Luật sửa đổi Luật đầu tư công, Luật đầu tư theo phương thức đối tác công tư số 03/2022/QH15

LAW

ON AMENDMENTS TO CERTAIN ARTICLES OF THE LAW ON PUBLIC INVESTMENT, THE LAW PUBLIC-PRIVATE PARTNERSHIP INVESTMENT, THE LAW ON INVESTMENT, THE LAW ON HOUSING, THE LAW ON PROCUREMENT, THE LAW ON ELECTRICITY, THE LAW ON ENTERPRISES, THE LAW ON SPECIAL EXCISE DUTIES AND THE LAW ON CIVIL JUDGMENT ENFORCEMENT

Pursuant to the Constitution of the Socialist Republic of Vietnam;

The National Assembly promulgates the Law on amendments to certain articles of the Law on Public Investment No. 39/2019/QH14, which is amended by the Law No. 64/2020/QH14 and the Law No. 72/2020/QH14; the Law on Public-Private Partnership Investment No. 64/2020/QH14; the Law on Investment No. 61/2020/QH14, which is amended by the Law No. 72/2020/QH14; the Law on Housing No. 65/2014/QH13, which is amended by the Law No. 40/2019/QH14, Law No. 61/2020/QH14, Law No. 62/2020/QH14 and the Law No. 64/2020/QH14; the Law on Bidding No. 43/2013/QH13, which is amended by the Law No. 03/2016/QH14, the Law No. 04/2017/QH14, the Law No. 40/2019/QH14 and the Law No. 64/2020/QH14; the Law on Electricity No. 28/2004/QH11, which is amended by Law No. 24/2012/QH13 and the Law No. 28/2018/QH14; the Law on Enterprises No. 59/2020/QH14; the Law on Special Excise Duties No. 27/2008/QH12, which is amended by the Law No. 70/2014/QH13, Law No. 71/2014/QH13 and the Law No. 106/2016/QH13; the Law on Civil Judgment Enforcement No. 26/2008/QH12, which is amended by the Law No. 64/2014/QH13, Law No. 23/2018/QH14 and the Law No. 67/2020/QH14.

Article 1. Amendments to certain articles of the Law on Public Investment

1. Certain points and clauses of Article 17 shall be amended as follows:

a) Points b and c clause 4 shall be amended as follows:

 “b) Public investment programs and group-A projects using ODA borrowings and preferential borrowings from foreign sponsors, except national target programs and public investment programs specified in clause 1 and 2 of this Article;

c) Public investment programs and projects using non-refundable ODA aids that fall into the following situations: Group-A public investment programs and projects; public investment programs and projects associated with regulatory policy framework; public investment programs and projects that are developed and implemented in the national defense, security and religion fields; sector-specific approach programs; procurement of goods subject to the Prime Minister’s permission; Vietnam’s participation in regional programs and projects”;

b) Point d clause 4 shall be annulled;

c) Clause 5a shall be added to clause 5 as follows:

 “5a. Ministers and Heads of central regulatory agencies shall be accorded authority to make decisions on policies for investment in group-B and group-C projects using ODA funds and other preferential borrowings from foreign sponsors, and make decisions on approval for technical assistance projects using ODA funds and other preferential borrowings from foreign sponsors to prepare the projects under their management, except for the projects mentioned in clause 4 hereof.

Provincial-level People’s Councils shall be accorded authority to make decisions on policies for investment in group-B and group-C projects using ODA funds and other preferential borrowings from foreign sponsors and make decisions on approval for technical assistance projects using ODA funds and other preferential borrowings from foreign sponsors to prepare the projects under their management, except for the projects mentioned in clause 4 hereof.

The government shall stipulate procedures for making decisions on policies for investment in projects, making decisions on approval for technical assistance projects prescribed in this clause.”.

2. Clause 8 Article 25 shall be amended as follows:

 “8. As for public investment programs or projects put under the Prime Minister’s decision-making authority as provided in point b and c of clause 4 of Article 17 herein, procedures and processes for granting investment policy decisions shall be subject to the following regulations:

a) Governing body sends the Ministry of Planning and Investment an investment policy recommendation report;

b) Ministry of Planning and Investment presides over evaluating the submitted investment policy recommendation report, funding sources and capital balancing capacity before making representations to the Prime Minister;

c) Prime Minister considers granting the investment policy decision.”.

