Chương 2 Nghị định 111/2007/NĐ-CP: Tổng công ty do nhà nước quyết định đẩu tư và thành lập

Chapter 2:

THE COPORATIONS DECIDED FOR INVESTMENT AND ESTABLISHMENT BY THE STATE

Article 4. The corporations decided for investment and establishment by the State

1. Corporations decided to invest in and establish by the State is the form of association, collection of member companies accounting independent and other member units as prescribed by law, having close relationship together on economic benefits, technology, market and other business services, operating in one or several main economic - technical subjects to enhance the accumulation and concentration of capital and business specialization of the member units and the entire corporations.

2. Corporation has legal entity status, private name, seal, management apparatus and administration, head office in the country, with rights and obligations of the state-owned company under regulations of the State-owned Enterprise Law, operating under the Charter of corporation and the provisions of law.

3. Corporations decided to invest in and establish by the State include the corporations which were reorganized from the corporations established under the 1995 State-owned Enterprise Law and the corporations which were founded newly under the 2003 State-owned Enterprises Law. The reorganization of the corporations complies with the provisions of the Government on the reorganization and dissolution of State companies.

Article 5. Conditions to organize the corporations decided for investment and establishment by the State

Conditions to organize the corporations decided for investment and establishment by the State are according to provisions in Article 48 of the Law on State-owned Enterprise and provisions issued by the Government.

Article 6. Member units of corporations

1. Corporation decided to invest in and establish by the State has member units invested the entire charter capital in by the corporation, the member units held shares, dominant contributed capital by the corporation.

2. The units invested all charter capital by the corporation include:

a) Independent accounting member companies operating under the State-owned Enterprise Law, this Decree and Charter of the corporation in the period not yet transferred to operate under the Enterprise Law.

b) Dependent accounting member units and practice units operate as assigned by the corporation under the provisions in charter of the corporation.

c) One member limited liability company owned by the corporation is organized and operates under the Enterprise Law.

d) The enterprise invested entire charter capital by the corporation is established in the foreign countries, organized and operates under the laws of such foreign countries.

đ) Depending on the size and business needs, the corporation may have finance company organized and operating under the Law on Credit Institutions and the guidance of the State Bank, under Charter of the corporation and the provisions of relevant law.

3. The member units held shares, dominant contributed capital by the corporation, include:

a) Shareholding companies, limited liability Company with shares, dominant contributed capital of corporation operating under the Enterprise Law.

b) The enterprises held shares, dominant contributed capital by the corporation are established in the foreign countries, organized and operate under the laws of such foreign countries.

Apart from the member units provided in clause 2 and clause 3 of this Article, the corporation can contribute capital of not dominating into the limited liability companies with two or more members, shareholding companies, companies in the foreign country.

Article 7. Capital, assets, finance of corporations

1. Capital, assets, finance of corporations:

a) The capital of the corporation includes capital invested in the corporation by the State, capital mobilized by the corporation itself and other types of capital in accordance with the law regulations.

b) Charter capital of the corporation is the capital invested by the State and recorded in the charter of the corporation, including: the state capital invested initially, additionally and capital accumulated by its own are concentrated in accounting in the corporation; state capital in the subsidiaries accounting independent; state capital invested by corporations and invested directly by the State in the shareholding companies, limited liability companies, overseas companies and assigned to the corporation to manage. When the increase or decrease of charter capital happens, the corporation must promptly adjust in assets balance sheet and register additional capital.

c) The assets of the corporation include: liquid assets and fixed assets which are formed from charter capital of the corporation, loans and other legal capital sources managed and used by corporation.

d) The value of land use rights is included into capital of the corporation in accordance with the law regulations.

đ) State budget capital is invested only through the corporation. Based on the needs and business efficiency, the corporation may decide to invest, adjust investment capital or decide not to invest in the member units and other enterprises.

e) Profits of corporations include profit from business operations, profit from financial investments and profits from other activities of the corporations.

g) The funds of the Corporation include the financial reservation fund, development investment fund, the reward fund, welfare fund and other funds as prescribed by law.

2. The specific regulations on capital, assets and finance of the corporation shall comply with the financial regulation of state-owned company and management of state capital invested in other enterprises issued by the Government.

Article 8. Managerial, organizational structure of corporations

1. The Corporation has the managerial, organizational structure, management including the Board of management, inspection committee, General director, the deputy directors, chief accountant and the assistant apparatus.

