Chương 4 Luật hợp tác xã 2012: Tổ chức quản lý hợp tác xã, liên hiệp hợp tác xã

Chapter IV

ORGANIZATION OF MANAGEMENT OF COOPERATIVES AND UNIONS OF COOPERATIVES

Article 29. Organizational structure

The organizational structure of a cooperative or union of cooperatives comprises the general meeting of members, the Board of Directors, the Director (General Director), the Control Board or controller.

Article 30. General meeting of members

1. The general meeting of members has the highest power to issue decisions of the cooperative or union of cooperatives. General meetings of members include annual and extraordinary general meetings. A general meeting of members is held in the form of general meeting or general meeting of member deputies (below collectively referred to as general meeting of members). A general meeting has the powers and tasks prescribed in Article 32 of this Law.

2. Cooperatives or unions of cooperatives with 100 members or member cooperatives or more may hold general meetings of member deputies.

3. Criteria of deputies and the order and procedures for the election of deputies to participate in the general meeting of member deputies must be specified by the charter.

4. The number of deputies participating in a general meeting of member deputies must be specified by the charter but must be:

a/ At least 30% of the total number of members or member cooperatives, for cooperatives or unions of cooperatives having between 100 and 300 members or member cooperatives;

b/ At least 20% of the total number of members or member cooperatives, for the cooperatives or unions of cooperatives having between over 300 and 1,000 members or member cooperatives;

c/ At least 200 for cooperatives or unions of cooperatives having more than 1,000 members or member cooperatives.

5. Deputies attending a general meeting of members shall express opinions and aspirations of, and take responsibility for notification of the results of the general meeting to, all members or cooperative members they represent.

Article 31. Convening of general meetings of members

1. An annual general meeting of members must be held within 3 months from the end of a fiscal year and convened by the Board of Directors.

An extraordinary general meeting of members may be convened by the Board of Directors, Control Board or controller or members representing at least one-third of the total number of members or member cooperatives as specified in Clauses 2, 3 and 4 of this Article.

2. The Board of Directors may convene an extraordinary general meeting of members in the following cases:

a/ To settle matters beyond the competence of the Board of Directors;

b/ The Board of Directors is unable to hold a regular meeting after two times of convening;

c/ At the request of the Control Board or controller;

d/ At the request of at least one-third of the total number of members or member cooperatives.

Within 15 days after receiving the request of the Control Board or controller or the request of at least one-third of the total number of members or member cooperatives, the Board of Directors shall convene an extraordinary general meeting of members.

3. Past 15 days after receiving the request of the Control Board or controller or the request of at least one-third of the total number of members or member cooperatives, if the Board of Directors fails to convene an extraordinary general meeting of members or beyond 3 months from the end of the fiscal year but the Board of Directors fails to convene the annual general meeting, the Control Board or controller has the right to convene a general meeting of members.

4. Within 15 days from the date the Control Board or controller that has the right to convene an extraordinary general meeting of members fails to do this in accordance with Clause 3 of this Article, the members representing at least one-third of the total number of members or member cooperatives may convene a general meeting.

5. A general meeting of members must be chaired by the convenor, except the case the general meeting of members makes decision to select another member as a chairperson.

6. A general meeting of members may be conducted when it is attended by at least 75% of the total number of members or member cooperatives or member deputies. In case the number of attending members is insufficient, the general meeting of members must be postponed.

In case the first meeting is not eligible for organization, a second meeting must be convened within 30 days from the expected date of the first meeting. The second general meeting of members must be conducted when it is attended by at least 50% of the total number of members or member cooperatives or member deputies.

In case the second meeting is not eligible for organization, a third meeting must be convened within 20 days from the expected date of the second meeting. In this case, the general meeting of members must be conducted regardless of the number of attending members.

Article 32. Powers and tasks of general meetings of members

A general meeting of members shall decide on the following contents:

1. Adoption of a report on operation results in the year; a report on operation of the Board of Directors and the Control Board or controller.

