Chương 3 Nghị định 206/2013/NĐ-CP: Quản lý và xử lý các khoản nợ phải trả của doanh nghiệp

Chapter III

MANAGEMENT AND HANDLING OF PAYABLES OF ENTERPRISES

Section 1. MANAGEMENT OF PAYABLES OF ENTERPRISES

Article 10. Responsibilities of enterprises in the management of payables

1. To issue and implement Regulations on debt management according to Clause 1, Article 4 of this Decree, assigning and clearly identifying responsibilities for monitoring and paying payables; to open books to fully monitor payables, including also payable interests; to classify by time payables (undue, due and overdue); to classify by nature payables (long-term, short-term, confessional, commercial, foreign, government-guaranteed, etc.); to fully monitor their committed or guaranteed amounts.

2. Enterprises shall ensure their ratio of payables to equity not exceeding three times according to the Government’s regulations on financial management of enterprises with 100% state-owned charter capital. When wishing to raise capital in excess of the prescribed level for investment in important projects, enterprises shall draw up detailed plans, specifying the plan on debt payment and balance of cash flows for payment, and report them to the owners for consideration and decision on the principle that capital must only be raised for projects that can ensure debt payment and effectiveness.

Enterprises shall take responsibility for the projects’ effectiveness and debt payment capability while the owners shall take responsibility before law for their decisions.

3. To draw up plans on debt payment and balance of cash flows to ensure debt payment sources; to pay debts according to committed schedule. To regularly review, assess and analyze their debt payment capability and prevent overdue debts. To account debts without creditors into their incomes.

4. The Members’ Councils and chairpersons of the Members’ Councils (company presidents) and directors generals (directors) shall manage and administer their enterprises to ensure debt payment capability; early identify difficulties in debt payment so as to take timely solutions for preventing overdue debts. The owners shall decide on disciplinary actions as prescribed by law against the chairpersons of the Members’ Councils, the Members’ Councils, company presidents and directors generals or directors that fail to take timely solutions and let their enterprises have debts overdue for over 6 months, depending on the consequences of this failure. If failing to take timely solutions resulting in insolvency, they shall bear responsibility before the owners and law.

5. Enterprises may only use the reward and welfare funds and the bonus fund for enterprise managers for the titles of the Members’ Councils, director general (director), chief accountants and individuals related to debts after fully paying all debts and other asset liabilities on maturity (according to the initial debt payment deadline, excluding the extended payment time).

Article 11. Responsibilities of enterprises in raising capital

1. Enterprises may raise capital for investment, production and business activities under the Government’s regulations on investment of state capital in enterprises and financial management of enterprises with 100% state-owned charter capital.

2. Enterprises shall carefully calculate and consider the raising of capital in terms of economic effectiveness. Enterprises may only use and invest raised capital for approved business purposes, focusing on core business lines, and not for other purposes. They shall strictly manage raised capital in order to bring about economic benefits. Enterprises shall pay both principal and interest according to commitments upon capital raising.

3. Enterprises shall draw up plans on capital raising, ensuring debt payment capability. For cases falling beyond their competence, they shall have these plans approved by competent authorities according to regulations on assignment and decentralization of the exercise of the rights and performance of the responsibilities and obligations of the state-owner, ensuring debt payment capability. Persons who approve capital raising plans shall inspect and supervise the use of raised capital, ensuring proper purposes, proper subjects and effectiveness.

4. Guarantee for subsidiary companies with 100% charter capital owned by parent companies and for companies with capital contributed by parent companies to raise capital or borrow loans from banks and credit institutions complies with the Government’s regulations on investment of state capital in enterprises and financial management of state-owned enterprises. Projects to be guaranteed by parent companies must be appraised and assessed to ensure their effectiveness and debt payment capability of guaranteed companies.

Parent companies shall closely supervise the use of loans for proper purposes and ensure timely payment of loans guaranteed by parent companies for enterprises.

5. If raised capital is used ineffectively or for improper purposes or the raising of capital violates regulations, causing asset loss and damage to enterprises, the chairpersons of the Members’ Councils, the Members’ Councils, company presidents, directors general or directors shall pay material compensations corresponding to such loss and damage, be disciplined or examined for penal liability, depending on the seriousness of their violations.