3. Clause 4 Article 82 shall be amended as follows:

 “4. Grant decisions on policies for investment in projects as per clause 5 and clause 5a Article 17 herein and decisions on investment in projects as per clause 2 of Article 35 herein.”.

4. Clause 1 Article 83 shall be amended as follows:

 “1. Make decisions on policies for investment in public investment programs and projects as prescribed in clauses 5a, 6 and 7 of Article 17 herein.”.

Article 2. Amendment to point b clause 2 Article 12 of the Law on Public - Private Partnership Investment

Point b clause 2 Article 12 shall be amended as follows:

 “b) Having total investment equivalent to that in Group A projects in accordance with the law on public investment and using one or certain sources of funds as follows: central budget capital managed by ministries or central agencies or using ODA loans and preferential loans from foreign sponsors;

Article 3. Amendments to certain articles of the Law on Investment

1. Point g shall be amended and point g1 shall be added to point g clause 1 Article 31 as follows:

 “g) Investment projects on construction of residential housing (for sale, lease or lease purchase) and urban areas that use at least 300 hectares of land or with a population of at least 50,000 people;

g1) Investment projects regardless of the area of land used or population within the safety perimeter of relics of level I recognized by the competent authority as the national and special national relics; or within the safety perimeter of relics of level II recognized by the competent authority as the special national relics under the World Heritage List;”.

2. Point b shall be amended and point b1 shall be added to point b clause 1 Article 32 as follows:

 “b) Investment projects on construction of residential housing (for sale, lease or lease purchase) and urban areas that use less than 300 hectares of land or with a population of less than 50,000 people;

b1) Investment projects regardless of the area of land used or population within the safety perimeter of relics of level II recognized by the competent authority as the national and special national relics; except for the special national relics under the World Heritage List; investment projects regardless of the area of land used or population within a restricted development area or within an historic inner area (determined in accordance with urban area planning projects) of a special urban area;”

3. Point g shall be added to point e clause 3 Article 33 as follows:

 “g) Assessment of the suitability of the investment project with the requirements of protecting and promoting the value of cultural heritage and the conditions prescribed by the law on cultural heritage.”.

4. Point c clause 1 Article 75 shall be annulled.

5. Add the business line No. 132a to No. 132 of Appendix IV List of conditional business lines as follows:

Article 4. Amendments to clause 1 Article 23 of the Law on Housing

Clause 1 Article 23 shall be amended as follows:

 “1. Obtain legal land use right under any case specified in point a, point b of this clause and the land used for construction of commercial housing is deemed compliant with the land use planning/plan approved by the competent regulatory agency as per land law, except for the case subject to land appropriation by State for national defense and security purposes, land appropriation for socio-economic development, in the interests of the nation, public and other land appropriation cases as per the law;

a) Obtain the right to use residential land;

b) Obtain the right to use residential land and other types of land other than residential land that meet eligibility requirements for change in purpose of land use for execution of the project.

After the competent authority grants an approval for investment policy and approval for the investor as per the investment law, the investor shall apply for change in purpose of land use if so required by the project and fulfill the financial obligations as per the land law.”.

Article 5. Amendments to certain articles of the Law on Procurement

1. Article 33a shall be added to Article 33 as follows:

 “Article 33a. Procedures to be done in advance for projects using official development assistance, concessional loans

1. The preparation, submission, appraisal and approval of the plan for selection of preferred bidder, bidding documents, request for proposals, determination of short lists for procurement activities of projects using official development assistance, concessional loans shall be done before the conclusion of international treaties, international agreements on official development assistance, concessional loans.

2. The Government shall elaborate this Article.”.

2. Point c clause 1 Article 34 shall be amended as follows:

 “c) International treaties, international agreements regarding projects using official development assistance, concessional loans, except as provided in Article 33a of this Law;”.

Article 6. Amendments to certain articles of the Law on Electricity

1. Clause 2 shall be amended and clause 2a shall be added to clause 2 Article 4 as follows:

 “2. To build up and develop the electricity market on the principle of publicity, equality, fair competition with the State's regulation to raise efficiency in electricity activities; to ensure the legitimate rights and interests of electricity units and electricity-using customers; to attract all economic sectors to participate in investment in the construction of transmission power grids on the basis of ensuring national defense and security and according to the power development plan, electricity generation, electricity distribution, electricity wholesaling, electricity retailing and/or specialized electricity consultancy. 

Non-state economic sectors are allowed to operate the transmission power grid built by themselves.

