Chương V Nghị định 106/2015/NĐ-CP: Cử, cử lại, miễn nhiệm, khen thưởng, kỷ luật người đại diện

Chapter V

APPOINTMENT, RE-APPOINTMENT, DISMISSAL, COMMENDATION AND DISCIPLINARY ACTIONS AGAINST REPRESENTATIVES

Section 1: APPOINTMENT AND RE-APPOINTMENT OF REPRESENTATIVES

Article 17. Term of office of a representative and time for calculation thereof

1. Term of office of a representative is determined according to the tenure of the managerial position that he/she is holding.

a) In case of change of the managerial position due to change of the enterprise’s name, the term of office of the representative shall be calculated from the date on which he/she is appointed to hold the previous position (according to the previous name of enterprise).

b) If a representative is appointed for election or appointment to the managerial position in the middle of tenure of that position, the term of office of that representative shall be the remaining period of that tenure.

2. The term of office of a representative is calculated from the date on which he/she is elected or appointed to hold the managerial position.

Article 18. Qualifications of a representative

1. Meet general standards of the Communist Party and the State, and qualifications of the position to which the representative will be appointed as set by competent authorities.

2. Provide adequate personal documents verified and certified by competent authorities.

3. Meet age of appointment as representative requirements

a) The person to be appointed to act as a representative must meet age requirements (calculated in months) to work for a prescribed tenure of a managerial position.

b) If a representative is requested by the state capital owner to stop holding his/her representative position in order to act as a representative in another economic group, corporation or company of the same state capital owner, the age of appointment as representative must not comply with the provisions in Point a of this Clause.

c) If the re-appointment of a representative is considered 01 year after he/she is assessed to have failed to complete his/her tasks by the state capital owner or liable to a disciplinary or dismissal decision, in addition to the age requirement, he/she shall also meet all of other qualifications of a representative.

4. Be fit to complete assigned tasks as certified by a competent health facility. The certificate of fitness to work must be issued no more than 06 months before the date of submission of the representative dossier to the personnel advisory agency.

5. Be not prohibited from undertaking a position as prescribed by law.

6. Be not liable to any disciplinary actions or be not undergoing investigation, prosecution or adjudication.

Article 19. Procedures for appointment of representatives

1. Based on the value of state capital, scale or each economic group, corporation or company and qualifications of a representative, the personnel advisory agency shall provide the state capital owner with the proposal of quantity, structure and sources of personnel to be appointed as representatives, including the following information: full name, date of birth, native land, date of admission to the Communist Party, professional qualifications, political theory qualifications, foreign language competency, current position, and working place.

2. The state capital owner shall consider approving the quantity, structure and sources of personnel to be appointed as representatives.

3. Within 30 days from the date on which the state capital owner approves the quantity, structure and sources of personnel to be appointed as representatives, the state capital owner shall organize a meeting in which persons to be appointed as representatives shall directly present their action programs to the state capital owner and undertake to comply with the state capital owner’s policies, resolutions and directives, and perform their role, responsibilities and obligations during their assigned terms of office.

4. The state capital owner shall send a written request to the executive committee of the Communist Party of the same level for its opinions about persons to be appointed as representatives.

5. The state capital owner shall consider drawing conclusions on any arising issues, discuss opinions given by the executive committee of the Communist Party and issue decision.

Article 20. Re-appointment of representatives

1. 03 months by the time of expiration of term of office of a representative, the state capital owner shall consider whether to re-appoint that representative or not.  If a representative is not re-appointed, the state capital owner shall assign other tasks to or solve benefits for that representative in accordance with regulations of law.

2. A person is appointed as a representative in an economic group, corporation or company for not more than 02 consecutive tenures.

3. Qualifications of a representative to be re-appointed

a) Meet the qualifications in Clauses 1, 2, 4, 5, 6 and Points a, b Clause 3 Article 18 hereof;

b) Have excellently completed tasks in 03 consecutive years before he/she is re-appointed.

