Nghị định 10/2019/NĐ-CP về thực hiện quyền, trách nhiệm của cơ quan đại diện chủ sở hữu nhà nước

GOVERNMENT -------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 10/2019/ND-CP	Hanoi, January 30, 2019

 

DECREE

IMPLEMENTING RIGHTS AND RESPONSIBILITIES OF STATE OWNER’S REPRESENTATIVES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Management and Use of State Capital Invested in Business Activities of Enterprises dated November 26, 2014;

Pursuant to the Law on Enterprises dated November 26, 2014;

Upon the request of the Minister of Planning and Investment,

The Government hereby promulgates the Decree on implementation of rights and responsibilities of state owner’s representatives.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides for the implementation of rights and responsibilities of state owner’s representatives in accordance with the Law on Management and Use of State Capital Invested in Business Activities of Enterprises.

Article 2. Subjects of application

1. Representatives of state owners at wholly state-owned enterprises and of state capital participation portions at joint-stock companies and multiple-member limited liability companies.

2. Wholly state-owned enterprises

3. Other entities, organizations and individuals involved in the investment, management and utilization of state capital at enterprises.

Article 3. State owner’s representatives

1. The Government shall implement uniform rights and responsibilities of the state owner’s representative for investment of state capital in enterprises and management of state capital at enterprises under the provisions of the Law on management and use of state capital invested in business activities of enterprises and other relevant laws.

2. The Prime Minister shall carry out rights and responsibilities of the state owner’s representative under the provisions of the Law on management and use of state capital invested in business activities of enterprises and other relevant laws.

3. The owner’s representative agency shall implement rights and responsibilities as a state owner’s representative to enterprises that the representative decides to establish or is authorized to manage, and shall implement rights and responsibilities as a state owner's representative for state capital contribution portions at joint-stock companies and multiple-member limited liability companies in accordance with the Law on management and use of state capital invested in business activities of enterprises and other relevant laws.

4. The owner’s representative shall directly carry out rights and responsibilities of the state owner’s representative at enterprises under the provisions of the Law on management and use of state capital invested in business activities of enterprises and other relevant laws.

Article 4. Owner’s representative agency

1. The Committee for management of state capital at enterprises shall be the agency representing the owners of wholly state-owned enterprises and the state capital invested in enterprises in accordance with the Government’s regulations.

2. Ministries, Ministry-level agencies, Governmental bodies (hereinafter referred to as ministry), People’s Committees of provinces and centrally-affiliated cities (hereinafter referred to as provincial People’s Committee) shall be the agency for owner’s representative to the followings:

a) Wholly state-owned enterprises and state capital contribution portions invested in enterprises that are established under the decisions issued, or of which management is authorized, by ministries or provincial People's Committees, and that are not transferred to the Committee for management of state capital at enterprises and the State Capital Investment Corporation in accordance with laws;

b) Wholly state-owned enterprises and state capital contribution portions invested in enterprises that are transferred to the Committee for management of state capital at enterprises and the State Capital Investment Corporation during the period of pending transfer.

3. The State Capital Investment Corporation shall exercise the right of representation for the state owner at enterprises that are transferred from ministries or provincial People’s Committees in accordance with laws.

Chapter II

IMPLEMENTATION OF RIGHTS AND RESPONSIBILITIES OF STATE OWNER’S REPRESENTATIVES

Section 1. IMPLEMENTATION OF RIGHTS AND RESPONSIBILITIES OF THE GOVERNMENT AND PRIME MINISTER

Article 5. Implementation of rights and responsibilities of the Government

Rights and responsibilities of the Government prescribed under the provisions of the Law on management and use of state capital invested in business activities of enterprises shall be implemented as follows:

1. The Committee for management of state capital at enterprises shall have the right to request competent regulatory authorities to appeal to the Government to: Promulgate, amend and supplement the statutes of wholly state-owned enterprises that are established under the Prime Minister’s decisions and of which management is authorized to the Committee in accordance with the Government’s regulations; promulgate, amend and supplement financial management regulations of the Vietnam National Oil and Gas Group, and the Vietnam Electricity Corporation.

2. The Ministry of National Defense shall appeal to the Government to promulgate, amend and supplement the salary management statutes and regulations of the Parent Company – Military Industry and Telecommunications Corporation.

3. The Ministry of Finance:

a) Appeal to the Government to promulgate: Regulations on transformation of wholly state-owned enterprises into joint-stock companies; regulations on financial administration of wholly state-owned enterprises; regulations on criteria for assessment of business performance and efficiency of wholly state-owned enterprises; regulations on supervision and inspection of investment, management and use of state capital at enterprises;

b) Prepare the report on investment, management and use of state capital at enterprises nationwide for submission to the Government so that the Government may review it, and present it in the year-end meeting of the National Assembly under its authority delegated by the Government.

