Chương 2 Nghị định 180/2004/NĐ-CP: Thành lập mới công ty nhà nước

Chapter II

ESTABLISHMENT OF STATE COMPANIES

Article 2.- Conditions for the establishment of State companies

1. The establishment of State companies shall be considered only when the to be-established companies fully meet the conditions prescribed in Article 8 of the State Enterprise Law as well as the following requirements:

a/ They are in the branches, domains or geographical areas for establishment of State companies prescribed in Article 3 of this Decree;

b/ They have sufficient charter capital prescribed in Article 4 of this Decree;

c/ They have establishment schemes already approved by the Prime Minister.

2. For State corporations invested and established under the State's decisions, apart from the conditions prescribed in Clause 1 of this Article, their establishment must also satisfy the conditions prescribed in Clauses 1, 2, 3 and 5, Article 48 of the State Enterprise Law.

Article 3.- Branches, domains and geographical areas to be considered for establishment of State companies

State companies shall be considered for establishment in the following branches, domains and geographical areas:

1. Production and supply of explosive materials;

2. Production and supply of toxic chemicals;

3. Production and supply of radioactive substances;

4. National power transmission system;

5. National and international axial information networks

6. Production of cigarettes;

7. Flight control;

8. Maritime assurance;

9. Production and repair of weapons, military gears and special-use defense or security equipment; technical equipment and supply of information secret-keeping service with cipher techniques;

10. Performance of special national defense or security tasks and location in strategic regions of combined economic and defense significance;

11. Printing of bank notes or valuable certificates; production of coins;

12. Construction lotteries;

13. Publication of books and newspapers;

14. Topography and cartography;

15. Management and maintenance of the national railway system, airports and seaports of large scale and important positions;

16. Management and exploitation of headwater and large-scale water works;

17. Water drainage in big urban centers;

18. Urban lighting;

19. Petroleum processing;

20. Exploitation of ores containing radioactive substances;

21. Building and repair of air transport means;

22. Wholesale of preventive and curative medicines and pharmaco-chemistry;

23. Assurance of essential needs for production development and improvement of material and spiritual life of ethnic minority people in mountainous, deep-lying and far-flung areas;

24. A number of other important branches, domains and geographical areas as decided by the Prime Minister.

Article 4.- Charter capital levels of newly-established State companies

1. A newly-established State company must have the charter capital of:

a/ At least VND 30 billion, for independent State companies;

b/ At least VND 500 billion, for State corporations.

2. In cases where a newly-established State company deals in production and/or business lines that require legal capital, its charter capital level must not be lower than the legal capital level prescribed for such production and/or business lines.

3. For a number of particular branches, domains and geographical areas, the charter capital level of a newly-established State company may be lower than the level prescribed in Clause 1 of this Article, which, however, must be permitted by the Prime Minister.

Article 5.- Persons requesting the establishment of State companies

The ministers, heads of the ministerial-level agencies, heads of the Government-attached agencies (hereinafter referred collectively to as ministers), and presidents of the People's Committees of the provinces and centrally-run cities (hereinafter called presidents of the provincial-level People's Committees) shall be the persons requesting the establishment of State companies.

Article 6.- Schemes for establishment of State companies

1. Based on the development demand as well as branches, domains and geographical areas considered for the establishment of State companies prescribed in Article 3 of this Decree, the persons requesting the establishment of State companies shall elaborate schemes for establishment of State companies and submit them to the Prime Minister for approval.

2. The schemes for establishment of State companies must have principal contents defined in Clause 3, Article 7 of the State Enterprise Law and must meet the conditions on charter capital levels prescribed in Article 4 of this Decree.

3. When choosing name for a State company, the person elaborating scheme shall coordinate with the provincial-level business registry of the locality where the company is to be headquartered in ensuring that the name of the State company shall not be identical to or mistaken for the name of another company having already registered its business.

4. In cases where the establishment of State companies falls under the deciding competence of the Prime Minister, the establishment schemes must each be made in 10 sets and sent to the Ministry of Planning and Investment, which acts as the standing body of the council for evaluation of schemes for establishment of State companies.

In cases where the establishment of State companies falls under the deciding competence of ministers or presidents of the provincial-level People's Committees, the establishment schemes must each be made in 10 sets and sent to the concerned ministers or presidents of the provincial-level People's Committees for evaluation organization.

Article 7.- Councils for evaluation of schemes for establishment of State companies

1. The persons deciding on the establishment of State companies must set up councils for evaluation of schemes for establishment of State companies. A council for evaluation of schemes for establishment of State companies (hereinafter called the evaluation council for short) is an advisory body for the persons deciding on the establishment of State companies. The evaluation councils shall have the right to request the persons requesting the establishment of State companies to adjust, supplement or explain the scheme-related issues. The establishment-deciding persons shall bear responsibility for decisions on the establishment of State companies.

