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