Chương II Nghị định 48/2017/NĐ-CP: Quyền, trách nhiệm và nghĩa vụ của đại diện chủ sở hữu nhà nước đối với SCIC và phân công thực hiện các quyền, trách nhiệm, nghĩa vụ của đại diện chủ sở hữu nhà nước

Chapter II

RIGHTS, RESPONSIBILITIES AND OBLIGATIONS OF A STATE OWNER’S REPRESENTATIVE TO SCIC, AND ASSIGNMENT OF RIGHTS, RESPONSIBILITIES AND OBLIGATIONS OF A STATE OWNER’S REPRESENTATIVE

Section 1. RIGHTS, RESPONSIBILITIES AND OBLIGATIONS OF A STATE OWNER’S REPRESENTATIVE

Article 9. Rights and responsibilities of a State owner’s representative to SCIC

1. Make the decision on establishment, objectives, duties and business lines of SCIC; corporate restructuring, ownership transition, business insolvency and bankruptcy petition; capital contribution to other enterprises.

2. Issue, amend and supplement the Charter.

3. Make the decision on charter capital increases; adjust and dispose of a part or all of SCIC’s charter capital.

4. Decide SCIC‘s management structure; appointment, re-appointment, discharge, resignation, signing and termination of the contract with, offer of awards to and imposition of punishment on the Chairperson and members of Board of Directors, Comptrollers, Director General, Deputy Directors General and Chief Accountant of SCIC.

5. Make decision on the business strategy, plan and investment and development plan.

6. Approve policies for investment, construction and trading of fixed assets, capital mobilization and external investment projects of SCIC under the jurisdiction of that representative.

7. Regulate the financial regime, distribution of profits, establishment and use of funds; approve annual financial statements.

8. Set regulations on staff recruitment, salaries, wages or bonuses; decide pay rates applied to SCIC's Chairperson, members of Board of Directors, Comptrollers, Director General, Deputy Director General and Chief Accountant.

9. Make decisions on market growth, promotion and technological solutions; regulate the mechanism for assignment of tasks and involvement in provision and adequacy of public products and utilities essential for the economy.

10. Superintend, inspect and assess compliance with laws; assess fulfillment of specified objectives and assigned tasks, business outcomes and efficiency; manage, use, preserve and appreciate SCIC’s capital; assess SCIC‘s Chairperson, members of Board of Directors, Comptrollers, Director General, Deputy Director General and Chief Accountant.

11. Implement other rights and duties as stipulated by law.

Article 10. Obligations of the state owner’s representative

1. Make adequate investments in SCIC’s charter capital as per law.

2. Comply with SCIC’s Charter.

3. Accept liability to pay SCIC’s debts and other asset obligations within the range of SCIC’s charter capital; identify and distinguish the state owner’s assets and SCIC’s property.

4. Comply with laws when approving policies for investment, construction and trading of fixed assets, capital mobilization and external investment projects of SCIC.

5. Assure SCIC’s legal business rights.

6. Fulfill other obligations as stipulated by law.

Section 2. ASSIGNMENT OF DUTIES TO IMPLEMENT RIGHTS AND RESPONSIBILITIES OF THE STATE OWNER’S REPRESENTATIVE

Article 11. Rights and responsibilities of the Government

1. Promulgate, amend and supplement SCIC’s Charter upon the request of the Minister of Finance.

2. Identify, change or modify SCIC’s functions, duties and business mechanism upon the request of the Minister of Finance.

3. Implement other rights and duties as stipulated by law.

Article 12. Rights and responsibilities of the Prime Minister

1. The Prime Minister shall be mandated to make his decision on:

a) Reorganization, ownership transition and restructuring of SCIC;

b) SCIC’s charter capital upon incorporation and modification of its charter capital during the business period;

c) Investment policies for investment projects funded by SCIC as stated in clause 1, 2 and 4 of Article 31 in the Investment Law;

d) Policies for overseas investment in projects funded by SCIC as stipulated in clause 2 of Article 54 in the Law on Investment; approval of projects for SCIC’s contribution of capital to joint ventures with foreign investors operating within Vietnam.

dd) Appoint the Chairperson of the Board of Directors and Director General after receiving the request from the Ministry of Finance, verification results from the Ministry of Home Affairs and unanimous collective opinions from the Government’s Party Staff Division.

e) Planning, re-appointment, discharge, dispatch, rotation, dismissal, offer of rewards to, imposition of punishment on, resignation and retirement of the Chairperson of SCIC's Board of Directors after receiving the request from the Ministry of Finance and verification results from the Ministry of Home Affairs.

