Nghị định 49/2014/NĐ-CP về giám sát, kiểm tra, thanh tra đối với doanh nghiệp nhà nước trong việc chấp hành pháp luật và tuân thủ quyết định của chủ sở hữu

THE GOVERNMENT -------	THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 49/2014/ND-CP	Hanoi, May 20, 2014

 

DECREE

PROVIDING THE SUPERVISION, EXAMINATION AND INSPECTION OF STATE ENTERPRISES IN THE OBSERVANCE OF LAW AND OWNERS’ DECISIONS

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Law on Enterprises;

Pursuant to the November 15, 2010 Law on Inspection;

At the proposal of the Inspector General,

The Government promulgates the Decree providing the supervision, examination and inspection of state enterprises in the observance of law and owners’ decisions.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides the supervision, examination and inspection of the observance of law and owners’ decisions by state enterprises.

Article 2. Subjects of application

1. State enterprises (below referred to as grade-1 enterprises), including:

a/ Single-member limited liability companies being parent companies of economic groups; parent companies of state corporations; parent companies after the parent company-subsidiary model; and independent single-member limited liability companies established under decisions of the Prime Minister or ministries, ministerial-level agencies or government-attached agencies (below collectively referred to as line ministries), or People’s Committees of provinces or centrally run cities (below collectively referred to as provincial- level People’s Committees);

b/ Joint-stock companies and limited liability companies with two or more members in which the State holds over 50% of charter capital and line ministries or provincial-level People’s Committees are owners of invested capital.

2. Limited liability companies or joint-stock companies in which grade-1 enterprises are owners of invested capital and hold over 50% of charter capital (below collectively referred to as grade-2 enterprises).

3. Ministries, ministerial-level agencies, government-attached agencies and provincial-level People’s Committees; owners, organizations and individuals authorized by owners, decentralized or assigned to exercise the rights and perform the obligations of owners, controllers, authorized representatives for capital amounts invested in enterprises, and other agencies, organizations and individuals involved in the supervision, examination and inspection of state enterprises.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Supervision of state enterprises means regular or periodical monitoring, synthesization, analysis and assessment by competent agencies or organizations of the observance of law and owners’ decisions by state enterprises according to the law-prescribed order and procedures.

2. Examination of state enterprises means periodical or extraordinary consideration, verification, clarification and conclusion by competent state agencies of the observance of law and owners’ decisions by state enterprises according to the law-prescribed bases, order and procedures.

3. Inspection of state enterprises means periodical or extraordinary consideration, assessment, and handling by competent state agencies of the observance of law and owners’ decisions by state enterprises according to the law-prescribed bases, order and procedures.

4. Owner means an agency or organization assigned or decentralized to exercise the rights and perform the obligations of the owner toward state- owned single-member limited liability companies and state capital amounts at enterprises, including line ministry, provincial-level People’s Committee and grade-1 enterprise, when investing capital in other enterprises.

5. State management agencies in charge of corporate finance include the Ministry of Finance and Finance Departments of provinces or centrally run cities (below collectively referred to as corporate finance management agencies).

6. Authorized representative for capital amount invested in an enterprise (below referred to as representative) means an individual authorized in writing by the owner to exercise the rights and perform the responsibilities and obligations of the owner at an enterprise.

7. Enterprise managers include chairpersons and members of Members’ Councils, Boards of Directors or company presidents, controllers, directors general, deputy directors general or directors, deputy directors, and chief accountants (excluding directors general, directors, deputy directors general, deputy directors and chief accountants working under labor contracts).

8. State enterprise means an enterprise in which the State holds over 50% of charter capital.

Article 4. Application of law in the supervision, examination and inspection of the observance of law and owners’ decisions by state enterprises

1. In case treaties to which the Socialist Republic of Vietnam is a contracting party or specialized laws otherwise provide the supervision, examination and inspection of the observance of law and owners’ decisions by state enterprises, such treaties or specialized laws prevail.

2. For enterprises in which line ministries, provincial-level People’s Committees or grade-1 enterprises are owners of invested capital and hold no more than 50% of charter capital, these line ministries, provincial-level People’s Committees or grade-1 enterprises shall, pursuant to this Decree, issue specific regulations on supervision, examination and assessment of the use efficiency of capital invested in such enterprises.

