Chương 4 Nghị định 101/2009/NĐ-CP: Quản lý, giám sát đối với tập đoàn kinh tế nhà nước

Chapter IV

MANAGEMENT AND SUPERVISION OF STATE ECONOMIC GROUPS

Article 38. Rights and obligations of the state owner towards parent companies:

1. Rights of the state owner towards a parent company:

a/ To decide on establishment, organizational structure, management mechanism, reorganization, dissolution or ownership transformation of the company;

b/ To decide on objectives, strategies, long-term plans and business lines of the. company;

c/ To approve the company charter and amendments and supplements thereto;

d/ To decide on capital investment for formation or adjustment of the charter capital of the company;

e/ To decide on investment, contribution of capital for investment, joint venture or association according to its competence; to approve policies on the company's borrowing or provision of loans, hire or lease;

f/ To promulgate financial regulations applicable to the company, distribution of incomes, appropriation and use of funds of the company;

g/ To decide on appointment, re-appointment, dismissal, removal from office, commendation or disciplining of the chairman and members of the Board of Directors and the director general;

h/ To promulgate regulations on salaries, salary-based allowances and bonuses, and decide on salaries and salary-based allowances for the chairman and members of the Board of Directors;

i/ To promulgate regulations on order placement, bidding or assignment of tasks, sale prices and price subsidies for production of public-utility products or provision of public-utility services;

j/ To inspect and supervise the achievement of objectives, performance of tasks and implementation of the owner's decisions, and assess the operation effectiveness of the parent company.

2. Obligations of the stale owner towards a parent company:

a/ To fully invest in the parent company's charter capital:

b/ To strictly comply with the provisions of the parent company's charter concerning the owner;

c/ To bear liability for the parent company's debts and other financial obligations up to the parent company's charter capital;

d/ To take responsibility before law for its decisions on investment projects; to approve policies on purchase, sale, loan borrowing and provision, hire and lease according to its competence;

e/ To guarantee the parent company's right to business autonomy and responsibility before law; not to illegally intervene in the parent company's business operations;

f/ To perform other obligations specified by law.

Article 39. The state owner and its representative in a state economic group

1. The Government uniformly exercises the rights and performs the obligations of the state owner towards a parent company.

2. The state owner's direct representative in a parent company of a state economic group is a person appointed by the Prime Minister as a member of the Board of Directors of the parent company.

Article 40. Assignment of tasks and decentralization of powers to exercise the state owner's rights towards parent companies of state economic groups

1. The Government shall:

a/ Uniformly exercise the state owner's rights towards parent companies and the state capital portions in state economic groups;

b/ Promulgate regulations on establishment, organization, operation and management of state economic groups; promulgate mechanisms of management and supervision of state economic groups;

c/ Supervise and assess the exercise of the state owner's rights and obligations towards parent companies and state-invested capital in state economic groups by agencies already authorized or assigned tasks by it under this Decree;

d/ Request agencies, organizations and individuals that are authorized or assigned tasks to exercise the state owner's rights and obligations towards parent companies and state-invested capital in state economic groups to report on the performance of authorized or assigned tasks and operation of state economic groups.

2. The Prime Minister shall:

a/ Decide on establishment of parent companies under Article 11 of this Decree; decide on reorganization, dissolution or ownership transformation of parent companies at the request of line ministries and based on opinions of the Ministry of Finance and the Ministry of Planning and Investment;

b/ Approve objectives, strategies, long-term plans and business lines of parent companies at the request of their Boards of Directors and based on opinions of line ministries, the Ministry of Finance and the Ministry of Planning and Investment:

c/ Approve charters of parent companies and amendments and supplements thereto at the request of their Boards of Directors and based on opinions of line ministries, the Ministry of Finance and the Ministry of Planning and Investment;

d/ Decide on capital investment for the formation of charter capital of parent companies and adjustment of charter capital in the course of their operation at the request of their Boards of Directors and based on opinions of line ministries, the Ministry of Finance and the Ministry of Planning and Investment;

e/ Decide on investment projects of parent companies and outward investment projects which fall under the Prime Minister's deciding competence under the investment law and this Decree:

f/ Decide on appointment, re-appointment, dismissal, removal from office, commendation and disciplining of chairpersons and members of Boards of Directors of parent companies at the request of line ministries and according to verification by the Ministry of Home Affairs;

g/ Permit the Boards of Directors to decide on appointment, re-appointment or dismissal of directors general or enter into labor contracts with, commend or discipline directors generals at the request of the Boards of Directors and upon verification by line ministries;