4. Ministry of Home Affairs shall appeal to the Government to promulgate regulations on recruitment, appointment, re-appointment, dismissal, grant of awards to, and imposition of disciplinary actions on, managers and comptrollers of wholly state-owned enterprises, and the representatives for state capital contribution portions.

5. The Ministry of Labor, War Invalids and Social Affairs shall appeal to the Government to: Promulgate regulations on the compensation, remuneration and bonus package and other benefits granted to managers and comptrollers of wholly state-owned enterprises, and the representatives for state capital contribution portions; regulations on policies for recruitment, compensation, reward package and other benefits of employees working for wholly state-owned enterprises as provided in laws on labor.

6. Ministry of Planning and Investment shall appeal to the Government to: Promulgate regulations on disclosure of information about business operations of wholly state-owned enterprises; regulations on rules for performing tasks of comptrollers of wholly state-owned enterprises; regulations on incorporation, consolidation, acquisition, splitting, dissolution and total sale of enterprises and transformation of wholly state-owned enterprises into multiple-member limited liability companies.

Article 6. Implementation of rights and responsibilities of the Prime Minister

The Prime Minister shall carry out rights and responsibilities of the state owner’s representative under the provisions of the Law on management and use of state capital invested in business activities of enterprises as follows:

1. Investing state capital in establishment of wholly state-owned enterprises under the following delegated powers:

a) The owner’s representative agency shall prepare application documentation for establishment of enterprises and submit it to the Prime Minister. The application documentation shall enclose the proposal for establishment of an enterprise under the provisions of the Law on management and use of state capital invested in business activities of enterprises and other relevant documents prescribed in applicable provisions of laws.

b) The Prime Minister shall issue the Decision on establishment of an enterprise after receipt of assessment opinions from the Ministry of Planning and Investment and opinions from the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, and other sectoral ministries involved, about the proposal for establishment of an enterprise submitted by the owner's representative agency.

c) The Prime Minister shall appoint the Chair of the Board of Members upon the request of the owner's representative agency and assessment conducted by the Ministry of Home Affairs.

2. Making the decision on the following issues related to wholly state-owned enterprises established under the Prime Minister’s decision:

a) Decide reorganization and transfer of ownership and rearrangement of enterprises according to the request of the owner's representative agency and opinions of the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, and sectoral ministries involved.

b) Decide the charter capital of an enterprise upon its establishment as provided in clause 1 of this Article; decide to approve the adjustment to the charter capital of an enterprise during its business period according to the owner’s representative agency and consenting opinions given in writing by the Ministry of Finance under the Government’s regulations on investment of state capital in enterprises, management and use of capital and assets at enterprises.

c) Approve the business strategy and plan, and the 5-year investment and development plan of each enterprise (including the business strategy, plan and 5-year investment and development plan) according to the request of the owner’s representative agency and opinions of the Ministry of Finance or relevant sectoral ministries and assessment opinions of the Ministry of Planning and Investment.

d) Decide personnel planning, appointment, re-appointment, acceptance of resignation, dismissal, secondment, rotation, grant of awards to, imposition of disciplinary sanctions on, sacking and retirement of the Chair or the Board of Members according to the request of the owner’s representative agency and assessment opinions of the Ministry of Home Affairs. The Prime Minister shall appoint the Chair of the Board of Members after receipt of consenting opinions from the collective of the Party’s Committee for Civil Affairs of the Government in accordance with the enterprise’s statutes.

The State Capital Management Committee operating at each enterprise shall preside over and cooperate with the Ministry of Home Affairs to appeal to the Prime Minister to appoint the General Director of the State Capital Investment Corporation after receipt of consenting opinions from the collective of the Government’s Party Civil Affairs Committee.

dd) Make the decision on appointment, re-appointment, dismissal, resignation, secondment, rotation, grant of awards to, impose disciplinary actions on and retirement of the Chair of the Parent Company – Military Industry and Telecommunications Corporation according to the request of the Ministry of National Defence and opinions of the Ministry of Home Affairs. The Prime Minister shall appoint the Chair of the Parent Company – Military Industry and Telecommunications Corporation after receipt of unanimous opinions from the collective of the Government's Party Civil Affairs Committee.

3. Approve the proposal for the general organization and reform of enterprises that are established by the owner’s representative agencies or of which management is authorized on the basis of the request of these representative agencies and opinions of the Ministry of Finance, the Ministry of Planning and Investment, the Ministry of Home Affairs, the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Justice and other relevant sectoral ministries.

Authority to grant the decision on restructuring of credit institutions going into special administration shall be subject to provisions of the Law on Credit Institutions.

4. Make a decision on the policies for transfer of state capital invested at enterprises amongst the owner's representative agencies and between owner's representative agencies and enterprises specialized in state capital investment and business in accordance with laws on transfer of the right to represent the owner of state capital invested at enterprises in accordance with laws.

