Chương 6 Luật doanh nghiệp nhà nước 2003: Quyền, nghĩa vụ của chủ sở hữu nhà nước đối với công ty nhà nước và đối với vốn nhà nước ở doanh nghiệp khác

Chapter VI

RIGHTS AND OBLIGATIONS OF OWNERS BEING THE STATE OVER STATE COMPANIES AND STATE CAPITAL IN OTHER ENTERPRISES

Section 1. OWNERS AND REPRESENTATIVES OF OWNERS OF STATE COMPANIES AND STATE CAPITAL IN OTHER ENTERPRISES

Article 62.- Owners of State companies

The State serves as owners of the State companies. The Government shall uniformly organize the exercise of rights and the performance of obligations of owners over the State companies according to the provisions of this Law and other provisions of relevant legislation.

Article 63.- Representatives of owners of the State companies and State capital in other enterprises

1. The following organizations and individuals shall perform the functions of representing the owners of the State companies:

a) The Government shall directly perform the rights and obligations of owners over the State companies as provided for in Clause 1, Article 65 of this Law; the Prime Minister shall directly perform or authorize the concerned ministries to perform a number of rights and obligations of owners over particularly important State companies set up under the Prime Minister’s decisions;

b) The branch-managing ministries and the provincial-level People’s Committees shall act as representatives of owners of the State companies having no Managing Board under the provisions of Article 66 of this Law;

c) The Finance Ministry shall perform a number of rights and obligations of the representatives of owners of the State companies under the provisions of Article 67 of this Law;

d) The Managing Boards are the owners’ direct representatives at the State companies having the Managing Boards and representatives of owners of the companies where they totally invest the charter capital as provided for in Articles 29, 30 and 33 of this Law.

2. The corporations making investment with, and dealing in, State capital shall be the representatives of owners of the companies where they totally invest the charter capital and the representatives of the capital portions they have invested in other enterprises as provided for in Articles 60 and 61 of this Law.

3. The State companies shall be the representatives of owners of the capital portions invested by the companies in other enterprises.

4. The assignment and decentralization of the performance of the rights and obligations of representatives of owners of the State companies shall comply with the provisions in Section 2, Chapter VI of this Law.

Section 2. RIGHTS AND OBLIGATIONS OF OWNERS BEING THE STATE OVER THE STATE COMPANIES

Article 64.- Rights and obligations of owners being the State over the State companies

1. The State owners shall have the following rights over the State companies:

a) To decide on the establishment, reorgani-zation, dissolution, ownership conversion of the companies; to decide on the managerial structures of the companies; to select, appoint, dismiss, stipulate the wage and bonus regimes for, the Managing Board chairmen and members, the general directors or directors of the companies; to approve the contents, amendment and supplementation of the companies’ charters;

b) To decide on the objectives, strategies and plan orientations for development of the companies; to decide on investment projects valued at over 30% of the total remaining asset values on the accounting books of the State companies having no Managing Board or smaller percentages prescribed in the companies’ charters; to decide on investment projects valued at over 50% of the total remaining asset values on the accounting books of the companies with the Managing Boards or smaller percentages prescribed in the companies’ charters; decide on borrowing, lending, renting, leasing or other economic contracts in excess of the companies’ charter capital levels; to prescribe the regime of plan assignment, goods order placement or bidding, sale prices, difference subsidies for public-utility product- and/or service- providing companies;

c) To decide on the initial investment capital level, the charter capital level and adjust the charter capital of the companies; to decide on borrowing or lending projects valued at over the level decentralized for the Managing Boards or the directors of the companies having no Managing Board; prescribe the financial regimes of the companies;

d) To inspect, supervise, assess the results of business activities of the companies.

2. The State- owners shall have the following obligations towards the State companies:

a) To invest adequate charter capital for the companies;

b) To abide by the companies’ charters.

c) To bear responsibility for debts and other property obligations of the companies within the limits of the companies’ charter capital;

d) To abide by law provisions on purchase, sale, borrowing, lending, renting and leasing contracts between the companies and owners;

e) To ensure business autonomy, to bear self- responsibility of the companies; not to directly intervene in business activities of the companies;

f) To perform other obligations as provided for by law.