2. Approval of financial statements and results of internal audit.

3. Plan on income distribution and handling of losses and debts; setting up and rate of fund deduction; plan on salaries and incomes for laborers for job creation cooperatives.

4. Business and production plan;

5. Investment in or sale of assets of a value equal to or greater than 50% of the total value of assets recorded in the latest financial statement.

6. Capital contribution, share purchase, establishment of businesses, joint ventures, affiliation; establishment of branches and representative offices; joining a cooperative union or representative organization of cooperatives or unions of cooperatives.

7. Increase or decrease of charter capital, minimum contributed capital; competence to decide on and methods of raising capital.

8. Valuation of assets and undivided assets;

9. The organizational structure of the cooperative or union of cooperatives;

10. A member of Board of Directors concurrently acting as the Director (General Director) or hiring the Director (General Director).

11. Election, removal from office and dismissal of the chairman of the Board of Directors, members of the Board of Directors, head of the Control Board, members of Control Board or controller; increase and decrease of the number of members of the Board of Directors and the Control Board;

12. Transfer, liquidation and handling of fixed assets;

13. Split, separation, merger, consolidation, dissolution, bankruptcy of the cooperative or union of cooperatives;

14. Amendment and supplementation of the charter;

15. Remuneration and bonuses of members of the Board of Directors or Control Board or controller; wages, salaries and bonuses of the Director (General Director), Deputy Director (Deputy General Director) and other managerial positions in accordance with the charter;

16. Termination of the status of member or member cooperative as prescribed at Point b, Clause 2, Article 16 of this Law.

17. Other contents requested by the Board of Directors, Control Board or controller, or by at least one-third of the total number of members or member cooperatives.

Article 33. Preparation for general meetings of members

1. The convenor of a general meeting of members shall make a list of members or member cooperatives or member deputies entitled to attend the meeting; prepare an agenda of the meeting, contents, documents and draft resolutions; determine the time and venue of the meeting and send invitations to members or member cooperatives or member deputies to attend the meeting. Invitations to the meeting must be sent together with the agenda and documents related to the content of the general meeting of members at least 7 days prior to the opening of the general meeting of members

2. The agenda of a general meeting of members may be changed when at least one-third of the total number of members or member cooperatives or member deputies request in writing adjustment of the same content. The request’s contents must be sent to the convenor of the meeting no later than 3 working days before the opening date. The request must specify the name of the member or member cooperative or member deputies and the contents must be included in the agenda.

3. The convenor of the general meeting of members may only decline the request specified in Clause 2 of this Article in one of the following cases:

a/ The request is not sent in due time or does not match the content of the general meeting of members;

b/ The request’s content does not fall under the deciding competence of the general meeting of members;

c/ Other cases as prescribed by the charter.

4. In case of disapproval of the request specified in Clause 2 of this Article, the convenor shall report it to the general meeting of members before deciding on the agenda of the general meeting of members.

The requests approved must be included in the tentative agenda. The agenda of a general meeting of members must be voted for by the general meeting.

Article 34. Voting in general meetings of members

1. The following contents are adopted by the general meeting of members when they are voted for by at least 75% of the total number of present deputies:

a/ Amendment and supplementation of the charter;

b/ Split, separation, merger, consolidation, dissolution or bankruptcy of the cooperative or union of cooperatives;

c/ Investment in or sale of assets with a value equal to or greater than 50% of the total value of assets recorded in the latest financial statement of the cooperative or the union of cooperatives.

2. The contents not specified in Clause 1 of this Article are adopted when they are voted for by more than 50% of the total number of deputies.

3. Each member or member cooperative or member deputy attending the general meeting of members has one vote. All votes are of equal validity, regardless of the amount of contributed capital or positions of members or member cooperatives or member deputies.

