Nghị định 23/2022/NĐ-CP về thành lập, sắp xếp lại, chuyển đổi sở hữu, chuyển giao quyền đại diện chủ sở hữu tại doanh nghiệp do Nhà nước nắm giữ 100% vốn điều lệ

THE GOVERNMENT -------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom – Happiness -----------
No.: 23/2022/ND-CP	Hanoi, April 05, 2022

 

DECREE

PRESCRIBING ESTABLISHMENT, REORGANIZATION, CONVERSION OF OWNERSHIP, AND TRANSFER OF RIGHTS TO REPRESENT STATE CAPITAL OWNER IN WHOLLY STATE-OWNED ENTERPRISES

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on Amendments to the Law on Government Organization and the Law on Local Government Organization 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 manufacturing and business operations of enterprises dated November 26, 2014;

Pursuant to the Law on Property Auction dated November 17, 2016;

At the request of the Minister of Planning and Investment;

The Government promulgates a Decree prescribing establishment, reorganization, conversion of ownership, and transfer of rights to represent state capital owner in wholly state-owned enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree elaborates on some Articles of the Law on enterprises and the Law on management and use of state capital invested in manufacturing and business operations of enterprises in respect of establishment, reorganization (excluding bankruptcy), conversion of ownership (excluding conversion of wholly state-owned enterprises into joint-stock companies), and transfer of rights to represent state capital owner in wholly state-owned enterprises.

2. The bankruptcy of wholly state-owned enterprises will be carried out in accordance with the Law on Bankruptcy. Conversion of wholly state-owned enterprises into joint-stock companies shall be carried out in accordance with the Government’s regulations on conversion of wholly state-owned enterprises into joint-stock companies.

3. Establishment, reorganization, conversion of ownership, and transfer of rights to represent state capital owner in credit institutions that are wholly state-owned enterprises and agricultural enterprises and forestry enterprises shall comply with regulations herein and relevant laws. In case of divergence between such legislative documents, regulations of the Law on banking and relevant laws shall prevail, except the cases specified in Clause 2 Article 156 of the Law on promulgation of legislative documents.

Article 2. Regulated entities

This Decree applies to:

1. Owner’s representative agencies. State Capital Investment Corporation shall comply with specific regulations adopted by the Government.

2. Wholly state-owned enterprises defined in Clause 2 Article 88 of the Law on enterprises.

3. Organizations and individuals involved in the establishment, reorganization, conversion of ownership, and transfer of rights to represent state capital owner in wholly state-owned enterprises.

Article 3. Definitions

For the purposes of this Decree, the terms below are construed as follows:

1. Types of reorganization: consolidation, merger, full or partial division, or dissolution of a wholly state-owned enterprise.

2. Types of ownership conversion: selling a part of state capital at a wholly state-owned enterprise to convert it into a multi-member limited liability company; selling the entire state capital at a wholly state-owned enterprise.

3. Owner’s representative agencies: Ministries, ministerial agencies, Governmental agencies, and People's Committees of provinces or central-affiliated cities (hereinafter referred to as “Provincial People's Committees”).

4. Enterprises established under the Prime Minister’s decision are wholly state-owned parent companies of state-owned economic groups, State Capital and Investment Corporation, and enterprises having operating capital acquired from the implementation of national important projects of which investment policies have been approved the National Assembly.

Chapter II

ESTABLISHMENT OF WHOLLY STATE-OWNED ENTERPRISES

Article 4. Establishment requirements

A wholly state-owned enterprise may be established when all of the following requirements are satisfied:

1. The enterprise’s business lines fall within the scope of state investment in business establishment as prescribed in the Law on management and use of state capital invested in manufacturing and business operations of enterprises.

2. It has adequate charter capital as prescribed in Article 5 of this Decree.

3. It has a valid application for enterprise establishment as prescribed in Article 6 of this Decree.

4. The enterprise establishment is conformable with socio-economic development strategies and plans and national sector planning.

Article 5. Charter capital

1. When being established, the enterprise must have a charter capital of not less than VND 100 billion.

2. If an enterprise engages in a business line requiring the legal capital, in addition to the requirement set out in Clause 1 of this Article, the enterprise’s charter capital must not be lower than the legal capital required for that business line.

3. With regard to enterprises that provide essential public products and/or services, or social security services or engage in some business lines, sectors or areas, and require state investment to establish enterprises, the enterprise’s charter capital may be lower than the amount specified in Clause 1 of this Article but shall not be lower than the prescribed legal capital for business lines that require legal capital.

Article 6. Application for establishment of wholly state-owned enterprises

1. In case of an enterprise established under the Prime Minister’s decision, an application for establishment includes:

a) The application form for enterprise establishment;

b) The scheme for enterprise establishment as prescribed in Clause 3 of this Article;

c) The draft Charter of the enterprise as prescribed in Clause 4 of this Article.

2. In case of an enterprise established under decision of the owner’s representative agency, an application for approval of establishment policies submitted to the Prime Minister includes:

a) The application form for enterprise establishment;

b) The scheme for enterprise establishment as prescribed in Clause 3 of this Article.

3. The scheme for enterprise establishment shall, inter alia, include the following contents:

a) Legal grounds, objectives, and necessity of enterprise establishment;

b) Name, organizational model, and operating duration of the enterprise;

c) Headquarters address, location of business facility and used land area; branches and representative offices (if any);

d) Tasks assigned by the State; business lines; list of products and services to be provided by the enterprise;

dd) Assessment of the conformity of the enterprise establishment with socio-economic development strategies and plans, and national sector planning;

e) Market situations, market demands and prospects for each product or service rendered by the enterprise; technologies applied to production and business; production, business and investment plan for a period of 05 years after establishment;

g) Charter capital; estimated total investment (in case of establishment of a wholly state-owned enterprise associated with implementation of an investment project); funding sources and methods of raising funds other than the State initial investment; methods for repaying raised funds; demands and methods for generating working capital;

h) Expected economic - social efficiency;

i) Estimated supply of labour, materials, fuels, technologies and other conditions necessary for the enterprise’s operations after established.

4. The draft Charter of the enterprise shall, inter alia, include the following contents:

a) Name and headquarters address of the enterprise; addresses of branches and representative offices (if any);

b) Business lines; operational objectives; tasks assigned by the State;

c) Charter capital and methods for making changes in charter capital;

d) Name and address of the enterprise's owner;

dd) Rights and obligations of the enterprise's owner;

e) Organizational structure;

g) Enterprise’s legal representative; division of rights and obligations between legal representatives if the enterprise has more than one legal representative;

h) Voting method for ratifying the enterprise’s decisions; principles for resolving internal disputes;

i) Mechanisms for financial activities, principles for distribution of post-tax profits and settlement of business losses; grounds and methods for determination of remunerations, salaries and bonuses of executives, Board of Controllers, and controllers.

k) Rights and obligations of Chairperson and members of the Board of Members or company’s President, General Director and holders of other managerial positions in the enterprise;

l) Cases of dissolution, procedures for dissolution and liquidation of the enterprise’s assets;

m) Procedures for revising the enterprise’s charter;

n) Other contents which are decided by the authority or organization assigned to perform rights and obligations of the enterprise’s owner but shall not be contrary to regulations of law.

5. In case of establishment of a wholly state-owned enterprise associated with formulation of an investment project, investment procedures shall be followed in accordance with the Law on investment.

Article 7. Authority to decide establishment of enterprises

1. The Prime Minister shall decide the establishment of the enterprises specified in Clause 4 Article 3 of this Decree.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies, and Chairpersons of Provincial People’s Committees shall decide the establishment of wholly state-owned enterprises other than those specified in Clause 1 of this Article.