Article 5. Purposes of supervision, examination and inspection

1. To correctly grasp, report and assess the observance of law and owners’ decisions by state enterprises for promptly taking remedies or appropriate measures to assist the enterprises in addressing their shortcomings and limitations in order to raise their business efficiency.

2. To assist state management agencies and owners in detecting weaknesses in business activities of state enterprises; to identify causes and responsibilities of related agencies, organizations and individuals and handle them according to competence or report to competent persons for consideration and handling.

3. To promptly detect loopholes and problems in policies, laws and management mechanisms applicable to state enterprises in order to propose solutions to competent state agencies.

4. To increase publicity and transparency in activities of state enterprises; to encourage the sharing and expansion of good experiences and effective business models among state enterprises.

Article 6. Principles of supervision, examination and inspection

1. Complying with law and ensuring objectivity, accuracy, promptness, publicity and transparency.

2. Enhancing effective coordination between owners, agencies, organizations and individuals assigned with supervision, examination and inspection tasks and other related agencies, organizations and individuals in supervision, examination and inspection work.

3. Not impeding normal operation of enterprises subjected to supervision, examination and inspection and other related entities.

4. Ensuring no overlap in the scope, contents, subjects and time frames of examinations and inspections conducted by competent agencies, organizations and persons.

Article 7. Contents of supervision, examination and inspection

1. To supervise, examine and inspect the observance of law in the following fields:

a/ Management and use of state capital and assets; financial regime applicable to and financial supervision of enterprises under the Government’s Decree No. 61/2013/ND-CP of June 25, 2013, and guiding documents;

b/ Reorganization, renewal, and consolidation of the organization and operation, of enterprises; formulation and implementation of development investment strategies, master plans and plans and production and business plans for enterprises;

c/ Recruitment, management and employment of laborers; assessment, commendation and disciplining of, and salaries, bonuses and other regimes and policies toward, managers, representatives and laborers of enterprises;

d/ Observance of specialized laws concerning the business fields and lines of enterprises and of professional-technical regulations and processes and managerial rules in these business fields and lines;

dd/ Observance of regulations on supervision, examination, inspection, assessment of the operation efficiency and implementation of regulations on information, reporting, publicity and transparency in the business activities, by enterprises;

e/ Observance of other regulations at the request of owners or competent state agencies.

2. To supervise, examine and inspect the observance of owners’ decisions concerning:

a/ Implementation of approved production and business strategies and plans and development investment plans; public-utility tasks assigned to enterprises; and approved investment projects of groups A and B;

b/ Distribution of profits, and setting up and use of funds; increase or decrease of charter capital; borrowing and provision of (domestic and foreign) loans; capital raising; asset liabilities; purchase and sale of valuable assets (accounting for 50% or more of charter capital or as prescribed in the charter); contribution, holding, increase or decrease of capital of enterprises at other enterprises under approved policies;

c/ Implementation of business targets, tasks and lines; reorganization, ownership transformation, dissolution and bankruptcy claim; establishment and dissolution of attached units under approved plans;

d/ Implementation of market development, marketing and technological solutions; performance of tasks or participation in the provision and assurance of essential public-utility products and services of the economy under decisions or regulations of owners;

dd/ Implementation of decisions relating to recruitment, management and employment of laborers; implementation of regimes and policies; operation assessment, commendation and disciplining of managers and laborers of enterprises;

e/ Implementation of other decisions relating to the results of supervision, examination and inspection; assessment of production and business efficiency, management and administration of enterprises by competent state agencies; and performance of tasks and exercise of powers of managers of enterprises;

g/ Other contents at the request of owners.

Article 8. Formulation and approval of annual plans on supervision, examination and inspection of state enterprises

1. In the fourth quarter every year, based on the operation situation of state enterprises under their management, line ministries or provincial-level People’s Committees shall direct the formulation, approval and implementation of annual plans on supervision, examination and inspection of state enterprises. These plans’ inspection contents must be consistent with orientations of the Prime Minister-approved inspection programs, the Government Inspectorate’s guidance on formulation of inspection plans and owners’ inspection plans; grade-1 enterprises shall formulate, approve and implement plans on supervision and examination of grade-2 enterprises.