2. The Prime Minister shall be mandated to approve:

a) Business strategy, proposal, investment and developmental plan to be carried out during the period of 5 years; the general program for reorganization, reform and restructuring of SCIC;

b) Policies for establishment, transition of ownership and restructuring of subsidiaries wholly owned by SCIC; establishment, reorganization and closure of branches, representative offices and dependent accounting units of SCIC.

3. Implement other rights and duties as stipulated by law or under his authority delegated by the Government.

Article 13. Rights and responsibilities of the Ministry of Finance

The Ministry of Finance shall directly supervise SCIC's Board of Directors, shall have rights and responsibilities as follows:

1. Propose the followings to seek the Government’s decision to adopt:

a) SCIC's Charter, amendments and supplements to SCIC’s Charter upon the request of SCIC’s Board of Directors;

b) Change or modification of SCIC’s functions, duties and business mechanism as requested by SCIC’s Board of Directors.

2. Petition the Prime Minister to make his decision on:

a) Reorganization, ownership transition and restructuring of SCIC;

b) Amount of SCIC’s charter capital and adjustment to SCIC’s charter capital;

c) Planning, appointment, re-appointment, discharge, dispatch, rotation, dismissal, offer of rewards to, imposition of punishment on, resignation and retirement of the Chairperson of SCIC's Board of Directors after receiving verification results from the Ministry of Home Affairs;

d) Appointment of SCIC’s Director General after receiving verification results from the Ministry of Home Affairs.

3. Petition the Prime Minister to approve:

a) Business strategy, proposal, investment and developmental plan to be carried out during the period of 05 years; the general program for reorganization, reform and restructuring of SCIC;

b) Policies for establishment, transition of ownership and restructuring of subsidiaries wholly owned by SCIC; establishment, reorganization and closure of branches, representative offices and dependent accounting units of SCIC.

4. Make decisions on the followings:

a) Planning, appointment, re-appointment, dismissal, offer of rewards to or imposition of punishment on any member of the Board of Directors (except the Board’s Chairperson), Comptrollers, and payment of wages, salaries, remunerations and bonuses as well as other benefits to persons who hold office as Comptrollers;

b) Wages, salaries, remunerations, bonuses and other benefits paid to the Board’s Chairperson, members of the Board of Directors and Comptrollers; funds for payment of wages, salaries and remunerations to SCIC's management and Comptrollers;

c) Promulgation of Regulations on financial management over SCIC.

5. Approve policies for:

a) Change in the rates of SCIC’s ownership at enterprises belonging to the list of enterprises whose controlling shares are held by the State (except as prescribed in point b of clause 2 of Article 15 in the Government’s Decree No. 151/2013/ND-CP dated November 1, 2013 on SCIC’s functions, duties and business mechanism), and acceptance of enterprises voluntarily participating as its subsidiaries or affiliates;

b) Mobilization of capital and investment with respect to any SCIC-funded investment project (except those projects specified in point c and d of clause 1 of Article 12 herein) for which the investment fund accounts for more than 25% of its equity specified in the financial statement made in the most recent quarter or year preceding the date of grant of approval of a policy for capital mobilization and investment in such project, or is greater than the amount of capital required for any group-B investment project as provided in the Law on Public Investment;

c) Sale or purchase of fixed assets, investment projects outside of SCIC in which the investment fund accounts for more than 25% of its equity specified in SCIC's financial statement made in the most recent quarter or year preceding the date of grant of the decision on sale and purchase of fixed assets or investment, or is greater than the amount of capital required for any group-B investment project under the provisions of the Law on Public Investment; overseas investment projects under its jurisdiction and projects for investment in other enterprises that serve the purposes of providing public products and utilities.

6. Give its written opinions to SCIC’s Board of Directors to help them:

a) Approve business plans, financial statements, profit distribution and setting aside of profits for funds of SCIC on an annual basis;

b) Make decision on planning, re-appointment, resignation, discharge, secondment, rotation, offer of rewards to, imposition of disciplinary actions on, dismissal and retirement of SCIC’s Director General.

7. Carry out supervision, inspection and assessment of compliance with laws; management, use, preservation and appreciation of capital; implementation of strategies and plans; implementation of the regime for recruitment and hiring of employees; the regime on payment of wages and salaries; give its opinions on supervision, inspection and assessment of other entities accorded authority over investment, use and management of state capital at SCIC.

