Nghị định 159/2020/NĐ-CP về quản lý người giữ chức danh, chức vụ và người đại diện phần vốn nhà nước tại doanh nghiệp

DECREE

MANAGEMENT OF TITLEHOLDERS, OFFICEHOLDERS AND REPRESENTATIVES OF STATE OWNERSHIP INTERESTS IN ENTERPRISES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Amendments and Supplements to the Law on Government Organization and the Law on Organization of Local Governments dated November 22, 2019;

Pursuant to the Law on Enterprises dated June 17, 2020;

Pursuant to the Law on Management and Use of State Capital Invested in Production and Business Activities of Enterprises dated November 26, 2014;

Pursuant to the Law on Cadres and Public Officials dated November 13, 2008;

Pursuant to the Law on Amendments and Supplements to Certain Articles of the Law on Cadres and Public Officials and the Law on Public Servants dated November 25, 2019;

Upon the request of the Minister of Home Affairs;

The Government hereby promulgates the Decree on management of titleholders, officeholders and representatives of state ownership interests in enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree deals with:

1. Performance evaluation, placement planning, appointment, reappointment, transfer, secondment, rotation, resignation, dismissal, commendation, rewarding, disciplining and retirement of titleholders, officeholders and comptrollers at enterprises whose charter capital is wholly owned by the State (hereinafter referred to as wholly stated-owned enterprises).

2. Performance evaluation, designation, re-designation and termination of term of office of the representative of state ownership interests, commendation, rewarding, disciplining and retirement of representatives of state ownership interests in enterprises.

Article 2. Subjects of application

1. Agencies representing the state ownership interests (hereinafter referred to as representative agencies).

2. Wholly state-owned enterprises.

3. Enterprises of which more than 50% of the charter capital or total voting shares are held by the State; enterprises of which less than 50% of the charter capital or total voting shares are held by the State (hereinafter referred to as state-invested enterprises).

4. Titleholders and officeholders at wholly state-owned enterprises (hereinafter referred to as executives of state enterprises), including:

a) President of the Board of Directors;

b) Company President (in the companies without Boards of Directors);

c) Member of Board of Directors;

d) General Director;

dd) Director;

e) Deputy General Director;

g) Deputy Director;

h) Chief Accountant.

5. Comptroller at a wholly state-owned enterprise (hereinafter referred to as Comptroller).

6. Representative of the state stakes or state ownership interests in an enterprise of which more than 50% of the charter capital or total voting shares are held by the State; an enterprise of which less than 50% of the charter capital or total voting shares are held by the State.

7. Other persons and entities involved in management and utilization of state enterprises, comptrollers, representatives of the state ownership interests in enterprises.

Article 3. Interpretation

For the purposes of this Decree, terms used herein shall be construed as follows:

1. Level of competency means any level of authority to decide:

a) Performance evaluation, placement planning, appointment, reappointment, transfer, secondment, rotation, resignation, dismissal, commendation, rewarding, disciplining and retirement of state enterprise executives and comptrollers;

b) Performance evaluation, designation, re-designation and termination of term of office as the reprehensive of state ownership interests in enterprises.

2. Counseling agency is an entity taking on cadre placement and organization duties at the respective level of competency.

3. Corporate leadership includes Board of Directors or Company President and same-level grassroots Party committees.  

4. Representative of the state ownership interests in an enterprise refers to a person designated by a representative agency to represent part or all of state stakes in the ownership of an enterprise to carry out all or a number of rights, responsibilities and obligations of a state shareholder or member contributing capital to the enterprise in accordance with laws.     

5. Comptroller refers to a person that is submitted to and appointed by a representative agency, and works under the full-time or part-time regime.

Article 4. Principles of management of corporate executives, comptrollers, representatives of the state ownership interests

1. Ensure the Party’s uniform leadership in the management and utilization of state enterprises, comptrollers, and representatives of the state ownership interests in enterprises.

2. Ensure full compliance with regulations of corporate and other relevant laws.

3. Implement the democratic centralism principle, clearly distinguishing collective and individual responsibilities, especially those assumed by leaders pertaining to cadres-related affairs.

4. If any executive of a state enterprise, any comptroller or any representatives of the state ownership interests in an enterprise holds multiple titles or offices, conflicts of interest must be avoided.

5. If any law setting out regulations on the management and utilization of executives of state enterprises, comptrollers and representatives of state ownership interests which are in conflict with the provisions of this Decree, the former shall prevail.

Chapter II

DECISION-MAKING AUTHORITY AND MULTIPLE OFFICE-HOLDING OF CORPORATE EXECUTIVES, COMPTROLLERS, REPRESENTATIVES OF THE STATE OWNERSHIP INTERESTS

Article 5. The Prime Minister’s authority

1. Decide appointment, reappointment, transfer, secondment, rotation, acceptance of resignation, dismissal, commendation, rewarding, disciplining and retirement of Presidents of Boards of Directors in enterprises established under the authority of the Prime Minister.

2. Decide appointment, re-appointment, transfer, secondment, rotation, acceptance of resignation, dismissal, commendation, rewarding, disciplining and retirement of the Parent Company President of Military Industry- Telecommunications Group.   

3. Decide appointment of the General Director of the State Capital Investment Corporation.

4. Give opinions before the appointment of the General Directors of enterprises under the establishment competence of the Prime Minister, except for the case specified in Clause 3 of this Article.

Article 6. Authority of representative agencies

1. Authority of wholly state-owned enterprises under the establishment competent of the Prime Minister:

a) Decide the performance evaluation of Presidents of Boards of Directors, Company Presidents;

b) Decide the placement planning of Presidents of Boards of Directors, Company Presidents after receipt of opinions from the Ministry of Home Affairs;

c) Decide performance evaluation, placement planning, appointment, reappointment, transfer, secondment, rotation, acceptance of resignation, dismissal, commendation, rewarding, disciplining and retirement of members of Boards of Directors;

d) Give opinions before Boards of Directors or Company Presidents issue decisions on placement planning, appointment, re-appointment, transfer, secondment, rotation, acceptance of resignation, dismissal, rewarding, disciplining and retirement of General Directors or Directors, except the cases specified in clause 3 of Article 5 herein;

dd) Approve policies on appointment of Deputy General Directors or Deputy Directors upon the request of Boards of Directors.

2. Authority of state-owned enterprises under the establishment competence of representative agencies:

a) Decide performance evaluation, placement planning, appointment, reappointment, transfer, secondment, rotation, acceptance of resignation, dismissal, commendation, rewarding, disciplining and retirement of Presidents of Boards of Directors, Company Presidents, members of Boards of Directors and Comptrollers;

d) Give opinions before Boards of Directors or Company Presidents issue decisions on placement planning, appointment, re-appointment, transfer, secondment, rotation, acceptance of resignation, dismissal, rewarding, disciplining and retirement of General Directors or Directors;

c) Approve policies on appointment of Deputy General Directors or Deputy Directors upon the request of Boards of Directors.

3. Authority of state-invested enterprises:

Decide performance evaluation, designation, re-designation and termination of term of office as the representative of state ownership interests in enterprises, rewarding, disciplining and retirement of representatives of state ownership interests.

Article 7. Multiple office-holding of executives of state enterprises, comptrollers, representatives of state ownership interests

1. Holding different titles or offices by executives of state enterprises shall be regulated as follows:

a) Members of Boards of Directors shall not be allowed to hold multiple managerial titles at their enterprises, except as prescribed in point c of this clause;

b) Presidents of Boards of Members, General Directors, Directors and Chief Accountants shall not be allowed to hold multiple managerial positions at their enterprises and others; Company Presidents can hold multiple positions of General Directors or Directors at their enterprises while not doing so at other enterprises;

c) Except Presidents of Boards of Directors, other members of Boards of Directors can hold multiple positions of General Directors or Directors at their enterprises or the others which are not affiliates according to decisions of representative agencies;

d) Deputy General Directors or Deputy Directors may hold multiple positions: Presidents of Boards of Directors, Presidents of Governing Boards, members of Boards of Directors, members of Governing Boards, Company Presidents of affiliated enterprises, but not more than 03 positions;

dd) Executives of state enterprises shall not be allowed to hold posts as cadres, public officials or public servants.

2. Holding different titles or offices by comptrollers shall be regulated as follows:

a) Heads of Control Committees and Comptrollers shall not be allowed to hold positions of company managers and executives of other enterprises; comptrollers of the enterprises that are not state enterprises; shall not serve as workers of enterprises;

b) An individual may be appointed as the Head of Control Committee or the Comptroller at not more than 04 state enterprises.

3. Holding multiple titles or offices by representatives of state ownership interests shall be regulated as follows:

a) Each full-time representative of the state ownership interest may only engage in representation for the state stake in the ownership of an enterprise;

b) Each part-time representative of the state ownership interest may engage in representation for the state stakes in the ownership of less than 3 other enterprises represented by the same representative agency;

c) Each representative of the state ownership interest shall not be allowed to hold another position of a representative of the state ownership interest in the enterprise which is represented by another representative agency;

d) Representatives of state ownership interests shall not be allowed to hold the posts of cadres, public officials or public servants.

Chapter III

ANNUAL EVALUATION AND RATING OF EXECUTIVES OF STATE ENTERPRISES, COMPTROLLERS, REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 8. Rating

Executives of state enterprises, comptrollers, representatives of state ownership interests shall be evaluated and ranked annually according to the 4-grade system: Excellent, good, complete, incomplete performance of assigned duties.

Article 9. Evaluation and rating responsibilities

1. Competent authorities shall annually set and elaborate on goals and objectives for Boards of Directors, Comptrollers and representatives of state ownership interests.

2. Authorities having competence in conducting evaluation and rating activities shall assume legal liability for their own decisions.

Article 10. Evaluation time

1. Evaluation of state-owned enterprises’ executives and comptrollers shall be conducted annually after representative agencies announce the rankings of enterprises in compliance with the provisions of laws; the evaluation of a representative of state ownership interests must be conducted after the announcement of enterprises’ annual financial statements.

2. If executives of state enterprises, comptrollers or representatives of state ownership interests are Communist Party member evaluation and rating must be first, and executive evaluation and rating must be later.

Article 11. Evaluation and rating bases

1. Bases for evaluation and rating of executives of state enterprises, including:

a) Corporate charter;

b) Rights and responsibilities of the executive of a state enterprise that are covered by laws;

c) Programs, plans, goals and objectives which are assigned and approved on an annual basis.

2. Bases for evaluation and rating of comptrollers and representatives of state ownership interests, including:

a) Rights and responsibilities of the executive or the representative of state ownership interests that are covered by laws;

b) Programs, plans, goals and objectives which are assigned and approved on an annual basis;

d) Compliance with regulations set out in the charter during the period of implementation of their duties, functions and responsibilities.

Article 12. Evaluation contents

Contents of the evaluation of an executive of state enterprise, comptroller, representative of state ownership interests, including:

1. Its operational results covered by regulations of laws and its charter;

2. Individual performance:

a) Political qualities, ethics, lifestyle; self-discipline; working conducts and manners;

b) Compliance with the Party's guidelines, undertakings and policies and domestic laws; legislation on anti-corruption; thrift and anti-extravagance practices; rules and regulations of the enterprise;

c) Fulfillment of assigned goals and objectives in a year;

d) Results of correction and mitigation of defects and shortcomings that have already been pointed out (if any);

dd) Compliance with the directives of the representative agency.

Article 13. Evaluation processes and procedures

1. With regard to executives of state enterprises:

a) The executive of a state enterprise completes the self-reflection or self-evaluation form by entering information in the given evaluation fields, and must rate himself/herself;

b) The Board of Directors convenes a review meeting to give their comments and judgements on that executive. The minutes of the review meeting must be taken, containing clear information about participants and contributed opinions; 

c) Collecting written opinions regarding evaluation and rating of the executive from the same-level grassroots Party committee;

d) Based on the opinions received from the same-level grassroots Party committee, the Board of Directors or the Company President considers and deciding the evaluation and rating of the executive according to their competence or make a report on the evaluation and rating results of the President of the Board of Directors, members of the Board of Directors, the Company President and send it to the representative agency to seek its decision.

