Chương 4 Nghị định 103/1999/NĐ-CP: Khoán kinh doanh và cho thuê doanh nghiệp nhà nước

Chapter IV

BUSINESS CONTRACTING AND LEASING STATE ENTERPRISES

Section I. BUSINESS CONTRACTING

Article 30. - Business contracting contents, norms and conditions

Based on the characteristics of each branch and the business results of the enterprise, the person deciding the business contracting shall prescribed the contents, norms and conditions therefor but have to take into consideration the following requirements:

1. Preserving the State capital;

2. Creating jobs and paying insurance premium for the laborers;

3. Increasing profits or reducing loss for the enterprise;

4. Implementing State policies and the signed contracts.

Article 31.- Discussing and agreeing on business contracting contents, norms and conditions

The business contracting contents and conditions as well as the specific rights and responsibilities of the parties to the contract and the contents of the contract must be discussed and agreed upon between the business contracting party and the contractor.

Article 32.- Business contract

The contract for business contracting shall include the following major contents:

1. Names and address of the State enterprise of the business contracting party and contractor;

2. The business contracting contents, mode, norms, conditions and term;

3.The rights and responsibilities of the parties in the course of implementing the contract; the contracting term shall be agreed upon by the two parties to the contract but shall not be less than 5 years;

4. The handling of violations, commendations and rewards, penalties in the process of contract performance;

5. Other contents relating to the business contracting.

Article 33.- The rights and responsibilities of the business contractor

1. To manage and use the capital and assets and receive the labor of the enterprise in accordance with the provisions of the business contract but not in contravention of the provisions of law; to inherit the rights and obligations of the enterprise.

2. To decide the organization of business, mode of payment of wages and bonuses in the enterprise.

3. To enjoy and decide the distribution of the income earned through the overfulfillment of contracting norms, after being subtracted for payment of the enterprise income tax and for the establishment of the reserve fund, shall be used by the business contractor at his/her own will.

4. To be subject to income reduction if failing to meet the norms and requirements inscribed in the contract.

Article 34.- The rights and responsibilities of the business contracting decider

1. To inspect and supervise the fulfillment of commitments in business contract, and handle violations of the commitments inscribed therein.

2. Not to intervene in the management activities of the business contractor; create favorable conditions for the business contractor to fulfill the commitments stated in the business contract.

Section II. LEASING OF STATE ENTERPRISES

Article 35.- Forms of enterprise lease

The lease may select among the following forms of enterprise lease:

1. Leasing the enterprise’s assets: The lessee rents the entire assets which have constituted the production/business establishment of the enterprise together with the hiring of its labor, but shall not inherit the rights and obligations of the leased enterprise;

2. Leasing the operating enterprise: The lessee rents the assets which have constituted the production/business establishment of the enterprise together with the hiring of the enterprise�s labor and at the same time inherit the amounts of borrowings and debts, economic contracts, as well as other rights and obligations of the enterprise as agreed upon by involved parties.

Article 36.- Organizing the enterprise lease by mode of bidding

1. Where there are two or more persons registering their lease, the bidding must be organized.

2. The person deciding the lease of enterprise shall set up the Bidding Council. The Bidding Council shall announce to the lease registrants the time-limit for submitting their bids, the minimum price, the deposit level; announce the lease of enterprise on the mass media and post it up at the enterprise’s head-office.

3. The lease registrants shall submit their bids for enterprise lease and the deposit money to the Bidding Council;

The Bidding Council shall receive the dossiers and the deposit money, make the list of bidders and issue to them the written certification forbid participation.

4. Bidders may go to the enterprise to study the accounting books, the asset inventory and survey the real situation of the enterprise.

5. Thirty days after the announcement on the bidding, the enterprise lease registrants shall have to send their bids to the Bidding Council.

Such a dossier shall include:

a) The application for the lease, clearly stating the full name, address, the identity card number, the account number (if any) and the business registration certificate of the lessee;

b) The leasing form and term;

c) The plan on employment of the laborers working at the enterprise;

d) The price offer for the lease of the enterprise;

e) The report on the financial capability of the lessee.

Bids shall be put in sealed envelops.

6. Within 5 days after the bid-receiving deadline, the Bidding Council shall send a notice on the bidding time and location to each bidder and publicly post up the list of bidders at the place of bidding for two days before the bids opening.

7. The bids opening shall be conducted for not more than 1 day and as follows:

a) The Bidding Council shall check the seals, publicly open bids of every bidder and announce the labor-using plan and the price offer of each bidder for recording them in the minutes; announce the largest labor-using plan and the highest price offer of each bidder;

b) The chairman of the Bidding Council and bidders shall sign in the minutes of the bids opening.