3. Line ministries shall:

a/ Propose to the Prime Minister for decision the establishment, reorganization, dissolution or ownership transformation of parent companies; the appointment, re-appointment, dismissal, removal from office, commendation and disciplining of chairpersons of the Boards of Directors of parent companies;

b/ Give their opinions on charters of parent companies or amendments and supplements thereto; appointment, re-appointment, dismissal, commendation or disciplining of. and entry into labor contracts with directors general, before the Prime Minister approves them: or on objectives, strategies, long-term plans, business lines, charter capital and adjusted charter capital of parent companies before the Prime Minister decides on them;

c/ Direct the implementation and realization of objectives, strategies and long-term plans of parent companies and the inspection thereof;

d/ Take responsibility for the observance of processes, procedures, standards, qualities and capacity of members of the Boards of Directors and directors general of parent companies before proposing ihem to the Prime Minister for appointment.

4. The Ministry of Finance shall:

a/ Give its opinions, before the Prime Minister considers and decides, on the establishment, reorganization, dissolution and ownership transformation of parent companies: approval of charters of parent companies and amendments and supplements thereto; capital investment for the formation of charter capital and adjustment of charter capital in the course of operation of parent companies;

b/ Fully invest in charter capital of parent companies under the Prime Minister's decisions;

c/ Approve financial management regulations of parent companies at the request of the Boards of Directors of parent companies, unless otherwise prescribed by the Government.

5. The Ministry of Planning and Investment shall give its opinions, before the Prime Minister considers and decides, on the establishment, reorganization, dissolution and ownership transformation of parent companies; objectives, strategies, long-term plans and business lines of parent companies; approval of the charter capital of parent companies; approval of amendments and supplements to the charter capital of parent companies; capital investment for the formation of charter capital and adjustment of charter capital in the course of operation of parent companies.

6. The Ministry of Home Affairs shall:

a/ Assess the observance of processes, procedures, standards and conditions for appointment, re-appointment, dismissal, removal from office, commendation and disciplining of chairpersons and members of Boards of Directors as proposed by line ministries to the Prime Minister;

b/ Guide the order and procedures for appointment, re-appointment, dismissal, removal from office, commendation and disciplining of chairpersons and members of Boards of Directors, directors general or directors, deputy directors general or deputy directors, chief accountants and other key managerial posts of parent companies.

7. The Boards of Directors of parent companies may be authorized by the Prime Minister to exercise the rights and perform the obligations of the state owner towards parent companies and state-invested capital in state economic groups, except for rights and obligations specified in Clauses 1 thru 6 of this Article.

Article 41. Rights and obligations of the state owner's direct representatives in parent companies

1. Members of Boards of Directors shall exercise the rights and perform the obligations specified in Articles 21 and 22, Clause 7, Article 40 of this Decree, and the following rights and obligations:

a/ To monitor, supervise and report, on a periodical basis or at the request of the Government, the Prime Minister and agencies assigned or decentralized to exercise the state owner's rights, on business operation, financial status and business operation results of parent companies and member enterprises under law and enterprise charters;

b/ To harmonize and coordinate or direct member enterprises through activities specified in Clause 3. Article 13 of this Decree; to propose solutions to putting parent companies and. member enterprises on the right track to realize assigned objectives and orientations;

c/ To guarantee the State's interests and state economic groups' operation effectiveness;

d/To exercise other rights and perform other obligations under law and parent companies' charters; to perform tasks assigned by the Prime Minister or persons authorized by the Prime Minister;

e/ To be answerable to the Government and Prime Minister for their assigned tasks. In case they show irresponsibility or abuse their tasks and powers to cause damage to the State, they shall bear liability and pay material compensations therefor under law.

2. The Board of Directors of a parent company shall make annual reports and extraordinary reports at the request of the Government and the Prime Minister on the following:

a/ The direction and results of direction of its economic group to realize objectives, including business objectives in its main business lines, and fulfill tasks assigned by the state owner to its groups:

b/ Portfolios and the structure of investment in main and unrelated business lines;

c/ The raising of capital for investment in finance, banking real estate and securities;

d/ Forms and levels of association among enterprises of its economic group;

e/ Organization and personnel work of the parent company: human resources engaged in main, related and unrelated business lines;

f/ Regulations of the parent company on issues which must be adopted by the parent company before its authorized representatives in member enterprises decide or participating in deciding on them.