2. With regard to comptrollers:

a) Each comptroller must complete the self-reflection or self-evaluation form, and must rank himself/herself before sending it to the representative agency;

b) Based on evaluation and rating criteria prescribed herein and assigned tasks stated in annual plans, the representative agency carries out review before issuing its decision on the rank of that comptroller.

3. With regard to representatives of state ownership interests:

a) Each representative of state ownership interests completes the self-reflection or self-evaluation form by entering information in the given evaluation fields, and must rank himself/herself before sending it to the representative agency;

b) The receiving representative agency collect comments and evaluation opinions on that representative of state ownership interests from the Board of Directors, the Company President and the Governing Board (where necessary);

c) Based on evaluation and rating criteria prescribed herein and assigned tasks stated in annual plans, the representative agency carries out review before issuing its decision on the rank of that representative of state ownership interests.

4. Evaluation and rating results shall be archived and notified to specific executives of state enterprises, comptrollers and representatives of state ownership interests.

Article 14. “Excellent" performance rating criteria

Executives of state enterprises, comptrollers or representatives of state ownership interests shall be rated excellent at their performance when meeting the following criteria:

1. Business or operational results:

a) With regard to executives of state enterprises: The state enterprises under their control are rated A according to applicable regulations;

b) With regard to comptrollers: The enterprises under their supervision are rated as full compliance with the provisions of laws, the company's charters, the directions of the representative agency and the competent authorities;

c) With regard to representatives of state ownership interests: Enterprises are rated as full compliance with the provisions of laws, the company's charters, the directions of the competent authorities; completion of at least 100% of the after-tax profit and return on equity ratio targets set in the plans, unless otherwise approved by representative agencies in the cases of force majeure events or due to objective reasons.

2. Individual performance:

a) Possessing good political and ethical qualities; healthy lifestyle; proper working conducts and manners;

b) Always setting good examples, fully complying with the Party's guidelines, undertakings and policies and domestic laws; legislation on anti-corruption; thrift and anti-extravagance practices; rules and regulations of enterprises;

c) Accomplishing at least 100% of goals and objectives set in a year, except as the lower accomplishment percents are approved by competent authorities in the cases of force majeure events or due to objective reasons;

d) Successfully managing to correct or mitigate defects and shortcomings that have already been pointed out (if any);

dd) Compliance of comptrollers and representatives of state ownership interests with the directions, guidelines or instructions receiving representative agencies.

Article 15. “Good" performance rating criteria

Executives of state enterprises, comptrollers or representatives of state ownership interests shall be rated good at their performance when meeting the following criteria:

1. Business or operational results:

a) With regard to executives of state enterprises: The state enterprises under their control are rated A according to applicable regulations;

b) With regard to comptrollers: Meeting the criteria prescribed in point b of clause 1 of Article 14 hereof;

c) With regard to representatives of state ownership interests: Enterprises are rated as full compliance with the provisions of laws, the company's charters, the directions of the competent authorities; completion of at least 90% of the after-tax profit and return on equity ratio targets set in the plans, unless otherwise approved by the representative agencies in the cases of force majeure events or due to objective reasons.

2. Individual performance:

a) Meeting the criteria prescribed in point a, b, d and dd of clause 2 of Article 14 herein;

b) Accomplishing at least 90% of goals and objectives of work set in a year, except as the lower accomplishment percents are approved by competent authorities in the cases of force majeure events or due to objective reasons.

Article 16. “Complete" performance rating criteria

Executives of state enterprises, comptrollers or representatives of state ownership interests shall be rated complete in their performance according to the following criteria:

1. Business or operational results:

a) With regard to executives of state enterprises: The state enterprises under their control are rated B according to applicable regulations;

b) With regard to comptrollers: The enterprises under their supervision are rated as inadequate compliance with the provisions of laws, the company's charters, and the directions of competent authorities. This shall not be applied in the cases where comptrollers have already given written warnings and reported to representative agencies;

c) With regard to representatives of state ownership interests: Enterprises operating under their delegated authority are rated as inadequate compliance with the provisions of laws, the company's charters, the directions, guidelines or instructions of the competent authorities; completion of between 70% and under 90% of the after-tax profit and return on equity ratio targets set in the plans, unless otherwise approved by the representative agencies in the cases of force majeure events or due to objective reasons.

2. Individual performance:

a) Meeting the criteria prescribed in point a, b, d and dd of clause 2 of Article 14 herein;

b) Accomplishing between 70% and below 90% of goals and objectives of work set in a year, except as the lower accomplishment percents are approved by competent authorities in the cases of force majeure events or due to objective reasons.

Article 17. “Incomplete" performance rating criteria

Executives of state enterprises, comptrollers or representatives of state ownership interests shall be rated incomplete in their performance according to the following criteria:

1. Business or operational results:

a) With regard to executives of state enterprises: The state enterprises under their control are rated C according to applicable regulations;

b) With regard to comptrollers: The enterprises under their supervision violate the provisions of laws, the company's charters, the directions, guidelines or instructions of representative agencies and competent authorities, except if these comptrollers have already given written warnings and reported to representative agencies;

c) With regard to representatives of state ownership interests: Enterprises operating under their delegated authority are in breach of the provisions of laws, the company's charters; not fully comply with directions or commands of competent authorities; complete less than 70% of the after-tax profit and return on equity ratio targets set in the plans, except as the lower completion percents are approved by the owners in the cases of force majeure events or due to objective reasons.

2. Individual performance:

a) Having a sign of decay of political and ethical qualities; an unhealthy lifestyle; violating the regulations on self-discipline and manners or conducts of work as determined by competent authorities;

b) Failing to comply with or violating the Party's guidelines, undertakings and policies and domestic laws; legislation on anti-corruption; thrift and anti-extravagance practices; rules and regulations of enterprises;

c) Accomplishing below 70% of goals and objectives set in a year, except as the lower accomplishment percents are approved by competent authorities in the cases of force majeure events or due to objective reasons;

d) Failing to implement or comply with the directions, guidelines or instructions of representative agencies and competent authorities;

dd) Failing to correct and mitigate defects and shortcomings that have already been pointed out (if any).

Chapter IV

PLANNING FOR PLACEMENT OF EXECUTIVES OF STATE ENTERPRISES, COMPTROLLERS

Section 1. PLANNING AND PRE-PLANNING PRINCIPLES AND REQUIREMENTS

Article 18. Planning principles and requirements

1. During a 5-year period of time, the plan shall be made once, and then reviewed and supplemented annually, ensuring conformance to the transferability and openness principles. In the beginning of the second year of this period, the planning for the next period must be carried out.

2. Planning must be serious and unprejudiced; the planning approach must be scientific, accurate, economical, efficient and must ensure that selected persons fully meet standards and requirements.

3. Personnel eligible for being considered for inclusion in placement plans:

a) Having to meet the general standards of the Party and State, and basically meet the standards of each managerial position issued by competent authorities;

b) Having to depend on work requirements of each enterprise;

c) Having to undergo the assessment of political, ethical qualities, lifestyle, qualification, practical competence, advancement orientations and prospects before being included in placement plans;

d) During the consideration period of time, they are not awaiting sanctions or disciplinary actions; are not executing sanction or disciplinary decisions; are not under investigation, prosecution or on trial.

4. Personnel holding managerial offices may only be planned to hold higher positions and must be young (expressed in months of age) enough to serve in at least 01 term in office, starting from the date of the competent authority's approval of the placement plan.

5. Plans for placement of comptrollers shall be made and determined by representative agencies under their jurisdiction.

Article 19. Arrangements made before implementation of planning procedures

In the first year of each 5-year period, Boards of Directors and Company Presidents must direct and instruct affiliated enterprises to develop personnel plans with respect to titles or positions under their delegated authority as a basis to source candidates eligible for inclusion in these personnel plans under their direct authority.

Section 2. PLANNING STEPS

Article 20. Finding and recommending a potential source of candidates for inclusion in a personnel placement plan

Steps in finding, identifying, recommending and compiling the proposed list of personnel eligible to become potential sources of candidates for inclusion in a personnel placement plan shall be taken as follows:  

1. The counseling agency compiles and proposes the list of personnel eligible for inclusion in the personnel placement plan, and reporting to the Board of Directors and/or the Company President.  

The proposed list of personnel eligible for inclusion in the plan must fully contain the following information: Full names; dates of birth; birth places; dates of accession to the Communist Party (required as a Party member); professional qualifications; qualifications in political theory (if any); executive titles and supervisory entities.

2. The leadership of an enterprise holds a meeting to agree on the planned personnel structure and quantity; examines the proposed list of personnel eligible for inclusion in the plan and recommend more personnel (if any); casts their secret ballots to decide the list of candidates recommended at the polling or balloting conference on sources of candidates eligible for inclusion in the personnel placement plan.

Article 21. Holding a conference for key cadres on recommending a source of candidates potential or eligible for inclusion in a personnel placement plan

The Board of Directors or the Company President holds a conference for key cadres on recommending a source of candidates potential or eligible for inclusion in a personnel placement plan. The conference must be attended by at least two thirds of total number of invited participants.

1. Participants in a corporation’s conference shall include:

a) Participants from a parent corporation, comprising: President of the Board of Directors, member of the Board of Directors; Comptrollers; General Director, Deputy General Director; Chief Accountant; Head or Vice Head of specialized and equivalent subdivision; grassroots Standing Committee of the Party, Trade Union Chairperson, Secretary of Youth Union;

b) Participants from the enterprise of which 100% of charter capital is held by the corporation, comprising: President of the Board of Directors or the Company President, General Director, Director and Secretary of grassroots Party Committee;

c) Participants from the enterprise of which more than 50% of the charter capital or total voting share is held by the corporation, comprising:  Representative of state ownership interests or general operations representative, Secretary of grassroots Party Committee;

d) Participants from the enterprise of which 50% of the charter capital or total voting share at maximum is held by the corporation, comprising:  Representative of state ownership interests or general operations representative;

dd) Participants from the public service unit subordinate to the corporation, comprising: Head or Secretary of the grassroots Party Committee.

2. Participants in the incorporation’s conference shall include:

a) Participants from a parent incorporation, comprising: President of the Board of Directors, member of the Board of Directors; Comptrollers; General Director, Deputy General Director; Chief Accountant; Head or Vice Head of specialized and equivalent subdivision; grassroots Standing Committee of the Party, Trade Union Chairperson, Secretary of Youth Union;

b) Participants from the enterprise of which 100% of charter capital is held by the incorporation, comprising: President of the Board of Directors or the Company President, General Director, Director and Secretary of grassroots Party Committee;

c) Participants from the enterprise of which more than 50% of the charter capital or total voting share is held by the incorporation, comprising:  Representative of state ownership interests or general operations representative, Secretary of grassroots Party Committee;

d) Participants from the enterprise of which 50% of the charter capital or total voting share at maximum is held by the incorporation, comprising:  Representative of state ownership interests or general operations representative;

dd) Participants from the public service unit subordinate to the incorporation, comprising: Head or Secretary of the grassroots Party Committee.