5. Implement other rights and responsibilities of the state owner’s representatives as regulated by laws and assigned by the Government, and in accordance with this Decree.

Section 2. IMPLEMENTATION OF RIGHTS AND RESPONSIBILITIES OF OWNER’S REPRESENTATIVE AGENCIES

Article 7. Rights and responsibilities of the owner’s representative agencies for establishment of wholly state-owned enterprises

1. Based on the scope of state capital investment and requirements for establishment of wholly state-owned enterprises under the law on management and use of state capital invested in business activities of enterprises, the owner’s representative agency shall prepare application documentation for establishment of enterprises, enclosing the proposal for establishment of enterprises under the provisions of the Law on management and use of state capital invested in business activities of enterprises and other relevant documents prescribed by laws.

2. After receipt of the Prime Minister’s approval of the proposal for establishment of enterprises, the owner’s representative agencies shall implement the following rights and responsibilities:

a) Make the decision on establishment of enterprises, except for cases under the decision-making authority of the Prime Minister.

b) Submit the request documentation to same-level financial institutions for assessment for investment of capital and disbursement of funds to enterprises.

c) Promulgate the charter, appoint the Chair and members of the Board of Members, and the Chair of the enterprise, except for cases under the authority of the Government and the Prime Minister.

3. Procedures and processes for implementation of rights and responsibilities specified in clause 1 and clause 2 in this Article shall be subject to the Government’s regulations on investment of state capital in enterprises, management and use of state capital and property at enterprises, and establishment of wholly state-owned enterprises.

Article 8. Rights and responsibilities of the owner’s representative agencies for reorganization, transfer of ownership, dissolution, insolvency and disposition of wholly state-owned enterprises

1. The owner’s representative agencies shall cooperate with relevant agencies in formulating and appealing to the Prime Minister to approve the general proposal for reorganization and reform of enterprises established under their decision or of which management is authorized, based on legislative regulations on management and use of state capital invested in business activities of enterprises, and criteria for classification of state enterprises and state-invested enterprises, which are decided by the Prime Minister over periods of time.

2. The proposal stated in clause 1 of this Article must define forms of arrangement, reform and reorganization, transfer of ownership and dissolution of each enterprise which is established under the owner’s representative agency or of which management is authorized, and implementation schedule.

3. Regarding the splitting, division, consolidation and acquisition of enterprises based on the general proposal for arrangement and reform of enterprises which has already been approved by the Prime Minister:

a) The owner’s representative agency shall make the decision on splitting, division, consolidation and acquisition of enterprises, except cases referred to in point b, point c and point d of clause 3 in this Article.

b) As for the acquisition of enterprises belonging to different owner's representative agencies, the representative agency of the owner of the acquirer enterprise shall issue the decision on corporate acquisition after receipt of the consenting opinion from the representative agency of the owner of the acquired enterprise.

c) Authority to decide acquisition of enterprises under the control of different owner’s representative agencies shall be subject to the Government’s instructions.

d) The owner’s representative agency shall appeal to the Prime Minister to decide the splitting, division, consolidation and acquisition of enterprises established under the Prime Minister’s decision.

dd) Application and documentation requirements, procedures and processes for the splitting, division, consolidation and acquisition of enterprises shall be subject to legislative regulations on enterprises and instructional regulations of the Government.

4. Regarding transformation of wholly state-owned enterprises into joint-stock enterprises:

Procedures, processes for and authority over grant of the decision on transformation of enterprises into joint-stock enterprises shall be subject to regulations of the Government on transformation of state enterprises and single-member limited liability enterprises whose charter capital is wholly owned by the State into joint-stock companies.

5. Regarding transformation of enterprises into multiple-member limited liability companies:

Based on application and documentation requirements, methods, procedures and processes for transformation of enterprises into multiple-member limited liability companies as provided in the Law on Enterprises, the Law on management and use of state capital invested in business activities of enterprises and instructional regulations of the Government, the owner's representative agency shall implement the following rights and responsibilities:

a) Appeal to the Prime Minister to make the decision on transformation of enterprises established under the Prime Minister’s decision.

b) Make the decision on transformation of enterprises, except cases specified in point a of this clause.

c) Make the decision on selection of valuation consulting and auctioning service providers; approve the results of determination of corporate value.

d) Approve the plan for corporate transformation or appeal to the Prime Minister to seek his approval of the plan for transformation of enterprises established under the Prime Minister’s decision.

dd) Cooperate with related bodies in approving the final financial accounts and the final accounts of corporate transformation expenses and the final accounts of funds for employee severance package and the final accounts of revenues generated from the corporate transformation.

e) Assign the representative for the state capital contribution portion in a transformed enterprise; deal with difficulties, complaints or denunciations related to corporate transformation under its authority and in accordance with applicable laws.

g) Instruct, inspect and supervise the process for corporate transformation in accordance with laws.