3. Members of the Boards of Director of a parent company shall report to the parent company and member enterprises of its group the following information and related benefits:

a/ Names, addresses of head offices, business lines, serial numbers and dates and places of issuance of business registration certificates of enterprises in which they hold shares or capital contributions: rate and time of holding these shares or capital contributions;

b/ Names and addresses of head offices, business lines, serial numbers and dates and places of issuance of business registration certificates of enterprises in which their affiliated persons jointly or separately hold shares or capital contributions equal to over 35% of the charter capital.

Article 42. Management, supervision and assessment of state economic groups by the state owner

1. The management and supervision of a state economic group by the state owner through supervision of the parent company cover:

a/ Management and supervision of organization and personnel work, covering organization, establishment, reorganization and dissolution of and admission into the group: the process of changing the ownership structure of affiliate companies leading to their transformation into enterprises with capital below the parent company's controlling level; observance of the parent company's charter; appointment, re-appointment, dismissal, payment of salaries and bonuses for. performance of tasks and operation results of the parent company's Board of Directors;

b/ Management and supervision of business operations, covering business objectives, orientations and strategy of the group; the parent company's investment and financial plans; investment portfolio, main business lines and unrelated business lines; investment in risky sectors, industries, geographical areas and projects; performance of public-utility tasks;

c/ Financial management and supervision, covering capital preservation and development: financial operations and their results: profit ratio to state capital: investment and business efficiency: expenses for salary payment: loans, debts and solvency; charter capital, increase or decrease in charter capital, and change in the charter capital structure; investment projects beyond the powers decentralized to the parent company.

2. Assignment of tasks to perform supervision jobs specified in Clause 1 of this Article:

a/ The Ministry of Finance shall supervise and assess financial operations, business results and effectiveness of the parent company and the entire group; supervision of issuance of stocks, increase in the charter capital of the parent company and member enterprises: expenses for salary payment; supervision of borrowing of loans for investment in financial, banking, real estate and securities areas; supervise the movement of capital, investment and resources within the group and from the group to the outside or vice versa: and monitor consolidated financial statements of the groups;

b/ The Ministry of Labor. War Invalids and Social Affairs shall supervise state economic groups in implementing regulations on the average salary increase rate which is lower than the labor productivity increase rate;

c/ Line ministries shall supervise investment portfolios, main and related business lines: assess the structure of main and related business lines; oversee leading management personnel of parent companies; assess the capability to satisfy demands for leading management personnel for main and related business lines;

d/ The Ministry of Planning and Investment shall monitor and supervise the implementation of schemes on establishment of state economic groups; supervise parent companies in establishing new enterprises, contributing capital to other enterprises in risky sectors, industries, geographical areas and projects; supervise and assess the performance of the state owner's function towards parent companies in state economic groups: assess results of implementation of these schemes; analyze advantages and risks of development of economic groups: supervise and assess the implementation of development strategies of state economic groups;

e/ Other supervision jobs not specified at Points a. b, c and d of this Clause shall be performed by the Government or the Prime Minister or agencies and organizations authorized by the Government or the Prime Minister.

3. Ministries, agencies and organizations defined in Clause 2 of this Article shall annually report on their supervision and assessment and supervision and assessment results to the Prime Minister. The Ministry of Finance shall sum up supervision and assessment reports of authorized ministries, agencies and organizations, then, report to the Government and the Prime Minister.

Article 43. Methods of management and supervision of state economic groups

1. The management and supervision of state economic groups shall be conducted by the following methods:

a/ Through reports of Boards of Directors of parent companies;

b/ Through the audit of parent companies and member enterprises;

c/ Through periodical or extraordinary reports of parent companies;

d/ Through inspection, supervision and assessment by the agencies defined in Article 42 of this Decree.

2. Grounds for management and supervision of state economic groups:

a/ The Government shall promulgate regulations on management, supervision and assessment of state economic groups; specify norms and prescribe annual assessment and ranking of state economic groups; specify norms and prescribe the assessment of operations of Boards of Directors, directors general, deputy directors general and chief accountants of parent companies:

b/ Supervision and assessment results specified at Point a of this Clause serve as a basis for deciding on salaries, bonuses, appointment, re-appointment, dismissal, commendation, disciplining or handling of responsibility of presidents, members of Boards of Directors, directors general, deputy directors general and chief accountants of parent companies.