Chương 2 Nghị định 153/2004/NĐ-CP: Tổng công ty do nhà nước quyết định đầu tư và thành lập

Chapter II

CORPORATIONS INVESTED AND SET UP UNDER THE STATE'S DECISIONS

Article 4.- Corporations invested and set up under the State's decisions

1. Corporations invested and set up under the State's decisions are forms of association and combination of independent cost-accounting member companies and other member units according to law provisions, which are closely bound together in economic interests, technology, markets and other business services, operate in one or several major specialized economic-technical branches in order to increase the capital accumulation and concentration and the business specialization of the member units and entire corporations.

2. Corporations have the legal person status, their own names, seals, managerial and executive apparatuses, and head offices in the country; have the State companies' rights and obligations as provided for in the Law on State Enterprises; and operate according to their charters and law provisions.

3. Corporations invested and set up under the State's decisions include corporations reorganized from corporations set up under the 1995 Law on State Enterprises and corporations newly set up under the 2003 Law on State Enterprises. The reorganization or setting up of corporations shall comply with the Government's regulations on setting up, reorganization and dissolution of State companies.

Article 5.- Conditions for organization of corporations invested and set up under the State's decisions

The conditions for organization of corporations invested and set up under the State's decisions shall comply with the provisions of Article 48 of the Law on State Enterprises and the Prime Minister's regulations on criteria and classification lists of State companies and State corporations' independent cost-accounting member companies.

Article 6.- Member units of corporations

1. Corporations invested and set up under the State's decisions shall have member units where the corporations invest the whole of their charter capital and member units where the corporations hold dominant shares or contribute dominant capital.

2. Units where the corporations invest the whole of their charter capital include:

a/ Independent cost-accounting member companies operating under the Law on State Enterprises, this Decree and corporations' charters.

b/ Dependent cost-accounting member units and non-business units operating according to the assignment of corporations under the provisions of the corporations' charters.

c/ State-owned one-member limited liability companies organized and operating under the Law on Enterprises.

d/ Enterprises where the corporations invest the whole of their charter capital and which are set up overseas, organized and operate according to the host countries' laws.

e/ Depending on the business scale and demand, corporations may have financial companies which are organized and operate according to law provisions on financial and credit institutions, the corporations' charters and relevant law provisions.

3. Member units where corporations hold dominant shares or contribute dominant capital:

a/ Joint-stock companies where corporations hold dominant shares and which operate under the Law on Enterprises.

b/ Limited liability companies with two or more members, where corporations contribute dominant capital and which operate under the Law on Enterprises.

c/ Joint-venture companies where corporations are the parties holding dominating powers and which operate under the Law on Foreign Investment in Vietnam.

d/ Enterprises where corporations hold dominant shares, contribute dominant capital and which are set up overseas, organized and operate according to the host countries' laws.

Apart from member units, corporations may contribute non-dominant capital to limited liability companies with two or more members, joint-stock companies, joint-venture companies involving foreign partners, and overseas companies.

Article 7.- Capital, assets and finance of corporations

1. Capital, assets and finance of corporations:

a/ The capital of a corporation consists of capital invested by the State in the corporation, capital mobilized by the corporation and other kinds of capital prescribed by law.

b/ The charter capital of a corporation is the capital amount invested by the State and inscribed in the corporation's charter, consisting of the State-invested start-up capital, additional investment capital and self-accrued capital cost-accounted at the corporation; State capital in independent cost-accounting member companies; capital portions invested by the corporation and capital portions directly invested by the State in joint-stock companies, limited liability companies, joint-venture companies or overseas companies but assigned to the corporation for management. When there is an increase or decrease in the charter capital, the corporation must promptly adjust its asset balance sheets accordingly and make additional registration of its charter capital.

c/ A corporation's assets include fixed assets and current assets formed from the corporation's charter capital, borrowed capital and other lawful capital sources managed and used by the corporation.

d/ The land use right value shall be included in the corporation's capital according to law provisions.

e/ The State budget capital shall be only invested through corporations. Basing themselves on the business demand and efficiency, corporations shall be entitled to make investment decisions, adjust the investment capital or decide not to make investments in member units and other enterprises.

f/ A corporation's profits include: Profits from business activities, profits from financial investment activities and profits from other activities of the corporation.

g/ A corporation's funds include: The financial reserve fund, the development investment fund, the reward fund, the welfare fund and other funds prescribed by law.

