Chương II Nghị định 39/2019/NĐ-CP: Nhiệm vụ, quyền hạn và cơ cấu tổ chức của quỹ phát triển doanh nghiệp nhỏ và vừa

Chapter II

DUTIES, RIGHTS AND ORGANIZATIONAL STRUCTURE OF SMALL AND MEDIUM ENTERPRISE DEVELOPMENT FUND

Article 5. Fund’s duties and rights

1. Fund’s duties

a) Support small and medium enterprises in accordance with this Decree;

b) Receive, manage and use capital legally;

c) Carry out reporting and accounting regimes under the provisions of this Decree and relevant laws;

d) Submit to inspection, examination and audit of competent regulatory authorities in accordance with law;

dd) Purchase property and other insurance as required by law to ensure safety for the Fund;

e) Provide data and publicly disclosing operational rules, financial mechanism and operational outcomes of the Fund and annual financial statements already audited under the provisions of this Decree and relevant law.

2. Fund’s rights

a) Ensure its operation and organization adhere to defined principles and goals;

b) Recruit, place, utilize and train employees and develop its personnel in accordance with this Decree and provisions of other relevant law;

c) Conduct the periodic and unscheduled inspection and control of use of the Fund’s capital; withdraw financial support from those entities violating requirements and commitments to the Fund;

d) Hire independent service providers, experts and scientists to support the Fund’s operations;

dd) Render or use services of consulting, assessment of management, financial, technological and credit rating capability for small and medium enterprises;

e) Request enterprises to pay costs of participation in the Fund’s support activities;

g) Organize seminars, carry out communication, training, consulting, investment and trade promotion, provide information, databases, support research and development, invest in establishing business incubation centers, technical facilities, coworking spaces and other supporting activities as provided in this Decree under the Law on Support for Small and Medium Enterprises.

Article 6. Fund’s organization and management structure

The Fund’s organization and management structure shall include:

1. Members’ Board;

2. Comptroller;

3. Director and assistant apparatus.

Article 7. Members’ Board

1. The Members' Board shall act on behalf of the Fund to implement the rights and obligations of the Fund in accordance with this Decree and other relevant laws.

2. The Members' Board shall be composed of Chairperson and 02 commissioners. Chairperson and board commissioners shall work under the full-time working regime, shall be appointed, dismissed, discharged, rewarded and disciplined under the decision of the Minister of Planning and Investment.

3. Chairperson and board's commissioners shall hold office for 05 years and may be reappointed.

4. Members’ board shall have the following rights and obligations:

a) Decide the 5-year and annual business strategy and plan of the Fund after receipt of approval from the Ministry of Planning and Investment;

b) Enforce rules of operation of the Fund in conformance to provisions laid down herein;

c) Decide the plan for management of investment and construction capital; purchase, sale, management and use of property under its jurisdiction as required by law;

d) Make a decision to approve financial statements, distribute profits, set up annual funds and determine norms for use of funds after obtaining assessment opinions from the comptroller and consent from the Ministry of Planning and Investment;

dd) Make a decision to plan, appoint, dismiss, recruit, assess, reward, discipline, pay salaries and bonuses to and provide other benefits and compensation policies to position holders under its authority stipulated in this Decree;

e) Make a decision to establish, reorganize and close business of branches and representative offices and other dependent accounting units after receipt of consent from the Ministry of Planning and Investment;

g) Make a decision to establish, reorganize and dissolve its specialized affiliates;

h) Make a decision on functions, duties, rights and organizational structure of its specialized affiliates, branches, representative offices and other dependent accounting units.

5. Standards and requirements for being elected as Chairperson and board’s commissioners

a) The Chairperson of the Members' Board must have a university degree or higher, with at least 5 years' experience as a manager and executive in the fields of economy, finance, banking, business administration, law, accounting and audit;

b) Commissioners of the Members' Board must have a university degree or higher and must have experience as a manager and executive in the fields of economy, finance, banking, business administration, law, accounting and audit;

c) Not a husband or wife, natural father, adoptive father, natural mother, adoptive mother, blood child, adopted child, natural sibling, elder brother-in-law, younger brother-in-law, elder sister-in-law, younger sister-in-law of the Fund’s manager;

d) Not a public official or servant working for state agencies, political organizations, socio-political organizations or not a manager or executive of other enterprise;

dd) Have not ever been dismissed from the Chairperson of the Members' Board, commissioners of the Members' Board or the Chairperson of the Company, Director, Deputy Director or General Director, Deputy General Director of a state enterprise.

6. Rights and obligations of commissioners of the Members’ Board

a) Participate in a meeting to discuss, propose and vote on issues under the authority of the Members' Board;

b) Perform duties and tasks assigned by the Chairperson of the Members' Board according to its competence;

c) Inspect and assess the Fund’s performance;

d) Implement other rights and obligations in accordance with this Decree.