Article 8. Appraisal of application for enterprise establishment

Appraisal of an application for enterprise establishment means examination and assessment of the conformity of the enterprise establishment with regulations, socio-economic development strategies and plans, and national sector planning. Such appraisal will be used as the basis for competent persons to consider making decision and ensure the efficiency of enterprise establishment.

The head of the owner’s representative agency is the applicant for enterprise establishment and assumes responsibility for the accuracy of the documents included in the submitted application for enterprise establishment.

Article 9. Procedures for establishment of enterprises established under the Prime Minister’s decision

1. The owner’s representative agency shall prepare 07 sets of application for enterprise establishment which includes original documents as prescribed in Clause 1 Article 6 of this Decree, and send them to the Ministry of Planning and Investment for appraisal.

2. Upon receipt of adequate application, the Ministry of Planning and Investment shall play the leading role in collecting opinions from the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, the supervisory ministry, the People's Committee of province or city where the enterprise will be headquartered, and relevant authorities and organizations (where necessary).

Within 15 working days from the receipt of the application, relevant authorities shall provide their written opinions about issues under their management to the Ministry of Planning and Investment for consolidating and issuing an appraisal report.

3. Within 10 working days from the receipt of opinions from relevant authorities, the Ministry of Planning and Investment shall submit the appraisal report to the Prime Minister and also send it to the owner’s representative agency for knowing or providing explanations.

If different opinions are given about the same content of the application, the Ministry of Planning and Investment shall hold a meeting with relevant authorities before submitting the appraisal report o the Prime Minister. The time limit for submitting the appraisal report may be extended for a period not exceeding 10 working days.

4. The owner’s representative agency shall explain about appraisal conclusions drawn by the Ministry of Planning and Investment, complete and submit the application to the Prime Minister for deciding the enterprise establishment.

Article 10. Procedures for establishment of enterprises established under decision of owner’s representative agencies

1. The owner’s representative agency shall prepare 03 sets of application for enterprise establishment which includes original documents as prescribed in Clause 2 Article 6 of this Decree, and send them to the Ministry of Planning and Investment for appraisal.

2. Upon receipt of adequate application, the Ministry of Planning and Investment shall play the leading role in collecting opinions from the Ministry of Finance, supervisory ministry (in case an enterprise is established under decision of a Provincial People's Committee, ministerial agency or Governmental agency) or the People's Committee of province or city where the enterprise will be headquartered, and relevant authorities and organizations (in case an enterprise is established under decision of a Ministry, ministerial agency or Governmental agency).

Within 10 working days from the receipt of the application, relevant authorities shall provide their written opinions about issues under their management to the Ministry of Planning and Investment for consolidating and issuing an appraisal report.

3. Within 10 working days from the receipt of opinions from relevant authorities, the Ministry of Planning and Investment shall prepare and submit the appraisal report to the owner’s representative agency.

4. The owner’s representative agency shall explain about appraisal conclusions drawn by the Ministry of Planning and Investment, complete and submit the application to the Prime Minister for approving the enterprise establishment policies.

5. The owner’s representative agency shall issue an enterprise establishment decision within 30 working days from the day on which the Prime Minister gives approval for establishment policies.

Article 11. Enterprise establishment decision

An enterprise establishment decision shall, inter alia, include the following contents:

1. Enterprise’s name, including full name in Vietnamese, name in foreign language, and abbreviated name (if any).

2. Type of enterprise.

3. Headquarters address of the enterprise.

4. Tasks assigned by the State; business lines.

5. Charter capital.

6. Organizational structure, managing apparatus of the enterprise.

7. Names, addresses of branches and representative offices (if any).

8. Names and headquarters addresses of subsidiaries and affiliated companies (if any).

Article 12. Enterprise registration and time of starting business

1. After the enterprise establishment decision has been issued, the owner’s representative agency shall prepare an application for investment of state capital in establishment of enterprise in accordance with the Government’s regulations.

2. Enterprises shall follow procedures for enterprise registration in accordance with regulations of law and are entitled to start their business from the issue date of the enterprise registration certificate. With respect to conditional business lines, enterprises are entitled to engage in such business lines from the day on which the enterprise obtains permission from competent authorities or on which all business conditions have been satisfied by the enterprise as prescribed.

Chapter III

REORGANIZATION AND CONVERSION OF OWNERSHIP OF WHOLLY STATE-OWNED ENTERPRISES

Section 1. CONSOLIDATION, MERGER, FULL OR PARTIAL DIVISION, AND DISSOLUTION OF WHOLLY STATE-OWNED ENTERPRISES

Article 13. Consolidation, merger, full or partial division of enterprises

1. Consolidation of wholly state-owned enterprises:

Two or more wholly state-owned enterprises (hereinafter referred to as “consolidating companies”) may be consolidated into a new wholly state-owned enterprise (hereinafter referred to as “consolidated company”), after which the consolidating companies shall cease to exist.

2. Merger of wholly state-owned enterprises:

One or some wholly state-owned enterprises (hereinafter referred to as “acquired companies”) may be merged with another wholly state-owned enterprise (hereinafter referred to as “acquiring company”) by transfer all of the acquired companies’ assets, rights, obligations and lawful interests to the acquiring company, after which the acquired companies shall cease to exist.

3. Full division of wholly state-owned enterprises:

A wholly state-owned enterprise (hereinafter referred to as “divided company”) divides its assets, rights and obligations to establish two or more new wholly state-owned enterprises, after which the divided company shall cease to exist.

4. Partial division of wholly state-owned enterprises:

A wholly state-owned enterprise (hereinafter referred to as “divided company”) may be partially divided by transfer of part of its assets, rights and obligations to establish one or some new wholly state-owned enterprises without ceasing the existence of the divided company.

Article 14. Requirements for consolidation, merger, full or partial division of enterprises

A wholly state-owned enterprise may be consolidated, merged, or fully or partially divided when all of the following requirements are satisfied:

1. The consolidation, merger, full or partial division of enterprise must be conformable with the documents on enterprise organization or innovation approved by the Prime Minister. If an enterprise is not a regulated entity of these documents, the owner’s representative agency shall submit the case to the Prime Minister for consideration.

2. New enterprises established after full or partial division must satisfy the requirements for enterprise establishment set out in Article 4 of this Decree.

3. Consolidation and merger of enterprises must comply with the Law on Competition in respect of consolidation and merger of enterprises.

Article 15. Authority to decide consolidation, merger, full or partial division of enterprises

1. In case of consolidation, merger, full or partial division of enterprises which are established under decision issued by the same person or authority or which are managed by the same person or authority (hereinafter referred to as “establishment decision-making authority”), the establishment decision-making authority shall consider issuing decisions on consolidation, merger, full or partial division of such enterprises.

2. In case of merger of enterprises which are established by different establishment decision-making authorities, the establishment decision-making authority of the acquiring company shall issue merger decision on the basis of written consents obtained from establishment decision-making authorities of the acquired companies. In case either the acquiring company or the acquired company is established under the Prime Minister’s decision, the Prime Minister shall issue the merger decision.

3. In case of consolidation of enterprises which are established by different establishment decision-making authorities, the authority assigned by the Prime Minister to perform rights and obligations of the owner’s representative in the consolidated enterprises shall issue the consolidation decision. In case of consolidation of enterprises established under the Prime Minister’s decision, the Prime Minister shall issue the consolidation decision.

Article 16. Application for consolidation, merger, full or partial division of enterprises

1. An application for consolidation, merger, full or partial division of enterprises shall include:

a) The application form for consolidation, merger, full or partial division of enterprises;

b) The scheme for consolidation, merger, full or partial division of enterprises;

c) The enterprise’s audited financial statements of the previous year and the financial statements of the latest quarter before the date of consolidation, merger, full or partial division;

d) The draft Charter of the new enterprise established after consolidation, merger, full or partial division;

dd) The draft consolidation or merger contract which is prepared according to Article 200 and Article 201 of the Law on enterprises in case of consolidation or merger of enterprises;

e) Other documents concerning the consolidation, merger, full or partial division of enterprises (if any).