8. Assess fulfillment of specified objectives, assigned tasks or implementation of permitted business lines, business outcomes and efficiency; assess the extent to which office holders and comptrollers fulfill their management and governance tasks.

9. Implement other rights and duties as stipulated by law or under its authority delegated by the Government or the Prime Minister.

Article 14. Rights and responsibilities of other sectoral ministries

1. The Ministry of Planning and Investment:

a) Give opinions on SCIC’s objectives, tasks and business lines; corporate reorganization, ownership transition, insolvency and bankruptcy petition of SCIC; proposal for establishment of any subsidiary whose charter capital is wholly owned by SCIC; SCIC’s investment and developmental strategy, plan and business proposal to be carried out for the period of 5 years; general program for restructuring and reform of SCIC; adjustment in SCIC’s charter capital during its business period;

b) Cooperate with the Ministry of Finance in supervising and inspecting implementation of SCIC’s strategies, plans, specified objectives and assigned tasks;

c) Implement other rights and obligations according to law, under its duties assigned and authority delegated by the state owner’s representatives, as well as in compliance with this Charter.

2. The Ministry of Home Affairs:

e) Verify the planning, appointment, re-appointment, dismissal, discharge, dispatch, rotation, offer of rewards to, imposition of punishment on, resignation and retirement of the Chairperson of SCIC's Board of Directors after receiving the request from the Ministry of Finance;

b) Verify the appointment of SCIC’s Director General after receiving the request from the Ministry of Finance;

c) Cooperate with the Ministry of Finance in carrying out inspection and assessment of compliance with regulations of the Party and State on SCIC’s staff affairs;

d) Implement other rights and obligations according to law, under its duties assigned and authority delegated by the state owner’s representatives, as well as in compliance with this Charter.

3. The Ministry of Labor, War Invalids and Social Affairs:

a) Cooperate with the Ministry of Finance in legally carrying out the annual control, inspection and assessment of conformance of SCIC to the regime for recruitment, salaries, bonuses and remunerations;

b) Consult with the Ministry of Finance to make decision to approve the annual payroll, compensation and bonus package applied to SCIC’s office holders;

c) Preside over and cooperate with ministries and sectoral administrations concerned in providing instructions about the regime for wages, salaries, compensation and bonuses applied to employees and office holders provided that such instructions are relevant to the particular nature of SCIC;

d) Implement other rights and obligations according to law, under its duties assigned and authority delegated by the state owner’s representatives, as well as in compliance with this Charter.

Article 15. Rights and responsibilities of SCIC’s Board of Members

Carry out rights and responsibilities prescribed in Article 27 herein.

Section 3. CONTROL BOARD AND COMPTROLLERS

Article 16. Eligibility standards and requirements for Comptrollers

1. Have full civil capacity and not a subject of the regulation laid down in clause 2 of Article 18 in the Law on Enterprises.

2. Hold degrees in such majors as finance, accounting, audit, law and business administration, gain at least 3 years' experience in holding the same office. In particular, the Head of the Control Board must acquire at least 5 years' experience in his/her trained majors like those mentioned above.

3. Not an employee working for SCIC.

4. Not a wife or husband, blood father or mother, foster father or mother, natural or adoptive child, blood brother, sister, brother-in-law or sister-in-law of the following person:

a) Head or deputy head of an agency representing an owner of SCIC;

b) Member of SCIC’s Board of Directors;

c) SCIC’s Deputy Director General and Chief Accountant;

d) Other comptrollers of SCIC.

5. Do not hold dual office as a Director or Director General of another enterprise.

6. Not a holder of multiple offices such as a comptroller, member of the Board of Directors and member of the Governing Board of a non-state enterprise.

7. Satisfy other eligibility standards and requirements stipulated in relevant laws and this Charter.

Article 17. Employment rules of the Control Board and Comptrollers

1. SCIC’s Control Board must be composed of 03 Comptrollers appointed by the Minister of Finance, each of whom will hold office for the term of 03 years and may be re-appointed to the extent that each Comptroller holds office for 2 terms at maximum. Appointment, re-appointment, dismissal, offer of rewards to, imposition of punishment on and assessment of performance of each Comptroller shall be subject to laws and provisions set forth herein.

2. Minister of Finance shall be authorized to give his/her consent to Employment Regulations of SCIC’s Comptrollers upon the request of the Head of the Control Board.