Article 65.- Owners’ rights and obligations performed by the Government over the State companies

1. The Government shall directly exercise the rights and perform obligations of owners over the State companies as follows:

a) To approve schemes on establishment, reorganization and restructuring of State companies within the scope of entire national economy, within branches, provinces or centrally-run cities;

b) To decide on or decentralize the decision on investment projects of the State companies; to decide on or decentralize the decision on allocation of initial investment capital, supplementary investment, increase or decrease of charter capital of the State companies; to submit to the National Assembly for ratification the investment projects of the State companies, which fall under the jurisdiction of the National Assembly;

c) To uniformly organize the performance of tasks and powers of owners over the capital portions invested by the State in other companies. To decide on or decentralize the decision on projects for contribution of capital or assets of the State or State companies to joint ventures with foreign investors, the State companies’ projects on investment overseas;

d) To prescribe the financial regimes of the State companies;

e) To inspect and supervise the use of capital at the State companies;

f) To prescribe the regimes of wages, bonuses, subsidies and other interests for the Managing Board chairmen and members, the general directors or directors of the State companies;

g) To prescribe criteria for assessment of business results of the State companies, including the norms on ratio of profits to the State’s investment capital;

h) To prescribe the regime of inspection and supervision of the State companies in the performance of State-assigned objectives and tasks; to evaluate the results of business activities of the companies, managerial activities of the Managing Boards and the administration of the general directors or directors.

2. The Government shall assign and decentralize the performance of owners’ rights and obligations to the following owner- representing agencies and organizations:

a) The ministries and provincial-level People’s Committees as provided for in Article 66 of this Law;

b) The Managing Boards of the State companies as provided for in Article 30 of this Law;

c) The corporations making investment with, and dealing in, State capital as prescribed in Articles 60 and 61 of this Law.

Article 66.- Owners’ rights and obligations performed by the branch-managing ministries, provincial-level People’s Committees over the State companies

The branch-managing ministries and the provincial-level People’s Committees shall be the representatives of owners over the State companies set up under decisions of, or authorization to, the ministries or provincial-level People’s Committees, performing the owners’ rights and obligations and representing the owners as follows:

1. To elaborate schemes on reorganization of independent State companies set up under their own decisions for submission to the Prime Minister for approval; to effect the reorganization of State companies according to the schemes already approved by the Prime Minister;

2. To decide on the establishment, reorganization, dissolution, ownership conversion of the State companies; to approve contents, amendment and supplementation of the charters of the State companies. To reach agreement with the Finance Ministry on determination of the initial charter capital level, increase of charter capital of the State companies;

3. To decide on the objectives, strategies and long-term plans of the State companies having no Managing Board;

4. To decide according to competence on investment projects valued at over 50% of the total remaining asset values on the accounting books of the State companies having the Managing Boards or smaller percentages prescribed in the companies’ charters; to decide according to their competence the investment projects valued at over 30% of the total remaining asset value on the accounting books of the State companies having no Managing Board or smaller percentages prescribed in the companies’ charters; to propose the Government to approve the investment projects of the companies, which fall beyond the levels decentralized to the branch-managing ministries or provincial-level People’s Committees;

5. To decide on approval of the plans on use of capital and assets of the State companies to contribute capital to joint ventures with foreign investors; the State companies’ projects on investment overseas; the schemes on the use of capital and assets of the companies to contribute capital to, or buy shares of, domestic companies above the levels decentralized to the Managing Boards or directors of the companies having no Managing Board prescribed in the companies’ charters; approve plans on purchase of companies of other economic sectors;

6. To decide on undertakings to sell assets valued at over 50% of the total remaining asset value on the accounting books of the State companies with Managing Boards or smaller percentages prescribed in the companies’ charters; on the sale of assets valued at over 30% of the total remaining asset value on the accounting books of the State companies having no Managing Board or smaller percentages prescribed in the companies’ charters; the borrowing, lending, renting, leasing of capital or assets with value higher than the charter capital of the State companies having no Managing Board;

7. To decide on selection, appointment, dismissal, regimes of wage, allowance and other interests of the Managing Board chairmen and members; to select, sign contracts or decide on appointment, removal from duty, dismissal, wage level and other interests of directors of independent State companies having no Managing Board; to organize the evaluation of results of operation and management of the companies by the Managing Boards and directors according to the Government’s regulations;