2. The scheme for consolidation, merger, full or partial division of enterprises shall, inter alia, include the following contents:

a) Name and address of the enterprise before and after the consolidation, merger, full or partial division;

b) The necessity of the consolidation, merger, full or partial division; the conformity of such consolidation, merger, full or partial division with the socio-economic development strategies and plans, and national sector planning;

c) The enterprise’s charter capital after consolidation, merger, full or partial division;

d) The labour arrangement and use plan;

dd) The plan for financial settlement, transfer of capital and assets, and settlement of the enterprise’s rights and obligations in connection with the consolidation, merger, full or partial division;

e) The time limit for completing the consolidation, merger, full or partial division;

g) In case an enterprise is fully or partially divided to establish new enterprises, the scheme for full or partial division of enterprise shall include other contents as prescribed in Clause 3 Article 6 of this Decree.

Article 17. Procedures for consolidation or merger of enterprises

1. Procedures for consolidation or merger of enterprises established under the Prime Minister’s decision:

a) The owner’s representative agency shall direct one of the consolidating companies (in case of consolidation) or the acquiring company (in case of merger) to prepare an application for consolidation or merger of enterprises according to Article 16 of this Decree, give opinions about the consolidation or merger, and submit 06 sets of original application to the Ministry of Planning and Investment for appraisal;

b) Upon receipt of adequate application for consolidation or merger of enterprises from the owner’s representative agency, the Ministry of Planning and Investment shall play the leading role in collecting opinions from the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, the supervisory ministry, and relevant authorities (where necessary).

Within 15 working days from the receipt of the application for consolidation or merger of enterprises, relevant authorities shall provide their written opinions about issues under their management to the Ministry of Planning and Investment for consolidating and issuing an appraisal report;

c) Within 10 working days from the receipt of opinions from relevant authorities, the Ministry of Planning and Investment shall submit the appraisal report to the Prime Minister and also send it to the owner’s representative agency for knowing or providing explanations.

If different opinions are given about the same content of the application, the Ministry of Planning and Investment shall hold a meeting with relevant authorities before submitting the appraisal report o the Prime Minister. The time limit for submitting the appraisal report may be extended for a period not exceeding 10 working days;

d) The owner’s representative agency shall explain about appraisal conclusions drawn by the Ministry of Planning and Investment, complete and submit the application to the Prime Minister for consideration.

2. Procedures for consolidation or merger of enterprises established under decision of the owner’s representative agency or managed by the owner’s representative agency:

a) Wholly state-owned enterprises shall cooperate with each other and in preparing an application for consolidation or merger of enterprises according to Article 16 of this Decree, and submit it to the authority issuing establishment decision or assigned to manage such enterprises for consideration;

b) Within 30 working days from the receipt of adequate application, the competent authority prescribed in Article 15 of this Decree shall appraise, approve the application and issue a consolidation or merger decision.

3. After the consolidation or merger decision has been issued, the legal representatives of enterprises shall enter into the consolidation or merger contract, and assume responsibility to implement the consolidation or merger scheme.

The acquiring company or the wholly state-owned enterprise established after the consolidation shall follow procedures for enterprise registration in accordance with regulations of law.

Article 18. Procedures for full or partial division of an enterprise

1. Procedures for full or partial division of an enterprise established under the Prime Minister’s decision:

a) The owner’s representative agency shall direct the enterprise to prepare an application for full or partial division according to Article 16 of this Decree, and submit 06 sets of original application to the Ministry of Planning and Investment for appraisal;

b) Upon receipt of adequate application, the Ministry of Planning and Investment shall play the leading role in collecting opinions from the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, the supervisory ministry, and relevant authorities (where necessary).

Within 15 working days from the receipt of the application, relevant authorities shall provide their written opinions about issues under their management to the Ministry of Planning and Investment.

c) Within 10 working days from the receipt of opinions from relevant authorities, the Ministry of Planning and Investment shall submit the appraisal report to the Prime Minister and also send it to the owner’s representative agency for knowing or providing explanations.

If different opinions are given about the same content of the application, the Ministry of Planning and Investment shall hold a meeting with relevant authorities before submitting the appraisal report o the Prime Minister. The time limit for submitting the appraisal report may be extended for a period not exceeding 10 working days;

d) The owner’s representative agency shall explain about appraisal conclusions drawn by the Ministry of Planning and Investment, complete and submit the application to the Prime Minister for consideration.

dd) After the full or partial division decision has been issued, the enterprise established under the Prime Minister’s decision shall implement the full or partial division scheme.

2. Procedures for full or partial division of a wholly state-owned enterprise established under decision of the owner’s representative agency or managed by the owner’s representative agency:

a) The enterprise shall prepare 04 sets of original application for full or partial division according to Article 16 of this Decree, and submit them to the owner’s representative agency for appraisal;

b) Upon receipt of adequate application, the owner’s representative agency shall play the leading role in collecting opinions from the Ministry of Planning and Investment, the Ministry of Finance, and the supervisory ministry (in case the wholly state-owned enterprise is established under decision of a provincial People's Committee).

Within 10 working days from the receipt of the application, relevant authorities shall provide their written opinions about issues under their management to the owner’s representative agency.

c) Within 10 working days from the receipt of opinions from relevant authorities, the owner’s representative agency shall prepare and submit the appraisal report to the Prime Minister for consideration.

d) The owner’s representative agency shall issue a decision on full or partial division of enterprise within 30 working days from the day on which the Prime Minister gives approval for full or partial division policies.

dd) After the full or partial division decision has been issued, the enterprise shall implement the full or partial division scheme.

3. Enterprises established after the full or partial division of enterprise shall follow procedures for enterprise registration in accordance with regulations of law.

Article 19. Decision on consolidation, merger, full or partial division of enterprises

1. A consolidation, merger, or full or partial division decision must clearly specify rights and obligations inherited from the consolidating companies, acquired companies or divided company.

2. The consolidation, merger, or full or partial division decision, and the consolidation or merger contract shall be sent to all creditors and employees within 15 days from the day on which they are ratified.

Article 20. Policies for employees and holders of managerial positions

1. Employees who are eligible for retirement benefits shall be treated in accordance with regulations of the Law on social insurance and provided with other benefits in accordance with regulations on labour.

2. Employees who wish to terminate employment contracts shall be provided with redundancy or severance allowance in accordance with regulations on labour or policies for employees redundant after consolidation, merger, or full or partial division of wholly state-owned enterprises.

3. The assignment of works to Chairperson and members of the Board of Members or company’s President, General Director (Director) and controllers who are working under appointment regime shall be considered by the owner’s representative agency after the consolidation, merger, or full or partial division. In case the assignment of works to persons who are working under appointment regime cannot be carried out, these cases shall be settled according to downsizing policies as prescribed.

Article 21. Business suspension and termination of wholly state-owned enterprises

1. Wholly state-owned enterprises shall suspend or terminate their business at the request of the owner’s representative agencies and in the cases specified in Clause 2 Article 206 of the Law on enterprises.

2. Procedures for business suspension and termination:

After the owner’s representative agency issues a decision on business suspension or termination, the enterprise shall follow procedures for business suspension or termination in accordance with regulations of law.

In case the business registration office or competent authority requests a wholly state-owned enterprise to suspend or terminate its business operation in conditional business lines, the enterprise shall report the case to the owner’s representative agency for issuing the business suspension decision.