2. Specific regulations on capital, assets and finance of corporations shall comply with the Government-issued regimes on State-owned companies' finance and on management of capital invested by the State in other enterprises.

Article 8.- Managerial structure of corporations

1. A corporation is managerially structured to consist of a Managing Board, a Control Board, a general director, deputy general directors, a chief accountant and an assisting apparatus.

2. An independent cost-accounting member company is managerially structured to have a director, deputy directors, a chief accountant and an assisting apparatus. The functions, tasks, powers and criteria of the director, deputy directors, chief accountant and assisting apparatus shall comply with the provisions of Section I, Chapter IV of the Law on State Enterprises and this Decree.

3. A corporation's non-business units and dependent cost-accounting units shall be managerially structured according to their regulations approved by the corporation's Managing Board.

4. Financial companies shall be managerially structured according to relevant law provisions on financial companies and their charters approved by the corporations' Managing Boards.

5. Member units being State-owned one-member limited liability companies, limited liability companies with two or more members, joint-stock companies, joint-venture companies where the corporations hold dominant shares or contribute dominant capital shall be managerially structured according to law provisions on the form of such member units.

Article 9.- Managing Boards of corporations

1. The Managing Boards have the functions prescribed in Article 29 of the Law on State Enterprises; act as the owner's representatives of member units being State-owned one-member limited liability companies and independent cost-accounting member companies and as representatives for the corporations' capital portions contributed to other enterprises.

2. The Managing Boards use the offices, professional sections of the corporations and a standing section staffed with no more than 5 people working as advisors and assistants to the Boards. The standing sections shall perform the tasks assigned by the corporations' Managing Board chairmen.

3. Specific tasks and powers of the Managing Boards are as follows:

a/ Performing the tasks and exercising the powers prescribed in Clause 1, Points b, c, d, f and g of Clause 2, Clauses 3, 4 and 5 of Article 30 of the Law on State Enterprises.

b/ Deciding on strategies, long-term plans, annual business plans and business lines of corporations, independent cost-accounting member companies, dependent cost-accounting units, non-business units, State-owned one-member limited liability companies, financial companies (if any); deciding on the plans on business coordination among member units where the corporations own the whole of their charter capital or where the corporations hold dominant shares or contribute dominant capital.

c/ Deciding on the use of the corporations' capital for investing in the setting up of member units where the corporations own the whole of their charter capital and for purchasing shares of, or contributing capital to, other enterprises, which must not exceed the investment capital level falling under the Managing Boards' deciding competence prescribed at Point b, Clause 2, Article 30 of the Law on State Enterprises and by relevant laws; deciding on the reorganization, dissolution, ownership transformation of the corporations' independent cost-accounting member companies and State-owned one-member limited liability companies where the corporations own the whole of their charter capital, which have capital amounts not exceeding the level prescribed for the Managing Boards to make investment in the setting up of enterprises according to law provisions; deciding on the admission of enterprises that voluntarily join the corporations as member units according to law provisions.

d/ Deciding on the adjustment of the charter capital of State-owned one-member limited liability companies by increasing or reducing the corporation's capital portions in these companies; transfer part or whole of the charter capital of State-owned one-member limited liability companies to other organizations or individuals according to the provisions of Article 48 of the Law on Enterprises.