Article 35. Boards of Directors of cooperatives or unions of cooperatives

1. The Board of Directors of a cooperative or union of cooperatives is the management body of the cooperative or union of cooperatives and is established by conference or elected, removed from office or dismissed by the general meeting of members by secret ballot. The Board of Directors comprises the chairman and members; the number of members of the Board of Directors is prescribed by the charter but must be at least 3 and at most 15.

2. The term of office of the Board of Directors of a cooperative or union of cooperatives must be stipulated by the charter of the cooperative or union of cooperatives, but must be at least 2 years and at most 5 years.

3. The Board of Directors may use the seal of the cooperative or union of cooperatives to perform the powers and tasks specified in Article 36 of this Law.

4. The Board of Directors of a cooperative shall hold regular meetings in accordance with the charter at least once every 3 months; the Board of Directors of a union of cooperatives shall hold regular meetings in accordance with the charter at least once every 6 months convened by the chairman of the Board of Directors or by a member of the Board of Directors authorized by the chairman of the Board of Directors.

The Board of Directors shall hold an extraordinary meeting at the request of at least one- third of the total number of its members or of the chairman of the Board of Directors, the Control Board or controller or the Director (General Director) of the cooperative or union of cooperatives.

5. A meeting of the Board of Directors must be conducted as follows:

a/ A meeting of the Board of Directors must be conducted when it is attended by at least two-thirds of the total number of members of the Board of Directors. The Board’s decisions are adopted on the principle of majority vote, each member has one vote of equal validity;

b/ In case of convening a meeting of the Board of Directors on a regular basis but with an insufficient number of participants as prescribed, the chairman of the Board shall convene a second meeting within 15 days from the expected date of the first meeting. After two times of convening without a sufficient number of participants, the Board shall convene an extraordinary general meeting of members within 30 days from the date of the expected date of the second meeting to review the status of member of those members who have not attended the meeting and take handling measures; the chairman of the Board of Directors shall report to the coming general meeting of members to review the status of member of the Board of Directors who have not attended the meeting and decide on the handling measure;

c/ The content and conclusions of the meeting of the Board of Directors must be recorded in a minutes; the meeting minutes must be signed by the chairperson and secretary of the meeting. The chairperson and secretary are jointly responsible for the accuracy and truthfulness of the minutes. For contents that the Board of Directors can not decide, it shall submit them to the general meeting of members for decision. The members of the Board of Directors may reserve their opinions which are recorded in the minutes of the meeting.

Article 36. Powers and tasks of the Board of Directors

1. To decide on the organization of assisting divisions and units directly attached to the cooperative or union of cooperatives in accordance with the charter.

2. To implement resolutions of the general meeting of members and evaluate operation results of the cooperative or union of cooperatives.

3. To prepare and propose the general meeting of members to amend and supplement the charter; to report on operation results, business and production plan and income distribution plan of the cooperative or union of cooperatives; to report on its operation.

4. To submit to the general meeting of members for review and approval the financial statements and the management and use of funds of the cooperative or union of cooperatives.

5. To submit to the general meeting of members the remuneration and bonus levels of its members, members of the Control Board or controller; wages, salaries and bonuses of the Director (General Director) and Deputy Director (Deputy General Director).

6. To transfer, liquidate and handle working assets of the cooperative or cooperative unions according to the competence assigned by the general meeting of members.

7. To admit new members and solve the termination of the status of member specified at Point a, Clause 2, Article 16 of this Law and report them to the general meeting of members.

8. To evaluate the operation effectiveness of the Director (General Director) and Deputy Director (Deputy General Director).

9. To appoint, remove from office, dismiss, hire or terminate the hiring contract with the Director (General Director) in accordance with the resolution of the general meeting of members.

10. To appoint, remove from office, dismiss, hire or terminate the hiring contracts with the Deputy Director (Deputy General Director) and other positions at the request of the Director (General Director), unless otherwise specified by the charter.