3. The Control Board’s Head shall work full time for SCIC while other members may participate in the Control Board in charge of no more than 04 state enterprises, subject to the requirement under which they have to obtain the written consent to this from the Ministry of Finance.

4. The Control Board’s Head shall set up a monthly, quarterly and yearly plan to be carried out by the Board; shall assign specific tasks and duties to each member.

5. A comptroller must work independently and actively towards assigned tasks and duties; may propose or recommend other relevant tasks or duties not specified in the plan or not falling within his/her assigned jurisdiction where necessary.

6. The Control Board shall hold a meeting each month to review, assess and ratify the report on control results achieved during a month and submit it to the state owner’s representative agency; discuss and adopt the upcoming work plan of the Control Board.

7. The Control Board’s decision shall be adopted and ratified if a majority of members present at the meeting give their unanimous opinions. Any disagreements with the adopted decision must be recorded in full, accurately and must be reported to the Ministry of Finance.

Article 18. Duties and powers of the Control Board

1. Duties of the Control Board.

a) Superintend implementation of business growth strategies, plans and fulfillment of strategic goals and planned objectives of SCIC;

b) Inspect and assess implementation of rights and obligations of members of the Board of Directors and the Board of Directors itself and Director General of SCIC;

c) Check legality, authenticity and discretion of the Board of Directors and Director General of SCIC during the period of implementation of the rights delegated to the state owner's representative and administration of SCIC’s business activities;

d) Check and evaluate efficiency and level of compliance with regulations on internal audit, management and prevention of risks, reporting regulations and other internal administration regulations of SCIC;

dd) Carry out supervision to ensure legitimacy, systematicness and authenticity of accounting activities, accounting books, contents of financial statements, appendices and relevant materials;

e) Superintend SCIC’s transactions with related parties;

g) Supervise execution of major projects, trades or other business deals on a large scale or irregular business transactions of SCIC;

h) Make reports on assessment and give recommendations on contents prescribed in points a, b, d, c, dd, e and g of this clause, and send them to the state owner’s representative agencies and the Board of Directors;

i) Verify financial statements, business performance reports, management activity review reports and other reports before submitting them to the state owner's representative to SCIC or other relevant state regulatory authorities; submit reports on verification results to the state owner's representative to SCIC;

k) Propose amendments, modifications and structure of management and governance of SCIC’s business activities to seek approval from the SCIC’s state owner's representative;

l) Perform other duties according to the requirements and decisions of the Prime Minister and the Minister of Finance in accordance with laws and this Charter.

2. Rights of the Control Board and Comptrollers

a) Attend regular meetings, meetings of the Board of Directors or the Director General’s Executive Board, thematic meetings about assessment of performance of Comptrollers at SCIC, formal or informal consultations and discussions of the state owner’s representative agency with the Board of Directors; have the rights to put questions to the Board of Directors, members of the Board of Directors and Director General as to investment and development plans, projects or programs and other decisions related to SCIC management and governance activities. In these meetings, Comptrollers shall be accorded the rights to speak but not be entitled to vote, unless otherwise prescribed in clause 1 and 2 of Article 40 herein;

b) Have access to adequate information, data, documents and reports on matters under the authority delegated to the Board of Directors or Director General with regard to governance of SCIC’s business activities;

c) View accounting records, books, reports, contracts, transactions and any other documents or materials stored at SCIC's head office, branches and representative offices to consider performing prescribed duties; assess performance of the Board of Directors, members of the Board and Director General on their management and governance duties where necessary or upon the request of the state owner’s representative agency. Where it is necessary to view documents of any enterprise of which charter capital is wholly owned by SCIC or any enterprise to which SCIC makes its capital contribution, a Comptroller must collaborate with a representative of state capital that SCIC invests in these enterprises after obtaining consent from SCIC;

d) Review and assess the current state of SCIC’s business, SCIC's financial status, current operational conditions and effectiveness of regulations on internal management of SCIC;

dd) Request any member of the Board of Directors, Director General, Deputy Director General, Chief Accountant and other office holders to report and provide information on any matter within their jurisdiction, and on investment and business activities of SCIC;

e) Request the Board of Directors, Director General, Deputy Director General and Chief Accountant to report on the current status and conditions of business results of SCIC’s subsidiaries and affiliates if they aware that it is necessary to perform duties prescribed in laws and this Charter;