3. Participants in the conference of a wholly state-owned enterprise shall include:

a) Participants from the wholly state-owned enterprise, comprising: President of the Board of Directors or the Company President, member of the Board of Directors; Comptrollers; Director, Deputy Director; Chief Accountant; Head or Vice Head of specialized and equivalent subdivision; grassroots Standing Committee of the Party, Trade Union Chairperson, Secretary of Youth Union;

b) Participants from the subsidiary of which 100% of charter capital is held by the wholly state-owned enterprise, comprising: Head or Secretary of the grassroots Party Committee;

c) Participants from the subsidiary of which more than 50% of the charter capital or total voting share is held by the wholly state-owned enterprise, comprising:  Representative of state ownership interests or general operations representative, Secretary of grassroots Party Committee;

d) Participants from the affiliate of which 50% of the charter capital or total voting share at maximum is held by the wholly stated-owned enterprise, comprising:  Representative of state ownership interests or general operations representative;

dd) Participants from the public service unit subordinate to the wholly state-owned enterprise, comprising: Head or Secretary of the grassroots Party Committee.

4. Conference procedures:

a) The conference chair announces the purposes, requirements, criteria, preconditions, proposed placement structure and number of candidates for inclusion in the plan for placement of personnel holding specific positions. 

The counseling agency presents the proposed list of personnel eligible to become the potential source of candidates for inclusion in the personnel placement plan.    Conference participants may recommend more candidates that are not on the given list if each recommended candidate shows his/her curriculum vitae and the review or evaluation of his/her performance in the latest 3 years;

b) Participants join in the discussion and contribute their opinions;

c) After conference participants cast secret ballots on recommended candidates for inclusion in the personnel placement plan, the number of ballots delivered and received must be announced at the conference.   Ballot count results shall not be announced in this conference.

Article 22. Holding the expanded leadership conference to collect opinions on the proposed list of personnel recommended for inclusion in the personnel placement plan

1. The counseling agency shall integrate results of the vote on recommended candidates for inclusion in the personnel placement plan into a report to the enterprise’s leadership for their discussion and resolution on the list of personnel recommended for inclusion in the placement plan before opinions on this list are collected at the expanded leadership conference.    The number of personnel recommended for inclusion in the personnel placement plan must be at least 30% of total ballots cast in the conference for key cadres on recommendation of personnel for the placement plan.

2. The expanded leadership conference must be attended by at least two thirds of total number of invited participants.

Participants in this conference must include: President of Board of Directors or Company President, member of the Board of Directors, Comptroller, General Director, Deputy General Director, Chief Accountant and same-level Party committee; Head of division (department) and equivalent of parent company; President of the Board of Directors, President of the enterprise of which 100% of charter capital is held by the parent company; general operations representative (if any) or representative of state ownership interests in the enterprise of which more than 50% of charter capital or total voting share is held by the parent company.

3. Conference procedures:

a) President of the Board of Directors or the Company President announces the purposes, requirements, criteria, preconditions, proposed placement structure and number of candidates for inclusion in the plan for placement of personnel holding specific positions. 

The counseling agency presents the list of recommended personnel eligible to become the potential source of candidates for inclusion in the personnel placement plan which has already been unanimously agreed on by the leadership in clause 1 of this Article;  

b) Participants join in the discussion and contribute their opinions;

c) After conference participants cast secret ballots on recommended candidates for inclusion in the personnel placement plan, the number of ballots delivered and received must be announced at the conference.   Ballot count results shall not be announced in this conference.

Article 23. Deciding the personnel placement plan

1. Based on results of recommendation of potential sources of candidates obtained at the steps belonging to the aforesaid procedures, and criteria, preconditions, proposed structure and number of personnel legally required, the counseling agency carries out the review and send the general review report to the enterprise's leadership for their discussion and secret vote to decide personnel planned to hold specific positions, and must ensure compliance with the following requirements:

a) 01 title must need 02 - 04 titleholders-to-be and the planning for placement of 01 person in a title shall not be allowed; 

b) Planning placement of 01 person to hold more than 03 titles shall not be allowed;

c) Personnel structure and age must be appropriate.

2. Those polling more than 50% of total votes of the enterprise’s leadership shall be decided by the counseling agency itself or shall seek the relevant competent authority’s decision for inclusion in the personnel placement plan.

Article 24. Periodically reviewing and supplementing the personnel placement plan

Every year, the Board of Directors or the Company President conducts the review and supplementation of the plan to consider whether it is necessary to add new personnel to the plan and move those who no longer meet the criteria, standards and preconditions for holding the planned titles out of the plan. This review shall commence after receipt of results of the annual quality assessment and rating results or according to the decision of the Board of Directors or the Company President to meet the enterprise's requirements.

Article 25. Carrying out the procedures for the review of the personnel placement plan

1. Based on the annual evaluation and rating results, the counseling agency shall assume the following responsibilities:

a) Evaluate, review and develop plans for the addition of personnel who meet the criteria and conditions for inclusion in the personnel plan, and propose removing those no longer meeting the prescribed criteria and conditions from the list;

b) Report to the enterprise’s leadership to consider and comment on alternatives for supplementation of the personnel plan before conducting the opinion poll at the conference for key cadres; consider and cast secret ballots on the proposed exclusion of personnel from the placement plan. Those polling more than 50% of total votes of the enterprise’s leadership on such removal or exclusion shall be removed or excluded from the plan by itself or after receiving the decisions from the relevant competent authority.

2. Holding the conference for key cadres on recommending supplementary candidates for inclusion in the plan:

Regulations laid down in Article 21 herein must be observed.

3. Holding the expanded leadership conference to collect their opinions on the proposed list of supplementary personnel recommended for inclusion in the personnel placement plan:  

Regulations laid down in Article 22 herein must be observed.

4. Deciding the supplementation of the plan:

Based on results of the opinion poll at the conference referred to in clause 2 and 3 of this Article, and criteria, preconditions, proposed structure and number of personnel legally required, the counseling agency carries out the review and send the general review report to the enterprise's leadership for their discussion and secret vote to decide supplementary personnel recommended for inclusion in the plan for placement of personnel holding specific offices.

Those polling more than 50% of total votes of the enterprise’s leadership shall be decided by the counseling agency itself or shall seek the relevant competent authority’s decision for inclusion in the personnel placement plan.

Article 26. Planning documentation

Documentation of personnel recommended for inclusion in placement plans must contain authentic, accurate and adequate information required at data fields or entries, and must be certified or authenticated as legally required, including: 

1. The report on the request for approval for the personnel placement plan signed by the head of the relevant competent agency or organization;

2. The summary list of the planned personnel and total votes for each personnel recommended at the conference held as part of the planning process with certification granted by the relevant competent authority;

3. The biodata completed by each of recommended personnel by using the prescribed sample, enclosing the certification granted by the relevant competent authority and his/her 4x6 cm color photo taken not over 06 months;

4. Assessment opinions or comments of the Board of Directors or Company President;

5. Assessment of the same-level Party committee;

6. Assessment opinions on each recommended person from the Party subcommittee of the place where he/she and his/her family are residing. If his/her residence is different from his/her family’s residence, the assessment opinion of the Party subcommittee of the place where he/she and his/her family are residing;

7. Income and asset declaration prepared by using the prescribed sample;

8. The copies of degrees or certificates provided to meet qualification requirements for specific titles and offices. If any office or title holder-to-be possesses a degree, diploma or graduation certificate conferred by a foreign education institution, this qualification document needs to be recognized in Vietnam according to applicable regulations;

9. The health certificate issued by the relevant competent healthcare establishment less than 06 months ago.

Chapter V

APPOINTMENT, REAPPOINTMENT, TRANSFER, SECONDMENT, ROTATION OF STATE ENTERPRISE EXECUTIVES AND COMPTROLLERS

Section 1. APPOINTMENT

Article 27. Term in office

1. The term of office in each tenure of an appointed state enterprise executive or comptroller is 5 years from the effective date of the appointment decision. In case of less than 05 years’ term of office, the decision of the relevant competent authority must be observed.

2. In case where a state enterprise executive or comptroller is seconded, transferred or appointed to hold the new office at least equivalent to the previous one, the term of office shall begin from the effective date of the transfer, secondment or appointment decision.

3. In case where any change in the managerial title occurs due to any change of the enterprise's name, the term of office shall start from the effective date of the decision on appointment to the title called the same as the one existing before such change.  

Article 28. Appointment conditions

1. Conform to general standards under the regulations of the Party and the State, and specific appointment criteria relevant to specific titles according to the regulations of competent authorities.

2. In order to be appointed to titles, intramural or local personnel need to be included in the plan for appointment to these titles while extramural or external personnel need to be included in the plan for appointment to the equivalent ones.     If a newly-founded enterprise has not yet approved the personnel plan, the appointment shall be considered and decided by the relevant competent authority.

3. Have personnel profiles and records verified, and make income and asset declarations, as legally required.

4. Age of appointment:

a) Must be young (expressed in months of age) enough to hold the executive title in the entire term of office starting from the date of completion of the appointment procedures; in special cases, it shall be necessary to seek the relevant competent authority’s decision;

b) If, due to the work needs, an officeholder is transferred to a new position equal to or lower than the existing position, the age of appointment shall not be taken into account according to the provisions of Point a of this Clause.

5. Attain fitness to complete the assigned duties.

6. The appointee-to-be is not prohibited from holding positions and titles as per laws.

7. During the period of implementation of appointment procedures, the appointee-to-be is not subject to disciplinary sanctions, under investigation, prosecution or on trial.  In case an enterprise is subject to an inspection and examination conducted by a competent agency, the competent authority shall consult with the inspection and examination agency about the personnel recommended as the appointee before making their decision.

Article 29. Recommendation about appointment policies

1. With regard to appointment of an executive of a state enterprise:

a) The enterprise’s leadership holds a meeting to discuss, decide or petition the authority having the appointing authority to decide the policy, quantity, source of candidates and proposed assignments of each appointee;

b) Within 15 days from the date on which the written approval of the appointment policy of the competent authority is issued, the Board of Directors or the Company President must carry out the personnel selection process as prescribed.

2. With regard to appointment of a comptroller:

a) The counseling agency gives the representative agency a written suggestion about the appointment policy and the recommended personnel;

b) Within 15 days from the date on which the written approval of the appointment policy, the counseling agency must carry out the comptroller transfer, secondment or appointment process in reference to the process of appointment of extramural or external personnel.

Article 30. Processes and procedures for appointment of local or intramural personnel

1. Proposing the personnel structure, standards, requirements and processes:

On the basis of the personnel policy and requirements concerning the tasks and the source of candidates included in the placement plan, an enterprise’s leadership hold a meeting to discuss and propose the personnel structure, standards, conditions, and recommendation process.

2. Organizing an expanded leadership conference to discuss and agree on the personnel structure, standards, conditions, requirements and recommendation process, and recommending personnel by the secret vote.

Participants in the conference must be those regulated in clause 2 of Article 22 herein. Each participant recommends 01 candidate for 01 title. Those polling 50% of total votes shall be elected. In case there is none of candidates polling more than 50% of total votes, 02 candidates receiving highest recommendation votes in descending order shall be elected to proceed to take further appointing steps. Ballot count results shall not be announced in this conference.

3. Selecting personnel eligible to become candidates for the trust vote sought at the key cadre conference:

The company leadership shall consult the personnel structure, standards, conditions, work requirements, capability of meeting these requirements of the recommended personnel, and the results of personnel recommendation at step 2, entering into the discussion and recommending candidates by casting secret ballots. Each participant recommends 01 person for 01 title out of those recommended at step 2, or any other candidate meeting the prescribed standards and conditions.

Those polling 50% of total votes from the company leadership shall be elected. In case there is none of candidates polling more than 50% of total votes, 02 candidates receiving highest recommendation votes in descending order shall be qualified for the trust vote conducted at the key cadre conference.  Ballot count results shall not be announced in this conference.

In case where there is any conflict between the recommendation results obtained from the company leadership and the recommendation results mentioned at step 2 with regard to the personnel under the decision-making authority of the representative agency, the Board of Directors or the Company President shall send a report, enclosing clear explanations, to the representative agency to seek its directions before proceeding to take the next step.

4. Holding the conference for key cadres:

Participants in this conference are those regulated in Article 21 herein.