11. To reward and discipline members or member cooperatives; to reward individuals and organizations that are not members or member cooperatives but have merits in building and developing the cooperative or union of cooperatives.

12. To notify the members or member cooperatives of the resolutions and decisions of the general meeting of members and the Board of Directors;

13. To issue regulations on the operation of the Board of Directors to implement its assigned powers and tasks.

14. To implement other rights and tasks as prescribed in the charter and resolutions of the general meeting of members, and take responsibility for their decisions before the general meeting of members and law.

Article 37. Powers and tasks of the chairperson of the Board of Directors

1. To act as the at-law representative of the cooperative or union of cooperatives.

2. To program and plan the operation of the Board of Directors and assign tasks to its members.

3. To prepare the content and agenda for, and convene and preside over the meetings of the Board of Directors and general meetings of members unless otherwise prescribed by this Law or the charter.

4. To take responsibility before the general meeting of members and the Board of Directors for the assigned tasks.

5. To sign documents of the Board of Directors as prescribed by law and the charter.

6. To implement other powers and tasks as prescribed by law and the charter.

Article 38. Directors (General Directors) of cooperatives or unions of cooperatives

1. The Director (General Director) is the executive of operations of the cooperative or union of cooperatives;

2. The Director (General Director) has the following powers and tasks:

a/ To organize the implementation of the business and production plan of the cooperative or union of cooperatives;

b/ To implement resolutions of the general meeting of members and decisions of the Board of Directors;

c/ To sign contracts in the name of the cooperative or union of cooperatives under the authorization of the chairman of the Board of Directors;

d/ To submit annual financial statements to the Board of Directors;

e/ To make plans on organization of assisting divisions and units directly attached to the cooperative or union of cooperatives and present them to the Board of Directors for decision;

f/ To recruit laborers under the Board of Directors’ decision;

g/ To implement other powers and tasks as prescribed in the charter and regulations of the cooperative or union of cooperatives.

3. In case the Director (General Director) is hired by the cooperative or union of cooperatives, in addition to implementing the powers and tasks specified in Clause 2 of this Article, he/she shall also implement the powers and tasks under the labor contract and may be invited to attend the general meetings of members and meetings of the Board of Directors.

Article 39. The Control Board or controller

1. The Control Board or controller shall operate independently, examine and supervise activities of the cooperative or union of cooperatives in accordance with law and its charter.

2. The Control Board or controller shall be elected directly by the general meeting of members among the members or representatives of member cooperatives by secret ballot. The number of members of the Control Board may be decided by the general meeting of members but must not exceed 7.

Cooperatives with 30 members or more, unions of cooperatives with 10 members or more shall elect the Control Board. For cooperatives with less than 30 members and unions of cooperatives with less than 10 member cooperatives, the establishment of the Control Board or appointment of the controller must be specified in the charter.

3. The head of the Control Board shall be elected directly among the members of the Control Board. The term of office of the Control Board or controller must match that of the Board of Directors.

4. The Control Board or controller shall take responsibility before the general meeting of members and has the following powers and tasks:

a/ To inspect and monitor activities of the cooperative or union of cooperatives as prescribed by law and the charter;

b/ To inspect the compliance with the charter, resolutions and decisions of the general meeting of members and Board of Directors and regulations of the cooperative or union of cooperatives;

c/ To monitor activities of the Board of Directors, Director (General Director), members or member cooperatives as prescribed by law, the charter, resolutions of the general meeting of members and regulations of the cooperative or union of cooperatives;

d/ To inspect the financial operation, compliance with the accounting regulation, income distribution, handling of losses, use of funds, assets and loans of the cooperative or union of cooperatives and other funds of the State;

e/ To verify reports on business and production results and annual financial statements of the Board of Directors before submission to the general meeting of members;

f/ To receive proposals related to the cooperative or union of cooperatives; settle under its/his/her competence or request the Board of Directors and the general meeting of members to settle them according to its competence;

g/ The head of the Control Board or controller may attend meetings of the Board of Directors but have no right to vote;

h/ To notify the Board of Directors and make reports before the general meeting of members on control results; to request the Board of Directors or Director (General Director) to address weaknesses and violations in the operation of the cooperative or union of cooperatives;

i/ To request supply of materials, books, documents and necessary information to serve the inspection and monitoring, but to be prohibited from using those materials and information for other purposes;

j/ To prepare agendas of and convene extraordinary meetings as prescribed in Clause 3, Article 31 of this Law;

k/ To implement other powers and tasks as prescribed by law and the charter.