g) In case where they discover that any member of the Board of Directors, Director general and any office holder is in breach of regulations on their rights, obligations and responsibilities, or poses any risk of contravening these regulations; or any violation against laws, breach of regulations on economic administration, provisions of this Charter or SCIC's internal management rules, they must promptly report to the state owner’s representative agency to SCIC, other members of the Control Board and individuals concerned;

h) Request the Ministry of Finance to establish a unit performing accounting tasks to counsel and directly assist the Control Board in carrying out assigned rights and obligations;

i) Have the right to affix SCIC’s corporate stamp to documents or records within the scope of a Comptroller’s duties, functions and authority. SCIC must cooperate with Comptrollers in setting out regulations on use of the corporate stamp in order to ensure compliance with laws;

k) Have access to training courses in a Comptroller’s profession which are provided by regulatory authorities, seminars and other training courses in Comptroller's professional skills that are organized by SCIC;

l) Assume other rights and authority in accordance with laws and decisions of the Prime Minister and the Minister of Finance.

Article 19. Comptroller’s responsibilities

1. Comply with laws, SCIC’s Charter, decisions of the state owner’s representative and professional ethics in the course of carrying out rights and obligations prescribed in relevant laws and this Charter.

2. Carry out assigned rights and obligations in an honest, discreet and due manner in the best legal interests of SCIC and state owner’s representative to SCIC.

3. Give commitment to acting in the best interests of SCIC and state owner’s representatives to SCIC. Manage information and ensure information security in accordance with regulations of the state owner's representative and SCIC’s regulations. Do not abuse delegated powers to hinder any of SCIC’s business activities. Avoid misusing SCIC’s business information, trade secrets and business opportunities. Prohibit abusing the position, title and property of SCIC for personal purposes or in the interests of other organizations or individuals.

4. Fulfill other obligations prescribed in relevant laws and this Charter.

5. In cases where any violation of obligations specified in clause 1, 2, 3 and 4 of this Article inflicts any loss on SCIC, the in-charge Comptroller shall be held joint or several liability for such loss; depending on the nature and level of violation and loss, the violating Comptroller shall be subject to permissible disciplines, administrative penalties or criminal prosecution.

6. All income and other benefits that a Comptroller directly or indirectly obtains due to any breach of obligations specified in clause 1, 2, 3 and 4 of this Article must be given back to SCIC.

7. In case where it is discovered that a Comptroller is in breach of obligations in the course of carrying out assigned rights and obligations, another member of the Control Board shall be obliged to report to the Ministry of Finance in writing to request such breach and decide on any possible remedy.

Article 20. Discharge and dismissal of Comptrollers

1. A Comptroller shall be discharged in the following cases:

a) He/she does not meet eligibility standards and requirements stipulated in Article 16 herein;

b) He/she has filed the resignation letter and is subject to the approval decision issued by the Ministry of Finance;

c) He/she is dispatched or assigned another task under the decision of the Ministry of Finance or any other regulatory authority;

d) He/she falls into other cases prescribed in this Charter and other relevant laws.

2. A Comptroller shall be dismissed in the following cases:

a) He/she fails to fulfill assigned tasks and duties;

b) He/she fails to carry out his/her own rights and obligations during 3 consecutive months, except in force majeure cases;

c) He/she seriously or repeatedly violates obligations of a Comptroller as provided herein;

d) He/she falls into other cases prescribed in this Charter and other relevant laws.

Article 21. Wages, salaries, remunerations, other benefits and relationship of Comptrollers

1. Wages, salaries, remunerations and other benefits of Comptrollers:

a) He/she shall be entitled to wages, salaries, remuneration and bonuses determined on the basis of the level of fulfillment of their assigned tasks and SCIC's business efficiency;

b) The Ministry of Finance shall decide the levels of wages, salaries, remunerations and bonuses, and payments thereof to Comptrollers, based on the levels of fulfillment of their assigned tasks and as per law;

c) The regime on payment of wages, salaries, remunerations and other benefits to Comptrollers shall be subject to regulations currently in force;

d) Operational costs of Comptrollers shall be recorded into the account of SCIC’s administrative expenses in accordance with laws;

dd) Full-time Comptrollers shall be entitled to preferential treatment, welfare benefits and participation in operations of SCIC like those granted to SCIC’s other officers and employees.

2. Relationship between Comptrollers on one side and the state owner’s representatives, the Board of Directors or Director General of SCIC on the other side, or between Comptrollers, shall be subject to laws currently in force and regulations on operations of Comptrollers.