2. Member companies accounting independent have the managerial, organizational structure, including: directors, deputy directors, chief accountant and the assistant apparatus. The functions, duties, powers and standards of the director and deputy directors, chief accountant and the assistant apparatus are defined in Item I Chapter IV of the State-owned Enterprise Law and this Decree.

3. Business units and units accounting dependent of the corporation have managerial, organizational structure under regulations approved by the Management Board of the corporation.

4. Financial company has managerial, organizational structure under relavent laws on financial company and operation charter passed by the Management Board of the corporation, approved by the State Bank.

5. Unit members are one member limited liability companies owned by corporation, limited liability companies with two or more members, and the shareholding companies with managerial, organizational structures in accordance with law regulations on forms of such member units.

Article 9. Management Board of corporations

1. Board of Management has functions as provided for in Article 29 of the Law on State-owned Enterprises; representatives of the owners of one member limited liability companies owned by corporations, independent accounting member companies; representatives of the contributed capital portion of corporation in other enterprises.

2. Board of Management uses office, the professional divisions, departments of corporation and a standing division with less than five staffs to advise and help the works. The standing division performs tasks assigned by President of the Management Board of the corporation.

3. Specific duties and powers of the Management Board as follows:

a) To perform duties and powers as prescribed in clause 1, points b, c, d, e, g clause 2, clauses 3, 4 and 5 Article 30 of the State-owned Enterprise Law.

b) To decide on strategy, long-term plans, annual business plan, the business lines of the corporation, independent accounting member company, unit accounting dependent, business units, the one member limited liability company owned by the corporation, financial companies (if any); decide on business coordination plan of the member units owned by the corporation the entire charter capital or shares or dominant contributed capital.

c) To decide the use of capital of the corporation to invest in establishment of member units owned by the corporation the entire charter capital and purchase shares, contribute capital into other enterprises, but not exceeding the investment capital rate under the decision power of the Board of management specified in point b clause 2 Article 30 of the Law on State-owned Enterprises and the provisions of relevant laws; to decide on the reorganization, dissolution or conversion of ownership for the independent accounting member companies of corporation and one member limited liability company owned by the corporation with capital rate not exceeding the specified level for the Management Board in investment to establish enterprise accordance with the law regulations; to decide on receiving the enterprises to voluntarily participate as affiliates of the corporation in accordance with the law regulations.

d) To decide on increase of charter capital, transfer of part or all of charter capital of the one member limited liability company owned by the corporation for other organizations and individuals as stipulated in Article 64 of Law on Enterprise.

đ) To decide on managerial, organizational structure of independent accounting member companies, financial companies (if any) as specified in the Law on Credit Institutions. To decide on application of the managerial, organizational structure of members council or chairman of the company of the one member limited liability company, the number and structure of members of members council; to decide on appointment, dismissal, demotion and to decide on the remuneration or salary for members of the members council, the company president, inspector of the one member limited liability company owned by the corporation.

e) To decide on appointment of representative for contributed capital portion of corporate in other enterprises at the proposals of the General Director. Board of management does not exercise rights and obligations of owners for contributed capital portion of the member companies in other companies.

g) To approve charter of independent accounting member companies, one member limited liability company owned by the corporation; to approve the operation regulation of the dependent-accounting units, business units; to pass draft charter of the financial company (if any), submitting to the Governor of the State Bank for approval.

h) To pass the annual financial statements of the corporation, independent accounting members company, one member limited liability company owned by the Corporation and consolidated financial statements of all total corporation; to approve the plan of use of after-tax profit of independent accounting members company, one member limited liability company owned by the Corporation.

i) To inspect, supervise chairman and members of the members council or company presidents and general director (director), inspector of one member limited liability company owned by corporation, directors of the member units to be independent accounting members company, dependent accounting members units, business units, financial companies (if any) and the representatives for the contributed capital portions of the corporations in another enterprise in the implementation of the functions and duties prescribed by the State-owned Enterprise Law, Enterprise Law and this Decree.

k) To implement duties, powers according to the charter of the corporation and relative law.

4. Chairman of the Board of Management has the powers and duties as prescribed in Article 33 of the Law on State-owned Enterprises. Chairman of the Board of Management and Management Board members have the duties and responsibility as stipulated in Article 43 of the Law on State-owned Enterprises, are participated in the management other company when meeting all the conditions stipulated in Article 36 of the Law on State-owned Enterprises.