3. During the suspension period, the enterprise shall comply with Clause 3 Article 206 of the Law on enterprises.

Section 2. SELLING ENTIRE WHOLLY STATE-OWNED ENTERPRISES

Article 22. Cases in which an entire enterprise is sold

1. An enterprise is subject to equitization but fails to meet equitization requirements, and is entirely sold under the Prime Minister’s decision.

2. Other cases made according to the Prime Minister’s decision issued at the request of the owner’s representative agency.

Article 23. Entities ineligible to buy a wholly state-owned enterprise

1. Persons who lack legal capacity, are incapacitated or have limited legal capacity, have difficulty in controlling their behaviors, or persons who are unable to control their behaviors at the date of application for participation in auction.

2. Financial intermediaries or audit organizations that take charge of business valuation of the enterprise, and employees of these organizations who directly carry out appraisal, valuation or audit of the enterprise; parents, spouse, children, and siblings of persons who directly carry out appraisal, valuation or audit of the enterprise.

The organization conducting the auction of the enterprise and its employees who directly take charge of the auction; parents, spouse, children, and siblings of auctioneer who manages the auction.

3. The person who is authorized by the owner’s representative agency to take charge of the sale of the enterprise; the person competent to decide the sale of enterprise, and the person who signs the auction service contract;

4. Parents, spouse, children, and siblings of the persons mentioned in Clause 3 of this Article;

5. Persons who do not have the right to establish and manage enterprises as prescribed by law.

6. Foreign investors as prescribed in the Law on investment in respect of conditions concerning market access, assurance of national defense and security to be satisfied by foreign investors, and the Land Law.

Article 24. Rules for selling an entire wholly state-owned enterprise

1. Financial settlement, determination and adjustment of enterprise value, use of valuation consulting service, determination of starting price and plan for selling the entire enterprise shall comply with the Government’s regulations on conversion of wholly state-owned enterprises into joint-stock companies.

2. The starting price used for selling an entire enterprise shall not be lower than total value of state capital determined according to Clause 1 of this Article.

Article 25. Procedures for selling an entire wholly state-owned enterprise

1. Develop the plan for selling the entire enterprise. To be specific:

a) Prepare documents, including: legal documents about the enterprise establishment; legal documents about assets, capital sources and debts; financial statements, tax declarations till the time of enterprise valuation; the plan for use of land under the enterprise’s management which is made in accordance with the Land Law, and regulations on rearrangement and settlement of house and land under state ownership in each period and has been approved by a competent authority; the labour rearrangement plan; estimate of costs incurred from the sale of the entire enterprise; method and time of enterprise valuation, and other relevant documents (if any);

b) Organize listing and settlement of financial issues, and organize enterprise valuation;

c) Decide and disclose the enterprise value;

d) Complete and submit the plan for selling the entire enterprise to competent authorities for approval. The plan for selling the entire enterprise shall, inter alia, have the following contents: Current status of the enterprise at the time of enterprise valuation; enterprise valuation results; determination of selling price and selling method, estimated costs; plan for land use approved by competent authorities; plan for use of current employees and settlement of benefits for redundant employees.

2. Organize the implementation of the plan for selling the entire enterprise by means of auction.

3. Complete the sale of the entire enterprise: make statements of costs incurred and proceeds from the sale of the entire enterprise; make payments; transfer assets, records/books and other relevant documents to the auction winner; publish the completion of the entire enterprise.

Article 26. Organization of auction

1. After the plan for selling the entire enterprise has been approved, the owner’s representative agency shall publish on its website and on the specialized property auction website information about the selection of property auction organization, and carry out selection of qualified property auction organization in accordance with Article 56 of the Law on property auction.

2. The owner’s representative agency shall conclude the auction service contract with the selected auction organization. The auction service contract shall include the primary contents prescribed in Article 33 of the Law on property auction.

3. Within 05 working days from the day on which the authority or organization competent to decide the sale of the entire enterprise announces the starting price, the professional auction organization shall make information about the property auction publicly available in accordance with Article 57 of the Law on property auction.

4. Procedures for auction of the enterprise shall be carried out following the ascending-bid auction method prescribed in Chapter III of the Law on property auction.

5. In case only one person registers for participation in the auction, attends the auction, offers bid or accepts the price, the provisions of Article 49 of the Law on property auction shall apply.

In case of sale of the entire enterprise accompanied by the land use rights over the land plot allocated by the State with collecting land levies or leased in accordance with regulations of the Land Law, if only one person registers for participation in the auction, attends the auction, offers bid or accepts the price, the auction shall be considered unsuccessful as prescribed in Article 52 of the Law on property auction, and another auction must be conducted. If the third auction is conducted but still unsuccessful, the owner’s representative agency shall report the case to the Prime Minister for consideration.

Article 27. Responsibility to organize sale of entire enterprise

1. Responsibilities of the Prime Minister and the owner’s representative agency when selling an enterprise established under the Prime Minister’s decision:

a) The Prime Minister shall consider approving the plan for selling the entire enterprise at the request of the owner’s representative agency and on the basis of appraisal report given by the Ministry of Finance and opinions given by the Ministry of Planning and Investment, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, and supervisory ministry.

b) The owner’s representative agency shall decide to select a qualified financial intermediary to provide valuation consulting service, and directly sign or authorize the enterprise to sign valuation consulting service contract; select and conclude contract with the auction organization; consider giving approval for the plan for use of existing employees and settlement of benefits to redundant employees; publish enterprise value; submit the plan for selling the entire enterprise to the Prime Minister for approval; consider giving approval for statements of financial accounts, costs incurred from the sale of the entire enterprise, payments made to redundant employees, and proceeds from the sale of the entire enterprise; consider giving approval for enterprise selling results and conclude the contract for sale and purchase of the entire enterprise; notify the completion of the sale of the entire enterprise;

c) The owner’s representative agency shall settle difficulties, complaints and denunciations concerning the sale of the entire enterprise within its competence and in accordance with regulations of law in force; consider issuing decisions on payment of costs incurred from the sale of enterprise in case the sale of the entire enterprise is unsuccessful or suspended;

d) The owner’s representative agency shall instruct and inspect the sale of the entire enterprise according to the contents prescribed in Articles 25, 26 and 29 of this Decree.

2. Responsibilities of the owner’s representative agency when selling the entire enterprise established under its decision or that it is assigned to manage:

a) The owner’s representative agency shall decide to select a qualified financial intermediary to provide valuation consulting service, and directly sign or authorize the enterprise to sign valuation consulting service contract; select and conclude contract with the auction organization; publish enterprise value; consider giving approval for the plan for selling the entire enterprise; consider giving approval for statements of financial accounts, costs incurred from the sale of the entire enterprise, payments made to redundant employees, and proceeds from the sale of the entire enterprise; consider giving approval for enterprise selling results and conclude the contract for sale and purchase of the entire enterprise; notify the completion of the sale of the entire enterprise;

b) Perform the contents specified in Points c and d Clause 1 of this Article.

3. Responsibilities of the sold enterprise:

a) Proactively prepare the documents prescribed in Point a Clause 1 Article 25 of this Decree; organize settlement of financial issues and enterprise valuation in accordance with regulations of law;

b) Request the owner’s representative agency to make decision or consider giving approval within its competence for the contents specified in Point b Clause 1 of this Article (in case of an enterprise established under the Prime Minister’s decision) or Point a Clause 2 of this Article (in case of an enterprise established under decision of the owner’s representative agency or that it is assigned to manage).

c) Conclude the enterprise valuation consulting service contract with authorization of the owner’s representative agency;

d) Provide convenient conditions for persons registering for purchase of the enterprise to survey and access the documents as prescribed in Clause 1 Article 28 of this Decree;

dd) Organize the implementation of the plan for selling the entire enterprise according to auction method as prescribed in Article 26 of this Decree; submit report on sale of enterprise to the owner’s representative agency;

e) Transfer assets, records/books and relevant documents to the auction winner;

g) Request the owner’s representative agency to consider issuing decisions on payment of costs incurred from the sale of enterprise in case the sale of the entire enterprise is unsuccessful or suspended.