4. In special cases, the state capital owner may consider re-appointing a representative if the period from the date on which the re-appointment is considered to his/her retirement age is at least 2/3 of the tenure in which he/she will be re-appointed as a representative.

5. The re-appointment of a representative shall comply with the procedures laid down in Clause 4 and Clause 5 Article 19 hereof.

Article 21. Appointment or re-appointment dossiers

1. A representative appointment dossier includes:

a) The statement made by the personnel advisory agency and the written approval for appointment of the representative given by the state capital owner;

b) The curriculum vitae (using Form No. 2C-BNV/2008 enclosed with the Decision No. 02/2008/QD-BNV dated October 06, 2008 of the Minister of Home Affairs. The curriculum vitae must be made no more than 06 months before the appointment dossier is submitted to a competent authority and must be certified by a competent authority;

c) The representative’s self-assessment;

d) The state capital owner’s assessment;

dd) Inspection conclusions serving the resolution of any complaints/denunciations and other relevant documents (if any);

e) Copies of professional qualifications/certificates;

g) Certificate of fitness to complete assigned tasks;

h) Property statement (using the prescribed form);

i) The assessment of the compliance with the law by the representative and his/her family given by the executive committee of Communist Party or local government of the place of the representative's permanent residence.

k) The action program and commitment to comply with the state capital owner’s policies, resolutions and directives, and perform the representative’s role, responsibilities and obligations.

2. A representative re-appointment dossier includes:

a) The statement made by the personnel advisory agency and the written approval for re-appointment of the representative given by the state capital owner;

b) Any additional curriculum vitae, qualifications/certificates and property statements;

c) The representative’s self-assessment;

d) The state capital owner’s assessment of representative’s performance in the whole tenure.

Section 2: DISMISSAL OF REPRESENTATIVES

Article 22. Dismissal conditions

1. A representative will be dismissed in one of the following cases:

a) The representative submits a resignation letter which has been approved by the state capital owner;

b) The representative is transferred to another job position as decided by a competent authority;

c) The representative reaches retirement age;

d) The state capital owner no longer owns capital invested in the economic group, corporation or company;

dd) The representative is assessed to have failed to complete tasks in 02 consecutive tenures;

e) The representative violates moral standards or performs prohibited acts of party members, if the representative is a party member;

g) Other cases prescribed in relevant legislative documents.

2. After a representative is dismissed, the state capital owner is responsible for assigning other tasks to or solving benefits for the representative in accordance with regulations of law.

Article 23. Dismissal procedures

1. Based on the cases of dismissal mentioned in Clause 1 Article 22 hereof, the personnel advisory agency shall:

a) Prepare and submit the dismissal plan to the state capital owner for consideration;

b) Prepare the dismissal dossier, including: the curriculum vitae, the official dispatch requesting dismissal of representative prepared by the personnel advisory agency, and the representative’s self-assessment.

2. The state capital owner shall consider and make decision.

Section 3: COMMENDATION AND DISCIPLINARY ACTIONS AGAINST REPRESENTATIVES

Article 24. Commendation

A representative shall be commended and rewarded for his/her achievement or contribution in accordance with regulations of law on emulation and commendation.

Article 25. Rules for taking disciplinary actions

1. Disciplinary actions must be taken in an objective, impartial and strict manner in accordance with regulations of law.

2. A disciplinary action shall be imposed on each violation. If a representative commits multiple violations, these violations shall be considered separately and the violating representative shall be liable to the disciplinary action that is more severe than the most severe one among the disciplinary actions imposed for such violations, except cases where the forced resignation is imposed.

3. If a representative commits a violation while he/she is subject to a valid disciplinary action decision, he/she will be liable to the following disciplinary actions:

a) If the representative commits a violation for which a disciplinary action that is less severe than or as severe as the one he/she is liable to is imposed, a disciplinary action that is more severe than the one he/she is liable to shall be imposed.

b) If the representative commits a violation for which a disciplinary action that is more severe than the one he/she is liable to is imposed, a disciplinary action that is more severe than the one he/she is liable to shall be imposed.