5. Members of the Control Board or controller are entitled to remuneration and other necessary expenses in the course of performing their tasks.

6. The Control Board or controller may use the seal of the cooperative or union of cooperatives to perform its/his/her tasks.

Article 40. Conditions for becoming members of the Boards of Directors, Control Boards, controllers or Directors (General Director) of cooperatives or unions of cooperatives

1. A member of the Board of Directors of a cooperative must meet the following conditions:

a/ Being a member of the cooperative;

b/ Not being concurrently a member of the Control Board or controller, chief accountant or treasurer of the same cooperative and not being a blood parent, adoptive parent, spouse, child, adopted child or blood sibling of a member of the Board of Directors or Control Board or controller;

c/ Other conditions as specified by the charter of the cooperative.

2. A member of the Board of Directors of a union of cooperatives must meet the following conditions:

a/ Being a lawful representative of a member cooperative;

b/ Not being concurrently a member of the Control Board or controller, chief accountant or treasurer of the same union and not being a blood parent, adoptive parent, spouse, child, adopted child or blood sibling of a member of the Board of Directors, Control Board or controller;

c/ Other conditions as specified by the charter of the union of cooperatives.

3. The controller or a member of the Control Board of a cooperative must meet the following conditions:

a/ Being a member of the cooperative;

b/ Not being concurrently a member of the Board of Directors, Director (General Director), chief accountant or treasurer of the same cooperative and not being a blood parent, adoptive parent, spouse, child, adopted child or blood sibling of a member of the Board of Directors or the Control Board;

c/ Other conditions as specified by the charter of the cooperative.

4. The controller or a member of the Control Board of a union of cooperatives must meet the following conditions:

a/ Being a lawful representative of a member cooperative as prescribed in Clause 2, Article 13 of this Law;

b/ Not being concurrently a member of the Board of Directors, Director (General Director), chief accountant or treasurer of the same union of cooperatives and not being a blood parent, adoptive parent, spouse, child, adopted child or blood sibling of a member of the Board of Directors and another member of the Control Board;

c/ Other conditions as prescribed by the charter of the union of cooperatives.

5. The Director (General Director) must meet the following conditions as prescribed by law and the charter.

6. The following persons must not be members of the Board of Directors, members of the Control Board, controller or Director (General Director) of a cooperative or union of cooperatives.

a/ Serving a prison sentence or being banned by the court from conducting business;

b/ Having been convicted of a crime against national security, ownership or economic management and having not yet had such criminal record remitted;

c/ Other cases as prescribed by law and the charter.

Article 41. Removal from office, dismissal and termination of contracts of management titles of cooperatives or unions of cooperatives

1. A member of the Board of Directors or Control Board or the controller or the Director (General Director) may be removed from office, dismissed or have his/her contract terminated if falling in one of the following cases:

a/ Having his/her civil act capacity restricted or lost;

b/ Voluntarily resigning;

c/ Being sentenced to imprisonment or banned by a court from holding positions and practice related to cooperatives or unions of cooperatives;

d/ Other cases as prescribed by the charter or in accordance with the labor contract signed between the cooperative or union of cooperatives with the Director (General Director).

2. After being removed from office, dismissed or having his/her labor contract terminated, a member of the Board of Directors or Control Board or the controller or the Director (General Director) is still responsible for his/her decisions made during the time of holding such position.