Article 28. Rights and responsibilities of entities registering for purchase of enterprise and auction winner

1. Entities registering for purchase of enterprise shall:

a) Have the right to do surveys of existing conditions of the enterprise; learn about documents, financial statements, list of assets, certificates of ownership and rights to use assets and land, and other contracts concerning the enterprise to be sold;

b) Assume responsibility to protect confidentiality of information collected from their visits at the enterprise and the enterprise’s documents; not disclose and use such information to cause damage to the enterprise. Any entities that register for purchase of enterprise disclose or use information in such a manner that causes damage to the enterprise shall be treated in accordance with regulations of law;

c) Satisfy conditions for land allocation or land lease, purchase of assets on land as prescribed in Articles 58, 189 of the Land Law in case of purchase of the enterprise accompanied with land use rights and assets on land.

2. The auction winner shall:

a) Make payment of enterprise purchasing price specified in the signed contract;

b) Not sell or transfer a part of capital and assets of the enterprise before making full payment of enterprise purchasing price and fulfill other commitments (if any) specified in the contract for sale and purchase of the entire enterprise;

c) Select legal type of the enterprise after purchase and completion of enterprise registration procedures at the business registration office. Application for enterprise registration shall be prepared in accordance with the Government’s regulations on enterprise registration, in which the transfer contract or documents proving completion of the transfer may be replaced with the decision on approval of the plan for selling the entire enterprise issued by competent authorities and notification of completion of the sale of the entire enterprise;

d) Have the right and assume responsibility to inherit legitimate rights and benefits and obligations of the enterprise as specified in the contract for sale and purchase of the entire enterprise and signed contracts; assume responsibility to make payment of debts payable and recover debts receivable as committed.

dd) The credit institution that wins the auction shall satisfy the requirements set out in the Law on banking after completing the purchase of enterprise.

Article 29. Approval for enterprise selling results, contract conclusion, transfer, payment, notification of completion of sale of entire enterprise

1. Within 05 working days from the receipt of the enterprise’s report on developments of the auction and auction results, the owner’s representative agency shall consider giving approval for the results of the sale of entire enterprise.

2. Within 02 working days from the day on which the enterprise selling results are approved, the auction organization shall refund deposited amounts to lawful bidders that fail to win the auction. The deposited amounts of the auction winner shall be deducted from the enterprise purchasing price. Bidders that violate the internal regulations of the auction session and auction winner that fails to conclude the contract as prescribed shall not be entitled to refund of deposited amounts. Such deposited amounts which are not refunded to payers shall be recorded as increase in proceeds from the sale of the entire enterprise and shall be managed and used according to Article 31 of this Decree.

3. Within 10 working days from the day on which the decision to approve the enterprise selling results, the owner’s representative agency or the entity authorized in writing by the owner’s representative agency and the auction winner shall conclude the contract for sale and purchase of the entire enterprise. The contract for sale and purchase of the entire enterprise shall, inter alia, include the following contents:

a) Name, address and account number of the sold enterprise;

b) Name, address and account number (if any) of the auction winner;

c) The enterprise selling price;

d) Commitments of the auction winner and the enterprise seller;

dd) Time limit for payment of enterprise purchasing price; method and time limit for transfer of the enterprise to the buyer;

e) Settlement of relevant issues and contract dispute.

The contract shall be enclosed with the list of assets and debts (if any) as agreed upon between the auction winner and the enterprise seller.

4. The auction winner shall make full payment of the enterprise purchasing price within the time limit specified in the contract. The Board of Members or the company’s President of the sold enterprise shall continue managing the enterprise until it has been fully transferred. The Board of Members or the company’s President shall pay compensation for any assets lost in accordance with regulations of law.

5. Within 15 working days from the completion of payment and conclusion of the enterprise transfer record, the owner’s representative agency shall publish the completion of the sale of the entire enterprise with the following contents:

a) Name and address of the sold enterprise;

b) Name and address of the auction winner;

c) Selling price and method;

d) Responsibilities of the auction winner, enterprise seller and relevant authorities to settle other issues.

The notice of completion of the sale of the entire enterprise shall be published on the mass media and sent to Department of Finance, Taxation Department, Department of Labour, War Invalids and Social Affairs, and Department of Statistics of the province or central-affiliated city where the enterprise is headquartered.

Article 30. Costs of sale of an entire wholly state-owned enterprise

1. Costs of sale of an entire enterprise are expenses incurred in connection with the sale of the enterprise from the issue date of the decision to sell the enterprise to the date of transfer of the sold enterprise to the auction winner. The owner’s representative agency shall decide to approve and make statement of costs of sale of the entire wholly state-owned enterprise. General Director (or Director) of the sold enterprise shall decide the specific spending amounts according to contents approved by the owner’s representative agency and assume legal responsibility for their decision. Costs of sale of enterprise must be supported by adequate, valid and reasonable documents as prescribed by law.

2. Costs incurred from sale of an entire wholly state-owned enterprise include:

a) Direct costs, including: costs of inventory and determination of the enterprise value; costs of developing the plan for sale of enterprise; costs of organizing employees’ meeting to disseminate information about the sale of entire enterprise; costs of disseminating and disclosing information about the enterprise; costs of auction of the enterprise.

b) Costs of hiring a qualified financial intermediary to provide valuation consulting or organize auction of the enterprise. Consulting service fees shall be paid under the contract signed between the parties.

c) Other costs incurred in connection with the sale of the entire enterprise (if any).

3. Costs of audit of financial statements at the time of valuation of the enterprise shall not be included in the costs of sale of entire enterprise but shall be recorded by the sold enterprise as its business expenses in the period.

4. In case the sale of the entire enterprise is unsuccessful or suspended, or estimated proceeds from the sale of entire enterprise are not sufficient to cover costs of sale of entire enterprise, the owner’s representative agency shall consider recording such costs as the enterprise's expenses. These costs shall be considered as non-deductible expenses when determining taxable income if the enterprise still operates as a wholly state-owned enterprise. If the enterprise is reorganized adopting another method, the owner’s representative agency shall send request the Ministry of Finance in writing to allocate funding for covering costs of sale of enterprise. Such request should be supported by relevant documents.

Article 31. Management and use of proceeds from sale of entire enterprise

After deducting costs of sale of enterprise and benefits paid to employees and managerial position holders, the remaining proceeds earned from the sale of an entire wholly state-owned enterprise shall be submitted to the central government budget and local government budget in accordance with the Government’s regulations.

Article 32. Policies for employees and managerial position holders when selling entire enterprise

1. Employees who continue employment with the enterprise after it is sold shall enter into new employment contracts.

2. Employees who wish to terminate employment contracts shall be provided with redundancy or severance allowances in accordance with regulations on labour or policies for employees redundant after sale of an entire wholly state-owned enterprise.

3. Employees who are eligible for retirement benefits shall be treated in accordance with regulations of the Law on social insurance and provided with other benefits in accordance with regulations of the Labour Code.

4. The assignment of works to Chairperson and members of the Board of Members or company’s President, General Director (Director) and controllers who are working under appointment regime shall be considered by the owner’s representative agency after the sale of enterprise. In case the assignment of works to persons who are working under appointment regime cannot be carried out, these cases shall be settled according to downsizing policies as prescribed.

Section 3. CONVERSION OF WHOLLY STATE-OWNED ENTERPRISES INTO MULTI-MEMBER LIMITED LIABILITY COMPANIES

Article 33. Conditions and methods for conversion of wholly state-owned enterprises into multi-member limited liability companies

A wholly state-owned enterprise may be converted into a multi-member limited liability company if:

1. It meets the same conditions as those for equitization of enterprise (except conversion of agricultural enterprises and forestry enterprises).

