Chương 3 Nghị định 153/2004/NĐ-CP: Tổng công ty theo mô hình công ty mẹ - công ty con

Chapter III

CORPORATIONS AFTER THE PARENT COMPANY - SUBSIDIARY COMPANY MODEL

Article 18.- Corporations after the parent company-subsidiary company model

1. Corporations which are invested and set up by companies themselves (corporations after the parent company-subsidiary company model) are a form of mutual association and domination by means of investment, capital contributions, technological know-how, trademarks or markets among enterprises having the legal person status, of which one State-owned company holds the right to dominate other member enterprises (called the parent company for short) and other member enterprises are dominated by the parent company (called subsidiary companies for short) or have non-dominant capital portions contributed by the parent company (called associated companies).

2. A consortium consisting of parent companies and subsidiary companies shall not have the legal person status. Parent companies shall have the legal person status, own names, seals, managerial and executive apparatuses and head offices based in the country.

Article 19.- Structure of corporations after the parent company-subsidiary company model

Corporations after the parent company-subsidiary company model operating under this Decree are structured as follows:

1. Parent company, which is a State-owned company operating under the Law on State Enterprises and this Decree; formed through the transformation, reorganization of a corporation, a corporation's independent cost-accounting member company, an independent State-owned company or on the basis of a company investing in, buying shares of, or contributing its capital and other resources to, subsidiary companies or associated companies; and holding dominating powers prescribed in Clause 2 of this Article.

2. Subsidiary companies:

a/ Companies where the parent company contributes dominant capital, including limited liability companies with two or more members, joint-stock companies, joint-venture companies involving foreign partners and overseas companies.

b/ State-owned one-member limited liability companies where the parent company holds the whole of their charter capital.

If the structure of corporations after the parent company-subsidiary company model is composed of the type of subsidiary companies being State-owned one-member limited liability companies, there must be additionally the types of subsidiary companies prescribed at Point a, Clause 2 of this Article.

3. Associated companies, which are companies where the parent companies contribute non-dominant capital, organized in the form of limited liability companies with two or more members, joint-stock companies, joint-venture companies involving foreign partners or overseas companies.

Article 20.- Functions, managerial structure of parent companies

1. Parent companies have the function of directly conducting production and business and making financial investments in other enterprises or only making financial investments in other enterprises. Parent companies have the rights and obligations of State-owned companies prescribed in Chapter III of the Law on State Enterprises; exercise the owner's rights over, and fulfil the owner's obligations towards, their capital amounts invested in their subsidiary companies and associated companies.

2. A parent company 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. A parent company's managerial apparatus is the corporation's apparatus.

Article 21.- Managing Boards of parent companies

1. The Managing Boards of parent companies have the functions, tasks and powers like the Managing Boards of corporations invested and set up under the State's decisions; have the working regime and membership, and perform the tasks and exercise the powers prescribed in Clause 1, Point a of Clause 3, Clauses 4, 5 and 6, Article 9 of this Decree, and the following specific tasks and powers:

a/ Deciding on strategies, long-term plans, annual business plans and business lines of the parent companies and their dependent cost-accounting units, non-business units; deciding on plans for business coordination between the parent companies and subsidiary companies.

c/ Deciding on the use of the parent companies' capital for investing in the setting up of subsidiary companies being State-owned one-member limited liability companies and for purchasing shares of, or contributing capital to, other enterprises, which must not exceed the level of investment capital 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 subsidiary companies being State-owned one-member limited liability companies which have capital amounts not exceeding the level prescribed for the Managing Boards in making investments in the setting up of enterprises according to law provisions.

c/ Deciding on the adjustment of the charter capital of State-owned one-member limited liability companies by increasing or reducing the parent companies' capital contributions; transferring 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.

d/ 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 chairmen and members or presidents of State-owned one-member limited liability companies. The Managing Boards shall not exercise the owners' powers over, and fulfill the owner's obligations towards, the subsidiary companies' capital contributed to other companies.

e/ Exercising the owner's powers over, and fulfilling the owner's obligations towards, parent companies' shares or contributed capital in the companies where the parent companies have shares or contributed capital.

f/ Adopting the annual financial statements of the parent companies, State-owned one-member limited liability companies and the consolidated financial statements of the parent companies; approving the plans on the use of after-tax profits of State-owned one-member limited liability companies.

g/ Examining and supervising the chairmen and members of the Managing Boards, presidents and general directors (directors) of State-owned one-member limited liability companies; the directors of dependent cost-accounting member units, non-business units, and the representatives for the parent companies' capital contributed to other enterprises in the performance of the functions and tasks prescribed by the Law on State Enterprises and this Decree.

h/ Performing the tasks and exercising the powers according to the parent companies' charters and relevant laws.

2. The salary and bonus regime applicable to Managing Boards shall comply with the provisions of Clause 7, Article 9 of this Decree.

Article 22.- Control Boards of parent companies

The Control Boards shall be set up by the Managing Boards of the parent companies, having the structure, functions, tasks and operating regime prescribed in Article 10 of this Decree.

Article 23.- General directors, deputy general directors, chief accountants and assisting apparatuses

1. General directors, deputy-general directors, chief accountants and assisting apparatuses of the parent companies have the tasks and powers prescribed in Article 11 of this Decree.

2. The salary and bonus regime applicable to general directors, deputy-general directors, chief accountants shall comply with the provisions of Clause 6, Article 11 of this Decree.

Article 24.- Relationships between parent companies and subsidiary companies being State-owned one-member limited liability companies

1. Parent companies are owners of State-owned one-member limited liability companies which are set up by the parent companies or transformed from independent State-owned companies or corporations' independent cost-accounting member companies. Parent companies shall exercise the owner's rights over, and fulfill the owner's obligations towards, State-owned one-member limited liability companies prescribed in Clause 1, Article 27, Clause 1 and Clause 2 of Article 46, Article 47 and Article 48 of the Law on Enterprises, the charters of the companies, and the Government's regulations on transformation of State-owned companies into State-owned one-member limited liability companies.

2. State-owned one-member limited liability companies are organized and operate under the Law on Enterprises, the Government's regulations \on transformation of State-owned companies into State-owned one-member limited liability companies, and relevant law provisions.

Article 25.- Relationships between parent companies and subsidiary companies being joint-stock companies, limited liability companies with two or more members, joint-venture companies or overseas companies

1. Subsidiary companies being joint-stock companies, limited liability companies with two or more members, joint-venture companies or overseas companies, where the parent companies 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, foreign laws and other relevant law provisions.

2. Parent companies shall exercise the rights and fulfill the obligations as well as responsibilities of shareholders, members, joint-venture parties, contributors of dominant capital as prescribed by law and the charters of the companies where the parent companies hold dominant shares or contribute dominant capital.

3. Parent companies shall directly manage their dominant shares or contributed dominant capital in joint-stock companies, limited liability companies, joint-venture companies and overseas companies; have the rights over, and obligations towards, their dominant shares or contributed dominant capital prescribed in Article 58 of the Law on State Enterprises.

Article 26.- Relationships between parent companies and associated companies

Parent companies shall manage their capital contributed to associated companies under the provisions of Article 59 of the Law on State Enterprises.

Article 27.- Responsibilities of parent companies

Parent companies shall be liable to their subsidiary companies in the case where the parent companies abuse their position of holding the whole charter capital or dominant shares or dominant contributed capital to cause harms to the interests of subsidiary companies, creditors and involved parties like corporations as prescribed in Article 17 of this Decree.