6. Regarding sale of an enterprise:

a) The owner’s representative agency shall decide to approve the plan for sale and the selling price of an enterprise, except for the cases stated in point b of this clause.

b) The owner’s representative agency shall appeal to the Prime Minister to approve the plan for sale and the selling price of an enterprise that the Prime Minister has decided to establish.

c) The owner’s representative agency or the authorized person shall sign the contract for sale of the enterprise with the buyer according to the plan for sale and the selling price of the enterprise which has been approved in point a and point b of this clause.

d) Requirements, procedures and processes for sale of an enterprise shall subject to the instructional regulations of the Government on sale of wholly state-owned enterprises.

7. Dissolution of an enterprise:

a) The owner’s representative agency shall make the decision on corporate dissolution upon the request of the competent authority requesting corporate dissolution in accordance with laws, except the cases specified in point b of this clause.

b) The owner’s representative agency shall appeal to the Prime Minister to grant his decision on dissolution of the enterprise that the Prime Minister has decided to establish.

c) The enterprise to be dissolved shall be determined according to the general proposal for arrangement and reform of enterprises which has already been approved by the Prime Minister. In case where the corporate dissolution has not been yet regulated in the general proposal for arrangement and reform of state enterprises, the entity granting the decision on establishment of state enterprises shall have to appeal to the Prime Minister to consider granting a decision on such dissolution.

d) Requirements, procedures and processes for corporate dissolution in accordance with laws.

8. Insolvency of an enterprise:

The owner’s representative agency shall submit the application for initiation of corporate insolvency procedures in accordance with laws.

9. Transfer of the right to represent the owner:

The owner’s representative agency shall carry out the transfer of state capital at an enterprise to another owner’s representative agency in accordance with the Government’s regulations.

10. In case where regulations in this Article are contrary to provisions of laws on banking operations applied to the reorganization and transfer of ownership, dissolution, insolvency and transfer of wholly state-owned enterprises which are credit institutions, the latter shall prevail.

Article 9. Rights and responsibilities of the owner’s representative agency regarding the charter, strategy and plan of a wholly state-owned enterprise

1. The owner's representative agency shall adopt the charter and the revised or amended one of the enterprise upon the request of the Board of Members and the enterprise’s Chairman, except the cases in which the authority to adopt the charter is delegated to the Government.

2. The owner’s representative agency shall approve that charter so that the Board of Members and the enterprise’s Chairman can decide the 5-year plan (including the business strategy and plan and 5-year investment and development plan) and the annual business plan of the enterprise, except the cases in which the authority to grant approval is delegated to the Prime Minister.

3. The decision on approval of plans specified in clause 2 of this Article must contain the following main information:

a) Planned objectives and tasks;

b) Indices measuring revenues, profits, payments to the state budget and other plan-related indices.

c) Plan implementation solutions;

d) Assignment of tasks of implementation, supervision and assessment of results of implementation of these plans.

dd) Others.

4. Regarding the supervision and inspection of the implementation of the approved plan:

a) The owner’s representative agency shall have to carry out the supervision and inspection of implementation of plans stated in clause 2 of this Article and the assessment of results of implementation of these plans.

b) The owner’s representative agency shall instruct and encourage an enterprise to prepare and submit the mid-term and final assessment report on implementation of plans to serve the purposes of supervision and inspection, including the following main information:

- Latest updates on implementation of assigned objectives, tasks and targets in the plan;

- Latest updates on implementation of solutions specified in the plan;

- Restrictions and causes of failure or unsuccessful implementation of the plan (if any);

- Subsequent solutions to accomplishing objectives in the plan of the following period.

c) Sequences and time limits for submission of review reports shall be subject to the Government’s regulations on the regime for supervision and inspection of implementation of strategies, plans, objectives and tasks under the delegated authority of state enterprises.

Article 10. Rights and responsibilities of the owner’s representative agency regarding management of staff working for wholly state-owned enterprises

1. Managers:

a) Make its decisions on planning, appointment, re-appointment, resignation, discharge secondment, rotation, grant of awards to, imposition of disciplinary actions on, dismissal and retirement of the Chair of the Board of Members, members of the Board of Members and the President of an enterprise in accordance with laws, except for the cases in which the decision-making authority is delegated to the Prime Minister.

b) Grant the approval so that the Board of Members and the enterprise's President can issue the decision on appointment, re-appointment, discharge, grant of awards to and imposition of disciplinary actions on the General Director and the Director of an enterprise.

