Chương IV Luật Quản lý, sử dụng tài sản công 2017: Chế độ quản lý, sử dụng tài sản kết cấu hạ tầng

Chapter IV

POLICIES ON MANAGEMENT AND USE OF INFRASTRUCTURAL PROPERTY

Section 1. GENERAL PROVISIONS ON MANAGEMENT AND USE OF INFRASTRUCTURAL PROPERTY

Article 74. Management and use of infrastructural property

1. Management and use of infrastructural property invested and managed by the State shall comply with regulations of this Law and relevant law.

2. Management and use of infrastructural property including state capital of enterprises shall comply with regulations of law on management and use of state capital to invest in enterprises' business operation and relevant law.

Article 75. Authorities and organizations assigned to manage infrastructural property

1. State authorities.

2. People’s armed forces.

3. Public service providers.

4. Enterprises.

5. Other authorities and organizations as prescribed in regulations of relevant law.

Article 76. Rights and obligations of authorities and organizations assigned to manage infrastructural property

1. Authorities and organizations assigned to manage infrastructural property are entitled to:

a) Make a decision on response to protect and operate infrastructural property that is assigned to manage according to regulations of this Law and relevant law.

b) Have legitimate rights and interests protected by the State;

d) File complaints according to regulations of law;

d) Other rights as prescribed by law.

2. Authorities and organizations assigned to manage infrastructural property shall:

a) Prepare and manage documents; aggregate infrastructural property according to regulations of this Law and law on accounting;

b) Report and publish information about infrastructural property as prescribed herein;

c) Take measures for maintaining, developing and protecting infrastructural property;

d) Fulfill financial obligations in operation of infrastructural property;

dd) Transfer infrastructural property when the State makes a decision on withdrawal;

e) Other obligations as prescribed by law.

3. Rights and obligations of heads of state authorities, people’s armed forces, public service providers, enterprises and other authorities and organizations specified in Article 75 herein:

a) Ensure implementation of management, use and operation of property that the State assigns to manage;

b) Monitor and inspect management and use of distributed property;

c) Take actions against violations of management and use of infrastructural property within their power or submit such violations to competent authorities for resolutions;

d) Comply with regulations of this Law and relevant laws; ensure the use of property for the right purposes and policies and ensure cost-effectiveness;

dd) Resolve complaints within their power and take responsibilities for their explanations as prescribed in regulations of law;

e) Other rights and obligations as prescribed by law.

Article 77. Infrastructural property distributed to managing authorities and organizations

1. Existing infrastructural property that has not been distributed to managing authorities and organizations.

2. Newly built infrastructural property.

3. Withdrawn infrastructural property as prescribed in Article 88 herein.

4. Infrastructural property whose public ownership is established as specified in Section 2 Chapter VI herein.

5. Other infrastructural property as prescribed by law.

Section 2. DOCUMENTS, PREPARATION OF STATISTICS, KEEPING FINANCIAL ACCOUNTS, INVENTORY, RE-EVALUATION, MAKING REPORTS AND MAINTENANCE OF INFRASTRUCTURAL PROPERTY

Article 78. Documents, preparation of statistics, keeping financial accounts, inventory, re-evaluation and making reports on infrastructural property

1. Documents on infrastructural property shall contain:

a) Documents related to the form of infrastructural property and fluctuation;

b) Reports on infrastructural property management and use and other reports on infrastructural property;

c) Data on infrastructural property on national database on public property.

2. Infrastructural property shall be statistically and financially accounted and inventoried in accordance with regulations of law on accounting, law on statistics and relevant laws. Authorities and organizations assigned to manage infrastructural property shall make reports on management and use of property as prescribed herein.

3. Infrastructural property is a fixed asset and shall be depreciated according to regulations of law.

4. Re-evaluation of infrastructural property value shall be carried out in the following cases:

a) Compiling an inventory, re-evaluating the property according to a competent authority’s decision;

b) Upgrading or extending the property according to a project approved by a competent authority;

c) Distributing, compiling an inventory or transferring property which has not been aggregated on accounts;

d) Selling or liquidating property;

dd) Property that is extremely damaged due to natural disasters, fire or other causes;

e) Other cases as prescribed by law.

5. Re-evaluation of infrastructural property value shall comply with regulations of this Law, law on accounting and relevant law.

Article 79. Maintenance of infrastructural property

1. Infrastructural property shall be maintained according to criteria, norms and technical maintenance procedures in order to maintain technical conditions of infrastructural property and ensure normal operation and safety when using infrastructural property.

2. Forms of infrastructural property maintenance shall comply with regulations of relevant law.

3. Every year, authorities and organizations that are assigned to manage infrastructural property shall publish information about the list of infrastructural property and maintenance plans thereof within their scope of management.