The conference procedures shall include: Announcing the personnel structure, standards, conditions and ability to meet the work requirements relating to the position to be appointed; announcing the list of personnel recommended by the company leadership at step 3; providing candidate biodata; remarking and evaluating strengths, weaknesses, career development prospects; proposing work duties; filling out trust vote forms (whether or not signed). Ballot count results shall not be announced in this conference.

5. Issuing appointment decisions:

The company leadership discusses the voting results at the aforesaid conferences; verifying and finalizing issues that may arise; entering into the discussion, review, evaluation and casting secret ballots for the candidate. Those polling 50% of total votes from the company leadership shall be elected for appointment. In case there are 2 candidates polling equal votes (50% of votes per each), the personnel recommended by the President of the Board of Directors or the Company President shall be selected for the request for appointment and, at the same time, a full report on conflicting opinions must be submitted to the competent authority for its consideration and grant of its decision.

Collecting written opinions from the superior grassroots Party committee of the enterprise's Party subcommittee on the personnel needing the former’s opinions as legally required. 

The President of the Board of Directors or the Company President issues appointment decisions under his/her authority or seeks the relevant competent authority’s decisions.

Article 31. Processes and procedures for appointment of external or extramural personnel

1. If the external or extramural personnel are recommended by the enterprise, the appointment processes and procedures shall be as follows:

a) The company leadership discusses and agrees on the personnel policy and conducts some of the following tasks: Assigning the representative to meet the personnel recommended for appointment to exchange opinions on the work requirements; confer with and get comments and feedbacks from the leadership of the enterprise where the recommended personnel are working on the policy of transfer, secondment and appointment; verify personal information of the recommended personnel.

b) The company leadership enters into a discussion, giving comments, feedbacks and casting votes for the recommended personnel by using secret ballots. The elected personnel must poll more than 50% of total votes from the company leadership.

c) Collecting written opinions from the superior grassroots Party committee of the enterprise's Party subcommittee on the personnel needing the former’s opinions as legally required; 

d) The President of the Board of Directors or the Company President issues appointment decisions under his/her authority or seeks the relevant competent authority’s decisions.

2. In case extramural or external personnel are recommended for transfer or secondment, the processes and procedures shall be regulated as follows:

a) The representative agency undertakes some of the following tasks: Conferring with the Board of Directors or the Company President about the proposed secondment, transfer and appointment; conferring with and getting comments and feedbacks from the leadership of the enterprise where the recommended personnel are working on the policy of transfer, secondment and appointment; meeting the personnel recommended for secondment, transfer and appointment to exchange opinions about work requirements with them;   verifying personal information of the recommended personnel;

b) Collecting written opinions from the superior grassroots Party committee of the enterprise's Party subcommittee on the personnel needing the former’s opinions as legally required; 

c) The representative agency’s leadership enters into a discussion, giving comments, feedbacks and casting votes for the recommended personnel by using secret ballots. The elected personnel must poll more than 50% of total votes from the representative agency’s leadership;

d) The representative agency issues secondment, transfer and appointment decisions or requests the President of the Board of Directors or the Company President to issue secondment, transfer and appointment decisions.

Article 32. Processes and procedures for appointment of personnel under the Prime Minister's decision-making authority

1. Steps in appointing local or intramural personnel shall be as follows:

a) The enterprise’s leadership enters into a discussion and submits the proposal regarding appointment needs to the representative agency;

b) The representative agency sends the Prime Minister the petition for consent to the personnel policy, quantity and proposed work assignments of the requested appointee-to-be and, concurrently, sending it to the Ministry of Home Affairs for its appraisal;

c) Ministry of Home Affairs appraises and reports to the Prime Minister to seek his decision on the appointment policy;

d) Within 15 days of receipt of the Prime Minister’s written consent to the appointment policy, the representative agency must preside over and cooperate with the Board of Directors or the Company President in carrying out the personnel selection process as legally prescribed; in case of any issue or problem arising, the Prime Minister must be informed of this;

dd) The representative agency must report to the Prime Minister and, concurrently, sending a written statement and documentation of appointment to the Ministry of Home Affairs for its review;

e) Ministry of Home Affairs appraises and reports to the Prime Minister to seek his appointment decision after obtaining unanimous opinions from the Government’s Party Staff Committee.

2. Steps in appointing extramural or external personnel shall be as follows:

a) The representative agency submits the petition for approval of the personnel secondment, transfer and appointment policy to the Prime Minister and concurrently sending it to the Ministry of Home Affairs for its appraisal;

b) Ministry of Home Affairs appraises and seeks the Prime Minister’s decision on the transfer, secondment and appointment policy;

c) Within 15 days of receipt of the Prime Minister’s written consent to the transfer, secondment and appointment policy, the representative agency must take charge of carrying out the personnel appointment process as legally prescribed; in case of any issue or problem that arises, the Prime Minister must be informed of this;

d) The representative agency must report to the Prime Minister and, concurrently, sending a written statement and documentation of appointment to the Ministry of Home Affairs for its review;

dd) Ministry of Home Affairs appraises and reports to the Prime Minister to seek his appointment decision after obtaining unanimous opinions from the Government’s Party Staff Committee.

3. With respect to appointment to the title of the General Director of the enterprise under the founding competence of the Prime Minister as provided in Clause 4 of Article 5 herein:

a) The President of the Board of Directors takes charge of carrying out the personnel selection process under applicable regulations, and reporting to the representative agency;

b) The representative agency must report to the Prime Minister and, concurrently, sending a written statement and documentation of appointment to the Ministry of Home Affairs for its appraisal;

c) Ministry of Home Affairs appraises and reports to the Prime Minister to seek his opinions before the relevant competent authority decides the appointment.

Article 33. Appointment in other cases

1. With respect to the corporate amalgamation, merger, splitting, division, reorganization or transformation of the corporate type:

a) With regard to the executive of a state-owned enterprise, if he/she is holding the title or office at the previous enterprise which is equivalent to or higher than the one at the new one, the representative agency shall consider issuing its decision on its own or request the relevant competent authority to decide on the transformation of title or position into the one at the new enterprise.

In case the title or office that the executive of a state-owned enterprise is holding at the previous enterprise is lower than the one that he/she is expected to hold at the new enterprise, the appointment to the latter shall be made according to the process for appointment of extramural or external personnel;

b) With regard to the comptroller, the representative agency shall consider issuing the decision on re-appointment of that comptroller at the new enterprise under applicable regulations.

2. The representative agency shall directly preside over the appointment process in all of the following cases:

a) Appointing the executive of the state enterprise at the newly founded enterprise;

b) At the time of implementation of the appointment process, if the disunity among the enterprise’s leaders arises, and many of them involve in breaches of discipline, there will be a lack of impartiality caused by the implementation of the appointment process;

c) In case of natural disaster, accident or other force majeure reasons, the enterprise no longer has a leader or an executive.

3. In case the title of the President of the Board of Directors, the Company President, General Director or Director in an enterprise is still vacant, based on the requirements of duties, the authority having appointing authority shall consider, decide and take responsibility for the designation as the acting Company President, General Director, Director or the person in charge of the Board of Directors until there is an official appointment decision from the relevant competent authority. The period of designation as the acting or in-charge officeholder shall not be counted as the term in office when that person is appointed.

Article 34. Appointment documentation requirements

1. The request form for appointment which is signed by the head of the relevant competent agency or organization.

2. The general report on vote counting results, enclosing the statements of the votes at the steps of the appointment procedures.

3. The biodata completed by each of the recommended personnel by using the prescribed sample, enclosing the certification granted by the relevant competent authority and his/her 4x6 cm color photo taken not over 06 months.

4. Self-reflection statement of performance in the last 3 years.

5. Assessment opinions or comments of the Board of Directors or Company President.

6. Assessments and comments of the same-level Party committee.

7. The competent Party committee’s conclusion regarding political standards.

8. Assessment opinions on each recommended person from the Party subcommittee of the place where he/she and his/her family are residing. If his/her residence is different from his/her family’s residence, the assessment opinion of the Party subcommittee of the place where he/she and his/her family are residing.

9. Income and asset declaration prepared by using the prescribed sample.

10. The copy of degree or certificate provided to meet qualification requirements for specific titles or offices.  If any office or title holder-to-be possesses a degree, diploma or graduation certificate conferred by a foreign education institution, this qualification document needs to be recognized in Vietnam according to applicable regulations.

11. The health certificate issued by the relevant competent healthcare establishment less than 06 months ago.

12. Conclusions drawn after completion of inspections, examinations and complaint or denunciation settlement engagements and other related documents (if any).

Section 2. RE-APPOINTMENT

Article 35. Time and limitation period of re-appointment

1. Upon expiration of the prescribed term of appointed office, the competent authority must consider deciding whether or not to re-appoint the executive of the state enterprise or the comptroller. In case the re-appointment process is pending as prescribed in Clause 3 of this Article, the authority having appointment competence must give a written notice to the enterprise or individual for their information.

2. With regard to the state-owned enterprise executive or the comptroller, if the period from the expiry date of his/her 5-year term of appointed office to the commencement date of his/her retirement plan is at least 24 working months, or the period from the expiry date of his/her 3-year term of appointed office to the commencement date of his/her retirement plan is at least 18 working months, the review process for re-appointment shall still be required. If he/she is eligible for re-appointment, the term of appointed office shall be extended to the date on which his/her full retirement age is reached in accordance with applicable regulations.

3. Cases of the review process for re-appointment pending:

a) During the period of implementation of re-appointment procedures, the executive of the state enterprise or the comptroller is subject to disciplinary sanctions, under investigation, prosecution or on trial;

b) The executive of the state enterprise or the comptroller is hospitalized for inpatient care for at least 03 months at healthcare establishments, or is on pregnancy or parental leave.

4. Re-appointment decision or decision on renewal of the term of office shall need to be issued at least 01 working day before the expiry date of the term of appointed office.

Upon expiration of his/her term of appointed office, if the executive of the state enterprise or the comptroller does not receive any re-appointment or renewal decision from the relevant competent authority, he/she shall not be allowed to continue carrying out responsibilities or powers of the position that he/she is holding.  Such act of carrying out responsibilities or powers shall be considered and decided by the relevant competent authority.

Article 36. Re-appointment conditions

1. The executive of the state enterprise or the comptroller has fulfilled his/her duties during the term of office and continues to fully meet qualification standards for the office or title he/she is holding, as well as satisfy work requirements in the upcoming time.

2. The enterprise needs such re-appointment.

3. The re-appointee-to-be must attain fitness to complete the assigned duties according to the relevant medical authority’s certification.

4. The re-appointee-to-be is not prohibited from holding positions and titles as per laws.

5. During the period of implementation of appointment procedures, the re-appointee-to-be is not subject to disciplinary sanctions, under investigation, prosecution or on trial.  In case his/her host enterprise is subject to an inspection and examination conducted by a competent agency, the competent authority shall consult with the inspection and examination agency about the personnel recommended for the re-appointment before making its decision.

6. A person may be appointed as the President of the Board of Directors, the member of the Board of Directors or the Company President for no more than 2 terms in office in an enterprise, except as he/she has worked in that enterprise for more than 15 consecutive years before being initially appointed.

A person may be appointed to the comptroller for no more than 02 consecutive terms in office in an enterprise.

Article 37. Documentation requirements, procedures and processes for re-appointment

1. Within at least 90 days prior to the expiration of the prescribed term of office, the competent authority shall notify the state enterprise executive and comptroller in writing, and go through the review process of re-appointment.