2a. The State holds monopoly in the following activities: 

a) National electric system regulation;

b) Construction and operation of big power plants of particularly important socio-economic, defense or security significance;

c) Operate power grids, except for the transmission power grid built by non-state economic sectors.”.

2. Certain points shall be added to clause 1 and clause 2 Article 40 as follows:

a) Point d1 shall be added to point d clause 1 as follows:

 “d1) Connect to the transmission grid built by economic sectors when meeting technical conditions and standards;”;

b) Point h1 shall be added to point h clause 2 as follows:

 “h1) Ensuring that the organizations and individuals that build their transmission power grid may have the right of connection to that grid; in case of refusal, it shall comply with the provisions of the Minister of Industry and Trade;”.

Article 7. Amendments to certain articles of the Law on Enterprises

1. The name of article and the first paragraph of clause 1 Article 49 shall be amended as follows:

 “Article 49. Rights of members of the company

1. A member of the company has the following rights:”.

2. The name of Article 50 shall be amended as follows: <0}

 “Article 50. Obligations of members of the company”.

3. Certain points and clauses of Article 60 shall be amended as follows:

a) Point e clause 2 shall be amended as follows:

 “e) Full names and comments of participants who disagree with the ratification of the minutes (if any);”;

b) Clause 3 shall be amended as follows:

 “3. In case the chair and the minute taker refuse to sign the minutes, they will be effective if they are signed by the other members of the Board of Members and contain all information prescribed in Points a, b, c, d, dd and e Clause 2 of this Article.  The minutes shall clearly state the reasons why the chair and the minute taker refuse to sign them.  The persons who sign the minutes are jointly responsible for the accuracy and truthfulness of the minutes. The chair and minute taker shall take personal liability for the damage caused to the enterprise by refusing to sign the meeting minutes in accordance with this Law, the company's charter and relevant laws.”

4. Point d clause 1 Article 109 shall be amended as follows:

 “d) The mid-year financial statement, including the financial statement of the parent company and the consolidated financial statement (if any); these documents must be disclosed before July 31;”.

5. Clause 1 and clause 2 Article 148 shall be amended as follows:

 “1. A resolution on one of the following issues will be ratified if it is voted for by a number of shareholders that represent at least 65% (a specific ratio shall be specified in the company's charter) of votes of all attending and voting shareholders, except for the cases specified in Clauses 3, 4 and 6 of this Article:

a) Types of shares and quantity of each type;

b) Change of the company’s business lines;

c) Change of the company’s organizational structure;

d) Investment or sale of assets that are worth at least 35% of the total assets written in the latest financial statement, unless another ratio or value is specified in the company's charter; c

dd) Reorganization or dissolution of the company;

e) Other issues specified in the company's charter.

2. A resolution will be ratified when it is voted for by a number of shareholders that hold more than 50% (a specific ratio shall be specified in the company's charter) of the votes of all attending and voting shareholders, except for the cases specified in Clauses 1, 3, 4 and 6 of this Article.”.

6. Clause 2 Article 158 shall be amended as follows:

 “2. In case the chair and the minute taker refuse to sign the minutes, they will be effective if they are signed by the other members of the Board of Members and contain all information prescribed in Points a, b, c, d, dd and e Clause 1 of this Article.  The minutes shall clearly state the reasons why the chair and the minute taker refuse to sign them.  The persons who sign the minutes are jointly responsible for the accuracy and truthfulness of the minutes. The chair and minute taker shall take personal liability for the damage caused to the enterprise by refusing to sign the meeting  minutes in accordance with this Law, the company's charter and relevant laws."

7. Clause 5 Article 217 shall be amended as follows:

 “5. Pursuant to this Law, the Government shall provide for management and operation of enterprises that operates in the field of defense or both defense and business which are state-owned enterprises and limited liability companies that the state-owned enterprises specified in clause 2 Article 88 of this Law wholly hold their charter capital.”.

Article 8. Amendment to point g clause 4 section I of the Excise Tariff Schedule in Article 7 of the Law on special excise tax

Point g clause 4 section I of the Excise Tariff Schedule in Article 7 shall be amended as follows:

Article 9. Certain articles of the Law on Enforcement of Civil Judgments

1. Article 55 shall be amended as follows:

 “Article 55. Entrustment of judgment enforcement and entrustment of handling assets

1. Civil judgment enforcement agencies shall entrust the judgment enforcement in the following cases:

a) Entrust judgment enforcement to civil judgment enforcement agencies in localities where judgment debtors have their assets, work, reside or are based after completion of the handling of assets temporarily held, seized or distrained in localities related to entrusted sums of money, except for the case in point b of this clause.