6. The owners shall closely supervise the raising of capital and use of raised capital by enterprises in order to prevent and promptly redress mistakes and avert damage to enterprises.

7. Annually, at the same time with making financial plans for the subsequent year, enterprises shall make plans on capital raising and plans on payment of debts which will become due in the subsequent fiscal year, and send them before July 31 of the reporting year to the owners and finance agencies for monitoring and supervision.

Section 2. HANDLING OF OUTSTANDING PAYABLES OF ENTERPRISES

Article 12. Tax arrears and state budget remittance

1. Tax arrears and state budget remittances of enterprises are handled in accordance with the laws on taxes, charges and fees.

2. For enterprises transformed under Decree No. 109/2008/ND-CP of October 10, 2008, on sale and assignment of enterprises with 100% state capital and Decree No. 59/2011/ND-CP of July 18, 2011, on transformation of enterprises with 100% state capital into joint-stock companies, tax arrears and state budget remittances are handled in accordance with relevant laws.

3. For loans and advances from the state budget, enterprises shall repay them to the state budget under regulations. If failing to do so for objective reasons, enterprises shall report it to competent agencies for settlement on a case-by-case basis in accordance with law.

Article 13. Debts owed by enterprises to credit institutions

1. For operating enterprises that meet difficulties in paying overdue loans to credit institutions due to business losses, their debts are handled under the Government’s relevant regulations and relevant laws currently in force on the handling of debts of credit institutions:

2. For transformed enterprises (under Decree No. 109/2008/ND-CP of October 10, 2008, on sale and assignment of enterprises with 100% state capital and Decree No. 59/2011/ND-CP of July 18, 2011, on transformation of enterprises with 100% state capital into joint-stock companies) that meet difficulties in paying overdue loans to credit institutions due to business losses, their debts are handled under current regulations on handling of outstanding debts. Enterprises shall take the initiative in coordinating with creditor banks and licensed debt purchase and sale organizations in handling overdue loans in lawful forms.

3. The handling of overdue loans borrowed by enterprises at the Vietnam Bank for Social Policies and Vietnam Development Bank complies with regulations of the Prime Minister.

Article 14. Handling of guaranteed payables

Organizations and individuals that have guaranteed enterprises to borrow loans and buy goods on deferred payment shall pay overdue debts for enterprises if the latter are unable to pay debts. Enterprises shall acknowledge and pay such debts to the guarantors in accordance with current law.

Article 15. Handling of social insurance debts

1. For transformed enterprises, before being transformed, they shall definitely pay their social insurance debts.

2. For enterprises that are sold and whose debts are not taken over, the proceeds from the sale of enterprises are prioritized for payment of their debts to the social insurance agencies.

3. For operating enterprises or enterprises that have been transformed, their social insurance debts must be paid in accordance with law.

Article 16. Handling of debts owed to organizations and individuals

1. Enterprises that have obtained transformation decisions, shall, before being transformed, definitely pay all debts, due and overdue, to their institutional and individual creditors inside and outside the enterprises. If meeting difficulties in paying debts, they shall make written debt payment commitments and obtain the approval from the creditors. If wishing to raise more capital, restructure their debts and obtaining the approval from their creditors, such debts may be converted into shares in the transformed enterprises but must ensure compliance with the law on the minimum number of shareholders and the right to buy initial shares in the equitized enterprises.

2. Operating enterprises or enterprises that have been transformed shall pay their debts in accordance with law.

Article 17. Handling of insolvent enterprises

For enterprises that have conducted production and business activities at a great loss for a long time, have reorganized their production but are still unable to pay due debts, the owners may decide to sell these enterprises or let them go bankrupt under law. If it is necessary to maintain their operations, enterprises shall make plans on debt payment and handling of bad debts and effective business plans and have them approved by competent agencies or their owners. Line ministries and provincial-level People’s Committees are competent to decide on the application of necessary measures to restore the enterprises’ capability to pay due debts and business activities; and report on cases falling beyond their competence to the Prime Minister for consideration and decision.