Chương 5 Luật doanh nghiệp nhà nước 2003: Tổng công ty nhà nước

Chapter V

STATE CORPORATIONS

Article 46.- State corporations

The State corporations constitute a form of economic alignment on the basis of self-investment, capital contribution among State companies, between State companies and other enterprises or are formed on the basis of organizing and aligning member units which are bound together in economic benefits, technologies, markets and other business services, operate in one or several principal specialized techno-economic branches with a view to enhancing the business capabilities and obtaining benefits for member units and the entire corporations.

Article 47.- Types of State corporation

1. Corporations with investment and establishment decided by the State constitute a form of aligning and rallying independent cost-accounting member companies which have the legal person status and operate in one or several principal specialized techno-economic branches with a view to increasing the capital accumulation and concentration and the specialization of business of member units and the entire corporations.

2. Corporations invested in and set up by companies constitute a form of alignment through investment, capital contribution of large-sized State companies where the State owns the entire charter capital with other enterprises, in which the State companies hold the dominant powers over other enterprises.

3. Corporations which make investment with and deal in the State capital are those established to exercise the owners’ rights and obligations towards State-run one-member limited liability companies converted from independent State companies and State-run one-member limited liability companies set up by themselves; to perform the function of making investment with and dealing in the State capital as well as the owners’ powers and obligations towards the State’s shares and/or contributed capital in enterprises with ownership or legal forms converted from independent State companies.

Section 1. CORPORATIONS WITH INVESTMENT AND ESTABLISHMENT DECIDED BY THE STATE

Article 48.- Conditions for organizing corporations with investment and establishment decided by the State

The corporations with investment and establishment decided by the State must fully satisfy the following conditions:

1. Operating in key branches or domains, acting as the core to boost economic growth and making great contributions to the State budget;

2. Member companies operate in one or several principal techno-economic specialized branches, which are closely bound together in technologies, markets and capital;

3. Having at least two corporations in one branch or domain, except for branches or domains where production technologies do not permit the establishment of two or more corporations;

4. Meeting the conditions for establishment of new State companies in Article 8 of this Law;

5. Achieving the objectives of establishment of corporations:

a) Organizing service activities of seeking markets, information, training, research, marketing and other service activities in direct support of the member companies;

b) Creating conditions for technological development, increased capital accumulation and concentration, assignment of specialization, raising the competitiveness of member companies and the whole corporations;

c) Having mechanisms to ensure interests and associate the interests of member companies, which is consented by the member companies.

Article 49.- Member units of corporations with investment and establishment decided by the State

The corporations with investment and establishment decided by the State may have the following member units:

1. Units with their charter capital entirely invested by the corporations:

a) Independent cost-accounting member companies;

b) Dependent cost-accounting units;

c) Non-business units;

d) State-run one-member limited liability companies operating under the provisions of the Enterprise Law, converted from the types of member units prescribed at Points a and c, Clause 1 of this Article or newly set up;

e) Depending on business scale and demands, corporations may have members being financial companies;

2. Joint-stock companies and limited liability companies where the corporations hold dominant contributed capital.

Article 50.- Capital and assets of corporations with investment and establishment decided by the State

1. The charter capital of the corporations shall include the State capital accounted concentratedly at the corporations, the State capital at dependent cost- accounting member companies.

2. The charter capital of independent cost-accounting companies is the State capital invested therein by the corporations. The corporations bear responsibility for the debts and other property obligations of the independent cost-accounting member companies within the amounts of charter capital of such companies.

3. The corporations’ assets formed from their charter capital, borrowed capital and other lawful capital sources invested in independent cost-accounting member companies, non-business units and offices of the corporations.

4. Assets of independent cost-accounting member companies, formed from the charter capital, borrowed capital and other lawful capital sources invested in the companies.

5. The State budget capital can be only invested in the corporations. The corporations are entitled to decide to invest or not to invest it in independent-cost accounting member companies.

6. The corporations shall not transfer their capital and/or assets at member enterprises having the legal person status and their charter capital fully owned by the corporations by mode of non-payment, except for cases of deciding on reorganization of the companies or realizing the target of supplying public-utility products and/or services.

Article 51.- Managerial organizations of corporations with investment and establishment decided by the State

1. A corporation is managerially structured to include the Managing Board, the Control Board, the general director, the deputy-general directors, the chief accountant and the assisting apparatus. The functions, tasks, powers and operational organization of the Managing Board, the Control Board, the general director, the deputy-general directors, the chief accountant and the assisting apparatus in the corporation and the internal management of the corporation shall comply with the provisions in Section 2, Chapter IV of this Law and the Government’s regulations.