In case of entrusted performance of asset-related obligations, entrust the performance to the civil judgment enforcement agency in the locality where the judgment debtor has his/her assets; if the locality where assets exist cannot be identified, the performance shall be entrusted to the civil judgment enforcement agency in the place where the judgment debtor works, resides or is based.

In case of performance of a joint obligation, if the judgment debtor has assets, works, lives or is based in different localities, entrust the whole judgment enforcement obligation to the civil judgment enforcement agency in a locality where the judgment debtor has sufficient income/asset for judgment enforcement;

b) Entrust judgment enforcement in relation to secured asset based on the judgment or decision to the civil enforcement agency in the place where the asset is located.

2. The civil enforcement agency may handle assets in their locality and also entrust the handling of assets to civil enforcement agencies in localities where the assets subject to distraint or freezing under courts’ judgments or decisions are located or handle assets which are located in different localities.".

2. Article 56 shall be amended as follows:

 “Article 56. Competence to entrust judgment enforcement and handling of assets

1. Provincial-level civil enforcement agencies may entrust the judgment enforcement and handling of assets:

a) Entrusting to provincial-level civil enforcement agencies in other localities the enforcement of judgments and decisions on re-employment of laborers or payment of compensations for damage whereby judgment debtors are provincial-level or central state agencies; judgments and rulings involving foreign elements or related to intellectual property rights; awards of commercial arbitrations; decision on handling of a competition case of Chairman of the National Competition Commission, the Council for Handling of Anti-Competition Cases, decision on handling complaint against decision on handling competitions case of Chairman of the National Competition Commission, anti-competitive complaint handling council;

b) Entrusting to military zone-level judgment enforcement agencies the enforcement of judgments and rulings under which involved parties or assets are related to the Army in their localities;

c) Entrusting to district-level civil judgment enforcement agencies the enforcement of other judgments and rulings, except the cases specified at Points a and b of this Clause.

2. District-level civil judgment enforcement agencies may entrust judgment enforcement or handling of assets of cases falling under their judgment enforcement competence to provincial-level civil judgment enforcement agencies in other localities, military zone-level judgment enforcement agencies or other district-level judgment enforcement agencies.

3. Military zone-level judgment enforcement agencies may entrust cases falling under their judgment enforcement competence to other military zone-level judgment enforcement agencies, provincial-level or district-level civil judgment enforcement agencies.”.

3. Article 57 shall be amended as follows:

 “Article 57. Procedures for entrusting judgment enforcement and handling of assets

1. Procedures for entrusting judgment enforcement:

a) Within 5 working days after the date of identification of grounds for entrustment, the head of civil judgment enforcement agency shall issue a judgment enforcement decision. In case of enforcement of a court decision on application of provisional urgent measures, the entrustment shall be made within 24 hours since the grounds for entrustment are obtained. In case the entrustment is deemed necessary after an enforcement warrant was granted, a revocation decision is required to revoke a part or the whole of the enforcement warrant.

Dossier of entrustment of judgment enforcement includes a decision on entrustment of judgment enforcement; the judgment or decision or copies thereof in case of entrustment to varied places, or under point b clause 1 Article 55 of this Law; copy of the record of distraint or lien on property and relevant documents, if any;

b) Within 5 working days after receiving the entrustment decision, the head of the entrusted civil enforcement agency shall make an enforcement warrant and communicate in writing to the entrusting civil enforcement agency. In case of enforcement of decision on application of provisional emergency measures, the enforcement warrant shall be granted immediately.

2. Procedures for entrusting handling of assets:

a) The head of civil enforcement agency makes a decision on entrustment of handling assets.

The dossier of entrustment of handling assets includes a decision on entrustment of handling assets; a copy of judgment or decision; decision on judgment enforcement and other relevant documents, if any:

b) Within 5 working days after receiving the decision on entrustment of handling assets, the head of entrusted civil enforcement agency shall make a decision on entrustment of handling assets, designate an executor to enforce the judgment and give a written notice to the entrusting civil enforcement agency.