The owner’s representative agency shall preside over and cooperate with the Ministry of Home Affairs in sending reports to and asking for opinions of the Government’s Party Civil Affairs Committee before sending the written consent in order for the Board of Members of an enterprise that the Prime Minister has decided to establish to appoint the General Director in accordance with regulations and the enterprise's charter.

c) Implement rights and responsibilities regarding compensation, remuneration and bonus package and other benefits of the manager in accordance with the Government’s regulations on compensation, remuneration and bonus package for the manager of the single-member limited liability company whose charter capital is wholly owned by the State.

d) The decision on appointment, re-appointment, dismissal, acceptance of resignation and discharge from holding office, secondment, rotation, military rank grant and promotion, pay classification, pay raise, salary-based allowance, grant of awards to, imposition of disciplinary actions on and retirement of the General Director, the Director and other managerial rank holders in the enterprise affiliated to the Ministry of Public Security and the Ministry of National Defense shall be subject to the regulations on personnel affairs in the military and police forces, legislative regulations and the enterprise’s charter.

2. Comptrollers:

a) Make decisions on planning, appointment, re-appointment, resignation, dismissal, transfer, rotation, grant of rewards to, imposition of disciplinary actions on, resignation and retirement of comptrollers in accordance with law.

b) Establish the Control Board composed of 05 comptrollers at maximum at a parent company of the state economic corporation.

c) Establish the Control Board composed of 03 comptrollers at the parent company of the state general company.

d) Appoint 01 comptroller or establish the Control Board composed of 03 comptrollers at other state enterprises, depending on the capital size, scope of locality and business sectors or industries of state enterprises that the comptroller has established or is authorized to manage.

dd) The owner’s representative agency shall choose and decide to appoint an officer or public servant under its management to hold office as a comptroller and shall be responsible for assigning work suitable for officers and public servants who have resigned as comptrollers.

Article 11. Conduct of implementation of rights and responsibilities regarding financial and investment activities of wholly state-owned enterprises

The owner’s representative agency:

1. Promulgate financial regulations of enterprises according to the Government's regulations on investment of state capital in enterprises and management and use of capital and assets at enterprises, except for cases in which the authority to promulgate such regulations is delegated to the Government.

2. Approve the charter capital amount of the enterprise (including adjust the charter capital during its business period), except for cases falling under the Prime Minister's competence; appraise dossiers and plans for supplementing the charter capital of enterprises; cooperate with the finance agencies at the same level in: supplementing the charter capital of enterprises in accordance with regulations by using proper funding sources as such supplementary funds.

Dossiers, plans, sequences and procedures for granting capital according to the provisions of the Law on Management and Use of State Capital Invested in Production and Business activities of Enterprises and the Government's directives.

3. Consider granting approval of the request of the Board of Members and the enterprise’s Chairman related to the followings:

a) Capital mobilization plan for each project with the amount of mobilized funds greater than the limit prescribed in point a of clause 3 of Article 23 of the Law on Management and Use of State Capital Invested in Production and Business Activities of Enterprises.

b) Plan for mobilization of funds from foreign organizations and individuals.

For foreign loans that enterprises take out according to the method wherein enterprises have to exercise responsible autonomy to borrow funds and assume responsibility for debt repayment, except for foreign loans in the form of import of goods for which deferred payments are allowed, the owner’s representative agency shall approve the policy for lending of foreign funds by each enterprise and shall request the Ministry of Finance to conduct assessment and grant approval. Loans guaranteed by the Government shall be subject to legislative regulations on public debt management and other provisions of relevant law.

c) Projects for investment, construction, purchase and sale of fixed assets of enterprises that have values greater than those specified in point a of clause 1 of Article 24 in the Law on management and use of state capital invested in production and business activities of enterprises.

d) Outward investment projects that have values greater than those specified in point a of clause 4 of Article 28 in the Law on management and use of state capital invested in production and business activities of enterprises.

Mobilization of funds by wholly state-owned enterprises which are credit institutions shall be subject to regulations of laws on banks and other relevant laws.

Processes and procedures for preparation, assessment and approval of projects and plans specified in clause 2 of this Article shall be subject to provisions of relevant laws.

4. Make a decision to allow the Board of Members and the enterprise’s President to sign the contract to rent, lease, mortgage and hypothecate property of enterprises that has values greater than the limits under the authority delegated to the Board of Members and the enterprise's President in accordance with the Law on management and use of state capital invested in production and business activities of enterprises and other instructional regulations of the Government.

5. Grant the approval of the plan to liquidate and sell unmovable property of enterprises that has values greater than the limits under the authority delegated to the Board of Members and the enterprise's President in accordance with the Law on management and use of state capital invested in production and business activities of enterprises and other instructional regulations of the Government.

6. Make a decision on the policy for outbound investment, except cases in which the authority to make such decision is delegated to the National Assembly and the Prime Minister, according to laws on management and use of state capital invested in business activities of enterprises, laws on investment and laws on foreign exchange management and other relevant ones.