4. Organizations and individuals having demand and capacity shall register to participate in infrastructural property maintenance. Selection of entities to maintain infrastructural property shall comply with regulations of law on bidding, unless the State places an order, assigns plans or the maintenance to construction contractors.

5. Entities receiving transfer of the right to collect charges, leasing the right to use or receiving fixed-term transfer of infrastructural property shall maintain infrastructural property in accordance with regulations of law and terms of relevant agreements.

6. Funding for infrastructural property maintenance including funding from state budget shall comply with regulations of law on state budget and other funding prescribed by law.

Section 3. OPERATION OF INFRASTRUCTURAL PROPERTY

Article 80. Forms of operation of infrastructural property

1. Operation of infrastructural property shall be carried out in the following forms:

a) Operation of infrastructural property by the managing entity;

b) Transferring the right to collect infrastructural property user charges;

c) Leasing out the right to operate infrastructural property;

d) Fixed-term transferring of the right to operate infrastructural property;

dd) Other forms as prescribed by law.

2. Based on socio-economic development requirements, management requirements, the capability to exploit infrastructural property and forms specified in Clause 1 this Article, authorities or organizations assigned to manage infrastructural property shall actively make or make a plan for property operation at the request of a superior managing authority and submit it to a competent authority for approval.

3. Based on a plan that has been approved by a competent authority, authorities or organizations assigned to manage infrastructural property shall comply with regulations of Articles 81, 82, 83 and 84 herein.

4. Operation of infrastructural property carried out in the forms specified in Points b, c, d and dd Clause 1 this Article shall be made in a written agreements. In cases where the basis for determination of such agreement value fluctuates widely according to the Government's regulations, the parties to this agreement shall adjust it.

After the term of operation expires according to the agreement, entities receiving the transfer of the right to collect charges or leasing the right to exploit or receiving the fixed-term transfer of the right to exploit infrastructural property shall transfer the property to assigned authorities or organizations in order to ensure the normal technical operation conditions of the property in line with requirements of the agreement.

Article 81. Operation of infrastructural property carried out by authorities and organizations assigned to manage infrastructural property

1. Authorities and organizations assigned to manage infrastructural property are entitled to directly operate the property if:

a) Infrastructural property is related to national security as prescribed in the Prime Minister’s decision at the request of a contact point responsible for the management of infrastructural property and another relevant authority;

b) The direct operation of the property is more effective or there is no organization or individual registering to apply to the forms specified in Points b, c, d and dd Clause 1 Article 80 herein.

2. Authorities and organizations assigned to manage infrastructural property shall provide services related to infrastructural property and support services and organize operations management of infrastructural property.

3. Revenue earned from operation of infrastructural property shall include: fees and charges as prescribed in regulations of law on fees and charges; the proceeds earned from collecting infrastructural property user charges when and other revenue relevant to provision of services as prescribed in regulations of law.

Article 82. Transfer of the right to collect infrastructural property user charges

1. Transfer of the right to collect infrastructural property user charges shall be made when the State authorizes the right to collect infrastructural property user charges to organizations and individuals within the fixed term as stated in an agreement to receive a corresponding amount of money.

Organizations and individuals receiving transfer shall be entitled to collect infrastructural property user charges and other revenue related to provision of services as regulated by law.

2. Transfer of the right to collect infrastructural property user charges shall apply to the infrastructural property that is charged according to regulations of law on fees and charges and not subject to existing infrastructural property whose investment project on upgrading or expanding approved by a competent state authority as specified in Clause 2 Article 84 herein.

3. Transfer of the right to collect infrastructural property user charges shall comply with regulations of law on property auction.

4. Term for transfer of the right to collect infrastructural property user charges shall be determined in particular for each agreement.

Article 83. Lease of the right to operate infrastructural property

1. Lease of the right to operate infrastructural property shall be carried out when the State authorizes the right to operate infrastructural property to organizations and individuals within the fixed term as stated in an agreement to receive a corresponding amount of money.

Organizations and individuals leasing transfer to operate the property shall be entitled to collect infrastructural property user charges and other revenue related to provision of services as regulated by law.

2. Lease of the right to operate infrastructural property shall apply to the existing property and not subject to the property specified in Clause 2 Article 82 and Clause 2 Article 84 herein.

3. Lease of the right to operate infrastructural property shall comply with regulations of law on property auction.

4. Term for lease of the right to operate infrastructural property shall be determined in particular for each agreement.

Article 84. Fixed-term transfer of the right to operate infrastructural property

1. Fixed-term transfer of the right to operate infrastructural property shall be carried out when the State authorizes the right to operate infrastructural property in line with investment in upgrading or expanding to organizations and individuals within the fixed term as stated in an agreement to receive a corresponding amount of money.

Organizations and individuals receiving transfer shall be entitled to invest in upgrading and expanding the property according to a project approved by a competent authority; collect fees, infrastructural property user charges and other revenue related to provision of services as regulated by law.

