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.
Tìm kiếm
Nghị định 23/2022/NĐ-CP (Bản Word)
Nghị định 23/2022/NĐ-CP (Bản Pdf)