7. Make a decision on the policy for capital contribution, increase or decrease in contributed capital and transfer of investment capital invested in joint-stock companies and multiple-member limited liability companies.

8. Make a decision on the policy for accepting a joint-stock company or multiple-member limited liability company into an affiliate or subsidiary company of the enterprise.

9. Approve financial statements, annual plans for profit distribution and creation of funds of the enterprise.

10. Cooperate with the finance agency of the same level to carry out state capital investment in enterprises after receipt of approval from competent authorities; decide on the transfer of investment capital of enterprises at joint-stock companies and multiple-member limited liability companies in case the transfer value is lower than the value recorded in the accounting books of the enterprise after provisions for losses of investment capital have already been set off against such value.

11. Approve the policy to allow the Board of Members and the enterprise’s Chairman to decide on the establishment, reorganization and dissolution of branches, representative offices and dependent accounting units of enterprises according to the provisions of law.

Establishment of branches or representative offices of wholly state-owned enterprises which are credit institutions shall be subject to regulations of laws on banks.

Report to the Prime Minister to consider approving the policy to allow the Board of Members and the enterprise’s Chairman to decide on the establishment, reorganization and dissolution of branches, representative offices and dependent accounting units of enterprises that the Prime Minister has decided to establish.

Article 12. Conduct of implementation of rights and responsibilities regarding surveillance, inspection and assessment of operations of wholly state-owned enterprises

1. The owner’s representative agency shall organize the monitoring and inspection of the management, use, preservation and development of capital, implementation of strategies, development investment plans, recruitment of labor, implementation of the salary and bonus regime of these enterprises; shall give opinions on supervision, inspection and audit by other competent agencies and organizations with respect to investment, management and use of state capital in enterprises in accordance with the Law on management and use of state capital invested in production and business of enterprises and regulations of the Government.

2. The owner’s representative agency shall conduct the evaluation of the performance and efficiency of production and business activities of these enterprises, the assessment of the level of accomplishing the tasks in the management and administration of business managers and comptrollers in compliance with the law on management and use of state capital invested in production and business in enterprises and the Government's instructional regulations.

3. Authority, procedures and processes for carrying out the inspection of operations of wholly state-owned enterprises shall be subject to legislative regulations on inspection and provisions of relevant laws.

Article 13. Conduct of implementation of rights and responsibilities regarding the state capital contribution portion in joint-stock companies and multiple-member limited liability companies

The owner’s representative agency:

1. Implement rights and responsibilities regarding the state capital contribution portion in joint-stock companies and multiple-member limited liability companies through its representative person for state capital contribution portion.

2. Appoint, dismiss, discharge, reward, discipline, pay salary, responsibility allowances, bonuses and other benefits to the representative for state capital in accordance with the Law on management and use of state capital invested in production and business of enterprises and the Government's regulations on representatives of state capital who hold managerial positions at enterprises of which over 50% of the charter capital is owned by the State, and on labor, salaries, remuneration and bonuses for companies in which that State holds voting shares and contributed capital, and other relevant laws.

3. Cooperate with finance agencies of the same level in investing in an increase in the state capital contributed to joint-stock companies and multiple-member limited liability companies after receipt of the approval of additional investment from the competent authority. Dossiers, plans, sequences and procedures for supplementary investment in an increase in state capital investment in enterprises shall be subject to the provisions of the Law on Management and Use of State Capital Invested in Production and Business activities of Enterprises and the Government's regulations.

Develop a roadmap, decide the plan and organize the implementation of state capital transfer in joint stock companies and multiple-member limited liability companies according to the list of state-invested enterprises eligible for transfers under the Prime Minister’s decisions over periods of time.

In case of transfer of state capital in an enterprise not yet included in the list of state-invested enterprises eligible for transfer under the Prime Minister’s decisions, the owner’s representative agency must report such transfer to the Prime Minister to seek his decision before elaborating transfer plans and organizing the implementation of state capital transfer at this enterprise.

Dossiers, plans, sequences and procedures for transfer of state capital investment in enterprises shall be subject to the provisions of law on investment of state capital in enterprises, management and use of capital and assets at enterprises.

4. Supervise the recovery of investment capital, the collection of profits and share dividends distributed by joint-stock companies and multiple-member limited liability companies in accordance with law.