2. The independent cost-accounting member companies are managerially structured each to have the director, the deputy directors, the chief accountant and the assisting apparatus. The functions, tasks, powers and criteria of the directors, deputy directors, the chief accountants and the assisting apparatuses shall comply with the provisions in Section 1, Chapter IV of this Law and the Government’s guidance; the directors, deputy directors and chief accountants maintain relations with the corporations under the provisions of Clause 1, Article 52 of this Law.

3. State-run one-member limited liability companies and companies where the corporations hold dominant shares or contributed capital portions are managerially organized under the provisions of the Enterprise Law and other law provisions.

Article 52.- The relationships between corporations with investment and establishment decided by the State and their member units

1. The independent cost-accounting member companies have the legal person status and business autonomy under the provisions of this Law, other law provisions and their charters approved by the Managing Boards of the corporations; and are bound in rights and obligations to the corporations as follows:

a) They manage and take initiative in using their capital as well as capital invested by the corporations; take responsibility before the corporations for the efficiency of the use of capital and resources invested by the corporations; enjoy financial autonomy and bear civil liability with their entire property;

b) They implement the general business plans of the corporations; perform the production and/or business tasks assigned by the corporations on the basis of the economic contracts; take responsibility for business activities in coordination with the corporations;

c) They enjoy autonomy in signing economic contracts and perform the economic contracts assigned by the corporations;

d) They decide on investment projects as decentralized by the corporations; join the corporations in various forms of investment or are assigned by the corporation to organize the execution of investment projects under the corporations’ plans on the basis of economic contracts signed with the corporations; have the right to invest in, or contribute capital to, other companies;

e) They are entitled to propose the corporations to decide, or are authorized by the corporations to decide on the establishment, reorganization, dissolution or merger of dependent units and decide on the managerial apparatuses of dependent units;

f) After fulfilling tax payment obligations, carrying forwards losses according to the provisions of the Enterprise Income Tax Law, performing other financial obligations according to law provisions, making deductions for setting up the financial reserve funds, they may divide the remaining profits according to the capital invested by the corporations and the capital mobilized by the companies themselves. The profit portions divided according to the capital invested by the corporations shall be used for re-investment to increase the State capital at the companies or form the concentrated funds of the corporations according to the Government’s regulations. The profit portions divided according to capital mobilized by the companies themselves shall be deducted for supplementation to the companies’ development investment funds at the rates prescribed by the Government; the remainder shall be distributed into reward funds and welfare funds under the companies’ own decisions;

g) When being assigned plans, given goods production orders by the State or participating in bidding for performance of public-utility activities, the companies shall have the rights and obligations prescribed in Article 19 of this Law;

h) They submit to the supervision and inspection by the corporations; periodically, accurately and fully report information on themselves and send their financial statements to the corporations;

i) Apart from the bindings to the corporations prescribed at Points a,b, c, d, e, f, g and h, Clause 1 of this Article, the independent cost-accounting member companies are entitled to take initiative in business and performance of obligations of the State companies according to the provisions of this Law.

2. Non-business units shall implement the accounting decentralization regimes prescribed by the corporations, be entitled to create revenue sources from the performance of contracts on service provision, scientific research and training for technology transfer with units within and without the corporations. The non-business units operate according to regulations approved by the Managing Boards of the corporations.

3. The relationships between the corporations and one-member limited liability companies where the corporations own the entire charter capital shall comply with the provisions of Article 57 of this Law.

4. The relationships between the corporations and companies where the corporations hold dominant capital shall comply with the provisions of Article 58 of this Law.

Article 53.- Transformation of corporations with investment and establishment decided by the State into corporations invested in and set up by companies themselves

1. The corporations with investment and establishment decided by the State, which satisfy the conditions prescribed in Article 54 of this Law, may be transformed to be organized and operate according to the provisions of Articles 55, 56, 57, 58 and 59 of this Law.

2. The Government shall prescribe the principles, conditions and time limits for transformation of corporations with investment and establishment decided by the State to operate after the model of corporations invested in and set up by companies themselves. Within the transformation period, the corporations set up under the provisions of the 1995 Law on State Enterprises can operate under the provisions in Section 1, Chapter V of this Law.

Section 2. CORPORATIONS INVESTED IN AND SET UP BY COMPANIES THEMSELVES

Article 54.- Cases of application of the provisions on corporations invested in and set up by companies themselves

1. The corporations defined in Section 1, Chapter V of this Law, which are reorganized or invest by themselves in other enterprises, meet the requirements on membership structures prescribed in Article 55 of this Law.