e/ Deciding on the managerial structures of independent cost-accounting member companies and financial companies (if any). Deciding on the organization and management model with a Managing Board or company president for State-owned one-member limited liability companies, the number and composition of Managing Board members; deciding on the appointment, relief from duty, removal from office and on the salaries of Managing Board members or company presidents of State-owned one-member limited liability companies.

f/ Deciding on the appointment of representatives for the corporations' capital contributions to other enterprises at the proposals of general directors. The Managing Boards shall not exercise the owner's powers over, or fulfill the owner's obligations towards, the member companies' capital portions contributed to other companies.

g/ Approving the charters of independent cost-accounting member companies, State-owned one-member limited liability companies; approving the operation regulations of independent cost-accounting units, non-business units; adopting the draft charters of financial companies (if any), then submitting them to the State Bank Governor for ratification.

h/ Adopting the annual financial statements of the corporations, the corporations' independent cost-accounting member companies and State-owned one-member limited liability companies, and the consolidated financial statements of the whole corporations; approving the plans on the use of after-tax profits of independent cost-accounting member companies and State-owned one-member limited liability companies.

i/ Examining and supervising the chairmen and members of the Managing Boards or company presidents and general directors (directors) of State-owned one-member limited liability companies, the directors of member units being independent cost-accounting member companies, dependent cost-accounting member units, non-business units, financial companies (if any) and the representatives for the corporations' capital portions contributed to other enterprises in the discharge of the functions and tasks prescribed by the Law on State Enterprises and this Decree.

j/ Performing the tasks and exercising the powers according to the corporations' charters and relevant laws.

4. The Managing Board chairmen shall have the powers and tasks prescribed in Article 33 of the Law on State Enterprises. The Managing Board chairmen and members shall have the obligations and responsibilities prescribed in Article 43 of the Law on State Enterprises; may participate in managing other companies when they meet the conditions prescribed in Article 36 of the Law on State Enterprises.

5. The working regime of the Managing Boards shall comply with the provisions of Article 34 of the Law on State Enterprises.

6. The criteria, composition, appointment, relief from duty and replacement of Managing Board members shall comply with the provisions of Articles 31 and 32 of the Law on State Enterprises and relevant law provisions. The process of appointment and relief from duty of Managing Board chairmen and members shall comply with the Prime Minister's decisions.

7. The salary and bonus regime applicable to the Managing Boards shall comply with the provisions of Article 35 of the Law on State Enterprises, the Government's regulations and other law provisions on the salary and bonus regime and the responsibility regime applicable to Managing Board and Control Board members, general directors and directors of State companies; law provisions on the salary regime as well as the management of labor, salaries and incomes in the State companies and other relevant law provisions.

Article 10.- Control Boards of corporations

1. The Managing Boards shall set up Control Boards consisting of between 3 and 5 members each. The Managing Boards shall decide to appoint one Managing Board member as Control Board head. The Managing Board chairmen, general directors and deputy general directors must not concurrently be Control Board heads. Other Control Board members shall be selected, appointed or relieved from duty by the Managing Boards, one of whom shall be nominated by the corporation's trade union.

Control Board members must satisfy the criteria prescribed in Clause 4, Article 37 of the Law on State Enterprises.

2. The term of office of Control Board members shall be the same as the term of office of the Managing Boards. Control Board members shall enjoy salaries and bonuses as decided by the Managing Boards according to law provisions on the salary and bonus and the Law on State Enterprises.

3. The Control Boards shall operate according to the regulations approved by the Managing Boards, having the following tasks, powers and responsibilities:

a/ Examining and supervising the legality, accuracy and honesty in the management and execution of business activities, in the recording of accounting books, financial statements and in the observance of the corporations' charters, resolutions and decisions of the Managing Boards, decisions of the Managing Board chairmen by member units where the corporations invest the whole of their charter capital.

b/ Performing the tasks assigned by the Managing Boards, reporting to the Managing Boards on a monthly, quarterly and annual basis and on a case-by-case basis on the results of their examination and supervision; detecting in time and reporting to the Managing Boards on activities which are abnormal, contrary to the enterprise management regulations or show signs of law violation.

c/ Refraining from disclosing the examination and supervision results when not so permitted by the Managing Boards; taking responsibility to the Managing Boards and law for acts of deliberately ignoring or covering up violations.

d/ Taking responsibility to the Managing Boards and law for all activities of the Control Boards.