2. The Ministry of Planning and Investment is the standing body of the council for evaluation of schemes for establishment of State companies that falls under the deciding competence of the Prime Minister. The Minister of Planning and Investment shall decide on the setting up of this evaluation council.

The evaluation council shall comprise representatives of the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Science and Technology, the Ministry of Natural Resources and Environment, the branch-managing ministries, the Steering Committee for Renewal and Development of Enterprises and the provincial-level People's Committees of the localities where the State companies are to be headquartered. Depending on each specific case, the standing body of the evaluation council may invite more representatives from other agencies or organizations.

3. The ministers and presidents of the provincial-level People's Committees shall set up councils for evaluation of schemes for establishment of State companies that falls under their respective deciding competence. The evaluation council members shall be decided by ministers or presidents of the provincial-level People's Committees.

Article 8.- Contents of evaluation of schemes for establishment of State companies

Contents of evaluation of schemes for establishment of State companies include:

1. The necessity of the establishment of State companies;

2. The socio-economic efficiency and conformity of such establishment with the branch, domain and regional economic development planning and strategies;

3. The lists of products and/or services to be provided by the companies; the market situation, market demand and prospect for each type of product and/or service to be provided by the companies; the consumption possibility and competitiveness of their products and/or services;

4. The technological level; capability of supplying labor, raw materials, materials and energy, and other necessary conditions for the companies to operate after their establishment;

5. The charter capital levels and solutions to capital formation; the capital refunding plans;

6. The suitability and rationality of the organizational model of the State companies;

7. The companies' impacts on the environment and environmental protection measures.

Article 9.- Scheme-evaluation procedures and dossiers for establishment of State companies

1. For the establishment of State companies under the Prime Minister's decision:

a/ The Ministry of Planning and Investment shall send the scheme to the evaluation council members for comments before submission to the Prime Minister for consideration and decision. In case of divergent opinions on major contents of the scheme, the Ministry of Planning and Investment shall organize meetings of the evaluation council before submitting the scheme to the Prime Minister.

b/ Scheme evaluation time-limit:

- Within 10 working days after receiving a scheme, the Ministry of Planning and Investment shall send it to the evaluation council members for comments.

- Within 30 working days after receiving the scheme, the evaluation council members shall send their written comments to the Ministry of Planning and Investment on the contents of the scheme that fall within their management scope. Past this time limit, if the consulted members fail to give their written comments, they shall be considered having approved the scheme.

- Within 15 working days after receiving the written comments from the evaluation council members, the Ministry of Planning and Investment shall submit the evaluation opinions to the Prime Minister for consideration and decision.

In cases where the evaluation council members hold divergent opinions on major contents of the scheme, that requires the organization of meetings of the evaluation council, the time limit for the Ministry of Planning and Investment to submit evaluation opinions to the Prime Minister may be prolonged for not more than 10 working days.

2. For the establishment of State companies under decisions of ministers or presidents of the provincial-level People's Committees:

a/ The evaluation councils set up by ministers or presidents of the provincial-level People's Committees shall meet to consider schemes for establishment of State companies. After receiving opinions from the evaluation councils, the ministers or presidents of the provincial-level People's Committees must gather written comments of the Ministry of Planning and Investment, the Ministry of Finance and the branch-managing ministries on the schemes for establishment of State companies which they have proposed, before submitting them to the Prime Minister.

b/ Time limit for evaluation of, and gathering comments on, the schemes:

- Within 30 working days, the evaluation councils must complete the evaluation of schemes for establishment of State companies and report such to the ministers or presidents of the provincial-level People's Committees. The ministers or presidents of the provincial-level People's Committees shall send the schemes together with evaluation opinions to the Ministry of Planning and Investment, the Ministry of Finance and the branch-managing ministries.

- Within 15 working days after receiving the schemes enclosed with evaluation opinions, the Ministry of Planning and Investment, the Ministry of Finance and the branch-managing ministries shall send their written comments to the ministers or presidents of the provincial-level People's Committees. Past this time limit, if the consulted ministries fail to give their written comments, they shall be considered having approved the schemes.

- Within 10 working days after the consultation time limit, the ministers or presidents of the provincial-level People's Committees shall submit the evaluated schemes together with opinions of the consulted ministries to the Prime Minister for consideration and decision.

3. After the schemes have been approved by the Prime Minister, the ministers or presidents of the provincial-level People's Committees shall compile dossiers for establishment of State companies according to the provisions of Clause 4, Article 7 of the State Enterprise Law.

4. Dossiers for establishment of State companies shall each be made in three sets and sent to the persons competent to decide on such establishment, defined in Article 10 of this Decree, within 60 working days as from the date the scheme is approved.