2. With regard to re-appointment of an executive of a state enterprise:

a) State enterprise executive make the statement of self-reflection and self-assessment of the results, strengths, weaknesses, shortcomings and issues arising from his/her performance of functions and duties during the time of holding the position, sending them all to the authority having appointing competence and then forwarding them to the relevant counseling agency;

b) Holding the key cadre conference to collect their opinions on re-appointment: Subject to Article 21 herein;

c) The company leadership enters into a discussion and makes their personnel decision:

The company leadership discusses the trust vote results at the aforesaid conference; verifying and finalizing issues that have just arisen (if any); entering into the discussion, review, evaluation and casting secret ballots for the candidates. The officeholder recommended for re-appointment must receive more than 50% of votes from members of the company leadership. If he/she receives 50% of the votes, the President of the Board of Directors or the Company President shall have the deciding vote. In that situation, a full report on conflicting opinions must be submitted to the relevant competent authority for its consideration and grant of its decision.

Collecting written opinions from the superior grassroots Party committee of the enterprise's Party subcommittee on the personnel needing the former’s opinions as legally required. 

The President of the Board of Directors or the Company President issues the re-appointment decision under his/her authority or seeks the relevant competent authority’s decision.

3. Documentation requirements, processes and procedures for re-appointment of the comptroller shall be subject to the regulations of the representative agency.

Article 38. Renewal or extension of the term in office

1. With regard to the state-owned enterprise executive or the comptroller, if the period from the expiry date of his/her 5-year term of appointed office to the due month of his/her retirement plan is less than 24 working months, or the period from the expiry date of his/her 3-year term of appointed office to the due month of his/her retirement plan is less than 18 working months, the re-appointment processes and procedures shall not be required. In such situation, if he/she fully meets stated standards and conditions, the term of appointed office shall be extended to the date on which his/her full retirement age is reached in accordance with applicable regulations.

2. Within at least 90 days prior to the expiration of the prescribed term of appointed office, the relevant competent authority shall notify the state enterprise executive and comptroller in writing for their information and compliance with the decision on extension of the term of appointed office to the full retirement age in accordance with applicable regulations.

3. Review and consideration of the extension of the term of appointed office held by the state enterprise executive shall be subject to the following regulations:

a) State enterprise executive make the statement of self-reflection and self-assessment of the results, strengths, weaknesses, shortcomings and issues arising from his/her performance of functions and duties during the time of holding the position, sending them all to the authority having appointing competence and then forwarding them to the relevant counseling agency;

b) The company leadership enters into the discussion and review in which, if the state enterprise executive remains healthy and prestigious enough to hold office and meets work requirements, they shall reach agreement by casting secret ballots.

The officeholder recommended for extension of the term of appointed office must receive more than 50% of the votes from members of the company leadership. If he/she receives 50% of the votes, the President of the Board of Directors or the Company President shall have the deciding vote. In that situation, a full report on conflicting opinions must be submitted to the relevant competent authority for its consideration and decision;

c) Collecting written opinions from the superior grassroots Party committee of the enterprise's Party subcommittee on the personnel needing the former’s opinions as legally required; 

d) The President of the Board of Directors or the Company President issues decisions on extension of the term of appointed office under his/her authority or seeks the relevant competent authority’s decisions.

4. Review and consideration of extension of the term of appointed office held by the comptroller shall be subject to the regulations of the representative agency.

Article 39. Documentation requirements for re-appointment, renewal or extension of the term in office

1. The request form for re-appointment, renewal or extension of the term of office to the due date of the prescribed full retirement age which is signed by the leader of the relevant competent authority.

2. The general report on vote counting results, enclosing the statements of the votes at the steps of the re-appointment procedures or the procedures for review and consideration of renewal or extension of the term of appointed office.

3. The biodata completed by each of the recommended personnel by using the prescribed sample, enclosing the certification granted by the relevant competent authority and his/her 4x6 cm color photo taken not over 06 months.

4. The statement of self-reflection and self-assessment of his/her performance of responsibilities, functions and duties during the time of holding the position.

5. Assessments and comments of the same-level Party committee.

6. The competent Party committee’s conclusion regarding political standards.

7. Assessment opinions on each recommended person from the Party subcommittee of the place where he/she and his/her family are residing. If his/her residence is different from his/her family’s residence, the assessment opinion of the Party subcommittee of the place where he/she and his/her family are residing.

8. Income and asset declaration prepared by using the prescribed sample.

9. The health certificate issued by the relevant competent healthcare establishment less than 06 months ago.

Section 3. TRANSFER, SECONDMENT AND ROTATION

Article 40. Subjects and scope of application

1. Subjects of application:

a) Executives of state enterprises and comptrollers who are included in the approved personnel placement plans;

b) Executives of state enterprises and comptrollers subject to the regulations under which they are not allowed to hold more than 02 terms of office in enterprises.

2. Based on the requirements of the tasks and plans of utilization of the executive and managerial personnel of enterprises, executives of state-owned enterprises and comptrollers may be transferred, seconded or shifted between enterprises under the supervision of the same representative agency or between other agencies, organizations or enterprises under the competent authority’s decisions.

3. Personnel transfer, secondment and rotation must be based on the working needs, the approved transfer, secondment and rotation plans, ensuring conformance to the title conditions and criteria of the planned working positions.

Article 41. Steps in carrying out personnel transfer, secondment and rotation plans

1. Annually, the counseling agency prepares a plan for transfer, secondment or movement of the executives of state-owned enterprises and comptrollers for submission to the President of the Board of Directors, the Company President or the representative agency, depending on their cadre management levels.

2. The company leadership or the representative agency enters into the discussion to reach the agreement on the plan and specific personnel recommended for transfer, secondment or rotation.

3. Collecting written comments and assessments of the leadership of the sending enterprise and the leadership of the receiving enterprise, agency or organization.

4. Discussing the intention of transfer, secondment or rotation with the personnel in person.

5. The company leadership or the representative agency issues their decisions under their authority or seeks the relevant competent authority’s decisions.

Article 42. Transfer or secondment term

The term shall be at least 36 months per each transfer or secondment engagement, except if otherwise decided by the relevant competent authorities in certain special cases.

Article 43. Placement of personnel after rotation

1. At the end of the rotation period, the authority having competence in issuing rotation decisions shall conduct the assessment and evaluation of the performance of rotated personnel, placing and assigning tasks to executives of state-owned enterprises and comptrollers.

2. The consideration of placement and assignment of tasks of executives of state-owned enterprises and comptrollers after rotation must be based on the task requirements, the actual situations, and the results of the tasks performed by agencies, organizations and enterprises associated with the personal responsibilities of the shifted or rotated personnel, and the results of assessment and evaluation by competent authorities.

Article 44. Benefit or allowance packages for executives of state enterprises and comptrollers

1. Agencies, units and enterprises receiving transferred, seconded or rotated or shifted executives or controllers must prepare and provide necessary conditions in order for them to live and work in a stable manner.

2. Executives of state enterprises that are transferred, seconded or rotated or shifted to hold any title or office shall be entitled to compensation and benefit packages applied to that title or office in accordance with laws.

3. State enterprise executives or comptrollers who are seconded, transferred or rotated to hold other titles or offices shall be automatically discharged from holding the current positions of authority from the effective date of the transfer, secondment or rotation decision.

Chapter VI

DESIGNATION AND RE-DESIGNATION AS REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Section 1. DESIGNATION AS REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 45. Limitation period of representation for state ownership interests

1. The limitation period of designation as the representative shall not exceed the tenure of the Board of Directors or the Governing Board.  If the representative is nominated by the representative agency for election or appointment to an executive or managerial office in the midst of the term of that office, the limitation period of representation for the state ownership interests shall equal the remaining term of that office under the enterprise’s charter.

2. In case where a representative is designated to represent the state ownership interests in another enterprise, the limitation period of representation for the state ownership interests shall start from the effective date of the latest decision on designation as the representative of state ownership interests.

3. In case where any change in the managerial or executive title is made due to any change of the enterprise's name, the limitation period of representation of the state ownership interests shall start from the date of receipt of permission for designation as the representative holding the formerly called title in the formerly called enterprise.  

Article 46. Conditions for designation as representatives of state ownership interests

1. Ensure conformance to general standards and criteria according to regulations of the Party and State; specific standards and criteria according to regulations of relevant competent agencies.

2. Have personnel profiles and records verified, and make income and asset declarations, as legally required.

3. Have to be young (expressed in months of age) enough to serve during the entire tenures of the Boards of Directors or the Governing Boards in the enterprises where they are designated as representatives of state ownership interests.

4. Attain fitness to complete their assigned duties.

5. In order to be eligible for designation, they are not prohibited from holding positions and titles under laws.

6. During the consideration period of time, they are not subject to sanctions or disciplinary actions pending; are not under investigation, prosecution or on trial.  In case their host enterprises are subject to an inspection and examination conducted by competent agencies, the relevant competent authorities shall consult with the inspection and examination agencies about the personnel before designating such personnel as the representatives of state ownership interests.

Article 47. Processes and procedures for designation as representatives of state ownership interests

1. Based on the value of state capital, the size of each enterprise, and after consulting the conditions and criteria of the representatives of state ownership interests, counseling agencies give recommendation about the personnel policy, quantity, structure, source and specific personnel recommended as the representatives of state ownership interests to representative agencies, including the following information: Full names; dates of birth; birth places; dates of accession to the Communist Party (required as a Party member); professional qualifications; qualifications in political theory (if any); executive titles; host or supervisory entities.

2. Each representative agency agrees on the designation policy and undertakes some of the following tasks:

a) Meet the person who is recommended for nomination or designation as the representative of state ownership interests to seek his/her commitment to the compliance with the guidelines, resolutions and directions of the representative agency, and the implementation of roles and responsibilities and obligations of the representative of state ownership interests if he/she is designated or nominated;

b) Confer with and get comments and feedbacks from the leadership of the enterprise where the recommended personnel are working on the policy of designation or nomination as the representative of state ownership interests; verify personal information of the recommended personnel.

3. The representative agency consults with the same-level Party committee about the personnel recommended for designation or nomination as the representative of state ownership interests.

4. The representative agency considers giving conclusions about issues that may arise, enters into the discussion and decides to nominate or designate the representative of the state ownership interests.

Article 48. Documentation requirements for designation or nomination as representatives of state ownership interests

1. The request form for designation or nomination as the representative of state ownership interests which is signed by the head of the relevant competent agency or organization.

2. The biodata completed by each of the recommended personnel by using the prescribed sample, enclosing the certification granted by the relevant competent authority and his/her 4x6 cm color photo taken not over 06 months.

3. Self-reflection statement of performance in the last 3 years.

4. Comments and feedbacks of the leadership and the Party committee of the agency or organization supervising the person recommended for nomination or designation as the representative of state ownership interests.

5. The competent Party committee’s conclusion regarding political standards.

6. Assessment opinions on each recommended person from the Party subcommittee of the place where he/she and his/her family are residing. If his/her residence is different from his/her family’s residence, the assessment opinion of the Party subcommittee of the place where he/she and his/her family are residing.

7. Income and asset declaration prepared by using the prescribed sample.

8. The copy of degree or certificate provided to meet qualification requirements for specific titles or offices.  If any office or title holder-to-be possesses a degree, diploma or graduation certificate conferred by a foreign education institution, this qualification document needs to be recognized in Vietnam according to applicable regulations.

9. The health certificate issued by the relevant competent healthcare establishment less than 06 months ago.

10. The commitment to the compliance with the guidelines, resolutions and directions of the representative agency, and the implementation of roles and responsibilities and obligations of the representative of state ownership interests to the owner, which is approved by the representative agency.

Section 2. RE-DESIGNATION AS REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 49. Conditions for re-designation as representatives of state ownership interests

1. In order to be designated or nominated as the representative of the state ownership interests, candidates must meet the following conditions:

a) Assessed as fulfillment of their assigned tasks during the term of office as the representative of state ownership interests;

b) Fully meeting eligibility requirements for designation or nomination as the representative of state ownership interests which are prescribed in clause 1, 2, 4, 5 and 6 of Article 46 herein.