The executor shall, based on the enforcement warrant, enforcement result performed by the entrusting civil enforcement agency and decision on entrustment of handling assets, further carry out procedures for handling assets as per this Law;

c) Within 5 working days from the date on which the asset is delivered to the highest bidder at an auction or the person who receives the asset as a deduction from the amount owed on the money judgment, the entrusted civil enforcement agency that is entrusted to handle the asset shall transfer the proceed obtained to the entrusting civil enforcement agency for making payment as prescribed in Article 47 of this Law, after deducting the cost of enforcing the judgment, and give a written notice to the entrusting civil enforcement agency;

d) The entrusting civil enforcement agency shall take full responsibility for the enforcement process, except for handling of asset performed by the entrusted civil enforcement agency.

If the value of the asset or the proceed obtained from the asset once it is auctioned off is sufficient to pay off the amount owed by the judgment debtor and relevant costs or a decision on delay or suspension of judgment enforcement is made, the entrusting civil enforcement agency shall promptly notify the entrusted civil enforcement agency in writing to suspend the handling of remaining assets. The handling of assets will proceed further if it is so notified by the entrusting civil enforcement agency.

If the amount owed on the money judgment and relevant cots are fully paid off or a decision on delay or suspension of judgment enforcement is made, the entrusting civil enforcement agency shall promptly notify the entrusted civil enforcement agency in writing to stop the handling of remaining assets, and release the distrained asset as per this Law. The entrusting civil enforcement agency shall pay for the cost of judgment enforcement before termination of handling assets to the entrusting civil enforcement agency as prescribed in clause 1 and clause 2 Article 73 hereof;

dd) The entrusted civil enforcement agency shall comply with regulations on handling assets, promptly send a written notice of asset valuation result, auction time, handling asset result to the entrusted civil enforcement agency; suspend or stop the handling asset as required by the entrusting civil enforcement agency.

3. The entrusted civil enforcement agency may not refuse to execute the decision on entrustment of judgment enforcement, handling of assets, unless the entrustment decision has any error or mistake as to contents or competence of the entrusted civil enforcement agency.".

Article 10. Entry in force

This Law comes into force as of March 1, 2022.

Article 11. Transitional provision

1. Regarding public projects of group B, group C using ODA funds and other preferential borrowings from foreign sponsors that the Prime Minister approves the investment policy before the date of entry into force of this Law and the case in clause 2 of this Article, the agency or person accorded authority to make decisions on investment policy specified in Article 1 of this Law is also accorded authority to adjust the investment policy.

2. Regarding public projects of group B, group C using ODA funds and other preferential borrowings from foreign sponsors that complete procedures for preparation, appraisal and obtain a written appraisal that forms the basis for decision on investment policy or adjustment to investment policy as prescribed in Article 25 and Article 34 of the Law on Public Investment No. 39/2019/QH14 amended by Law No. 64/2020/QH14 and Law No. 72/2020/QH14 before the date of entry into force of this Law, they will continue to seek decision from the Prime Minister as per the Law on Public Investment No. 39/2019/QH14 amended by Law No. 64/2020/QH14 and Law No. 72/2020/QH14

3. From the date of entry into force of this Law, with regard to valid applications for approval for or adjustment to investment guidelines regarding investment projects on construction of residential housing (for sale, lease or lease purchase) and urban areas subject to approval for investment guidelines of the Prime Minister as prescribed in Article 31 of the Law on Investment No. 61/2020/QH14, amended by the Law No. 72/2020/QH14, now subject to approval for investment guidelines of the People’s Committee of province as established in Article 3 of this Law, if any application mentioned above has been received but the processing result has not been received though the processing time goes beyond the time limit as prescribed in the Law on Investment No. 61/2020/QH14, amended by the Law No. 72/2020/QH14, then further comply with the Law on Investment No. 61/2020/QH14, amended by the Law No. 72/2020/QH14.

4. With regard to valid applications for approval for investment guidelines and approval for investor and adjustments to investment guidelines regarding investment projects on commercial housing in case the investor has the right to use the residential land or residential land and other types of land, if any application mentioned above has been received before the date of entry into force of this Law but it remains incompletely processed, then further comply with Article 4 of this Law and relevant laws.

5. From the date of entry into force of this Law, the judgment that remains unenforced or incompletely enforced shall comply with this Law; decisions made of or actions performed by civil enforcement agencies, executors in accordance with the Law on civil enforcement No. 26/2008/QH12, amended by the Law No. 64/2014/QH13, the Law No. 23/2018/QH14 and the Law No. 67/2020/QH14 remain valid and may proceed further.

This Law is passed by the 15th National Assembly of Socialist Republic of Vietnam, at its first irregular meeting on January 11, 2022.