The disciplinary action decision in force shall be no longer valid from the date on which the new disciplinary action decision comes into force.

4. The violating representative’s behavior and initiative to take remedial actions shall be considered as mitigating or aggravating factors when deciding disciplinary actions.

5. The time limit for disciplining a representative shall exclude the length of time for considering and deciding the disciplinary action taken against him/her in one of the cases prescribed in Clause 1 Article 31 hereof.

6. During the consideration of disciplinary actions, any acts bodily harming or offending dignity or reputation of representatives are prohibited.

Article 26. Prescriptive period and time limit for disciplining of violating representatives

1. Prescriptive period for disciplining of a violating representative

a) The prescriptive period for disciplining of a violating representative is 24 months from the time when the representative commits the violation to the day on which the state capital owner gives a written notice of consideration of disciplinary action.

b) The state capital owner shall give a written notice of consideration of disciplinary action when any representative is detected to commit a violation. Such notice must specify the time when the representative commits the violation, time of detecting that violation and the time limit for disciplining of the violating representative.

2. Time limit for disciplining of a violating representative

a) The time limit for disciplining of a violating representative is 02 months from the time of detecting the violation committed by the representative to the day on which the state capital owner issues a disciplinary action decision.

b) In case where many persons are involved, exhibits and instrumentalities need to be examined or there are other complicated facts, the state capital owner shall decide to extend the time limit for disciplining of the violating representative as prescribed in Clause 2 Article 80 of the Law on officials.

Article 27. Disciplinary actions

Disciplinary actions include: reprimand, warning and forced resignation.

Article 28. Reprimand

A reprimand shall be issued when a representative commits one of the following violations:

1. He/she fails to complete assigned tasks without giving legitimate reasons and he/she commits this violation for the first time;

2. He/she abuses his/her position and authority to use capital and assets of the economic group, corporation or company to seek personal interests or seek interests for others;

3. He/she violates the Charter of the economic group, corporation or company, issues decisions beyond his/her authority, or abuses his/her position and authority to cause damage to the economic group, corporation or company, or the State;

4. He/she violates the anti-corruption law, the law on thrift practice and waste combat, work regulations, gender equality regulations, regulations on prostitution prevention and combat, and other relevant laws.

Article 29. Warning

A warning shall be issued when a representative commits one of the following violations:

1. He/she uses illegal documents to be appointed as a representative; issues or certifies legal documents to ineligible persons or beyond his/her authority;

2. He/she uses information/documents of the economic group, corporation or company for self-seeking purposes;

3. He/she causes loss of state capital;

4. He/she submits 02 or more wrong reports on financial status of the economic group, corporation or company, or only one wrong report but it contains serious errors;

5. He/she commits a serious violation against the anti-corruption law, the law on thrift practice and waste combat, work regulations, gender equality regulations, regulations on prostitution prevention and combat, and other relevant laws.

Article 30. Forced resignation

A representative is forced to resign when he/she commits one of the following violations:

1. He/she is sentenced to imprisonment without being eligible for suspension;

2. He/she is a drug addict as certified by a competent health facility;

3. He/she has seriously violated regulations on finance, accounting, audit and other regimes according to conclusions given by a competent court or authority;

4. He/she issues decisions/directives causing loss of state capital invested in the economic group, corporation or company;

5. He/she commits a special serious violation against the anti-corruption law, the law on thrift practice and waste combat, work regulations, gender equality regulations, regulations on prostitution prevention and combat, and other relevant laws.