2. It is subject to the Prime Minister’s consideration and decision in case the number of capital contributors is limited because of national defense and security reasons or other cases.

Conversion of a wholly state-owned enterprise into a multi-member limited liability company shall be carried out by transferring a part of state capital at converted enterprise.

Article 34. Rules for conversion of wholly state-owned enterprises into multi-member limited liability companies

1. Financial settlement, determination and adjustment of enterprise value, use of valuation consulting service, determination of starting price and formulation of the conversion plan shall comply with the Government’s regulations on conversion of wholly state-owned enterprises into joint-stock companies.

2. Based on the structure of charter capital, offering rate and criteria for selection of investors approved by competent authorities under the Plan for conversion of a wholly state-owned enterprise into a multi-member limited liability company, an auction shall be conducted to transfer state capital in accordance with regulations on conversion of wholly state-owned enterprises into joint-stock companies. Successful bidders shall be selected in descending order and limited to 50 investors as prescribed in Clause 5 Article 35 of this Decree.

Article 35. Contents of plan for conversion of a wholly state-owned enterprise into a multi-member limited liability company

A conversion plan shall, inter alia, include the following contents:

1. The actual status of the enterprise at the time of enterprise valuation.

2. Enterprise valuation results and issues that need to be dealt with.

3. Criteria for selection of investors receiving transfer of state capital in connection with business lines, scope of operation, financial capacity, administration capacity, technology and market.

4. Charter capital required for the enterprise’s business operations.

5. Structure of charter capital, starting price and method of transfer of state capital which adhere the following principle: Based on scale, business lines and development requirements, the minimum amount of capital to be received by each investor must be determined so as to ensure that no more than 50 investors will be selected as prescribed by the Law on enterprises. The provision on minimum amount of capital to be purchased by each investor included in the conversion plan shall abide by the principle of equality for investors of all economic sectors.

6. The draft charter on organization and operation of the multi-member limited liability company that is drawn up in accordance with the Law on enterprises and other legislative documents in force.

7. The plan for rearrangement of existing employees.

8. The business plan for the following 3-5 years.

9. The land use plan approved by a competent authority.

Article 36. Responsibility to carry out conversion

1. Responsibilities of the Prime Minister and the owner’s representative agency when converting an enterprise established under the Prime Minister’s decision:

a) The Prime Minister shall decide to approve the plan for conversion of the wholly state-owned enterprise established under his decision at the request of the owner’s representative agency and based on opinions given by the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs and supervisory ministries; issue decision to assign the owner’s representative agency to manage the state capital in the enterprise after conversion.

b) The owner’s representative agency shall decide to select providers of valuation consulting service and auction service, and conclude contracts or authorize the enterprise to conclude contracts with these service providers; consider approving the plan for management of existing employees and settlement of benefits for redundant employees; publish enterprise value; submit the plan for conversion into multi-member limited liability company to the Prime Minister for approval; decide to approve statements of financial accounts; conversion costs; payments made to redundant employees; proceeds from conversion process, and decide to announce the actual state capital at the time when the multi-member limited liability company is initially issued with enterprise registration certificate.

c) The owner’s representative agency shall deal with any difficulties, complaints and denunciations concerning the conversion of enterprise within its competence and in accordance with regulations of law in force;

d) The owner’s representative agency shall instruct and inspect the conversion process according to the contents prescribed in this Decree.

2. Responsibilities of the owner’s representative agency when converting an enterprise established under its decision or that it is assigned to manage:

a) The owner’s representative agency shall decide to select providers of valuation consulting service and auction service, and conclude contracts or authorize the enterprise to conclude contracts with these service providers; publish enterprise value; decide to approve the plan for conversion into multi-member limited liability company; decide to approve statements of financial accounts; conversion costs; payments made to redundant employees; proceeds from conversion process, and decide to announce the actual state capital at the time when the multi-member limited liability company is initially issued with enterprise registration certificate.

b) The owner’s representative agency shall fulfill the responsibilities specified in Points c, d Clause 1 of this Article.

3. Responsibility of the converted enterprise:

a) Proactively prepare the documents for developing the conversion plan; organize settlement of financial issues and enterprise valuation in accordance with regulations of law;

b) Request the owner’s representative agency to make decision or consider giving approval within its competence for the contents specified in Point b Clause 1 of this Article (in case of an enterprise established under the Prime Minister’s decision) or Point a Clause 2 of this Article (in case of an enterprise established under decision of the owner’s representative agency or that it is assigned to manage).

c) Enter into service contracts with enterprise valuation consulting service provider and auction organization with authorization of the owner’s representative agency;

d) Organize the implementation of the conversion plan and complete the conversion into a multi-member limited liability company;

dd) Follow procedures for registration of multi-member limited liability company with business registration office. The application for enterprise registration shall be prepared in accordance with the Government's regulations on enterprise registration, in which the transfer contract or documents proving completion of transfer shall be replaced with the decision to publish the actual state capital in the enterprise and decision to appoint state capital representative (if any) issued by the owner’s representative agency.

Article 37. Policies for employees and managerial position holders

1. Employees who continue employment with the enterprise after conversion shall enter into new employment contracts.

2. Employees who wish to terminate employment contracts shall be provided with redundancy or severance allowances in accordance with regulations on labour or policies for employees redundant after conversion of wholly state-owned enterprises.

3. Employees who are eligible for retirement benefits shall be treated in accordance with regulations of the Law on social insurance and provided with other benefits in accordance with regulations of the Labour Code.

4. The assignment of works to Chairperson and members of the Board of Members or company’s President, General Director (Director) and controllers who are working under appointment regime shall be considered by the owner’s representative agency after the conversion of enterprise. In case the assignment of works to persons who are working under appointment regime cannot be carried out, these cases shall be settled according to downsizing policies as prescribed.

Article 38. Management and use of proceeds from conversion of wholly state-owned enterprises into multi-member limited liability companies

After deducting conversion costs and benefits paid to employees and managerial position holders, the remaining proceeds earned from the conversion of a wholly state-owned enterprise into a multi-member limited liability company shall be submitted to the central government budget and local government budget in accordance with the Government’s regulations.

Section 4. DISSOLUTION OF WHOLLY STATE-OWNED ENTERPRISES

Article 39. Conditions for dissolution

1. A wholly state-owned enterprise shall be dissolved in the following cases:

a) Enterprise registration certificate is revoked, unless otherwise prescribed by the Law on tax administration;

b) The enterprise shows signs of financial insecurity, is subjected to the special financial supervision after the permitted duration for application of corrective and remedial measures or restructuring plan has expired but it fails to restore business operations, and is not suitable for other ownership conversion or reorganization methods as prescribed by law;

c) The enterprise fails to fulfill tasks assigned by the State for 02 consecutive years after all necessary measures have been adopted;

d) Maintenance of operation of the enterprise is unnecessary;

dd) The operating period specified in the enterprise’s charter expires without an extension decision.

2. A wholly state-owned enterprise shall only be dissolved after all of its debts and liabilities are fully paid and it is not involved in any dispute at a Court or arbitral tribunal. Relevant executives and the enterprise mentioned in Point a Clause 1 of this Article are jointly responsible for the enterprise’s debts.

3. The dissolution of enterprise must be conformable with the documents on enterprise organization or innovation approved by the Prime Minister. If the dissolution of enterprise is not approved by the Prime Minister under these documents, the owner’s representative agency shall submit the case to the Prime Minister for consideration (unless an enterprise is dissolved in case its enterprise registration certificate is revoked or the operating period specified in the enterprise’s charter expires without an extension decision).