8. To participate in inspection and supervision of the management and use of capital, the distribution of income, the deduction for establishment and use of funds of the State companies;

9. To perform other rights and obligations as assigned or decentralized by the Government.

Article 67.- Owners’ rights and obligations performed by the Finance Ministry over the State companies

The Finance Ministry shall perform a number of rights and obligations of owners and owners’ representatives over the State companies as follows:

1. To submit to the Government for promulga-tion, and organize the implementation of, the regimes of financial management, business accounting, the regimes of reporting and financial publicity of the State companies, the consolidated financial statements of the corporations;

2. To allocate investment capital from the State budget in the following cases:

a) Investment in the establishment of new State companies after the establishment schemes are approved by the Prime Minister;

b) Additional investment to increase the charter capital of the State companies at the proposals of the persons who decide on the establishment of the State companies.

3. To participate in assessment of the results of operation and management of the companies by the Managing Boards and the directors of the State companies according to the Government’s regulations.

4. To organize the inspection and supervision of the management and use of capital, the distribution of income, the deduction for establishment and use of funds of the State companies;

5. To perform other rights and obligations as decentralized by the Government.

Article 68.- Responsibilities of the ministers, heads of ministerial-level agencies, heads of Government-attached agencies, presidents of provincial-level People’s Committees

1. To fulfill all rights and obligations of the State-owners, which have been assigned or decentralized thereto.

2. To ensure the business autonomy, self-responsibility of the companies; not to interfere in affairs under the jurisdiction of the Managing Boards, the general directors, directors and managerial apparatuses of the companies.

3. To bear administrative and material liabilities for their own decisions in the performance of delegated powers and assigned tasks; to be responsible for full investment of charter capital in the companies.

4. To bear responsibility or joint responsibility according to law provisions for the following cases:

a) When the companies fail to strictly realize the development objectives, tasks, strategies and/or long-term plans as provided for;

b) Letting corruption, red tape, loss of State property happen in State-invested companies under their management;

c) The State companies’ managerial officials they have appointed cause great damage to the State companies, untruthfully report on the financial situation of the companies;

d) Re-appointing or deciding to transfer to equivalent or higher positions the Managing Board chairmen or members, the general directors, directors of State companies and/or other managerial officials they have appointed, who have violated the provisions at Points a, b, c and d, Clause 3, Article 25, Point e of Clause 5, Clauses 8 and 9 of Article 27, Points b, c and d, Clause 3, Article 32 of this Law.

5. To organize the structuring, transformation of State enterprises according to the overall schemes and plans approved by the Government.

6. To transfer the ownership rights to corporations making investment with, and dealing in, State capital according to the Government’s regulations.

Section 3. RIGHTS AND OBLIGATIONS OF OWNERS’ REPRESENTATIVES OVER THE STATE CAPITAL INVESTED IN OTHER ENTERPRISES

Article 69.- State capital invested in other enterprises

State capital invested in other enterprises means the following assorted capital invested in companies other than the subjects defined at Point a, Clause 2, Article 2 of this Law:

1. Capital in money, land use right value or land rents, value of tangible or intangible assets under the ownership of State companies, which are invested in, or contributed to, other companies by the said companies;

2. State budget capital invested in, or contributed to, other companies, assigned to State companies for management;

3. Value of the shares or capital contributed by the State to equitized State companies, one-member limited liability companies or limited liability companies with two or more members;

4. Capital borrowed by State companies for investment;

5. Dividends from capital invested in, or contributed to other companies by the State or State companies, which are used for re-investment in such companies;

6. Capital of other kinds.

Article 70.- Rights and obligations in the management of State capital invested in the entire charter capital of other enterprises

1. The ministries, the provincial-level People’s Committees, the Managing Boards of State corporations or State companies shall perform the functions, powers, obligations and responsibilities of owners over State-run one-member limited liability companies where they invest the entire charter capital according to the provisions of the Enterprise Law.

2. The owners’ functions, powers, obligations and responsibilities towards State-run limited liability companies with two or more members and State-run joint-stock companies where agencies, organizations or State companies directly invest or contribute capital shall comply with the provisions of the Enterprise Law.