Article 31. Suspension and exemption from disciplinary actions

1. Cases in which disciplinary actions are suspended

a) A representative is taking annual leave, sick leave or personal leave as prescribed by law with approval from a competent authority.

b) A representative is receiving medical treatment as certified by a competent health facility.

c) A female representative is pregnant, is taking maternity leave or has a child of less than 12 months of age.

d) A representative is impounded or kept in temporary detention pending a conclusion about the violation from the investigating, prosecuting or trying agency.

2. Cases in which a representative is exempted from disciplinary actions

a) He/she is incapable of civil acts when committing the violation as certified by a competent authority.

b) He/she is implementing a decision issued by a superior authority as prescribed in Clause 5 Article 9 of the Law on officials.

c) He/she commits the violation in force majeure circumstances when performing his/her duty as certified by a competent authority.

Article 32. Disciplinary council

1. Establishment of a disciplinary council

The competent state capital owner prescribed in Article 4 and Article 5 hereof shall decide to establish a disciplinary council that shall provide counseling on imposition of disciplinary actions against the violating representatives, except the case prescribed in Clause 2 of this Article.

2. Cases in which the disciplinary council is not established

a) The representative is sentenced to imprisonment without being eligible for suspension.

b) The imposition of disciplinary actions is considered when a competent authority has reached conclusions on that violation and proposed disciplinary actions.

3. Organization of review meetings

Review meetings in cases where disciplinary councils are established and those where disciplinary councils are not established prescribed in Clause 1 and Clause 2 of this Article shall be organized as follows:

a) The head or deputy head of a competent authority shall be responsible for organizing the review meeting and deciding meeting participants;

b) The violating representative shall make a self-review providing explanations about his/her violation and voluntarily proposing disciplinary actions. The self-review shall be sent to the competent authority at least 05 working days by the date of review meeting.

If the violating representative fails to make a self-review or is absent after 02 summons to the meeting has been sent without giving legitimate reasons, and continues being absent after receiving the third summon, the review meeting shall still be organized;

c) Contents of a review meeting: The violating representative shall read his/her self-review; the meeting participants shall give their opinions; the chairperson of and participants in the meeting shall ballot for proposed disciplinary actions.

Contents of the review meeting prescribed in this Article must be recorded. The proposed disciplinary action against the violating representative shall be specified in the meeting minutes. Within 05 working days from the end of the review meeting, the meeting minutes must be sent to the Chairperson of the disciplinary council or the person competent to take disciplinary actions in case no disciplinary council is established.

Article 33. Composition of a disciplinary council

1. A disciplinary council is composed of 05 members, including:

a) Council’s chairperson that is a representative of the state capital owner;

b) A council’s member that is a representative of the executive committee of the Communist Party of the same level with the state capital owner;

c) A council’s member that is a representative of the state capital invested in the economic group, corporation or company where the violation is committed; this council's member will be appointed by the representative of the group of representatives of the economic group, corporation or company;

d) A council’s member that is a representative of the executive board of the trade union of the economic group, corporation or company where the violation is committed;

dd) A council’s member cum secretary that is the person in charge of the personnel advisory agency.

2. Family members, including parents, children, spouse, siblings, siblings-in-law, and persons involved in the violation committed by the representative are not appointed as members of the disciplinary council.

Article 34. Working rules of disciplinary council

1. A council’s meeting is conducted if it is attended by at least 03 members, including the council’s Chairperson and member cum secretary. The disciplinary council shall propose a disciplinary action based on its ballot result with more than 50% of total votes of meeting participants is “yes” vote.

In case of equality of votes casted at a meeting of the disciplinary council in which there are 04 participants, the council’s Chairperson shall have the casting vote.