For the establishment of State companies under the Prime Minister's decision, the establishment dossiers shall be made and submitted to the Prime Minister right after the establishment schemes are sent to the Ministry of Planning and Investment.

5. Within 30 working days after receiving complete dossiers for establishment of State companies, the persons competent to decide on the establishment shall decide whether to establish such State companies or not.

Article 10.- Competence to decide on the establishment of State companies

1. The Prime Minister shall decide on the establishment of the following State companies:

a/ State corporations of special importance;

b/ Independent State companies of special importance, at the proposals of ministers or presidents of the provincial-level People's Committees.

2. The ministers or presidents of the provincial-level People's Committees shall decide on the establishment of State companies other than those specified in Clause 1 of this Article.

Article 11.- Decisions on the establishment of State companies

1. A decision on the establishment of a State company must have the following principal contents:

a/ The name of the State company, including the Vietnamese full name, the foreign-language name and abbreviated name (if any);

b/ The form of organization of the company;

c/ The address of the company's head-office;

d/ The production and/or business lines;

e/ The charter capital;

f/ The managerial organization of the company;

g/ The name(s) and address(es) of the company's branch(es) and/or representative office(s) (if any);

h/ The names and addresses of head-offices of the member companies (for State corporations).

2. The decision on the establishment of a State company must go along with the appointment of the Managing Board chairman and members; or the decision on appointment of, or signing of contracts with, the director of the company, for companies without the Management Board.

Article 12.- Independent cost-accounting member companies of corporations invested and established under the State's decision

Ministers or presidents of the provincial-level People's Committees shall decide on the establishment, reorganization or dissolution of independent cost-accounting member companies of State corporations established under their decisions, after getting written approvals from the Prime Minister.

Article 13.- Branches, representative offices of State companies

1. Branches and representative offices are dependent units of State companies.

Branches have the task of performing part of business operations of State companies under the latter's authorization.

Representative offices have the task of representing State companies in promoting, but not conducting business operations.

2. The establishment, reorganization and dissolution of branches and representative offices of State companies shall be decided by the companies themselves. The companies shall register operations of their branches and/or representative offices at the provincial-level business registries of the localities where such branches or representative offices are based, and notify in writing the provincial-level business registries of the localities where the companies are headquartered.

Article 14.- The business commencement time

State companies shall be entitled to conduct business from the date of being granted business registration certificates. For conditional production and/or business lines, State companies may start business from the date of being licensed by the competent State agencies or fully meeting the prescribed business conditions.

Article 15.- Business registry

The business registration sections of the provincial/municipal Planning and Investment Services (referred collectively to as the provincial-level business registries) shall be the agencies making business registration for State companies.

Article 16.- Business registration dossier

A dossier of business registration for a State company include:

1. The application for business registration, made according to the form set by the Ministry of Planning and Investment;

2. The decision on the establishment of the State company, issued by the competent person defined in Article 10 of this Decree;

3. The decision on appointment or the contract on hiring of the general director of the company with the Managing Board or the director of the company without the Managing Board;

4. The charter of the State company, already approved by the competent agency;

5. The professional practice certificate of at least one of the persons holding the positions of the Managing Board chairman, the Managing Board member, the general director, for a company with the Managing Board, or the director, for a company without the Managing Board, for cases of dealing in production and/or business lines that require professional practice certificates.

Article 17.- Business registration order and procedures

1. Within 60 working days after its establishment decision takes effect, a State company must register business at the provincial-level business registry of the province where it is headquartered. Past this time limit, if the State company fails to make business registration, the person having decided on its establishment must have written opinion on the extension of this time limit.

2. The State company's representative or person authorized in writing shall submit a dossier set for business registration at the provincial-level business registry. The State company may also send such dossier via e-mail address of the provincial-level business registry; in this case when receiving the business registration certificate, the State company must submit a business registration dossier set (paper dossier) for comparison and archival.

3. Within 15 working days after receiving the complete business registration dossier, the provincial-level business registry shall grant business registration certificate to the State company.

Article 18.- Contents of business registration certificates of State companies

The business registration certificate of a State company must include the following principal contents:

1. The company's name and head-office address;

2. The serial number and date of issuance of the establishment decision and name of the agency deciding on the establishment of the company;

3. The production and/or business lines;

4. The charter capital;

5. The full name, permanent address, identity card number or passport number of the general director of the State company with the Managing Board or of the director of the State company without the Managing Board;

6. The name and address of the branch or representative office (if any);

7. The names and head-office addresses of member companies of the State corporations.

Article 19.- Registration of changes of business registration contents

1. When changing contents of their business registration certificates, State companies shall have to make registration at the business registries.

2. The following changes must be approved in writing by the competent persons and the written approval must be submitted together with the dossier at the business registry:

a/ The name of the State company;

b/ The head-office address;

c/ The production and/or business lines;

d/ The charter capital;

e/ The director (general director).