2. Fixed-term transfer of the right to operate infrastructural property shall apply to the existing infrastructural property whose project on upgrading or expanding is approved by a competent state authority.

3. Fixed-termed transfer of the right to operate infrastructural property shall comply with regulations of law on property auction.

4. Term for transfer of the right to operate infrastructural property shall be determined in particular for each agreement.

Article 85. Management and use of revenue earned from operation of infrastructural property

1. Revenue earned from operation of infrastructural property shall include fees and charges that are managed and used according to regulations of law on fees and charges.

2. The revenue earned from operation of infrastructural property that is not specified in Clause 1 this Article shall be managed and used as follows:

a) The revenue earned from operation of property shall be transferred to a temporary account at a state treasury after deducting costs related to operation of property, the remainder shall be transferred to the state budget if the authority assigned to manage the property is a state authority;

b) The revenue earned from operation of property carried out in the forms specified in Article 81 herein shall be managed and used in accordance with provisions of Clause 5 Article 55 herein; the revenue earned from operation of property carried out in the forms specified in Articles 82, 83 and 84 herein shall be managed and used in line with provisions of Point a this Clause if the authority assigned to managed the property is a public service provider;

c) The revenue earned from operation of property shall be managed and used according to provisions of Point d Clause 1 Article 99 herein if the organization assigned to manage the property is an enterprise.

3. The revenue earned from operation of infrastructural property after transferred to the state budget shall be given priority to allocate capital in plans for public investment and priority to allocate fixed funding provided by the state budget to invest in construction of infrastructure.

Article 86. Use of land pertaining to infrastructure

1. Forms of land use, policies on land use, rights and obligations of users whose land pertains to infrastructure according to regulations of law on land.

2. Contents subject to management of contact points responsible for the management of infrastructural property, finance authorities and other relevant authorities shall be made in writing in the cases where a competent state authority decides to withdraw the land, convert purposes of land use or convert utility of using infrastructural property pertaining to the land.

Section 4. DISPOSAL OF INFRASTRUCTURAL PROPERTY

Article 87. Forms to dispose of infrastructural property

1. Withdrawal.

2. Transfer.

3. Sale.

4. Using infrastructural property to make payments to investors when executing construction projects in the form of build-transfer contracts.

5. Liquidation.

6. Disposal of infrastructural property if it is lost or damaged.

7. Other forms as prescribed by law.

Article 88. Withdrawal of infrastructural property

1. Infrastructural property shall be withdrawn if:

a) There is a change in planning or power to manage infrastructural property;

b) The property is distributed to improper authorities or organizations, used for the improper purposes; or the property is for lending;

c) The property is sold, leased, given, mortgaged; the property is used for capital contribution or for joint venture purposes illegally;

d) The property is distributed but no longer used or its operation is not effective;

dd) Other cases as prescribed by law.

2. Authorities assigned to manage public property specified in Clauses 1, 2 and 3 Article 19 herein shall:

a) Receive withdrawn property according to a competent authority's decision; carry out or authorize a state authority having property withdrawn to carry out storage, protection, maintenance or repair of property pending the disposal of the property;

b) Make plans to dispose of or operate withdrawn property to submit them to a competent authority for approval; dispose of or operate property according to plans approved by a competent authority.

3. Withdrawn infrastructural property shall be:

a) Distributed to authorities or organizations specified in Article 75 herein;

b) Transferred as specified in Article 89 herein;

b) Put on the market as specified in Article 90 herein.

4. Where the withdrawn infrastructural property is distributed to an entity to operate according to regulations of Points b, c, d and dd Clause 1 Article 80 herein, rights and obligations of relevant parties shall be handled in accordance with the agreement terms and regulations of relevant law.

Article 89. Transfer of infrastructural property

1. Infrastructural property shall be transferred among authorities and organizations assigned to manage infrastructural property if:

a) There is a change in managing authorities or power to manage infrastructural property;

b) The property is distributed but no longer used or its operation is not effective;

c) Other cases prescribed by law.

2. Authorities and organizations having property transferred shall undertake and cooperate with authorities or organizations eligible for receiving property in property transfer and receipt. Authorities or organizations eligible for receiving property shall make payments for reasonable costs related to property transfer and receipt. There shall be no payment for value of property when the infrastructural property is transferred.

Article 90. Sale of infrastructural property

1. Infrastructural property shall be put on the market in the following cases:

a) Withdrawal of property as specified in Article 88 herein;

b) Converting purposes of land use associated with converting utility of infrastructural property in line with the planning approved by a competent authority;

c) Other cases prescribed by law.

2. Sale of infrastructural property shall comply with regulations of law on property auction.

3. Authorities assigned to manage public property specified in Clauses 1, 2 and 3 Article 19 herein or authorities having property for sale shall make the sale of property in accordance with regulations of law.