5. Working regime of the Board of Management is according to provisions in Article 34 of the Law on State-owned Enterprises.

6. Standard, member structure, the appointment, dismissal and replacement of Management Board members shall comply with the provisions of Article 31, 32 of the State-owned Enterprise Law and the involved law regulations. The process of appointment and dismissal of the chairman and members of the Management Board shall comply with the decision of the Prime Minister.

7. Salary and bonus regime of the Management Board shall comply with the provisions of Article 35 of the Law on State-owned Enterprises, the Government's regulations and other provisions of law on salary, bonus regime and the accountability regime for members of the Management Board, Inspection Committee, General Director, State-owned enterprise’s Director; the law regulations on regime of wage and labor management, wages and income in the State-owned enterprise and related law regulations.

Article 10. Inspection Committee of corporation

1. The Management Board formulates Inspection Committee including from 3 to 5 members.

The Management Board decides to appoint a member of the Management Board as Head of Inspection Committee. Chairman of the Management Board, General Director, and Deputy Director are not allowed to keep the position of head of Inspection Committee. Other members of the Inspection Committee selected, appointed, dismissed by the Management Board including a member appointed by the union organization of the corporation.

Member of the Inspection Committee must meet the standards specified in clause 4 Article 37 of the Law on State-owned Enterprises.

2. The term of the members of the Inspection Committee is upon the term of the management Board. Members of the Inspection Committee shall receive wages and bonuses according to the decision of the Management Board in accordance with the law regulations on salary, bonuse regime and the Law on State-owned Enterprises.

3. The Inspection Committee operates under regulations approved by the Management Board, having duties, powers and responsibilities as follows:

a) To inspect and valuate the legality, accuracy and honesty in management, administration of the business operations, the accounting records, financial statements and the compliance with charter of the corporation, resolutions and decisions of the management Board, the decision of the Chairman of the Management Board for the member units invested the entire charter capital by the corporation.

b) To perform tasks assigned by the Management Board; report to the Management Board monthly, quarterly, annually and upon case on its supervison, inspection results; promptly detect and report to the Management board for the abnormal activities, contrary to the provisions on corporate governance or signs of law violation.

c) Not to disclose the results of inspection and supervision without permission of the management Board; take responsibility before the Management Board and law for the acts of deliberately ignore or cover up for violations.

d) To take responsibility before the Management Board and law for all the activities of the Inspection Committee.

Article 11. General Director, deputy general directors, chief accountant and the assistant apparatus

1. General Director is the representative at law, administer the daily activities of the corporation with the goals and plans in accordance with charter of the corporation and the resolutions and decisions of the management Board; take responsibility before the Management Board and law for the implementation of the rights and duties assigned.

General Director shall have duties, powers specified in Article 41 of the Law on State-owned Enterprises and the folowing duties and powers for the member units:

a) To make business coordination plan among the member units submitting to the Management Board; to implement common business coordination plan, plans to invest between member units.

b) To check the member units in performance of the norms and standards, unit prices specified within the corporation.

c) To decide on selection, signing, termination of contract or appointment, dismissal, reward or discipline; to decide the salaries and allowances for: director, chief accountant of the independent accounting member company, business units of the corporation after the approval of the Management Board; Deputy Director of the independent accounting members company, business units of the corporation at the request of the director of these units.

d) To recommend the Management Board to decide on appointment of representative of contributed capital portion of corporate in other enterprises.

2. Deputy General Director recommended by the General Director for the management Board to appoint, dismiss, demote or sign, terminate contract, reward, discipline, decide on salary. Deputy General Director helps General Director to administer the corporation upon assignment and authority of the General Director; to take responsibility before General Director and the law on the duties assigned or authorized.

3. Chief accountant of the corporation recommended by the General Director for the management Board to appoint, dismiss, demote or sign, terminate contract, reward, discipline, decide on salary. Chief Accountant is responsible for implementation of accounting tasks of the corporation; to help the General Director to supervise finance in the corporation according to accounting, financial law; to take responsibility before General Director and the law on the duties assigned or authorized.

4. Standard of General Director; the selection, appointment, dismissal, contract signing, termination with the General Director, Deputy Directors, Chief Accountants; obligations and responsibilities of the General Director, the relationship between the management Board and General Director in management and administration of the corporation, shall comply with Article 24, 40, 42 and 43 of the Law on State-owned Enterprises.