5. Request representatives of the state capital at enterprises of which 36% of charter capital or more is owned by the State to report to the owner’s representative before giving comments, casting votes and making decisions at the General Meeting of Shareholders, the meeting of the Board of Directors and the Board of Members in accordance with the law and the Charter of the enterprise on the following issues:

a) Objectives, tasks and business sectors or industries; business reorganization, dissolution and bankruptcy;

b) Charter, amendments and supplements to the charter of an enterprise;

c) The increase or decrease in the charter capital; time and method of capital mobilization; types of shares and the total number of shares of which offering is authorized; the redemption of over 10% of the total shares already sold;

d) The nomination for election, petition to dismiss, discharge, reward, handle violations of members of the Board of Directors, Chairman of the Board of Directors, Chairman of the Members' Council and members of the Control Board. Nomination to appoint, propose to dismiss, sign a contract, terminate the contract with the General Director (Director) of the enterprise. Remuneration, salary, bonus and other benefits of members of the Board of Directors, members of the Members' Council, members of the Control Board, General Director (Director) of the enterprise; number of members of the Board of Directors, members of the Supervisory Board, Deputy General Director (Deputy Director) of the enterprise;

dd) Business strategies, plans and investment and development plans;

e) The policy of capital contribution, holding, increase and reduction of capital of enterprises in subsidiaries; establishment, reorganization and dissolution of branches and representative offices; acceptance of enterprises voluntarily participating as subsidiaries and affiliates of enterprises;

g) The policy on buying and selling assets and borrowing and lending contracts with a value equal to or greater than 50% of the enterprise's charter capital or another percentage less than the value prescribed in the charter of the enterprise; the policy for borrowing of foreign funds of enterprises;

h) Financial statements, distribution of profits, establishment and use of funds and annual share dividends;

i) Employee recruitment regime; employee compensation, remuneration and bonus package of enterprises;

k) Other issues that conform to regulations on performing tasks of the representative of state capital issued by the owner’s representative agency and that are not in breach of the provisions of Article 48 of the Law on management and use of state capital invested in production and business in enterprises and relevant laws.

6. Set forth the operational regulations of representatives of state capital on issues that representatives of the state capital must report to, consult with the owner’s representatives before giving comments, casting votes, making decisions at an enterprise of which less than 36% of the charter capital is owned by the State (if any). These regulations shall not be contrary to the provisions of Article 48 of the Law on Management and Use of State Capital Invested in Production and Business in Enterprises, charter of enterprises and relevant laws

7. Give timely opinions in writing on issues under the management of the representative.

8. Carry out the supervision and assessment of representatives of state capital according to their competence, order and procedures prescribed in the provisions of law on management and use of state capital invested in production and business in enterprises and the Government’s regulations on supervision of state capital investment in enterprises, financial supervision, assessment of operational efficiency and disclosure of financial information of wholly state-owned or state-invested enterprises.

9. Take responsibility for effective use, preservation and development of allocated state capital.

10. Implement other rights and responsibilities under the provisions of the Law on management and use of state capital invested in business activities of enterprises, the enterprise’s charter and other relevant laws.

Section 3. OWNER’S DIRECT REPRESENTATIVE

Article 14. Rights and responsibilities of the owner’s direct representative at wholly state-owned enterprises established under the Prime Minister’s decision

The Board of Members of the parent company of a state economic group, the State Capital Investment Corporation and the enterprise established under the Prime Minister’s decision to invest state capital under the provisions of the Law on management and use of state capital invested in production and business in enterprises shall:

1. Develop and report to the owner’s representative agency to appeal to the Prime Minister to approve the business strategy and plan, and the 5-year investment and development plan of each enterprise (including the business strategy, plan and 5-year investment and development plan).

2. Make a decision on the annual business, investment and development plan of an enterprise and send such decision to the owner's representative agency, the Ministry of Planning and Investment and the Ministry of Finance for synthesis and supervision purposes.

3. Petition the authority to decide the planning, appointment, re-appointment, dismissal, secondment, rotation, approval of resignation, commendation, discipline and assessment of performance of the Chairman and members of the Board of Members, approval of the compensation and remuneration package paid to the enterprise’s managers in accordance with law.

4. Make a decision on planning, appointment, assessment of performance, re-appointment, resignation, dismissal, secondment, grant of rewards to, imposition of disciplinary actions on, resignation and retirement of the General Director of the enterprise after obtaining approval from the owner’s representative agency.

5. Request the owner’s representative agency to appeal to the competent authority to adjust the charter capital; amend and supplement the Charter; reorganize, transfer ownership of, dissolve and order the bankruptcy of an enterprise. Make a decision on establishment, reorganization and dissolution of dependent units immediately after submitting a request to the owner’s representative agency for assessment and receiving the Prime Minister’s consent to an investment policy.

6. Request the owner’s representative agency to consider appealing to the Prime Minister to make his decision on a policy on establishment of a subsidiary wholly owned by the enterprise. Make a decision on establishment of a subsidiary wholly owned by the enterprise after the Prime Minister grants his approval of the policy for such establishment.

7. Request the owner’s representative agency to consider deciding on the policy of investment in new capital contribution, establishment of new domestic and foreign enterprises in a form of multiple-member limited liability companies, joint-stock companies or foreign-invested companies, or acquire enterprises voluntarily participate as subsidiaries and affiliates. Make a decision on investment after receipt of the decision on the investment policy from the owner’s representative agency.