2. If the representative of state ownership interests is not young enough to serve in the entire tenure of the Board of Directors or the Governing Board in an enterprise, then the renewed term of office as the representative of state ownership interests shall extend to the due date on which his/her full retirement age is reached.

Article 50. Processes and procedures for re-designation as representatives of state ownership interests

1. Within at least 90 days before the expiry of the term of office as the representative as legally prescribed, the representative of state ownership interests prepares a self-reflection and self-assessment of his/her performance of functions and tasks within the limitation period of designation as the representative for submission to the representative agency.

2. The representative agency consults with the same-level Party committee about the personnel recommended for re-designation as the representative of state ownership interests.

3. The representative agency considers giving conclusions about issues that may arise, enters into the discussion and decides to re-designate the representative of the state ownership interests.

In case where the representative of state ownership interests is not re-appointed, the representative agency shall be responsible for cooperating with the enterprise supervised by the representative in placing him/her in other position, or pay compensation or benefit package to him/her as prescribed by laws.

Article 51. Documentation requirements for re-designation as representatives of state ownership interests

1. The request form for re-designation or nomination as the representative of state ownership interests which is signed by the head of the relevant competent agency or organization.

2. The biodata completed by each of the recommended personnel by using the prescribed sample, enclosing the certification granted by the relevant competent authority and his/her 4x6 cm color photo taken not over 06 months.

3. The statement of self-reflection and self-assessment of his/her performance of responsibilities, functions and duties during the time of holding the position as the representative of state ownership interests.

4. Assessment opinions and comments of the representative agency.

5. The competent Party committee’s conclusion regarding political standards.

6. Assessment opinions and comments on each recommended person from the Party subcommittee of the place where he/she and his/her family are residing. If his/her residence is different from his/her family’s residence, the assessment opinion of the Party subcommittee of the place where he/she and his/her family are residing.

7. Income and asset declaration prepared by using the prescribed sample.

8. The health certificate issued by the relevant competent healthcare establishment less than 06 months ago.

Chapter VII

RESIGNATION, DISMISSAL AND DISCHARGE FROM OFFICE AS REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 52. Resignation

1. Competent authorities may consider accepting the resignation as executives of state enterprises or comptrollers in one of the following cases:

a) Voluntarily resigning from leadership positions to be transferred;

b) They themselves are aware that they fail to meet conditions, requirements or attain fitness to complete the assigned tasks, or their appointments are inappropriate;

c) They resign for personal reasons.

2. Enterprise’s executives or comptroller shall be prohibited from resignation in one of the following cases:

a) As being in charge of national defense and security tasks; important and confidential missions; the tasks of preventing natural disasters and epidemics, their resignation will seriously affect the common interests;

b) They are subject to inspection, examination or investigation by competent authorities under regulations of the Party and laws.

3. Processes for considering approval of resignation:

a) Within 10 days of receipt of resignation applications from an executive of state-owned enterprise or comptroller, the counseling agency or the company leadership must meet with the personnel filing resignation applications. If the application is withdrawn, the consideration process shall be halted; in case the application is not withdrawn, the counseling agency shall consider giving recommendations about such resignation to competent authorities under the respective delegated authority of cadre management;

b) Within 15 days from the date on which the counseling agency gives a written proposal, the company leadership or the representative agency must enter into the discussion and vote on the resignation by casting secret ballots. The decision to approve the resignation of the executive of state-owned enterprise or the comptroller must be agreed upon by more than 50% of all members of the leadership or the representative agency; if 50% of votes for such resignation is received, the head of the representative agency or the President of the Board of Directors or the Company President shall have the casting vote.

4. When the resignation application has not been accepted by the competent authority, the executive or the comptroller must continue performing their assigned functions, duties and powers.

5. After obtaining the decision to approve the resignation, the state-owned enterprise executive or comptroller must be placed in a post connected with their capacity, forte, qualifications, expertise and professional skills obtained after completion of training courses; may be entitled to receive wages and salaries paid for the position and title according to current regulations until their term of office is expired.

Article 53. Dismissal

1. Competent authorities may consider accepting the dismissal from office as executives of state enterprises or comptrollers in one of the following cases:

b) No longer meet eligibility criteria and requirements imposed on executives of state enterprises under laws;

b) Rated as failure to complete their performance or incomplete performance for two consecutive years;

c) Disciplined to the extent that they are not removed from office, but need to make personnel changes;

d) Disciplined in the form of reprimand or warning twice during the same term of appointed office;

dd) It is established by the competent authority that they are in breach of the Party’s regulations on internal political protection;

e) They are dismissed from office for other reasons stated in the regulations of the Party and laws.

2. Procedures for consideration of dismissal from office as executives of state enterprises, comptrollers:

a) When there are sufficient grounds for dismissal from office as specified in Clause 1 of this Article, the counseling agency shall submit the proposal for such dismissal to the competent authority under their delegated authority of cadre management;

b) Within 30 days from the date on which the counseling agency gives a written proposal for dismissal, the company leadership or the representative agency must enter into the discussion and vote on such dismissal by casting secret ballots. The decision to dismissal from office as the executive of state-owned enterprise or the comptroller must be agreed upon by more than 50% of all members of the leadership or the representative agency; if 50% of the votes for such dismissal is received, the head of the representative agency or the President of the Board of Directors or the Company President shall have the casting vote.

3. The executive of state-owned enterprise or the comptroller who is dismissed from office shall not be entitled to wages or salaries specific to their positions and titles from the effective date of the dismissal decision. After being dismissed from office, the state-owned enterprise executive or comptroller must be placed in a proper post by the competent authority. In that situation, he/she must abide by the assignment decisions of the competent authority. In case of dismissal due to the rating according to which he/she has failed to complete his/her assigned tasks for two consecutive years, the competent authority can terminate his/her term of office according to the provisions of laws.

4. Settlement of complaints or denunciations relating to dismissal from office

a) The settlement of complaints and denunciations related to the dismissal from office as the executive of state enterprise or the comptroller must conform to the Party's regulations, the Law on Complaints and the Law on Denunciations;

b) While decisions to settle complaints or denunciations are not available, organizations and individuals concerned must execute the decisions on dismissal from the relevant competent authorities;

c) Within 30 days after having sufficient grounds to conclude that the dismissal from office is wrong, the competent authority must issue a decision to reinstate the wrongly dismissed person in the previous position and give back legitimate interests related to the former position of the state-owned enterprise executive or the comptroller.

Article 54. Termination of term of office as representatives of state ownership interests

1. Competent authorities shall consider terminating the term of office as a representative of state ownership interests in one of the following cases:

a) Submit an application for termination of the term of office as the representative of state ownership interests before the expiration of his/her term of office and obtain approval from the representative agency;

b) The owner's capital at the corporation, incorporation or company where he/she is representing the owner is no longer left;

c) No longer meet eligibility criteria and requirements imposed on representatives of state ownership interests under laws;

d) Rated as failure to complete their performance or incomplete performance for two consecutive years;

dd) Disciplined in the form of reprimand or warning twice during the same term of appointed office as the representative of state ownership interests;

e) It is established by the competent authority that they are in breach of the Party’s regulations on internal political protection;

g) His/her term of office as the representative of state ownership interests is terminated for the other reasons prescribed by the Party’s regulations and laws.

2. Procedures for consideration of termination of term of office as a representative of state ownership interests:

a) Within 10 days of receipt of the application for termination of term of office as the representative of state ownership interests before the expiry of the term of office or if there are sufficient grounds for the termination of term of office as the representative of state ownership interests specified in Clause 1 of this Article, the counseling agency shall submit the proposal for such termination to the relevant competent authority under its delegated authority of cadre management;

b) Within 30 days of receipt of the written proposal of such termination from the counseling agency, the representative agency must enter into the discussion and vote on such termination of term of office by casting secret ballots. The decision to terminate the term of office as the representative of state ownership interests must be agreed upon by more than 50% of all members of the company leadership; if 50% of the votes for such termination is received, the head of the representative agency shall have the casting vote.

3. After termination of term of office as the representative of state ownership interests, the relevant competent authority must place them in a proper post. In that situation, he/she must abide by the assignment decision of the competent authority. If he/she voluntarily applies for retirement or termination of term of office, their retirement benefits shall be granted in accordance with applicable regulations. In case of termination of term of office as the representative of state ownership interests due to the rating according to which he/she has failed to complete his/her assigned tasks for two consecutive years, the relevant competent authority can terminate his/her term of office according to the provisions of laws.

4. Settlement of all complaints and denunciations relating to the termination of term of office as the representative of state ownership interests:

a) Settlement of all complaints and denunciations relating to the termination of term of office as the representative of state ownership interests shall be subject to regulations of the Party, the Law on Complaints and the Law on Denunciations;

b) While decisions to settle complaints or denunciations are not available, organizations and individuals concerned must execute the decisions on termination of term of office as representatives of state ownership interests from the relevant competent authorities;

c) Within 30 days after having sufficient grounds to conclude that the termination of term of office is wrong, the relevant competent authority must issue a decision to reinstate the wrongly dismissed person in the previous position and give back legitimate interests related to the former position of the representative of state ownership interests.

Chapter VIII

COMMENDATION, REWARDING, DISCIPLINING OF EXECUTIVES OF STATE ENTERPRISES, COMPTROLLERS, REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 55. Commendation and rewarding

Executives of state-owned enterprises, comptrollers and representatives of state ownership interests that work at merit or with great devotion shall be commended and/or rewarded according to the provisions of the law on emulation, commendation and rewarding.

Article 56. Disciplinary principles

1. Objectivity and fairness; transparency, public disclosure; strictness, legitimacy.

2. Each violation will be handled only once by one form of discipline. At the same time of consideration of the disciplinary action, if 02 or more acts of violation are committed, the violator shall be disciplined for each of his/her violation separately and be subject to the sanction which is one level heavier than the sanction the law applies to the most serious violation, except in the form of dismissal from work; shall not separate each violation content for imposition of the sanction in multiple times with respect to different disciplinary forms.

3. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests that is executing the disciplinary decision continues to commit the violation, the following disciplinary measure shall be applied:

a) If the violation is subject to the disciplinary action which is lighter than or equal to the current one, the disciplinary action must be one level heavier than the current one;

b) If the violation is subject to the disciplinary action which is heavier than the current one, the disciplinary action must be one level heavier than the current one imposed on the latest violation.

4. When considering imposing any disciplinary action, the content, characteristics, extent, harm, causes of the violation, aggravating or mitigating circumstances, consciousness of guilt, self-correction, remedies against violation and consequences must be taken into consideration.    

5. Imposing administrative sanctions or Party's disciplines in place of those referred to in this Decree shall be prohibited; imposing disciplinary action against a violation not to the extent of being subject to a criminal sanction shall not serve as a replacement for criminal prosecution proceedings.   

6. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests committing a violation has already been subject to the Party's sanction, the disciplinary action against the violator must resemble the Party's sanction.

Within 30 days from the date of announcement of the Party’s sanction decision, the relevant competent authority must consider deciding whether the disciplinary action is imposed.

7. All acts of infringing upon the body, spirit, honor and dignity must be strictly forbidden in the course of taking disciplinary actions.

8. If any executive of state-owned enterprise, comptroller or representative of state ownership interests that commits a violation for the first time have already been disciplined and repeat such violation within 24 months from the effective date of the disciplinary decision, such act will be considered recidivism; after the 24-month time limit from the date of commission of that act of violation, such violation shall be considered as the initial violation, but deemed as an aggravating factor when determining the disciplinary sanction.

Article 57. Limitation periods and time limits for imposition of disciplinary sanctions

1. Limitation period for imposition of disciplinary sanction is the time limit after which none of disciplinary sanctions is imposed. The limitation period for imposition of a disciplinary sanction starts from the time of determination of violation against law to the time of issuing the notice of holding a criticism meeting as prescribed in Article 65 of this Decree. Unless otherwise provided in clause 2 of this Article, the limitation period for imposition of disciplinary sanction shall be prescribed as follows:

a) 02 years for a violation against law that is less serious to the extent of imposing the disciplinary sanction in the form of reprimand;

b) 05 years for illegal acts not falling into the cases specified at point a of this clause.