5. Offices and professional departments, boards and services have functions to advise and assist the Management Board, General Director in management and administration of assigned tasks.

6. Salary and bonus regime of the General Director, deputy General Director and Chief Accountant shall comply with the provisions of clause 11 Article 41 of the Law on State-owned Enterprises; provisions of the Government on salary, bonus regime and responsibilities regime for members of the Management Board, Inspection Committee, General Director, Director of state-owned enterprise; law regulations on regime of wage, labor management, wages and income in the State-owned companies and concerned law regulations. Regime of salary and bonus settlement of General Director and deputy General Director, Chief Accountant is prescribed in clause 10 Article 26 of the Law on State-owned Enterprises and and concerned law regulations.

Responsibilities regime associated with salaries and bonuses of the Director General is implemented ​​under the provisions in clause 3 and clause 5 Article 43 of the Law on State-owned Enterprises.

Article 12. Independent accounting member companies and relationship between the corporation with independent accounting member companies

Independent accounting member companies are the member units of the corporation, having legal entity status, autonomy in trading and submitting bind on the rights and obligations to the corporation as follows:

1. Capital of independent accounting member companies includes: capital invested in the company by corporation, capital raised by the company and other sources of capital in accordance with the law regulations.

For independent accounting member enterprises of the corporation established under the 1995 State-owned Enterprise Law that after the reorganization was converted to the independent accounting member company, the state capital portion in this company is converted into capital for investment in the company by corporation, the corporation is the owner of the independent accounting member company.

2. Independent accounting member companies have the following rights toward capital and assets of the company: management and proactive use of company capital and capital invested by the corporation; to take possession and use of capital, assets of the company for doing business, the implementation of the lawful interests from capital and assets of the company; to dispose the capital, assets of the company in accordance with provisions of the State-owned Enterprise Law, this Decree and the relevant legislation; to use and manage state assets assigned or leased by the State such as land, natural resources in accordance with regulations of the law on land and natural resources.

The corporations are not allowed to remove their capital invested in the independent accounting member companies and capital, assets of these member companies under the mode of non-payment, unless they decide to reorganize the independent accounting member companies or perform objectives to provide public-utility products and services.

3. When being requested, ordered goods or participated in auction by the State to perform utility activities, the company has the rights and obligations as stipulated in Article 19 of the Law on State-owned Enterprises.

4. Independent accounting member companies submit to the binding on the rights and obligations to the corporation as follows:

a) To perform general business plan of the corporation; to perform ​​the tasks of production and business assigned by the corporation on the basis of economic contracts with the corporation; to take responsibility for the effective coordination of business activities with the corporation; to be self-signed economic contracts and implemented economic contracts signed and transferred to by the corporation.

b) To decide on investment projects in the company and to invest, contribute capital into other companies upon decentralization of the corporation; to participate in forms of investment with the corporation or assigned by the corporation to organize the implementation of investment projects according to the plan of the corporation on the basis of contract signed with the corporation.

c) To take responsibility before the corporation on the using effectiveness of capital and resources invested by the corporation, to preserve and develop capital invested by the corporation and capital raised by the company; To take responsibility before the corporation on the use of funds for investment to establish other enterprises; To take self- civil responsibility with all of their assets; periodically re-evaluate the company's assets in accordance with provisions of the Government and the charter of the corporation.

The Corporation is responsible for the debts and other obligations on assets of the independent accounting member company within the charter capital of the company.

d) May request the corporation to decide or authorized by the corporation to decide on the establishment, reorganization, dissolution or merger of the dependent accounting units and decide on the managerial apparatus of the dependent accounting units.

đ) To set up and apply norms of labor, materials, unit wages and other costs on the basis of ensuring the effectiveness of the company's business, in accordance with the provisions of law and charter of the corporation.

e) After completing its tax obligations, loss transfer according to provisions of the Corporate Income Tax Law, the implementation of other financial obligations as prescribed by law, setting up a financial reservation fund, the remaining profit is divided by capital invested by the corporation and capital mobilized by the company. Profit divided by capital invested by the corporation is used to reinvest in the state capital increase in the company or make concentrated fund of the corporation in accordance with provisions of the Government. Profit divided by capital capital mobilized by the company may be deducted part for the development investment fund of the company at the rate prescribed by the Government; the remainder decided on the distribution into the reward fund and welfare fund by the company.

g) The company is obliged to do profitable business, ensure the profit rate target on capital invested and assigned by the corporation; to register, declare and pay all taxes and obligations to the corporation and other financial obligations as prescribed by law.

h) To perform the regime of accounting, auditing and financial report, statistical report in accordance with the law regulations and as required by the corporation; to submit to the supervision and inspection of the corporation; periodically report accurately and completely information of company and financial reports of company to the corporation; to comply with the regulations on the inspection of financial agencies and the competent state agency under the provisions of law.

i) Other rights and obligations in accordance with the Law on State-owned Enterprises and relevant laws.

