Chương 3 Nghị định 180/2004/NĐ-CP: Tổ chức lại, giải thể công ty nhà nước

Chapter III

REORGANIZATION, DISSOLUTION OF STATE COMPANIES

Article 20.- Reorganization of State companies

1. The reorganization of State companies prescribed in this Decree covers:

a/ The merger of State companies;

b/ The consolidation of State companies;

c/ The division of State companies;

d/ The separation of State companies.

2. The reorganization of State companies in other forms is provided for in relevant documents.

Article 21.- Conditions for reorganization of State companies

State companies that fully meet the following conditions shall be reorganized:

1. Their reorganization is compatible with the overall plan on rearrangement and development of State companies, already approved by the Prime Minister; and not subject to the equitization, assignment, sale, business contracting or lease.

2. The reorganized State companies must satisfy the condition on charter capital and other relevant conditions as for the establishment of State companies.

Article 22.- Merger of State companies

1. One or a number of State companies (called the merged companies) may be merged with another State company (called the merging company) under decision of the person that has decided on the establishment of the merging company.

The merged company(ies) shall cease to exist; the merging company shall enjoy legitimate interests and take responsibility for unpaid debts and labor contracts as well as other lawful obligations of the merged companies.

2. In case of State enterprise merger among ministries, provinces or centrally-run cities or merger of State companies established by ministries with those established by provinces or centrally-run cities, the agencies having decided on the establishment of the merging companies shall issue merger decisions, based on the written agreements of the agencies having decided on the establishment of the merged companies.

3. Merging companies shall register changes of business registration contents at the provincial-level business registries of the localities where they are headquartered. The merged companies shall return business registration certificates to the provincial-level business registries that have granted them such certificates.

Article 23.- Consolidation of State companies

1. Two or a number of State companies (called consolidated companies) may consolidate with one another into a new one (called consolidating companies) under decisions of the persons having decided on the establishment of consolidated companies.

The consolidated companies shall cease to exist; the consolidating companies shall enjoy legitimate interests and take responsibility for unpaid debts, labor contracts and other lawful obligations of the consolidated companies.

2. In case of State company consolidation among ministries, provinces or centrally-run cities or consolidation between State companies established by ministries and those established by provinces or centrally-run cities, the agreed upon agencies shall exercise the rights and obligations of the owners of the consolidating companies and issue decisions on the consolidation of the companies.

3. Consolidating companies shall register business at the provincial-level business registries of the localities where they are headquartered. Consolidated companies shall return their business registration certificates to the provincial-level business registries that have granted them such certificates.

Article 24.- Division of State companies

1. One State company (called divided company) may be divided into two or a number of new State companies (called dividing companies) under decisions of the person having decided on the establishment of the divided company, provided that the dividing companies meet the conditions prescribed in Article 2 of this Decree.

The rights and obligations of the divided company must be explicitly defined among the dividing companies.

2. The dividing companies shall make business registration at the provincial-level business registries of the localities where they are headquartered. The divided company shall return its business registration certificate to the provincial-level business registry that has granted it such certificate.

Article 25.- Separation of State companies

1. One State company (called separated company) may separate one or a number of its dependent units to establish one or a number of new State companies (called separating companies) under decision of the person having decided on the establishment of the separated company, provided that post-separation company and separating companies meet the conditions prescribed in Article 2 of this Decree.

The rights and obligations of the separated company must be clearly defined among the post-separation company and the separating companies.

2. The separated company shall register changes of the business registration contents at the provincial-level business office where it has registered business. The separating companies shall register business at the provincial-level business registries of the localities where they are headquartered.

Article 26.- Dossier of request for reorganization of State companies

1. Dossiers of request for reorganization of State companies shall be made by the companies and submitted to the persons having decided on the establishment of such companies.

2. Dossiers of request for reorganization of State companies shall each comprise:

a/ The written request for reorganization of State company(ies);

b/ The charter(s) of the new State company(ies);

c/ The financial statement(s) of the company(ies) before reorganization;

d/ The scheme on reorganization of the State company(ies);

e/ The written agreements of the persons having decided on the establishment of the State companies, for cases of merger or consolidation prescribed in Clause 2, Article 22 and Clause 2, Article 23 of this Decree;

f/ Other documents related to reorganization of the State companies.

Article 27.- Schemes on reorganization of State companies

A scheme on reorganization of State companies must have the following principal contents:

1. The names and addresses of the State companies before and after reorganization.

2. The necessity of reorganization of the State companies; the conformity with the branch and domain development planning and with the regional and national socio-economic development plannings.

3. The labor arrangement and employment plan.

4. The plan to deal with the rights and obligations of reorganization-related State companies.

5. The duration of reorganization of State companies.

Article 28.- Time limit for examination and handling of dossiers for reorganization of State companies

Within 60 working days after receiving complete dossiers of request for reorganization of State companies, the persons having decided on the establishment of such companies shall decide whether or not to reorganize them. The decisions on reorganization of State companies must explicitly prescribe the inheritance of the rights and obligations of the reorganized State companies.

Article 29.- Dissolution of State companies

1. A State company shall be considered for dissolution in one of the following cases:

a/ Its operation duration inscribed in its establishment decision expires but it does not apply for the extension thereof;

b/ It suffers losses for three consecutive years with accumulated loss amount representing three-fourths (3/4) or more of the State's capital at the company, but it has not yet fallen into bankruptcy;

c/ It fails to fulfill the State-assigned tasks for 2 consecutive years after having applied necessary measures;

d/ The maintenance of the company is no longer necessary.

2. State corporations invested and established under the State's decisions, if failing to achieve targets prescribed in Clause 5, Article 48 of the State Enterprise Law shall have their managerial apparatuses dissolved and their respective member companies converted into independent State companies.