2. The limitation period for imposition of disciplinary sanction for one of the following violations against law shall not be applied:

a) The executive of state-owned enterprise, the comptroller or the representative of state ownership interests who is a Party member commits an illegal act to the extent of imposing the disciplinary sanction in the form of expulsion from the Party;

b) Committing violations arising from internal political protection activities;

c) Committing any act of infringement upon national interests in the national defence, security and external relation domains;

d) using counterfeit or illicit qualifications, degrees, certificates or credentials.

3. The limitation period for imposition of disciplinary sanction upon the executive of state-owned enterprise, the comptroller and the representative of state ownership interests extends from the time of issuing the notice of holding a personnel criticism meeting as prescribed in Article 65 of this Decree to the date of issue of the disciplinary sanction decision of the relevant competent authority.

The limitation period for imposition of the disciplinary sanction must be 90 days or less. Where a case has complicated facts, needing more time for inspection and examination for further verification and clarification, such limitation period may be extended but be restricted to 150 days.

4. In case the executive of state-owned enterprise, the comptroller or the representative of state ownership interests is under investigation, prosecution or on trial according to the criminal proceedings, but then receiving the decision to suspend the investigation or dismiss the legal case, and his/her violation is suspected to be a breach of discipline, he/she may be subject to a disciplinary action.

The time period of investigation or trial according to the criminal procedures shall not be included in the limitation period.

Within 03 working days from the date of issuance of the decision to suspend the investigation or dismiss the case, the decision maker must send the decision and attached documents to the authority having competence in imposing the disciplinary action.

Article 58. Forms of discipline and levels of violation

1. Forms of disciplinary action imposed upon executives of state enterprises, comptrollers shall include: Reprimand, caution, dismissal and compulsory termination of term of office.

2. Forms of disciplinary action imposed upon representatives of state ownership interests shall include: Reprimand, caution, early discharge from office and compulsory termination of term of office.

3. Levels of violation shall be determined as follows:

a) Violations that cause less serious consequences are violations causing less minor harm, impacts inside the enterprise, and effects on the reputation of the enterprise;

b) Violations that cause serious consequences are violations causing huge harm, impacts outside the enterprise, negative public opinions and reduction in the reputation of the enterprise;

c) Violations that cause extremely serious consequences are violations causing great harm, impacts on the entire society, public annoyance and loss of the reputation of the enterprise;

d) Violations that cause specially serious consequences are violations causing extremely great harm, total impacts on the entire society, extreme public annoyance and loss of the reputation of the enterprise.

In addition to the above-mentioned grounds, the level and extent of a violation shall also be determined by the physical damage measured by the specific amount as determined by the representative agency or according to the regulations of the enterprise.

Article 59. Suspended consideration of disciplinary action and exemption from disciplinary liabilities

1. Suspended consideration and imposition of disciplinary action:

a) Taking legally prescribed annual leave, insurance covered or personal leave permitted by competent authorities;

b) Being in treatment for a serious illness or losing cognitive ability; being seriously ill and receiving inpatient care at hospitals certified by the medical authority;

c) Being a woman during pregnancy, maternity leave, or nursing a child under 12 months old; being a man (in case his wife dies or due to other objective or force majeure reasons) who is raising a child under 12 months old;

d) Being prosecuted, held in custody or temporary detention awaiting conclusions of agencies competent to investigate, prosecute or adjudicate illegal acts, except cases decided by competent agencies.

2. Exemption from disciplinary liabilities of executives of state enterprises, comptrollers, representatives of state ownership interests

a) Obtaining certification of civil act capacity from a competent agency in case of breach of violation against law;

b) Having to comply with the superior authority's decision. Where there are grounds to believe that the decision is illegal, it shall be obliged to promptly report it in writing to the authority having competence in issuing decisions; in cases where the competent authority still decides the enforcement of disciplinary action, this decision on enforcement must be made in writing and the executor must comply with it, but not responsible for the consequences of that enforcement and, at the same time, report to his/her immediate superior of the authority having competence in issuing decisions, then this authority having competence in issuing decisions shall be held responsible before law for their decision;

c) Being certified by a competent authority that the violator commits the violation in an urgent situation, due to a force majeure event or an objective obstacle in accordance with the Civil Code when performing the assigned tasks;

d) Committing violation, but now passing away.

Article 60. Imposition of disciplinary action in the form of reprimand

Disciplinary action shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws for the first time, causing less serious consequences in one of the following cases:

1. Violating regulations on labor disciplines; rules and regulations of enterprises.

2. Abusing positions of authority for self-seeking purposes.

3. Failing to comply with the decision of the competent authority; failing to perform assigned tasks without plausible reasons; causing disunity in enterprises.

4. Violating regulations of laws on: Crime prevention and control; prevention and control of social evils; social safety and order; anti-corruption; thrift and anti-extravagance practices.

5. Violating regulations of laws on protection of state secrets.

6. Violating regulations of laws on complaints and denunciations.

7. Violating regulations on democratic centralization, regulations on propaganda, speech, and internal political protection.

8. Violating regulations of laws on: Enterprises, investment, construction; land, environmental resources; finance, accounting, banking; management and use of public assets in the course of task performance.

9. Violating regulations of laws on: Domestic violence prevention and control; population, marriage and family; gender equality; social security; other provisions of laws related to enterprises.

Article 61. Imposition of disciplinary action in the form of warning or caution

Disciplinary action in the form of warning or caution shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws in one of the following cases:

1. Having already been disciplined in the form of reprimand for the violations specified in Article 60 of this Decree and then repeat that violation.

2. Violating laws for the first time, causing serious consequences in one of the cases specified in Article 60 of this Decree.

3. Violating laws for the first time, causing serious consequences in one of the cases specified in the following regulations:

a) Using counterfeit or illicit qualifications, degrees, certificates or credentials in order to obtain permission to participate in training and educational courses;

b) Failing to complete management and administration tasks as assigned by competent authorities.

Article 62. Imposition of disciplinary action in the form of early dismissal or discharge from office

Disciplinary action in the form of dismissal from or early termination of term of office shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws in one of the following cases:

1. Violating laws for the first time, causing serious consequences in one of the cases specified in Article 60 of this Decree not to the extent of compulsory termination of term of office, and in the cases where violators show consciousness of guilt, self-correction, proactively mitigating consequences and having a lot of mitigating facts.

2. Violating laws for the first time, causing serious or extremely serious consequences in one of the cases specified in clause 3 of Article 61 of this Decree.

3. using counterfeit or illicit qualifications, degrees, certificates or credentials in order to be appointed to positions or elected or designated as representatives of state ownership interests.

Article 63. Imposition of disciplinary action in the form of compulsory termination of term of office

Disciplinary action in the form of compulsory termination of term of office shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws in one of the following cases:

1. Violating laws for the first time, causing specially serious consequences in one of the cases specified in Article 60 of this Decree.

2. Violating laws for the first time, causing specially serious consequences in one of the cases specified in clause 3 of Article 61 of this Decree.

3. Using counterfeit or illicit qualifications, degrees, certificates or credentials in order to be recruited to enterprises.

4. Being addicted to drugs; in this case, the competent authority's notice shall be required.

Article 64. Processes, procedures for imposition of disciplinary sanctions

1. Steps in imposing disciplinary sanctions upon executives of state enterprises, comptrollers, and representatives of state ownership interests must be as follows:

a) Holding the criticism meeting;

b) Establishing the disciplinary sanction committee;

c) Issuing the sanction decision.

2. Where disciplinary actions are imposed under decisions of competent authorities specified at point d, clause 1, Article 59 of this Decree, or executives of state-owned enterprises, comptrollers or representatives of state ownership interests committing violations against laws are sentenced to prison by courts without being entitled to suspended sentences or are convicted of corrupt acts, the provisions laid down at Points a and b, Clause 1 of this Article shall not be applied.

Article 65. Holding the criticism meeting

When discovering that executives, comptrollers, representatives of state ownership interests, the authorities having competence in imposing disciplinary actions shall hold the criticism meeting to consider disciplinary actions to be taken, including the followings:

1. Meeting participants:

a) In case the criticized person is the President of the Board of Directors, the company president or the comptroller or the representative of state ownership interests, the head of the representative agency shall preside over the criticism meeting and decide on the eligible participants in the meeting, including the leadership representative, the party committee, the trade union, the counseling body of the representative agency, the representative of the Board of Directors, the Governing Board of the enterprise where the criticized person is working;

b) In case the criticized person is the executive of the enterprise, the President of the Board of Directors or the company president of the enterprise where he/she is working shall preside over the personnel criticism meeting and decide on the eligible participants in the meeting, including the representative of the representative agency, the leadership representative, the party committee, the trade union of the enterprise where the criticized person is working;

c) The competent authority may invite more representatives from agencies, organizations and persons concerned to the meeting. The invited person shall have the right to speak but not to vote for or against disciplinary action.

2. The meeting shall be held according to the following procedures:

a) The chair of the meeting declares reasons for the meeting, appoints the secretary, informs or authorizes the counseling agency to announce the following contents: Summary of work history; act of violation; applied sanction form (if any); the time when the act of violation occurs, the time when the act is discovered; aggravating and mitigating circumstances of the person committing the violation; limitation period and time limit for handling the violation according to the provisions of laws;

b) The criticized person presents his/her self-criticism report, clearly stating his/her violation against law and binding himself/herself to disciplinary action.

In case the person committing the violation is present at the meeting but does not make the self-criticism report, the meeting shall still proceed normally. In case the person committing the violation is absent from the meeting, the meeting shall take place after 02 attempts in notifying participants and convening the meeting;

c) The meeting participants speak and clearly state their opinions on the contents specified at Point a of this Clause;

d) The meeting’s chair draws the meeting conclusion.

The criticism meeting must be documented in the minutes.

3. Within 05 working days from the end of the criticism meeting, the meeting’s chair shall be responsible for sending the meeting report and minutes to the authority having competence in imposing disciplinary action. The report must provide clear information about the followings:

a) Act of violation, extent and consequences of violation;

b) Aggravating or mitigating facts (if any);

c) Responsibilities of the violator and comparable levels of disciplinary action;

d) Limitation period and time limit for imposition of disciplinary action under laws;

dd) Recommended disciplinary action and forms (if any).

Article 66. Establishing the disciplinary sanction committee

1. Within 05 working days after receiving the report and minutes of the criticism meeting, in case where any violation is committed to the extent that disciplinary action is required, the authority competence in imposition of disciplinary action shall decide to establish the disciplinary sanction committee to advise the application of disciplinary action to the person committing the violation, except for the case specified in Article 67 of this Decree.

2. The committee shall be composed of 05 members, including:

a) The disciplinary sanction committee’s chair is the President of the Board of Directors, the company president or the leadership representative of the representative agency;

b) A Disciplinary Sanction Committee member is the representative from the Party committee superior to the enterprise’s Party committee (in case the superior Party committee is the local party committee, this disciplinary sanction committee member must be the representative of the local party committee) or the representative of the Party committee at the level the same as the level of the representative agency;

c) A member of the disciplinary sanction committee is the representative of the specialized department of the enterprise related to the person reviewed for disciplinary action;

d) A member of the disciplinary sanction committee is the representative of the executive board of the trade union of the enterprise where the person reviewed for disciplinary action is a member;

dd) The member cum the secretary of the disciplinary sanction committee is the person in charge of the counseling agency of the enterprise where the person reviewed for disciplinary action or the counseling agency of the representative agency.