Article 13. The relationship between corporations with business units, the dependent accounting units and the financial company of corporations

1. The business units implement the regime of decentralized accounting prescribed by the corporation; to be created the revenue source from the performance of the contracts to provide services, scientific research and technology transfer training with the units inside and outside the corporation. The business units operate under charter or regulation approved by the Management Board of the corporation.

2. Dependent accounting units of the corporation may take the initiative to sign economic contracts, implement the business, financial operations, organization and personnel designated by the corporation specified in the charter or organizational and operational regulations of these units approved by the Management Board of the corporation. The Corporation is responsible for financial obligations incurred for the commitments of these units.

3. The financial company of corporations is organized, operates and related to corporations under the law on credit institutions, guidance of the Ministry of Finance, State Bank and operation charter passed by the Management Board of the company and approved by the State Bank.

Article 14. The relationship between corporations with one member limited liability company owned by the corporation

The Corporation takes ​​the rights and performs obligations of owners for the one member limited liability company owned by the corporation as specified in clause 1 Article 64, Article 65 and Article 66 of the Law on Enterprises, charter of the corporation, the Government’s regulations and other provisions of law.

Article 15. The relationship between corporate and the companies with dominant shares, dominant contributed capital of each company

1. Companies with dominant shares, contributed capital of the corporation were founded, organized and operate under the Enterprise Law, the provisions of relevant laws and charter of the corporation. Corporation exercises the rights and performs obligations of shareholders or member contributing dominant capital in the company according to provision the Law on Enterprises.

2. The Corporation implements the management of its dominant shares, contributed capital in the other enterprises as stipulated in Article 58 of the Law on State-owned Enterprises and Government’s regulations on the management of the share capital, dominant contributed capital and management of state capital invested in other enterprises.

Article 16. The relationship between corporations and the companies with non-dominant shares, contributed capital of the corporation

1. The shareholding companies, limited liability company with two members or more, overseas companies having shares, contributed capital of the corporation holding from 50% or less of charter capital, are is not member unit of the corporation and not dominated by corporation.

2. Companies with non-dominant shares, contributed capital of the corporation were established, organized and operate under the Enterprise Law, relevant regulations of laws and charter of the company. The Corporation implements the management of its shares, contributed capital in these companies as stipulated in Article 59 of the State-owned Enterprise Law, Enterprise Law and the regulations of the Government on the management of State capital invested in other enterprises.

Article 17. Responsibilities of the corporations

1. The Corporations are not allowed to abuse the position of the company holding the entire charter capital or holding dominant shares, contributed capital for the member units to be independent accounting member company, one member liability limited owned by the corporation, shareholding companies, dominant contributed capital of the corporation to harm the interests of member units, creditors and relavent parties.

The corporations are not allowed to make the provisions in the charter of the independent accounting member company, one member liability limited owned by the corporation harming the interests of the company, creditors and relavent parties.

2. In case of implementing the following acts without the agreement with member units referred to in clause 1 of this Article causing damages to the member units, the corporation shall be liable for paying compensation of damages for the member units and relavent parties:

a) To force member units to sign and implement unfair and disadvantage economic contracts over the member units.

b) To transfer capital, assets of the member units, causing damage to the member units being transferred.

c) To transfer some business activities to be effective, profit from this member unit to other member unit without agreement with the member units being transferred, leading to the being-transferred member units to be lost or to be reduced seriously its profits.

d) To decide on tasks for production and business toward member units contrary to the charter and law; to assign tasks of implementation to the member units not based on signing economic contracts with these units.

đ) To force unit members to lend the corporation or other member units at low interest rates, with unreasonable loan and payment conditions or to provide loans for the corporations or other other member units to implement the risky economic contracts for the business activities of the member units.

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