Article 11.- General directors, deputy general directors, chief accountants and assisting apparatuses

1. General directors are representatives at law, run day-to-day activities of the corporations according to the objectives, plans and in compliance with the corporations' charters and resolutions and decisions of the Managing Boards; take responsibility to the Managing Boards and law for the exercise of the rights and the performance of the tasks assigned to them.

General directors shall have the tasks and powers prescribed in Article 41 of the Law on State Enterprises and the following tasks and powers towards member units:

a/ Formulating the plans on business coordination among member units for submission to the Managing Boards; organizing the implementation of general business coordination plans and investment plans among member units.

b/ Inspecting the application by member units of norms, criteria and price quotations prescribed for application within the corporations.

c/ Deciding on the recruitment, signing of contracts, termination of contracts or appointment, relief from duty, commendation, disciplining, salaries and allowances of directors, chief accountants of the corporations' independent cost-accounting member companies and non-business units after obtaining the approval of the Managing Boards; deputy directors of the corporations' independent cost-accounting member companies and non-business units at the proposals of the directors of these units.

d/ Proposing the Managing Boards to decide on the appointment of representatives for the corporations' capital portions contributed to other enterprises.

2. Deputy general directors shall be nominated by general directors to the Managing Boards for appointment, relief from duty, removal from office or signing of contracts, termination of contracts, commendation, disciplining and salary decision. Deputy general directors shall assist general directors in running the corporations according to the assignment and authorization of general directors; take responsibility to general directors and law for their assigned or authorized tasks.

3. Chief accountants of corporations shall be nominated by general directors to the Managing Boards for appointment, relief from duty, removal from office or signing of contracts, termination of contracts, commendation, disciplining, salary decision. Chief accountants shall be tasked to organize the accounting work of corporations; assist general directors in supervising financial matters in the corporations according to finance and accounting laws; take responsibility to general directors and law for their assigned or authorized tasks.

4. Criteria of general directors; the selection, appointment, relief from duty, signing of contracts, termination of contracts with general directors, deputy general directors, chief accountants; obligations and responsibilities of general directors, relationships between Managing Boards and general directors in managing and running corporations shall comply with Articles 24, 40, 42 and 43 of the Law on State Enterprises.

5. The Offices and professional sections shall function to advise and assist the Managing Boards and general directors in managing and running their work.

6. The salary and bonus regime applicable to general directors, deputy general directors, chief accountants shall comply with the provisions of Clause 11, Article 41 of the Law on State Enterprises; the Government's regulations on the salary and bonus regime as well as the responsibility regime applicable to Managing Board and Control Board members, general directors, directors of State companies; the law provisions on the salary regime, management of labor, salaries and incomes in State companies and relevant law provisions. The salary and bonus payment and settlement regime for general directors, deputy general directors, chief accounts shall comply with the provisions of Clause 10, Article 26 of the Law on State Enterprises, and relevant law provisions.

The regime of responsibility associated with salaries and bonuses of general directors shall comply with the provisions of Clause 3 and Clause 5, Article 43 of the Law on State Enterprises.

Article 12.- Independent cost-accounting member companies and relationships between corporations and independent cost-accounting member companies

Independent cost-accounting member companies are member units of corporations, having the legal person status, enjoying business autonomy and being bound to their corporations in rights and obligations as follows:

1. An independent cost-accounting member company's capital consists of: capital invested in the company by the corporation, capital mobilized by the company itself and other capital sources as prescribed by law.