3. It shall be prohibitory to appoint the spouse, natural parent, adoptive parent, natural child or adopted child; natural sibling; sibling-in-law or persons involved in the illegal act of the state enterprise executive, the comptroller or the representative of state ownership interests under review for disciplinary action to the disciplinary sanction committee.

4. In case of failure to assign a person to join the disciplinary sanction committee as prescribed in Clause 2 of this Article because he/she commits a violation or is involved in a violation or is executing the disciplinary sanction decision, the head of the representative agency shall consider and decide on the substitute personnel or report to the Prime Minister for his review and decision.

Article 67. Cases of non-establishment of the disciplinary sanction committee

1. Committing violations against laws that cause the violators to be sentenced to prison by courts without being entitled to suspended sentences or be convicted of corrupt acts by Courts or according to the decisions of competent authorities under the provisions of Point d, Clause 1 of Article 59 herein.

2. Obtaining conclusions regarding violations against laws from competent agencies and organizations.

3. Receiving disciplinary sanction decisions of the Party.

With respect to those cases prescribed herein, conclusions regarding acts of violation may be used and any investigation or verification of such violation is not needed.

Article 68. Work rules of the disciplinary sanction committee

1. The disciplinary sanction committee convenes a meeting when at least 03 members, including the Chairperson of the committee and the committee’s Commissioner cum, are present.

2. The disciplinary sanction committee proposes the application of disciplinary action through secret ballot results and must be approved by a majority of the committee’s members.

3. The committee’s meeting must be recorded in minutes of opinions of the attendees and the results of the vote on the disciplinary action.

4. The committee shall be automatically dissolved after fulfillment of its assigned tasks.

Article 69. Holding the disciplinary sanction committee’s meeting

1. Meeting preparations:

a) Within 07 working days before the meeting of the disciplinary sanction committee, the summons to the meeting must be sent to the violator. The absent violator must have sufficient grounds. In case the violator is absent after 2 times of sending the summons without plausible reasons, until the 3^rd time of sending the summons, if the violator continues to be absent, the disciplinary sanction committee still proceeds the meeting to review and recommend disciplinary actions;

b) The meeting’s chair may invite more representatives from agencies, organizations and persons concerned to the meeting. The invited person shall have the right to speak but not to cast any vote on disciplinary actions;

c) The Commissioner cum the Secretary of the disciplinary sanction committee shall be responsible for preparing documents and records related to the disciplinary action, keeping the minutes of the disciplinary sanction committee’s meeting;

d) Disciplinary sanction documentation is submitted to the disciplinary sanction committee, including:  Self-criticism statement, biodata, criticism meeting minutes of the enterprise where the violator is working and other related documents.

2. Meeting procedures:

a) The chairperson of the disciplinary sanction committee declares the meeting reasons and introduces members to attend the meeting;

b) The Commissioner cum the Secretary of the disciplinary sanction committee presents the meeting contents as follows: Biodata; act of violation, time of commission and time of detection of violation; limitation period and time limit for imposition of disciplinary action; forms of disciplinary action that have been issued; aggravating, mitigating circumstances and other relevant documents;

c) The violator reads out the self-criticism report. If the violator is absent, the Commissioner cum the Secretary of the disciplinary sanction committee reads it on his/her behalf;

d) The Commissioner cum the Secretary of the disciplinary sanction committee reads the minutes of the meeting;

dd) The committee members and participants speak;

e) The violator speaks (if any);

g) The disciplinary sanction committee votes on whether or not to discipline the violator; in case the majority of the ballots votes for the discipline; the vote on the application of the disciplinary action is conducted by casting secret ballots according to the accumulative voting approach;

h) The chairperson of the disciplinary sanction committee announces the secret voting results and approves the meeting minutes;

i) The chairperson of the disciplinary sanction committee and the Commissioner cum the Secretary of the disciplinary sanction committee signs the minutes of the meeting.

3. In case where a meeting of the disciplinary sanction committee held to consider the disciplining of multiple executives of state-owned enterprises, comptrollers and representatives of state ownership interests in the same enterprise committing violations, the disciplinary sanction committee shall conduct the disciplinary review for each violator.

Article 70. Deciding the disciplinary action

1. Procedures for issuance of the sanction decision:

a) Within 05 working days from the date of end of the meeting, the disciplinary sanction committee must propose the disciplinary action in writing (enclosing disciplinary minutes and documentation) to the competent authority;

b) Within 15 working days after receiving the written proposal of the disciplinary sanction committee in case of establishment of the disciplinary sanction committee, or after receiving the minutes of the criticism meeting as per clause 3 of Article 65 herein in the case of non-establishment of the disciplinary sanction committee, the competent authority may issue the disciplinary sanction decision or the conclusion about the non-application of disciplinary action to executives of state-owned enterprises, comptrollers and representatives of state ownership interests;

c) In case where the violation against the laws of the executive of state-owned enterprise, comptroller, representative of state ownership interests involves complicated details, the competent authority shall decide to extend the time limit for imposition of disciplinary action according to the provisions of Clause 3 of Article 57 of this Decree, and shall take responsibility for their decision;

d) If the executive of a state-owned enterprise, the comptroller or the representative of state ownership enterprises acting in violation of the law is sentenced to prison under the court’s judgement without being subject to a suspended sentence, or is convicted of corruption under the Court’s judgement, within 15 working days from the date of receipt of the legally effective judgment of the Court, the competent authority shall issue the disciplinary decision on compulsory termination of term of office in the above cases.

2. Disciplinary sanction decision must clarify the time of entry into force.

3. 12 months after the effective date of the disciplinary decision, if the state enterprise executive, the comptroller, or the representative of state ownership interests does not commit any violation to the extent of having to be disciplined, the disciplinary sanction decision shall terminate its effect without needing a written document on the termination of its effect.

If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests continue to commit the violation against law during the period of execution of the decision, the disciplinary sanction decision that is being executed shall be invalidated from the time of the entry into force of the new one.

4. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests is disciplined in the form of reprimand or warning, he/she shall be prevented from the placement planning, rotation or appointment to the higher position, or the designation as the representative of state ownership interests, for the duration of 12 months from the effective date of the disciplinary sanction decision. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests is disciplined in the form of dismissal from or early termination of term of office, he/she shall be precluded from being planned, rotated or appointed to the higher position, or designated as the representative of state ownership interests, for the duration of 24 months from the effective date of the disciplinary sanction decision.

Article 71. Complaints

The executive of state enterprise, the comptroller and the representative of state ownership interests who is disciplined may appeal against the disciplinary sanction decision under laws on complaints.

Article 72. Disciplinary documentation

1. Documentation on disciplining of an executive of state enterprise, comptroller or representative of state ownership interests must include: Request of the disciplinary sanction committee submitted to the competent authority for consideration of disciplinary action; self-review; minutes of review, criticism meetings; letters of denunciation, examination conclusions, inspection conclusions and other relevant documents; the minutes of the disciplinary sanction committee’s meeting and the disciplinary sanction decision.

2. Disciplinary sanction documentation shall be archived in personal profiles. Disciplinary actions of executives of state enterprises, comptrollers or representatives of state ownership interests must be recorded in their records.

Article 73. Responsibilities for reimbursement or return of executives of state enterprises, comptrollers, representatives of state ownership interests

If commission of violations against laws by executives of state enterprises, comptrollers, representatives of state ownership interests results in any loss or damage to the economy or property of the State or enterprises, the violators shall be responsible for reimbursement or return under laws.

Chapter IX

PROCEDURES FOR RETIREMENT OF EXECUTIVES OF STATE ENTERPRISES, COMPTROLLERS, REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 74. Determination of retirement commencement date

1. The retirement commencement date shall be the 1^st day of the month succeeding the due month of the statutory full retirement age of executives of state enterprises, comptrollers, and representatives of state ownership interests.

If the personal profile of the executive of state enterprise, the comptroller or the representative of state ownership interests does not clarify the day or month of birth, the retirement commencement date shall be January 1 of the year succeeding the due year of his/her statutory full retirement age.

2. The retirement commencement date may be extended in the following cases:

a) Not more than 01 month in one of the cases where the retirement commencement date coincides with the Lunar New Year holiday; spouse, parent-in-law or child of the executive of state-owned enterprise or the representative of state ownership interests has died or has been declared missing by the Court; the retirement pensioner-to-be and his/her family suffers loss or damage due to natural disasters, enemies, or conflagration;

b) Not more than 03 months for one of the cases where the retirement pensioner-to-be suffers serious illness or accident and obtaining hospital’s health certificate;

c) Not more than 06 months in the cases where the retirement pensioner-to-be is being treated for any disease on the list of diseases needing long-term treatment issued by the Ministry of Health and obtaining hospital’s health certificate.

3. If executives of state enterprises, comptrollers or representatives of state ownership interests may be entitled to extension of the dates of commencement of their retirement in the cases prescribed in clause 2 of this Article, the regulation applied to the case in which the extended time of the retirement commencement date is longest shall prevail.

4. The competent authority may be entitled to extension of the dates of commencement of retirement as per clause 2 of this Article, except as executives of state enterprises, comptrollers or representatives of state ownership interests do not wish to extend their retirement commencement date.

Article 75. Retirement notification and decision

1. 6 months before the commencement time of retirement as prescribed in Clause 1 of Article 74 of this Decree, the competent authority must issue a written notice of the retirement.  The notification of the retirement commencement date of the executive of state enterprise, comptroller, and representative of state ownership interest shall be regulated as follows:

a) The representative agency issues the notification of retirement of the President of the Board of Directors, the Company President, the Comptroller and the representative agency;

b) President of the Board of Directors or the Company President issues the notification of retirement of member of the Board of Directors, the General Director, the Director, the Deputy General Director, the Deputy Director and the Chief Accountant. 

2. 03 months before the prescribed commencement date of retirement of the executive of state enterprise, the comptroller or the representative of state ownership interests retires as prescribed, the representative agency or the enterprise must issue the retirement decision under their delegated authority or report to the competent authority to petition them to issue the retirement decision.

Chapter X

IMPLEMENTATION PROVISIONS

Article 76. Entry into force

1. This Decree shall enter into force from the signature date.

2. This Decree shall replace the Government’s Decree No. 97/2015/ND-CP dated October 19, 2015 on management of officeholders or titleholders in the enterprises that are single-member limited companies of which 100% of charter capital is held by the State and the Government’s Decree No. 106/2015/ND-CP dated October 23, 2015 on management of representatives of more than 50% of state ownership interests that hold managerial titles at enterprises of which over 50% of charter capital is held by the State.

3. For violations committed by executives of state enterprises, comptrollers or representatives of state ownership interests that are considered for disciplinary action before the effective date of this Decree, current regulations shall continue to apply; for acts of violation occurring before the effective date of this Decree, but the consideration or handling of such acts after the effective date of this Decree, regulations of this Decree shall apply.

Article 77. Implementation

1. The Ministry of National Defense and the Ministry of Public Security shall, based on the provisions of this Decree, prescribe the management of officeholders or titleholders and representatives of state ownership interests in state enterprises under the control of the Ministry of National Defense or the Ministry of Public Security according to regulations over officers of the people's army, the people's police and the provisions of laws.

2. Representative agencies shall direct the Boards of Directors and the Presidents of the companies whose 100% charter capital is held by the State to consult the provisions of this Decree to set out the regulations on management of officeholders, titleholders and representatives of state ownership interests in affiliated enterprises.

3. State Capital and Investment Corporation shall, based on regulations of this Decree, set out the regulations on management of officeholders, titleholders and representatives of state ownership interests in the enterprises owned by the Corporation.

4. Recruitment, appointment through competitive examinations for managerial and executive positions in enterprises or hiring of persons holding the titles of General Director, Director, Deputy General Director, Deputy Director, and Chief Accountant must conform to projects approved by competent authorities before implementation.

5. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, Chairpersons of People’s Committees of provinces and centrally-affiliated cities, other organizations and individuals involved shall be responsible for implementing this Decree./.

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