8. Request the owner’s representative agency to consider deciding on the policy of investment in supplementing capital or not continuing to invest additional capital in subsidiaries and affiliates; make an investment decision after receipt of the decision on the investment policy from the owner’s representative agency.

Request the owner’s representative agency to consider appealing to the Prime Minister to make a decision on the policy for investment in supplementing capital or not continuing to invest additional capital in subsidiaries and associated companies in case of the authority to grant such decision is delegated to the Prime Minister in accordance with law; make an investment decision after receipt of the approval of the investment policy from the Prime Minister.

9. Make a decision on additional investment of capital in subsidiaries and affiliates, capital contribution to business cooperation contracts after receipt of the decision on the investment policy from the owner’s representative on investment of capital having the value exceeding the equivalent value of Group B projects according to the classification defined in the Law on Public Investment.

10. Request the owner’s representative agency to approve annual financial statements of an enterprise (including financial statements of parent companies and consolidated financial statements), distribute profits, set aside and use funds.

11. Proactively make a decision on and bear responsibility for making a decision on issues under the authority of the Board of Members of wholly state-owned enterprises in accordance with the Law on management and use of state capital invested in business and production of enterprises, the Law on enterprises, other provisions of relevant laws and the enterprise's Charter.

Article 15. Rights and responsibilities of the owner’s direct representative at wholly state-owned enterprises that are established under the decision of the owner’s representative agency or which it is authorized to represent

Board of Members and President of wholly state-owned enterprises shall not be governed by Article 14 herein.

1. Request the owner’s representative agency to:

a) Make a decision on reorganization and transfer of ownership, dissolution and bankruptcy of an enterprise;

b) Promulgate, amend and supplement the charter; decide and adjust the charter capital;

c) Approve the 5-year investment and development plan and strategy, and the annual business plan, of each enterprise;

d) Make a decision on appointment, reappointment, discharge, grant of rewards to, imposition of disciplinary actions on, grant of compensation, remuneration and bonus package and other benefits to, the Chairman and members of the Board of Members and the President of an enterprise;

dd) Approve the appointment, re-appointment, dismissal, grant of rewards to, and imposition of disciplinary actions on, the General Director or Director of an enterprise;

e) Approve the plan of capital mobilization, investment projects, construction, purchase and sale of fixed assets, investment projects outside enterprises, overseas investment projects of enterprises having value greater than the limit within which the Board of Members and the enterprise’s President is authorized to make their decision in accordance with the law;

g) Provide funds to carry out state capital investment in enterprises after receipt of approval from competent authorities; decide on the transfer of investment capital of enterprises at joint-stock companies and multiple-member limited liability companies in case the transfer value is lower than the value recorded in the accounting books of the enterprise after provisions for losses of investment capital have already been set off;

h) Make the decision on the policy of capital contribution, increase, decrease of contributed capital, transfer of investment capital of enterprises at joint-stock companies or multiple-member limited liability companies; make a decision on the policy for adoption of joint stock companies or multiple-member limited liability companies as subsidiaries and affiliates of enterprises;

i) Approve financial statements, annual plans for profit distribution and creation of funds of the enterprise.

2. Proactively make a decision on and bear responsibility for making a decision on issues under the authority of the Board of Members of wholly state-owned enterprises in accordance with the Law on management and use of state capital invested in business and production of enterprises, the Law on enterprises, other provisions of relevant laws and the enterprise's Charter.

Chapter III

IMPLEMENTARY PROVISIONS

Article 16. Entry into force

1. This Decree shall be in effect on March 15, 2019.

2. This Decree shall replace the Government’s Decree No. 99/2012/ND-CP dated November 15, 2012 on assignment and delegation of authority to implement rights, responsibilities and obligations of the state owner of wholly state-owned enterprises and state capital contributions to enterprises.

Article 17. Implementation

1. The owner’s representative agency shall formulate and implement internal regulations on implementation of rights and responsibilities to wholly state-owned enterprises and state capital contributions to enterprises that they have established or they are authorized to manage.

2. In case of acceptance of transferred right to represent the owner of the state capital at enterprises, the owner’s representative agency shall preside over and cooperate with the relevant agencies in carrying out the arrangement, reform, reorganization, transfer of ownership and restructuring of state capital at enterprises according to plans and proposals approved by competent authorities prior to the date of transfer.

3. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, Chairpersons of People’s Committees of centrally-affiliated cities and provinces, the Boards of Members, Presidents of wholly state-owned enterprises, and the owner’s representatives, shall be responsible for implementing this Decree./.

 

PP. GOVERNMENT PRIME MINISTER Nguyen Xuan Phuc