2. Large-sized State companies, which have financial potentials, hold technological know-hows or markets and use the invested financial potentials, technological know-hows or markets, have invested in and dominated other enterprises, meet the requirements on membership structures prescribed in Article 55 of this Law.

Article 55.- Structure of corporations invested in and set up by companies themselves

A corporation invested in and set up by companies themselves is structured to comprise:

1. The State company which holds the powers to dominate other enterprises (hereinafter called the parent company);

2. Member companies (hereinafter called the affiliate companies):

a) State-run one-member limited liability companies whose charter capital is fully held by the State companies;

b) Companies with dominant contributed capital of State companies, including limited liability companies with two or more members, joint-stock companies, companies of joint venture with foreign countries, overseas-based companies; companies with dominant contributed capital of State companies operating according to law corresponding to such types of companies;

3. Companies with portions of non-dominant contributed capital of State companies (hereinafter called associated companies), which are organized in form of limited liability companies with two or more members, joint-stock companies, companies of joint-venture with foreign countries.

Article 56.- State companies holding dominant powers over other enterprises

1. State companies holding dominant powers over other enterprises shall have the rights and obligations of the State companies, prescribed in Chapter III of this Law.

2. The managerial apparatuses of the State companies holding dominant powers over other enterprises shall be the apparatuses of the corporations, having the managerial structure, functions, tasks, powers and obligations as prescribed in Section 2, Chapter IV of this Law.

Article 57.- The State companies’ relationships with companies where they invest and hold the entire charter capital

The one-member limited liability companies with their entire charter capital invested by State companies shall operate under the provisions of the Enterprise Law. The State companies shall be the owners of such one-member limited liability companies, exercising the rights and performing the obligations of the owners over the one-member limited liability companies according to the provisions of the Enterprise Law.

Article 58.- The dominant State companies’ relationships with companies where the State companies hold dominant capital

The State companies holding dominant powers over other enterprises shall manage their dominant shares or contributed capital as follows:

1. Exercising the rights and performing the obligations of shareholders, dominant capital-contributing members through their representatives at enterprises under the provisions of the Enterprise Law, the Law on Foreign Investment in Vietnam, the laws of the countries where the companies invest their capital and the provisions of the charters of the dominated companies;

2. Designating, dismissing, commending, disciplining, deciding on allowances and interests for, their representatives at the dominated enterprises (hereinafter called representatives of the dominant contributed capital portions);

3. Requesting the representatives of the dominant contributed capital portions to report regularly or irregularly on the financial situations, business results and contents of the enterprises where exists dominant contributed capital of the State companies;

4. Assigning tasks to, and requesting the representatives of the dominant contributed capital portions to ask for opinions on important matters of the dominated enterprises before voting thereon; to report on the use of dominant shares or contributed capital in service of the development orientations and objectives of the dominant State companies;

5. Collecting yields and bearing risks from their contributed capital at dominated enterprises;

6. Supervising and inspecting the use of their capital contributed to dominated enterprises.

7. Bearing self-responsibility for the efficiency of the use, preservation and development of their capital portions contributed to dominated enterprises.

Article 59.- Relationships between the State companies and enterprises where exist contributed capital portions of the State companies

1. The enterprises where exist contributed capital portions of State companies shall effect their business autonomy under the provisions of law. The relationships between the State companies and the enterprises where exist contributed capital portions of the State companies shall comply with the provisions of law.

2. The State companies shall exercise the rights and perform the obligations of the capital contributors through their representatives at enterprises to which they have contributed capital, in accordance with law and the charters of the enterprises where exist contributed capital portions of the State companies.

Section 3. CORPORATIONS MAKING INVESTMENT WITH, AND DEALING IN,
STATE CAPITAL 

Article 60.- Corporations making investment with, and dealing in, State capital

1. Corporations making investment with, and dealing in, State capital are special economic organizations having the following functions:

a) To exercise the rights and perform the obligations of owners being the State over State-run one-member limited liability companies transformed from independent State companies; the State’s contributed capital portions at joint-stock companies or limited liability companies with two or more members, which are transformed from independent State companies or newly set up;

b) To perform the functions of making investment with, and dealing in, the State capital at enterprises, which have already undergone the conversion of ownership or legal forms prescribed at Point a, Clause 1 of this Article.

2. Corporations making investment with, and dealing in, State capital shall be set up under the Prime Minister’s decisions.

Article 61.- Managerial organization, operation scope, rights and obligations of corporations making investment with, and dealing in, State capital

1. The managerial organization of corporations making investment with, and dealing in, State capital shall comply with the provisions in Section 2, Chapter IV of this Law.

2. The structure, operation scope, rights and obligations of corporations making investment with, and dealing in, State capital shall comply with the Government’s regulations.