7. Responsibilities of the Chairperson and commissioners of the Members’ Board

a) Comply with laws and provisions of this Decree and decisions of the Ministry of Planning and Investment;

b) Comply with resolutions of the Members' Board;

c) Bear personal responsibility when abusing the Fund’s reputation to commit violations against law;

d) If any commissioner of the Members' Board breaches their obligations during the period of implementation of their assigned rights and obligations, other commissioners of the Members' Board will be obliged to report in writing to the Ministry of Planning and Investment.

8. Operating expenses of the Members’ Board

Operating expenses of the Members’ Board shall be recorded as Operating expenses of administrative expenses of the Fund. The Fund’s Director shall guarantee to provide conditions and means necessary for operations of the Members’ Board.

9. Working regime, conditions and rules for conducting the Members' Board’s meeting shall be subject to law applied to single-member limited liability companies whose chartered capital is wholly owned by the State.

Article 8. Chairperson of the Members’ Board

The Chairperson of the Members’ Board shall be the legal representative of the Fund. The Members’ Board shall have the following rights and obligations:

1. Act on behalf of the Members’ Board to certify capital and other resources assigned to the Fund by the State and other related entities.

2. Act on behalf of the Members’ Board to sign documents under the jurisdiction of the Members’ Board.

3. Convene and preside over the meeting of the Members' Board or consult with commissioners of the Members' Board.

4. Approve the quarterly and annual business plan proposed by the Members’ Board.

5. Assign duties to commissioners of the Members’ Board to implement duties and rights of the Members' Board.

6. Take charge of performing duties of the Members’ Board, monitoring and overseeing implementation of resolutions and decisions of the Ministry of Planning and Investment and the Members’ Board.

7. Take charge of overseeing, directly overseeing and assessing results of accomplishment of objectives of the business strategy, plan and results of operations of the Fund and the Director’s performance in management and administration of the Fund.

8. Where necessary, the Chairperson of the Members’ Board may give written authorization to one of commissioners of the Members’ Board or the Director to act on his/her behalf to perform functions and duties. The authorized person shall be responsible to the Chairperson of the Members’ Board for assigned tasks.

9. Implement other rights and obligations upon the request of the Ministry of Planning and Investment.

Article 9. Comptroller

1. The Fund shall have 01 Comptroller appointed by the Minister of Planning and Investment. Comptroller shall hold office for 05 years and may be reappointed.

2. Standards and requirements for being appointed as the Comptroller

a) Have a university degree or higher, with at least 3 years' experience as a manager and executive in the fields of economy, finance, banking, business administration, law, accounting and audit;

b) Not a spouse, natural father, adoptive father, natural mother, adoptive mother, blood child, adopted child, natural sibling, elder brother-in-law, younger brother-in-law, elder sister-in-law, younger sister-in-law of the Fund’s manager;

c) Not being dually appointed as the Director or the General Director of another enterprise;

d) Not a public official or servant working for state agencies, political organizations, socio-political organizations or not a manager or executive of other enterprise;

3. Rights and obligations of the Comptroller

a) Oversee the implementation of the annual and 5-year business strategy and plan of the Fund;

b) Oversee the implementation of rights and obligations of the Members’ Board and the Director of the Fund upon the request of the Ministry of Planning and Investment;

c) Consider assessing the current status of finance and operations of the Fund, the current conditions of operation and validity of internal management rules of the Fund;

d) Supervise the implementation of major investment projects, other purchase, sale and economic transactions on a large scale of the Fund at the request of the Ministry of Planning and Investment;

dd) Prepare and send evaluation reports and recommendations on the issues specified at points a, b, c and d of this clause to the Ministry of Planning and Investment and the Members' Board.

4. Responsibilities of the Comptroller

a) Comply with laws and decisions of the Ministry of Planning and Investment and professional ethics in implementing the rights and obligations stipulated in this Decree;

b) Implement the rights and obligations assigned in an honest, discreet and best manner to protect the interests of the State and the legitimate interests of the parties involved in the Fund;

c) Bear personal responsibility when abusing the Fund’s reputation to commit violations against law.

5. Working regime of the Comptroller

a) The Comptroller shall work full-time at the Fund;

b) The Comptroller must perform planned on an independent and proactive manner;

c) Comptroller shall assume responsibility for developing the work plan and reporting on the level of fulfillment of duties to the Ministry of Planning and Investment.

6. Salaries and remunerations of the Comptroller

a) The Comptroller shall be entitled to salary and remuneration according to the results of control, performance and efficiency of the Fund;

b) Ministry of Planning and Investment shall decide the pay rate and pay salaries and remunerations to the Comptroller based on the level of fulfillment of the tasks and the provisions of law;

c) Working costs of the Comptroller shall be included in costs of management of the Fund in accordance with law.

Article 10. Director

1. The Director shall be appointed or hired by the Members’ Board according to the personnel plan after receipt of approval from the Minister of Planning and Investment. The Director shall be appointed to hold office for 5 years and may be reappointed.

2. Standards and requirements for being appointed as Director shall be subject to provisions laid down in points b, c, d and dd of clause 5 of Article 7 herein.

