Chương V Nghị định 159/2020/NĐ-CP: Bổ nhiệm, bổ nhiệm lại và điều động, luân chuyển người quản lý doanh nghiệp nhà nước, kiểm soát viên

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.

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