Article 30.- Persons requesting dissolution of State companies

Agencies and organizations (hereinafter called requesters) requesting dissolution of State companies include:

1. State companies themselves;

2. Agencies that have decided on the establishment of the State companies or functional agencies which, while performing their tasks according to their competence, detect that the State companies are in such a state that they must be dissolved.

Article 31.- Competence to decide on dissolution of State companies

1. The persons having decided on the establishment of State companies are the persons to decide on the dissolution of such companies.

2. The ministers and the presidents of the provincial-level People's Committees shall decide on dissolution of State companies and independent cost-accounting member companies of State corporations established under the Prime Minister's decisions, after getting written approval of the Prime Minister.

Article 32.- Council for dissolution of State companies

1. The persons deciding on dissolution of State companies must set up councils for dissolution of State companies (hereinafter called dissolution councils for short). The dissolution councils have the function of advising the persons deciding on the dissolution on whether to dissolve the companies or not and organize the dissolution of the companies.

2. A dissolution council shall comprise representatives of the following agencies:

a/ The dissolution-deciding agency;

b/ The Finance Ministry, for State companies dissolved under ministers' decisions; the provincial/municipal Finance-Pricing Service, for State companies dissolved under decisions of presidents of the provincial-level People's Committees;

c/ The provincial/municipal Planning and Investment Service, the provincial/municipal Labor, War Invalids and Social Affairs Service, for State companies dissolved under decisions of presidents of the provincial-level People's Committees;

d/ The trade union of the dissolved State company;

e/ The dissolved State company.

Depending on each specific case, officials and specialists from other agencies and organizations may also be invited to join the dissolution council.

3. The representative of the dissolution-deciding agency is the chairman of the dissolution council.

Article 33.- Powers and tasks of the dissolution councils

1. To appraise requests for dissolution of State companies and submit them to the persons competent to decide on dissolution.

2. To map out plans for dissolution of State companies and submit them to competent persons for approval.

3. To organize the dissolution of State companies according to the approved plans. In case of auction of assets, to comply with current regulations on asset auction.

4. To use the State companies' seals for dissolution work and handling requests of relevant State agencies that support the asset recovery.

Article 34.- Decisions on dissolution of State companies

1. A decision on dissolution of a State company must have the following main contents:

a/ The name and address of the dissolved State company;

b/ The date of declaration of dissolution of the State company;

c/ The reasons for dissolution.

2. Within 7 working days after the issuance of the decision on dissolution of the State company, such decision must be announced to the company's laborers and sent to:

a/ The person requesting the dissolution of the State company;

b/ The dissolved State company;

c/ The enterprise finance agency: the Ministry of Finance, for centrally-run companies; or the provincial/municipal Finance-Pricing Services, for locally-run companies;

d/ The planning and investment agency: The Ministry of Planning and Investment, for centrally-run companies; or the provincial/municipal Planning and Investment Services, for locally-run companies;

e/ The tax office directly managing tax collection from the company;

f/ The provincial-level People's Committee, Department of Statistics and business registry of the locality where the dissolved State company is headquartered, and the business registries of the localities where the company's branches or representative offices are based.

Article 35.- Time limit for dissolution of State companies

1. Within 30 working days after receiving a written request for dissolution, the competent person prescribed in Article 31 of this Decree shall issue decision to dissolve the State company and set up a liquidation board to assist the dissolution council. In case of deciding not to dissolve the State company, the agency competent to decide on dissolution must notify such in writing to the requester.

2. The time limit for dissolution of a State company shall not exceed 6 months as from the date the company-dissolution decision takes effect. In special cases, with written approval of the person deciding on dissolution of the company, this time limit may be prolonged for not more than 2 months.

Article 36.- Responsibilities of the dissolved State companies

1. When receiving the dissolution decision, the dissolved State company must publish on central and local dailies for three consecutive issues the following main contents:

a/ The name and address of the dissolved State company;

b/ The serial number and date of the dissolution decision and the dissolution decision-issuing agency;

c/ The date when the State company terminates its operation;

d/ The time when creditors are requested to come to cross-check debts.

2. As from the date the dissolution decision takes effect, the dissolved State company has the responsibility to:

a/ Stop business activities of, paying debts, leasing assets, lending assets or keeping others' assets;

b/ Close accounting books; inventory assets; cross-check receivable and payable debts; make financial statements up to the time the dissolution decision takes effect;

c/ Draw up list of creditors and payable debt amounts (classifying secured debts, partly-secured debts and unsecured debts); and list of debtors and receivable debts (classifying recoverable debts and irrecoverable debts);

d/ Within 30 working days after the dissolution decision takes effect, the company must hand over to the dissolution council:

- The financial statement, accounting books and documents related to its dissolution; the lists of its creditors and debtors.

- All assets lawfully owned, managed or used by the company (including assets not yet recovered), assets kept for others, borrowed or leased.

Article 37.- Order of dissolution of State companies

After the dissolution decision has been issued and the dissolution of a State company has been announced on newspapers, the dissolution of the State company shall be conducted through the following main steps:

1. The dissolved State company shall perform the tasks defined in Clause 2, Article 36 of this Decree.

2. The dissolution council shall:

a/ Withdraw the seal of the dissolved State company to serve the dissolution work;

b/ Work out plan for dissolution of the State company and submit it to the competent person for approval;

c/ Organize the dissolution of the State company according to the approved plan;

d/ Within 7 working days after completing the dissolution, the dissolution council shall have to make a financial report on dissolution of the State company and submit it to the person having decided on the dissolution of the company; return the seal of the dissolved State company to the police office and its business registration certificate to the provincial-level business registry where the company has registered its business; and publish the completion of dissolution of the State company on a central or local daily for three consecutive issues.