3. The owners’ representatives nominated to join the Managing Boards, the Members’ Councils, to be general directors or directors of State-run one-member limited liability companies, State-run limited liability companies with two or more members and State-run joint-stock companies must satisfy the corresponding criteria and conditions prescribed in Articles 24, 31, 36 and 39 of this Law.

Article 71.- Rights and obligations of the State companies in the management of their capital invested in other enterprises

The State corporations and independent State companies shall have the following rights and obligations over their capital portions invested in other enterprises:

1. To decide on investment, capital contribution; to increase, reduce their investment capital, contributed capital according to the provisions of this Law and the charters of the companies where exists the contributed capital of State companies;

2. To designate, replace, dismiss representa-tives of the companies’ contributed capital portions according to the provisions of the charters of the companies where exists the contributed capital and the Enterprise Law; to appoint people to join the Managing Boards of joint-venture companies operating under the Law on Foreign Investment in Vietnam (hereinafter called the representatives of companies’ contributed capital portions); to decide on commendation, discipline, allowances and other relevant interests of the representatives of the companies’ contributed capital portions. The expenses for responsibility allowances, rewards and other relevant interests for representatives of the companies’ contributed capital portions shall be accounted into the business expenses or covered by the State companies’ funds. The State companies’ representatives nominated to join the Managing Boards, the Members’ Councils or to be directors of joint-stock companies where the State companies hold the dominant stock capital or contributed capital must satisfy the corresponding criteria and conditions prescribed in Articles 24, 31 and 36 of this Law;

3. To request the representatives of the companies’ contributed capital portions to regularly or irregularly report on the financial situation, the business results and other contents on the companies where exist the contributed capital of the State companies;

4. To assign tasks to and request the represen-tatives of the companies’ contributed capital portions to ask for opinions on important matters of the companies where exists contributed capital of the State companies before voting thereon; to report on the use of dominant shares or contributed capital in service of the State’s development orientations and objectives;

5. To get yields and bear risks from the contributed capital portions at companies. The recovered capital portions, including divided interests thereon, shall be used under decisions of the companies or organizations making investment with and dealing in, capital in service of the business objectives of the companies or organizations. Where the companies are reorganized, the management of their contributed capital portions shall comply with the Government’s regulations;

6. To supervise and inspect the use of contributed capital portions of the companies;

7. To bear responsibility for the efficiency of the use, preservation and development of the contributed capital portions of the companies.

Article 72.- Rights and obligations of the representatives of the State companies’ contributed capital portions in other enterprises

The representatives of the State companies’ contributed capital portions at other enterprises shall have the following rights and obligations:

1. To perform the tasks and rights of share-holders, capital-contributing members, joint-venture parties in the companies where exists the contributed capital of the State or State companies. Where State companies hold dominant shares of other companies, the representatives of contributed capital portions shall exercise the rights of dominant shares or dominant contributed capital to direct the companies where exist the dominant shares or dominant contributed capital of the State companies to achieve the objectives set by the State-owners and assigned by the State companies;

2. To stand as, or nominate candidates, to be the State companies’ representatives in the managerial or executive apparatuses of the contributed capital-receiving companies according to the charters of such companies;

3. To monitor and supervise the situation on business activities of the companies where exists the contributed capital of the State companies;

4. To observe the regime of reporting to the Managing Boards, the general directors and the directors of the State companies on the efficiency of the use of the State’s contributed capital at the companies;

In cases where they fail to observe the prescribed reporting regime, abuse the rights to be representatives of the contributed capital portions, show irresponsibility, thus causing damage to the companies and the State, they must bear responsibility therefor and pay compensations for the damage according to law provisions;

5. To ask for the opinions of the Managing Boards, the general directors or directors before joining in the voting at the shareholders’ congresses, at the meetings of the Managing Boards or the Members’ Councils of the companies where exists contributed capital portions of the State companies on the business orientations, strategies and plans, the amendments and supplements to the charters, the increase and reduction of charter capital, profit division, sale of assets of big value, which require voting by shareholders or capital-contributing members. Where many representatives of the State companies join the Managing Boards of the contributed capital-receiving companies, they must discuss together, reach unanimous opinions and ask for opinions on important issues of the companies where exists the contributed capital of the State companies before voting;

6. To bear responsibility before the Managing Boards, for companies having the Managing Boards, or the company directors, for companies having no Managing Boards, for the efficiency of the use of the State’s contributed capital at the companies