If an enterprise fails to meet the aforesaid conditions for dissolution or goes bankrupt, the owner’s representative agency shall report the case to the Prime Minister for considering and deciding to employ another reorganization method or to file for bankruptcy.

Article 40. Authority to propose dissolution and issue dissolution decision

1. Authority to apply for dissolution:

a) A wholly state-owned enterprise;

b) Owner’s representative agency;

c) Inspection, auditing or tax authority or another state authority that, during the performance of their tasks, finds that the enterprise needs to be dissolved.

2. Authority to issue dissolution decision:

a) The Prime Minister shall decide the dissolution of the wholly state-owned enterprise established under his decision at the request of the owner’s representative agency and based on opinions given by the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor, War Invalids and Social Affairs, and supervisory ministries.

b) The owner’s representative agency shall decide the dissolution of the wholly state-owned enterprise established under its decision or that it is assigned to manage.

Article 41. Dissolution procedures

1. Within 30 working days from the day on which the enterprise is determined to fall in one of the dissolution cases specified in Article 39 of this Decree, the person having authority to decide the dissolution shall issue a dissolution decision and establish a dissolution council to follow dissolution procedures.

2. A dissolution decision shall have the contents prescribed in Article 42 of this Decree.

3. After the dissolution decision has been issued:

a) The dissolution council shall perform the contents prescribed in Article 43 of this Decree;

b) The enterprise shall perform the contents prescribed in Article 45 of this Decree;

c) The enterprise’s supervisory tax authority shall make a certification of enterprise’s fulfillment of tax obligations within 05 working days from the receipt of the enterprise’s request.

4. The dissolution council shall automatically terminates its operation when the enterprise has completed dissolution procedures as prescribed by law and the enterprise’s legal status on the National Enterprise Registration Database has been changed into “dissolved” by the business registration office.

Article 42. Dissolution decision

1. A decision to dissolve a wholly state-owned enterprise shall, inter alia, contain the following information:

a) Name and headquarters address of the dissolved enterprise;

b) Reasons for dissolution;

c) Time limit and procedures for finalization of contracts and payment of the enterprise’s debts;

d) Plans for settlement of obligations under employment contracts;

dd) Full name and signature of the Chairperson of the Board of Members or company’s President of the dissolved enterprise.

2. Within 07 working days from the issue date of the dissolution decision, this decision must be sent to the dissolved enterprise and:

a) The enterprise’s employees;

b) The authority or organization proposing the dissolution;

c) Creditors, persons with related rights, obligations and interests in case the enterprise still has unpaid debts;

d) The specialized agencies, in the fields of finance, planning and investment, affiliated to the Provincial People's Committee in case the dissolution is decided by the Chairperson of the Provincial People's Committee;

dd) The enterprise’s supervisory tax authority;

e) The Provincial People's Committee, Statistical Office and the business registration office of the province where the dissolved enterprise is located and the business registration office of province where its branch or representative office is located.

Article 43. Dissolution councils

1. The person having authority to decide the dissolution shall establish the dissolution council. The dissolution council shall advise the person having authority to decide the dissolution on organization of dissolution procedures. The composition of the dissolution council shall comply with Clause 2 and Clause 3 of this Article.

2. A dissolution council of an enterprise established under the Prime Minister’s decision is composed of:

a) The council’s Chairperson who is the head of the agency assigned to act as the owner’s representative;

b) Representatives of the Ministry of Planning and Investment, the Ministry of Finance, and the Ministry of Labour, War Invalids and Social Affairs;

c) Representatives of employees’ representative organization in the dissolved enterprise;

d) Chairperson of the Board of Members or Company’s President of the dissolved enterprise;

dd) Representatives of other authorities and organizations may be invited to join the dissolution council as the case may be.

3. A dissolution council of an enterprise established under decision of the owner’s representative agency or that is managed by the owner’s representative agency is composed of:

a) The council’s Chairperson who is the representative of the owner’s representative agency;

b) Representatives of affiliated entities or specialized agencies of the owner’s representative agency in charge of managing finance, planning and labour affairs;

c) Representatives of employees’ representative organization in the dissolved enterprise;

d) Chairperson of the Board of Members or Company’s President of the dissolved enterprise;

dd) Representatives of other authorities and organizations may be invited to join the dissolution council as the case may be.

Article 44. Rights and responsibilities of dissolution council

1. The dissolution council is entitled to use the enterprise’s seal to serve the dissolution process and request relevant competent authorities to assist in recovery of assets.

2. After the dissolution decision has been issued and published on newspapers as prescribed, the dissolution council shall:

a) Revoke the seal of the revoked enterprise to serve the dissolution process;

b) Carry out the dissolution process according to the ratified dissolution decision. The owner’s representative agency or the Board of Members or Company’s President shall directly organize the liquidation of the enterprise’s assets, unless otherwise prescribed by the enterprise's charter. The payment of debts of the dissolved enterprise shall comply with Clause 5 Article 208 of the Law on enterprises;

c) Within 07 working days from the completion of the dissolution process and payment of debts of the dissolved enterprise, the dissolution council shall prepare and submit financial reports on enterprise dissolution to the person having authority to issue dissolution decision; prepare an application for dissolution according to Article 210 of the Law on enterprises and send it to the business registration office where the enterprise is registered.

Article 45. Responsibilities of dissolved enterprise

1. After receiving the dissolution decision, the dissolved enterprise is required to post the decision at its headquarters, branches and representative offices, and in at least 03 issues of a printed newspaper or electronic newspaper. The posted decision should be accompanied by a notification of the planned date of shutdown and time limit for creditors to make debt comparison.

2. From the effective date of the dissolution decision, the dissolved wholly state-owned enterprise shall:

a) Not perform any prohibited acts as prescribed in Article 211 of the Law on enterprises;

b) Terminate business operations, payment of debts payable, lending of assets to others for free use, and management of assets of others;

c) Close accounting books; carry out inventory of assets; compare debts receivable and debts payables; prepare financial statements by the time the dissolution decision becomes effective;

d) Make a list of creditors and debts payable (sorted by secured debts, partially secured debts and unsecured debts); list of debtors and debts receivable (sorted by recoverable debts and irrecoverable debts);

dd) Send written request for certification of fulfillment of tax obligations to the tax authority.

3. Within 30 working days from the effective date of the dissolution decision, the enterprise is required to transfer the followings to the dissolution council:

a) Financial statements, accounting books and documents concerning the dissolution; the enterprise’s lists of creditors and debtors;

b) All assets under the enterprise’s lawful ownership, management and use (including recovered assets), assets managed on behalf of others, borrowed or leased assets.

Article 46. Policies for employees and managerial position holders

1. Employees who are eligible for retirement benefits shall be treated in accordance with regulations of the Law on social insurance and provided with other benefits in accordance with regulations of the Labour Code.

2. Employees who wish to terminate employment contracts shall be provided with redundancy or severance allowances in accordance with regulations on labour or policies for employees redundant after reorganization of wholly state-owned enterprises.

3. The assignment of works to Chairperson and members of the Board of Members or company’s President, General Director (Director) and controllers who are working under appointment regime shall be considered by the owner’s representative agency after the dissolution of enterprise. In case the assignment of works to persons who are working under appointment regime cannot be carried out, these cases shall be settled according to downsizing policies as prescribed.

Article 47. Time limit for completing dissolution process

1. The dissolution process of an enterprise must be completed within a maximum duration of 01 year from the effective date of the dissolution decision. This time limit may be extended for not exceeding 06 months if agreed in writing by the person having authority to issue dissolution decision. In case of difficulties arising during the dissolution resulting in further extension required, the case should be reported to the Prime Minister for consideration.

2. In case the enterprise registration certificate is revoked, the time limit for completion of dissolution process shall comply with regulations of the Law on enterprises.