3. Rights and obligations of the Director

a) Take charge of operating the Fund; implement and assess the results of implementation of resolutions and decisions of the Members' Board; bear responsibility to the Members' Board for operational outcomes of the Fund under his/her jurisdiction in accordance with this Decree;

b) Issue internal management documents to meet management requirements of the Fund and conform to regulations laid down herein;

c) Request the Members’ Board to make a decision on the 5-year and annual business plan and the annual financial report of the Fund and implement such plan or report after approval;

d) Request the Members' Board to make a decision on distributing profits, setting up annual funds and setting limits on use of funds;

dd) Manage property and capital of the Fund in accordance with law;

e) Propose the plan for reorganization of the assistant apparatus;

g) Request the Members’ Board to make a decision on planning, appointing, dismissing, assessing, rewarding and disciplining the Fund’s manager under his/her jurisdiction in accordance with this Decree;

h) Make a decision on recruiting employees according to the plan; assessing, rewarding, disciplining and granting policies and benefits to the Fund’s employees in accordance with this Decree;

i) Perform other duties as assigned or entrusted by the Members’ Board in accordance with this Decree.

4. The Director’s responsibilities

a) Comply with law and implement rights and obligations assigned under the provisions of this Decree;

b) Comply with resolutions and decisions of the Members' Board;

c) Bear personal responsibility when abusing the Fund’s reputation to commit violations against law.

Article 11. Relationship between the Members' Board, Comptroller and the Director in management and administration of the Fund

1. In the process of taking charge of implementation of the resolutions and decisions of the Members' Board, if the Director finds that there is any problem disadvantageous to the Fund, the Director shall report to the Members' Board to consider adjusting their resolutions and decisions. Even if the Members’ Board does not adjust their resolution or decision, the Director must still implement it but must report to the Ministry of Planning and Investment to request it to take proper action according to his/her competence.

2. The Director shall be responsible for periodically reporting to the Members’ Board on the Fund’s performance. Where necessary, the Members’ Board’s Chairperson must request the Director to directly report to the Members’ Board or second the representative of the Members' Board to attend the Fund's meetings.

3. The Members’ Board shall authorize the Director to perform the Fund’s assigned duties and bear responsibility for their authorization. The Director shall bear responsibility to the Members’ Board and before law for assigned duties.

4. The relationship between the Comptroller and the Ministry of Planning and Investment, the Members’ Board and the Director shall be subject to laws applied to single-member limited companies whose charter capital is wholly owned by the State and operational rules of the Comptroller and the Members’ Board.

Article 12. Assistant apparatus

The assistant apparatus of the Fund shall be composed of Deputy Directors, specialized divisions, branches and representative office (hereinafter referred to as specialized affiliates).

1. Deputy Directors

a) Deputy Directors shall assist the Director in performing assigned duties and bear responsibility to the Director or before law for assigned or fiduciary duties. The Deputy Director shall be appointed or hired according to the personnel plan, dismissed, discharged, rewarded or disciplined upon the Director’s request. The Deputy Director shall be appointed to hold office for 5 years and may be reappointed;

b) The number of Deputy Directors shall not be greater than 03 persons;

c) Standards and requirements for being appointed as Deputy Directors shall be subject to provisions laid down in points b, c, d and dd of clause 5 of Article 7 herein;

2. Specialized affiliates shall have the function of counseling and assisting the Members’ Board and the Director to manage and supervise the Fund.

Article 13. Fund’s personnel management

1. The Fund shall exercise staffing autonomy and may make decisions on work positions and the number of employees relevant to assigned functions and duties and conformable to regulations of the Ministry of Planning and Investment.

2. Employees shall have the right to participate in discussions, opinion surveys and recommend personnel to competent entities under labor law and other relevant legislation.

3. All employees in the Fund shall have the right to get involved in supervising implementation of the resolutions made by the employees’ meeting; implementation of the rules and regulations of the Fund; implementation of the collective labor agreement; implementation of labor contracts; implementation of regimes and policies for employees; collection and use of funds contributed to by employees; results of handling of complaints and denunciations and labor disputes; annual emulation and commendation results of employees.

4. Annually, the Fund shall preside over and cooperate with the Executive Committee of the Fund’s Trade Union in organizing the employees’ meeting to discuss solutions to realizing the operation plan targets adopted by the Members' Board; assessing the implementation of the collective labor agreement, the rules and regulations of the Fund and other issues related to the legitimate rights and interests of employees.

5. Relationship between the Fund and employees

a) Relationship between the Fund and employees shall be subject to regulations of law on labor;

b) The Director shall submit the plan to the Members’ Board to seek their approval of issues related to recruitment of employees, staff severance, salaries and insurance benefits in accordance with law, welfares, rewards and disciplines for employees as well as relationship between the Fund and trade unions of employees.

Article 14. Operations of political or socio-political organizations

1. Member organization of the Communist Party of Vietnam at the Fund shall be operated under the Constitution, law and regulations of the Communist Party of Vietnam.

2. Trade union, member organization of the Ho Chi Minh Communist Youth Union and other socio-political organizations of the Fund shall be operated under the Constitution, law and regulations of these entities.