8. Bids consideration:

a) The Bidding Council shall discuss the labor-using plans together with the price offers so its to select the bid winner by voting.

b) The Bidding Council shall make the report on the bids consideration and send it to the Board for Renewal of Enterprise Management as well as the person having decided the lease of enterprise.

Article 37.- Organizing the enterprise lease by direct mode

1. The enterprise lease by direct mode shall apply when there is only one registrant for the lease.

2. The lease registrant may go to the enterprise to study the accounting books, the assets inventory and survey the real situation of the enterprise.

3. The lease registrant shall submit the dossiers of application for the lease to the Board for Renewal of Enterprise Management. The contents of such a dossier shall comply with the provisions on the enterprise by mode of bidding.

4. The Board for Renewal of Enterprise Management and the enterprise director shall be tasked to:

a) Draw up the plan for enterprise lease;

b) Determine the minimum leasing price which shall serve as basis for discussion and negotiation between the parties concerned;

c) To discuss directly with the lessee about the labor-using plan, the leasing price, the leasing term and conditions of the enterprise-leasing contract;

d) To reach agreement with the lessee on the leasing price and the enterprise-leasing contract;

e) To submit dossiers, minutes and draft contract to the lease decider.

Article 38.- Responsibilities of the leased enterprise

1. To conduct the assets inventory, classify the entire assets available in the enterprise: the rented assets, the leased assets, the borrowed assets, the assets kept for others, the appropriated assets; evaluate the real status of such assets

2. To make the list of creditors and the payable debt amounts, the list of debtors and the amounts of debts to be recovered with the separation of debts which can be recovered from the debts which cannot be recovered; the enterprise shall have to settle the recoverable and payable debts before deciding the lease of enterprise.

3. To make the financial statement up to the time of deciding the lease of enterprise.

4. To make the list of laborers of the enterprise and files related to the laborers.

5. To hand over the assets, labor, files and relevant books to the lessee according to the agreement inscribed in the enterprise-leasing contract.

6. To manage books, documents and records on assets and labor of the enterprise during the leasing term.

7. To fulfill obligations towards the State as well as policies and regimes towards the laborers according to the provisions of law and the enterprise-leasing contract.

8. To be entitled to request the lease decider to terminate the leasing contract ahead of time (if the lessee violates the contract).

Article 39. - Principles for dealing with the assets and finance of the enterprise when it is leased

The assets and finance of the to be-leased enterprise shall be handled as follows:

1. The assets currently available at the enterprise shall be inventoried to determine their quantity and real status, which include: the fixed assets and long-term investment; the mobile assets and short-term investment; the rented assets, borrowed assets, leased assets, assets kept or sold for others, entrusted for sale or appropriated;

The assets which are rented, borrowed, kept for others, processed on order, entrusted for sale or appropriated shall be classified and inventoried separately.

2. The assets being available at the enterprise shall be classified and dealt with as follows:

a) The leased assets shall be classified and valued in terms of their real status, quality, technical properties and shall have their actual value determined;

The actual value of leased assets is determined on the basis of the enterprise's accounting books at the time of lease, the use demand of the lessee and the market price at the time of lease;

The assets’ actual value at the time of lease shall serve as basis for determining the enterprise- leasing price;

b) Assets not on the list of leased assets must be handled before the lease in the forms of: internal transfer, liquidation, cession or entrusted maintenance pending the handling;

c) The mobile assets shall be agreed upon by the lessor and the lessee;

d) Assets formulated from the reward fund and/or the welfare fund shall be transferred to the labor collective under the management of the enterprise’s Trade Union or shall be agreed upon by the lessor and the lessee.

3. The enterprise shall collate and determine debts of various types, making the list of creditors and the payable debt amounts and the list of debtors and the recoverable debt amounts with classification of the debts that can be recovered and the bad debts that cannot be recovered.

If the lessee does not inherit the recoverable and payable debts, the remaining managerial staff of the enterprise shall be assigned by the enterprise lease decider to monitor the lease contract and have to continue to recover the recoverable debts and pay the payable debts amounts.

4. In case of leasing the operating enterprise : The lessor and the lessee shall discuss with concerned parties to reach agreement on the inheritance of the rights and obligations of the legal person of the leased enterprise.