Chapter IV

TRANSFER OF RIGHTS TO REPRESENT STATE CAPITAL OWNER IN WHOLLY STATE-OWNED ENTERPRISES

Article 48. Cases of transfer of rights to represent state capital owner in wholly state-owned enterprises

1. Methods of transfer of rights to represent state capital owner in enterprises prescribed in this Decree shall only apply to transfer without payment. Transfer with payment shall comply with regulations of law on sale of entire enterprises and transfer of capital and assets in enterprises.

2. Methods of transfer of rights to represent state capital owner in enterprises:

a) Transfer between owner’s representative agencies means the transfer of rights to represent the owner in wholly state-owned enterprises between Ministries, ministerial agencies, Governmental agencies and Provincial People's Committees;

b) Transfer of partial capital and assets between wholly state-owned enterprises means the transfer of rights to represent the owner of partial capital and assets between wholly state-owned enterprises. This method shall only apply to capital or assets between enterprises directly engaging in national defense and security to serve the performance of national defense and security tasks and other cases decided by the Prime Minister;

c) Transfer of public investment projects or works from such project or work managing agencies or organizations to wholly state-owned enterprises shall comply with regulations of law on transfer of state assets;

d) Transfer of state capital in enterprises between owner’s representative agencies and organizations or enterprises specializing in investment and trading of state capital shall comply with specific regulations of the Government or the Prime Minister.

Article 49. Conditions for transfer between owner’s representative agencies

When carrying out transfer of rights to represent the state capital owner in a wholly state-owned enterprise between owner’s representative agencies, the following conditions must be satisfied:

1. The business lines of the enterprise in which the rights to represent state capital owner are transferred are suitable for the business lines or objectives of the owner’s representative agency receiving the transfer.

2. The enterprise is not subjected to dissolution or becomes insolvent.

3. The transfer of rights to represent state capital owner in enterprise is included in the document on reorganization or innovation of enterprise approved by the Prime Minister. If an enterprise is not governed by this document, owner’s representative agencies relevant to the transfer shall reach an agreement and submit it to the Prime Minister for consideration.

Article 50. Rules for organizing transfer of rights to represent state capital owner in enterprises

1. The transfer of rights to represent state capital owner in enterprises must adhere to the principle of preserving the status quo.

2. In case of changes in data after the transfer, relevant parties shall jointly find out reasons and take measures for settling and correcting data to be officially transferred.

3. Data transferred is those on the latest annual or quarterly financial statements which have been prepared and audited in accordance with regulations.

If the audited annual or quarterly financial statements are unavailable, data transferred shall be those on the enterprise’s latest financial statements. The owner’s representative agency or enterprise that receives transfer shall hire an independent audit organization to conduct audit of the received financial statements and correct transferred data (if any) according to Clause 2 of this Article.

Article 51. Procedures for transfer of rights to represent state capital owner in enterprises

1. The enterprise shall prepare adequate documents, legal documents, ongoing contracts, certificates of ownership and rights to use assets and land or capital and assets to be transferred and the latest audited annual or quarterly financial statements, and submit reports to the owner’s representative agency.

2. In case of transfer between owner’s representative agencies, these agencies shall cooperate together in appraising and reaching agreement on documents and data; transfer method; conditions and commitments to transfer and receive the enterprise, commitments to pay debts; sending written notifications to creditors, debtors and relevant parties.

In case of transfer of partial capital and/or assets between enterprises, the owner’s representative agencies shall direct relevant enterprises to cooperate together in appraising and reaching agreement on documents and data; transfer method; conditions and commitments to transfer and receive the capital and/or assets, commitments to pay debts; sending written notifications to creditors, debtors and relevant parties.

3. A record of transfer of rights to represent state capital owner in enterprise shall be signed. Such record shall, inter alia, have the following contents:

a) Name, address of the owner’s representative agency;

b) Name, address of the transferred enterprise or information about the transferred capital or asset;

c) The enterprise value or value of capital or asset transferred; delivery and receipt method;

d) Commitments, rights and obligations of the owner’s representative agency and relevant enterprise(s).

This record shall be posted at the enterprise’s headquarters, and published on at least 03 issues of a printed newspaper or electronic newspaper.

4. After completing the transfer between owner’s representative agencies, the transferred enterprise shall follow procedures for registration of change of owner’s representative agency with the business registration office. The registration application shall be prepared in accordance with the Government’s regulations on enterprise registration and must be accompanied by the record of transfer of rights to represent state capital owner in enterprise.

The legal representative of the transferred enterprise shall publish the transfer of rights to represent state capital owner in enterprise, change of name (if any) and enterprise’s owner on mass media within 30 working days from the issue date of its enterprise registration certificate.

Article 52. Rights and responsibilities of owner’s representative agency and enterprise

1. Rights and responsibilities of the owner’s representative agency:

a) Carry out transfer of rights to represent state capital owner in the enterprise according to the Prime Minister’s policies and the record of transfer of rights to represent state capital owner in enterprise;

b) Perform rights, responsibilities and obligations according to the transfer record.

2. Rights and responsibilities of the enterprise:

a) Assume responsibility for the accuracy of documents and data.

b) Perform rights, responsibilities and obligations according to the transfer record. In case of transfer of partial capital and/or assets between enterprises, the receiving enterprise shall inherit rights and legal liabilities for economic contracts, responsibility to collect and pay debts, and fulfill obligations to the State in accordance with regulations of law and other responsibilities (if any).

Article 53. Policies for employees when carrying out transfer

1. The transferred enterprise shall make the list of existing employees, the list of employees who continue employment after transfer, the list of employees to be trained for continuing employment after transfer, the list of employees receiving retirement policies, and the list of employees who are required to terminate employment contracts.

2. Employees whose employment contracts are terminated shall be provided with redundancy or severance allowances in accordance with regulations on labour.

3. Employees who are eligible for retirement benefits shall be treated in accordance with regulations of the Law on social insurance and provided with other benefits in accordance with regulations of the Labour Code.

Chapter V

IMPLEMENTATION

Article 54. Effect

1. This Decree comes into force from June 01, 2022 and supersedes the following documents:

a) The Government’s Decree No. 172/2013/ND-CP dated November 13, 2013 on establishment, reorganization and dissolution of state-owned single-member limited liability companies and their subsidiaries;

b) The Government’s Decree No. 128/2014/ND-CP dated December 31, 2014 on sale, allocation and transfer of wholly state-owned enterprises.

2. The Government’s Decree No. 69/2014/ND-CP dated July 15, 2014 on state economic groups and state corporations.

3. Boards of Members or Presidents of parent companies that are wholly state-owned enterprises shall consider deciding the establishment, reorganization and conversion of ownership of their subsidiaries that are single-member limited liability companies after obtaining approval for their policies by competent authorities under schemes for restructuring of parent companies. If this content is not prescribed in the enterprise restructuring scheme, it is required to submit the scheme to competent authorities for revisions. Parent companies may apply provisions of this Decree to establishment, reorganization and conversion of ownership of their subsidiaries that are single-member limited liability companies.

4. Public service providers that are required to be converted into single-member limited liability companies in accordance with regulations of specialized laws are entitled to comply with regulations on conditions and procedures for establishment of wholly state-owned enterprises laid down in this Decree when carrying out conversion. Financial and asset handling during the conversion shall comply with regulations of law on management and use of public property.

Article 55. Responsibility for implementation

1. The Ministry of Planning and Investment shall monitor the implementation of this Decree.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of Provincial People’s Committees, Chairpersons of Board of Members or Presidents of wholly state-owned enterprises are responsible for the implementation of this Decree./.

 

ON BEHALF OF THE GOVERNMENT PP. PRIME MINISTER DEPUTY PRIME MINISTER Le Minh Khai