For independent cost-accounting member enterprises of corporations set up under the 1995 Law on State Enterprises then rearranged and transformed into independent cost-accounting member companies, the State capital portions in these companies shall be converted into capital invested in the companies by corporations while corporations shall act as owners of these companies.

2. Independent cost-accounting member companies shall have the following rights over their capital and assets: To manage and take initiative in using their own capital and capital invested by corporations; to possess and use their capital and assets for business purposes, acquire legitimate interests from their capital and assets; to dispose of their capital and assets according to the provisions of the Law on State Enterprises, this Decree and relevant laws; to use and manage the State-assigned or -leased assets being land and natural resources according to law provisions on land and natural resources.

Corporations shall not transfer their capital invested in independent cost-accounting member companies as well as capital and assets of these companies by the non-payment mode, except for the cases where they decide to reorganize independent cost-accounting member companies or realize the objective of providing public-utility products and services.

3. When they receive requests or goods orders from the State or participate in biddings for public-utility activities, the companies shall have the rights and obligations prescribed in Article 19 of the Law on State Enterprises.

4. Independent cost-accounting member companies shall be bound to their corporations in rights and obligations as follows:

a/ To implement the general business plans of their corporations; perform production and business tasks assigned by their corporations on the basis of economic contracts signed with the latter; take responsibility for the efficiency of business activities carried out in coordination with their corporations; sign at their discretion economic contracts and perform economic contracts signed by their corporations then assigned to them.

b/ To decide on investment projects in their companies and on making investments in, or contributing capital to, other companies according to the decentralization of their corporations; participate in investment of various forms together with their corporations or carry out investment projects assigned by their corporations according to their corporations' plans on the basis of contracts signed with the latter.

c/ To take responsibility to their corporations for the efficient use of capital and resources invested by the latter; preserve and develop capital invested by their corporations and capital mobilized by themselves; take responsibility to their corporations for the investment of capital in the setting up of other enterprises; bear civil liability with their whole assets; periodically re-value their assets according to the Government's regulations and their charters.

Corporations shall take responsibility for other asset liabilities and obligations of their independent cost-accounting member companies within the amounts of the companies' charter capital.

d/ To propose their corporations to decide or to be authorized by their corporations to decide on the setting up, re-organization, dissolution, merger of dependent cost-accounting units and on the managerial apparatuses of dependent cost-accounting units.

e/ To formulate and apply labor and supplies norms, unit prices for salary payment, and other costs on the basis of ensuring their business efficiency and compliance with law provisions and their charters.

f/ After fulfilling their tax obligations and carrying forward losses according to the provisions of the Law on State Enterprises and fulfilling other financial obligations as prescribed by law, and making deductions for the financial reserve funds, to divide the remaining profits in proportion to the capital invested by their corporations and capital mobilized by themselves. Profit amounts divided in proportion to the capital invested by their corporations shall be used for re-investment to increase the State capital in the companies or for the formation of the corporations' centralized funds according to the Government's regulations, Profit amounts divided in proportion to the capital mobilized by the companies themselves shall be partially deducted into their development investment funds according to the Government-prescribed percentage while the rest shall be distributed to the reward and welfare funds under the companies' own decisions.

g/ The companies are obliged to conduct business at a profit, ensure the corporation-assigned target ratio of profits to the capital invested by the corporations; register, declare and fully pay taxes; fulfill the obligations towards their corporations and other financial obligations prescribed by law.

h/ To apply the regimes of accounting, audit, financial statements and statistical reports according to law provisions and at their corporations' requests; submit to the supervision and examination by their corporations, periodically report accurate and full information on their companies and send financial statements to their corporations; abide by the inspection regulations of the finance agencies and competent State agencies according to law provisions.

i/ Other rights and obligations prescribed by the Law on State Enterprises and relevant laws.

Article 13.- Relationships between corporations and their non-business units, dependent cost-accounting units and financial companies

1. Non-business units shall implement the cost-accounting decentralization regimes prescribed by their corporations; may create revenue sources from the performance of contracts for provision of services, scientific researches and technology transfer training for units inside and outside their corporations. Non-business units shall operate according to their charters or regulations approved by their corporations' Managing Boards.