2. The meeting minutes must include opinions given by participants and ballot result.

3. The disciplinary council shall be automatically dissolved upon completion of its tasks.

Article 35. Procedures for taking disciplinary actions

1. Organization of the disciplinary council’s meeting

a) Preparation for the meeting:

- At least 07 working days before the meeting of the disciplinary council is convened, the summon to the meeting must be sent to the violating representative. If the violating representative is absent, he/she must give legitimate reasons. If the violating representative is absent after 02 summons to the meeting has been sent to him/her without giving legitimate reasons, and continues being absent after receiving the third summon, the disciplinary council shall stilly convene the meeting to consider the violation and propose appropriate disciplinary action;

- The disciplinary council may invite representatives of the political organization or socio-political organization where the violating representative is working to the meeting. Invited participants may give their opinions and propose disciplinary actions but may not vote on the disciplinary action;

- The member cum secretary of the disciplinary council shall prepare documents concerning the disciplinary action against the violation, and record the meeting of the disciplinary council;

- Disciplinary action dossier submitted to the disciplinary council include: The self-review, curriculum vitae, minutes of the review meeting of the economic group, corporation or company where the violating representative is working, and other relevant documents.

b) Procedures of the meeting:

- Chairperson of the disciplinary council declares reasons of the meeting and introduces participants of the meeting;

- The member cum secretary of the disciplinary council reads the curriculum vitae of the violating representative and other relevant documents;

- The violating representative reads his/her self-review. The self-review shall be read by the council’s secretary on behalf of the violating representative if he/she is absent from the meeting. If the violating representative does not make a self-review, the disciplinary council shall perform remaining procedural acts of the meeting as prescribed in this Clause;

- The member cum secretary of the disciplinary council reads the minutes of the review meeting;

- Members of the disciplinary council and participants in the meeting express their opinions;

- The violating representative expresses his/her opinions. If the violating representative does not express his/her opinions or is absent from the meeting, the disciplinary council shall perform remaining procedural acts of the meeting as prescribed in this Clause;

- The disciplinary council shall ballot on proposed disciplinary actions;

- Chairperson of the disciplinary council declares the ballot result and gives approval of the meeting minutes;

- The Chairperson and member cum secretary of the disciplinary council sign the meeting minutes.

If two or more representatives commit violations in the same economic group, corporation or company, the disciplinary council shall convene meeting to consider the disciplinary action taken against each violating representative.

2. Disciplinary action decision

a) Procedures for issuing a disciplinary action decision:

- Within 05 working days from the end of the meeting, the disciplinary council shall send its proposed disciplinary action in writing (including the meeting minutes and disciplinary action dossier) to the authority competent to take disciplinary action prescribed in Article 4 and Article 5 hereof;

- Within 15 working days from receipt of the written proposal from the disciplinary council or the minutes of the review meeting prescribed in Clause 3 Article 32 hereof, if the disciplinary council is not established, the person competent to take disciplinary actions shall issue a disciplinary action decision or a conclusion that the representative is not guilty;

- In case where there are complicated facts, the authority competent to take disciplinary actions shall decide to extend the time limit for disciplining of the violating representative as prescribed in Point b Clause 2 Article 26 hereof and take responsibility for its decision.

b) The disciplinary action decision must specify its effective date;

c) If the representative commits no violation for which a disciplinary action must be imposed 12 months after the disciplinary action decision comes into force, the disciplinary action decision shall be null and void without requiring any document on termination of its validity.

Article 36. Complaints

The disciplined representative is entitled to make complaint against the disciplinary action decision in accordance with regulations of the law on complaints.

Article 37. Disciplinary action dossier

1. A disciplinary action dossier includes: The written request for consideration of disciplinary action made by the disciplinary council; the self-review; minutes of review meetings; denunciation, investigation/inspection conclusions and other relevant documents; minutes of the meeting of the disciplinary council, and disciplinary action decision.

2. The disciplinary action dossier shall be included in the representative’s personal file. The representative’s curriculum vitae must include information about his/her disciplinary action decision.

Article 38. Representative’s responsibility to make compensations and refunds

Representatives committing violations and thus causing economic damage or damage to assets of the State and of economic groups, corporations or companies shall make compensations/refunds in accordance with regulations of law.