Article 40.- Settlement labor upon the lease of enterprise

1. The to be-leased enterprise shall have to make the list of laborers available at the time of deciding the lease, classify them and make files on the laborers;

a) The number of laborers eligible for the social insurance policy;

b) The number of laborers enjoying the social insurance regimes on illness maternity, labor accidents and occupational diseases;

c) The number of laborers subject to temporary postponement of the labor contract performance.

d) The number of laborers having terminated their labor contracts;

e) The number of laborers with the labor contracts being still valid, who shall be transferred to work at the leased enterprise;

2. If the enterprise lease is accompanied with the labor hiring, the enterprise lessee shall have to take in and arrange work for the laborers and ensure their interests in accordance with the lease contract and not in contravention of the provisions of the labor legislation.

The enterprise director shall have to carry out procedures so that the social insurance agency shall grant insurance books as prescribed, and shall transfer the list and records of the laboreres being under the enterprise’s management to the new enterprise.

3. For laborers eligible for the social insurance regimes, the enterprise director and the social insurance agency where the enterprise pays the insurance premium settle the interests for the laborers according to the social insurance statute.

4. For cases of job severance:

a) The enterprise director shall proceed with the procedures so that the social insurance agency where the enterprise pays the insurance premium shall settle the social insurance interests and grant the social insurance books according to the social insurance statute;

b) The enterprise director shall settle the job severance allowances according to the provisions in Article 42 of the Labor Code and the current regulations of the Government.

5. Where the enterprise lessee refuses to take all the existing laborers, the lease decider and the to be-leased enterprise shall have to arrange work for the remaining number of laborers or apply policies toward such laborers.

Article 41.- The principles for determining the enterprise-leasing price

1. The enterprise-leasing price shall be determined on the basis of: the leasing form, the minimum leasing price set by the lease decider, the actual value of the enterprise, the direct agreement on leasing price between the lessor and the lessee (in case of direct leasing) or the bid winning price (in case of bidding) which, however, must not be lower than the minimum leasing price set by the lease decider.

2. The minimum leasing price shall be determined on the following principles.

a) Ensuring to offset the expenses for tear and wear of the leased fixed assets;

b) Covering the reasonable expenses of the lessor in the coarse of organization, management and supervision of the leased assets;

c) Accounting profits in the enterprise-leasing price, depending on the assets status and business efficiency of the enterprise before it is leased:

- For enterprises conducting business with profits: The enterprise-leasing price shall not be lower than the minimum profit level set by the lessor.

- For enterprises suffering from losses or having not yet earned profits: When being leased, profits shall be accounted into the minimum leasing price.

Article 42.- Decisions to lease State enterprises

Based on the proposals of the Boards for Renewal of Enterprise Management, the competent levels shall issue decisions to lease State enterprises.

Such a decision shall include the following major contents:

a) Names, addresses and the account numbers of the leased State enterprise and the lessee;

b) The leasing contents, form and term;

c) The leasing price and mode of payment;

d) The tasks of the Board for Renewal of Enterprise Management and the enterprise-leasing organization�s person authorized to sign the lease contract;

c) Responsibilities of the leased enterprise and concerned bodies in dealing with the labor as well as other existing and arising problems.

Article 43.- Enterprise-leasing contracts

An enterprise-leasing contract signed by the lessee and the person authorized by the lease decider shall include the following major contents:

1. Names, addresses and account numbers of the leased enterprise and the lessee;

2. The enterprise-leasing price and mode of rent payment;

3. The leasing term shall be agreed upon by the contractual parties but shall not be less than 3 years;

4. The rights and responsibilities of the enterprise lessor and lessee;

5. The handling of the labor, assets, finance as well as rights and obligations of the enterprise, which are inherited in cases where the operating enterprise is leased;

6. Return of or dealing with the enterprise upon the expiry of the contract;

7. Commitments of the contractual parties;

8. The principles for handling arising matters and contractual disputes.

Enclosed with the lease contract shall be the inventory of assets under the enterprise’s management, determining the remaining value of such assets, and the list of laborers (if leasing the operating enterprise).

Article 44.- Announcing decisions on lease of State enterprises

Within 15 days after the signing of a decision on the lease of an enterprise, the Board for Renewal of Enterprise Management shall do the following:

1. Announcing the lease of enterprise on the mass media.

2. Sending the decision on the lease of the enterprise to the following agencies;

a) The Central Board for Renewal of Enterprise Management;

b) The enterprise’s finance body;

c) The tax office;

d) The business registry;

e) The Statistics Department of the locality where the enterprise is headquartered.

3. Payment of deposit money to bidders (if any).

Article 45.- Hand-over of enterprise

The lessor shall have to hand over the assets, books and vouchers, labor and relevant dossiers to the lessee within the time-limit agreed upon in the enterprise leasing contract.

The Board for Renewal of Enterprise Management shall, together with the person signing the leasing contract and the enterprise director, hand over the enterprise to the lessee.