2. Corporations' dependent cost-accounting units may take initiative in signing economic contracts, carrying out business, financial, organizational and personnel activities according to their corporations' decentralization prescribed in their charters or organization and operation regulations approved by their corporations' Managing Boards. Corporations shall take responsibility for financial obligations arising from these units' commitments.

3. Corporations' financial companies may be organized, operate and have relationships with their corporations under the guidance of the Finance Ministry, the State Bank and their operation charters adopted by their corporations' Managing Boards and ratified by the State Bank Governor.

Article 14.- Relationships between corporations and State-owned one-member limited liability companies where corporations invest the whole of their charter capital

Corporations are owners of State-owned one-member limited liability companies where they own the whole of their charter capital and exercise the owner's rights and fulfil the owner's obligations towards these companies according to the provisions of Clause 1 of Article 27, Clause 1 and Clause 2 of Article 46, Article 47 and Article 48 of the Law on Enterprises, the companies' charters, the Government's regulations, and other law provisions.

Article 15.- Relationships between corporations and their member units being companies where corporations hold dominant shares or contribute dominant capital

1. Joint-stock companies, limited liability companies with two or more members, joint-venture companies where the corporations' shares or contributed capital portions account for over 50% of their charter capital and the corporations hold dominating powers, are the corporations' member units.

2. Member units where the corporations hold dominant shares or contribute dominant capital are set up, organized and operate under the Law on Enterprises, the Law on Foreign Investment in Vietnam and other relevant law provisions. Corporations shall manage their dominant shares or contributed dominant capital under the provisions of Article 58 of the Law on State Enterprises and the Government's regulations on management of dominant shares and dominant contributed capital and management of State capital invested in other enterprises.

Article 16.- Relationships between corporations and companies where corporations hold non-dominant shares or contribute non-dominant capital

1. Joint-stock companies, limited liability companies with two or more members, joint-venture companies or overseas companies where the corporations' shares or contributed capital account for 50% or less of their charter capital, shall not be the corporations' member units and not be dominated by the corporations.

2. Companies where the corporations hold non-dominant shares or contribute non-dominant capital shall be set up, organized and operate under the Law on Enterprises, the Law on Foreign Investment in Vietnam and other relevant law provisions. Corporations shall manage their shares or contributed capital in these companies under the provisions of Article 59 of the Law on State Enterprises and the Government's regulations on management of State capital invested in other enterprises.

Article 17.- Responsibilities of corporations

1. Corporations must not abuse their position of holding the whole charter capital or dominant shares or contributed capital in their member units being independent cost-accounting member companies, State-owned one-member limited liability companies or companies where the corporations hold dominant shares or contribute dominant capital to cause harms to the interests of their member units, creditors and involved parties.

Corporations must not insert regulations in the charters of independent cost-accounting member companies or State-owned one-member limited liability companies, which cause harms to the interests of such companies, creditors and involved parties.

2. Where they commit the following acts without consulting the member units stated in Clause 1 of this Article, thereby causing damage to such member units, they must bear responsibility for paying damages to the member units and involved parties.

a/ Forcing member units to sign and perform economic contracts which are unfair and disadvantageous to such member units.

b/ Transferring capital, assets of member units, causing damage to such member units.

c/ Transferring a number of efficient and profitable business activities from one member unit to another without consulting the member unit having such activities, resulting in losses or seriously decreased profits on the part of such member unit.

d/ Deciding on production and business tasks of member units in contravention of the charters and laws; assigning the corporations' tasks to member units for performance without signing economic contracts with these units.

e/ Forcing member units to lend capital to the corporations or other member units at low interest rates or under unreasonable borrowing and repayment conditions or to provide loans for the corporations or other member units to perform economic contracts, which involve a lot of risk to business activities of such member units.