valid dossiers as provided for in Clause 4, Article 7 of this Law;

2. Satisfying all conditions on capital; charter capital level in conformity with production and business lines which require legal capital;

3. The companies draft charters must not contravene the provisions of this Law and other law provisions;

4. The schemes on establishment of new companies must ensure the feasibility, efficiency, satisfaction of requirements on advanced technologies prescribed by the State for branches, domains or geographical areas where new companies can be set up, the conformity with the State's strategies and plannings on socio-economic development, the State's regulations on environmental protection and other law provisions.

Article 9.- Competence to decide on the establishment of new State companies

1. The Prime Minister shall decide on the establishment of State companies of particular importance, which dominate key branches and domains and act as core in boosting the economic growth and make great contributions to the State budget.

2. The ministers, the heads of ministerial-level agencies, the heads of Government-attached agencies and the presidents of the provincial-level People's Committees shall decide on the establishment of new State companies other than the subjects defined in Clause 1 of this Article.

3. The persons who decide on the establishment of new State companies must set up Appraisal Councils to appraise the schemes on establishment of new State companies. The scheme-appraising councils are the advisory bodies for the persons who decide on the company establishment; the establishment deciders bear responsibility for their decisions to set up new State companies.

4. The decisions to set up new State companies concurrently serve as the decisions on investment projects for establishment of State companies. The newly established State companies are owners of these projects.

5. The appraisal of investment projects on establishment of State companies and the execution of investment projects shall comply with the provisions of the legislation on investment.

6. When deciding on the establishment of new companies, the establishment deciders must concurrently proceed with the appointment of the chairman and other members of the Managing Boards; decide to appoint or sign contracts with directors of the companies having no Managing Board.

Article 10.- Business registration of State companies

The procedures for business registration of State companies are prescribed as follows:

1. Within sixty days as from the date of obtaining the establishment decisions, the companies must register their business at the business registries according to the provisions of the Enterprise Law;

2. The State companies shall have their legal person status as from the dates they are granted business registration certificates. Only after being granted business registration certificates can the companies receive investment capital from the State budget or mobilize capital for investment in construction of enterprises and business activities; the companies may be engaged in conditional production and business lines when being granted by competent State bodies permits for doing business in conditional branches, crafts or meeting all business conditions as provided for by law;

3. The announcement of business registration contents, changes in business registration contents, the supply of information on business registration contents shall comply with the provisions of the Enterprise Law.

Article 11.- Establishment and business registration of new State-run joint-stock companies, State-run one-member limited liability companies, State-run limited liability companies with two or more members

1. The following subjects shall be the founding members of new State-run joint-stock companies, State-run one-member limited liability companies, State-run limited liability companies with two or more members:

a) Corporations with investment and establishment decided by the State;

b) Corporations making investment with, and dealing in, the State capital;

c) State companies holding dominant powers over other enterprises;

d) Independent cost-accounting member companies of State corporations;

e) Independent State companies;

f) Economic organizations entitled to use the State capital for investment in their business according to law provisions.

2. Founding members contributing capital to the establishment of new State joint-stock companies, State-run one-member limited liability companies, State-run limited liability companies with two or more members outside the branches, domains and geographical areas prescribed in Article 6 of this Law must have their schemes on capital contribution to establishment of new companies approved by competent authorities. Founding members being enterprises set up by decisions of any authorities shall propose such authorities to approve the capital contribution schemes. Founding members being member enterprises of corporations shall have their capital contribution schemes approved by the Managing Boards of the corporations.

3. The procedures for business registration of State-run joint-stock companies, State-run one-member limited liability companies, State-run limited liability companies with two or more members shall comply with the provisions of the Enterprise Law.