Article 91. Use of infrastructural property to make payments to investors when executing construction projects in the form of build-transfer contracts

Use of infrastructural property to make payments to investors when executing construction projects in the form of build-transfer contracts shall comply with provisions of Article 44 herein.

Article 92. Liquidation of infrastructural property

1. Infrastructural property shall be liquidated if:

a) Infrastructural property is damaged that fails to be repaired;

b) Old infrastructural property is demolished to invest in construction of the new one according to a project approved by a competent authority;

c) A competent state authority revises the planning that makes partial or entire infrastructural property unable to use in line with utility of the property;

d) Other cases as prescribed by law.

2. Infrastructural property shall be liquidated in the form of demolition or destruction. Materials withdrawn from such demolition or destruction shall be:

a) Distributed to an authority having liquidated property to continue managing or using it;

b) Transferred;

c) Put on the market.

3. Based on a competent authority’s decision, an authority having property liquidated shall:

a) Demolish or destroy the property according to regulations of law;

b) Make plans and report them to a competent authority to make a decision on disposal of withdrawn materials carried out in the forms specified in Clause 2 this Article;

c) Transfer or sell withdrawn materials according to provisions of Article 89 and Article 90 herein.

Article 93. What to do with lost and damaged infrastructural property

1. If public property is lost or damaged due to natural resources, fire or other causes, a state authority assigned to manage infrastructural property shall:

a) Report on lost or damaged property and responsibilities of relevant entities to a competent authority;

b) Make property write-offs and handle the liability of relevant entities according to a competent authority’s decision.

2. If the lost or damaged infrastructural property is compensated by an insurance company or a relevant entity, the compensation shall be used to invest in reconstruction of the infrastructure according to regulations of this Law and relevant law.

Article 94. Management and use of proceeds earned from disposal of infrastructural property

1. The proceeds earned from disposal of public property shall be transferred to temporary accounts at a state treasury after deducting expenses related to the disposal of the property; the remainder shall be transferred to the state budget.

2. Costs related to disposal of infrastructural property shall be estimated and approved by a competent state authority. Costs related to disposal of the property shall consist of:

a) Cost of inventory or measurement;

b) Cost of relocation, demolition or destruction;

c) Cost of evaluation of property;

d) Cost of selling property;

dd) Other reasonable costs.

Section 5. MANAGEMENT AND USE OF INFRASTRUCTURAL PROPERTY THAT IS INVESTED IN THE FORM OF PUBLIC-PRIVATE PARTNERSHIPS

Article 95. Construction investment, management and operation of infrastructural property carried out in the form of public-private partnerships

1. Investment in construction of infrastructural property in the form of public-private partnerships shall comply with regulations of law on investment, law on construction, law on bidding and relevant law. The State encourages organizations and individuals participating in construction investment and operation of infrastructural property.

2. Existing infrastructural property used to participate in a project shall be approved by a competent authority.

3. Authorities assigned to manage infrastructural property shall follow and make a report on proportion of the infrastructural property used to participate in a project while appointing an investor to execute the project.

4. Investors are entitled to manage, use and operate the proportion of their own property within the agreed term of contracts to withdraw the payback. Investors shall maintain the property within the term of contracts to ensure normal operation of the infrastructural property. If the basis for determining the value of contracts fluctuates widely according to the Government’s regulations, parties to such contracts shall adjust them.

5. Infrastructural property invested in the form of public-private partnerships shall be audited as soon as an investor operates and conducts periodic inspection in the process of investment and operation.

Article 96. Transfer of property formed from projects executed in the form of public-private partnerships to the State

1. Investors shall transfer the ownership, the right to use and operate the property formed from the execution of projects to the State in line with project contracts; ensure technical requirements for normal operation of construction works and compliance with terms of contracts.

2. Competent state authorities shall inspect quality and conditions of the property as agreed in project contracts, make a list on transferred property, determine the damage (if any) and ask investors for repairing and maintaining the property.

Investors shall ensure that the transferred property is not used for fulfillment of financial obligations or other obligations of investors arising prior to the date of transfer, unless otherwise stated in project contracts.

3. Disposal of transferred property:

a) If the property is transferred by the State to an investor, a competent state authority shall report to a competent authority to distribute the property to a managing authority in accordance with provisions herein;

b) If the property is invested by the investor, the competent state authority shall follow procedures for establishment of public property according to provisions of Section 2 Chapter VI herein.

The competent state authority shall manage and operate the property within its functions and power when the property has not been transferred to the managing authority;

c) Where the property is transferred according to the term of the contract but then the investor is eligible to trade or provide services on the basis of operation and operation of such property within a certain period of time as stated in the contract, management and operation of the property shall comply with regulations of Clauses 3, 4 and 5 Article 95 herein.