Upon the hand-over, if the quantity and value of the enterprise’s assets are not compatible with the asset quantity and value inscribed in the contract, the lessee may postpone the hand-over and request the adjustment of the signed contract.

Article 46.- Rights and obligations of the enterprise lessee

Apart from the rights and obligations of the asset lessee prescribed in Section 5, Chapter II, Part III of the Civil Code, the enterprise lessee still have the following rights and obligations:

1. The rights of the enterprise lessee:

a) To take initiative in managing and using the hired assets and labor of the enterprise in service of business activities not contrary to the agreements in the contract and the provisions of law;

b) To be entitled to change or reorganize the production, make new investment as well as technological and technical renewal, to renovate, maintain, replace or repair assets damaged in the course of production and business operation. If the assets are subleased, the consent of the person who decides the enterprise lease is required;

c) To decide on its own the organization of the management and business apparatus, mode of payment of wages and bonuses in the enterprise;

d) To be entitled to enjoy profits brought about by the rent of enterprise after fulfilling the obligations towards the State and the lessor;

e) To inherit all the leased enterprise’s contracts on land and/or water surface rent, as well as on water and power supply (if having the demand therefor).

2. Obligations of the enterprise lessee:

a) To pay rent as agreed upon in the contract;

b) To use the assets for the right purposes agreed upon in the leasing contract; not to use the leased assets (except for those newly invested with own capital) for pledge or mortgage; not to sublease the land use right;

c) To preserve the value of the leased enterprise’s assets upon the liquidation of contract;

d) To settle together with the lessor arising matters related to the rights and obligations under the contracts for land lease, power, water or raw material supply, the sale of products, labor contracts; to improve the working conditions for the laborers and the environmental hygiene;

e) Be subject to the lessor's inspection and supervision of the use of leased assets;

f) To fulfill other obligations prescribed in the enterprise-leasing contract.

3. In addition to the common rights and obligations prescribed in Clauses 1 and 2 of this Article, the lessee shall also have the following rights and

obligations:

a) Where the enterprise is leased by another State enterprise, besides the contractual rights and obligations as stipulated in Clauses 1 and 2 of this Article and other provisions of law, the lessee State enterprise, after paying taxes of various kinds, shall have full power to use the profits earned from the operation of the enterprise it has rented:

b) Where the State enterprise lessee makes business registration under the Law on Enterprises or the Law on Cooperatives, he/she/it may use the rented assets and hired labor in service of the business objectives according to the mechanism prescribed for the type of enterprise he/she/it has registered, and at the same time shall have to comply with the provisions of the leasing contract as well as provisions at Clauses 1 and 2 of this Article;

c) Where the labor collective or individual laborer(s) in an enterprise rents the enterprise, it/he/she must have its/his/her own source of capital register the establishment of an enterprise of the labor collective or individual(s), and shall have the right to use the leased State enterprise according to the mechanism prescribed for the registered type of enterprise.

4. If the enterprise lessee violates the contractual commitments, causing damage to the leased enterprise, apart from the liabilities agreed upon in the contract, the lease decider may terminate the contract and compel the lessee to compensate for the damage he/she/it has caused.

Article 47.- Rights and responsibilities of the persons who decide the lease of enterprises and the persons who sign the enterprise-leasing contracts

1. The person deciding the enterprise lease may direct the performance of the enterprise-leasing contract; settle proposals of the Board for Renewal of Enterprise Management and the contract signatories; decide the enterprise-leasing price; decide the recovery of the leased enterprise at the proposal of the signatory to the enterprise-leasing contract.

2. The persons who sign the enterprise-leasing contracts shall have the rights and responsibilities:

a) To organize the implementation of the contents and commitments in the enterprise-leasing contract;

b) To monitor, supervise and inspect the performance of the contract; not to intervene in the production and business activities of the enterprise; to create favorable conditions for the lessee to fulfill his/her/its commitments in the enterprise-leasing contract;

c) To handle according to competence arising problems; to propose the handling according to the provisions of law of the lessee who fails to fulfill his/her/its contractual commitments.

Article 48.- Termination of the enterprise-leasing contract

1. Upon the expiry of the enterprise-leasing term inscribed in the contract, the lessee shall hand over the enterprise’s value to the lessor; the two sides shall together evaluate the real status and value of the remaining assets, the newly or additionally invested assets, compare them with the contract, determine each side’s liabilities and reach agreement on dealing with the value of the newly invested assets, then proceed with the contract liquidation;

2. Where the lease contract is still valid or upon the expiry of the lease contract and the lessee has the demand to purchase the enterprise, the two sides shall liquidate the lease contract and proceed with the procedures for the purchase by the direct mode prescribed in this Decree.