2. An annual plan on supervision, examination and inspection of state enterprises must specify the objectives, contents, subjects and scope of supervision, examination and inspection of each enterprise and shall be sent to the Ministry of Finance, the Ministry of Planning and Investment, the Government Inspectorate and related ministries, sectors and state agencies for opinion and, after being approved, for coordinated implementation; supervision and examination plans of grade-1 enterprises shall be sent to line ministries, provincial-level People’s Committees and state inspection agencies of the same level for opinion and, after being approved, for coordinated implementation.

Article 9. Handling of overlap in the examination and inspection of the observance of law and owners’ decisions by state enterprises

1. The Inspector General shall assume the prime responsibility for handling overlap in the scope, subjects, contents and time of inspection of the observance of law and owners’ decisions by state enterprises, among the inspectorates of ministries and between the inspectorates of ministries and provincial-level inspectorates.

2. Chief inspectors of line ministries shall assume the prime responsibility for handling overlap in the scope, subjects, contents and time of examination and inspection of the observance of law and owners’ decisions by state enterprises under the ministries’ state management; and coordinate with provincial-level chief inspectors in handling overlap in the scope, subjects, contents and time of inspection of the observance of law and owners’ decisions by state enterprises in provinces or centrally run cities.

3. Provincial-level chief inspectors shall assume the prime responsibility for handling overlap in the scope, subjects, contents and time of examination and inspection of the observance of law and owners’ decisions by state enterprises under the state management of provincial-level People’s Committees; and among the inspectorates of provincial-level Departments; and assume the prime responsibility for, and coordinate with chief inspectors of line ministries in, handling overlap in the scope, subjects, contents and time of inspection of the observance of law and owners’ decisions by state enterprises in provinces or centrally run cities.

4. The handling of overlap prescribed in this Article shall be conducted through guidance and coordination during the formulation and approval of annual plans on supervision, examination and inspection of state enterprises under Article 8 of this Decree. For overlap occurring in the course of plan implementation, priority shall be given to examination and inspection conducted by owners or competent agencies or units assigned by owners.

Chapter II

SUPERVISION OF THE OBSERVANCE OF LAW AND OWNERS’ DECISIONS

Section 1. SUPERVISION RESPONSIBILITY

Article 10. Supervision competence

1. Owners being line ministries or provincial-level People’s Committees have the competence to supervise the observance of law and owners’ decisions by grade-1 and grade-2 enterprises.

2. Owners being grade-1 enterprises have the competence to supervise the observance of law and owners’ decisions by grade-2 enterprises.

3. Within the scope of their state management, ministries, ministerial- level agencies and provincial-level People’s Committees other than owners shall coordinate with owners in supervising the observance of law and owners’ decisions according to state management assignment and decentralization and exercise the owners’ rights toward enterprises.

Article 11. Responsibilities of owners being line ministries or provincial-level People’s Committees

1. To assign and decentralize the uniform supervision of enterprises under their management to their attached agencies, organizations and units; to detail the tasks and powers of agencies, organizations and units that act as focal points in uniformly supervising enterprises.

2. To guide the contents and forms of supervision, stipulate, and organize the implementation of, regimes on information and reporting on supervision, examination, and handling of violations in supervisory activities for enterprises under their management in accordance with this Decree and other relevant legal documents.

3. At least once every six (6) months, to work directly with agencies, organizations and units that act as focal points in uniformly supervising enterprises; when necessary, to invite members’ councils, company presidents, controllers and representatives to attend these working sessions to grasp the situation of observance of law and owners’ decisions.

4. To timely apply management measures or other measures according to their competence or propose competent agencies or organizations to apply necessary measures to remove difficulties and problems in the business activities of enterprises.

5. Based on the results of supervision of enterprises, to conduct examination or inspection according to their competence or propose competent state agencies to do so.

6. To handle according to their competence or propose competent state agencies to handle agencies, organizations, units or individuals that commit illegal acts or failing to observe owners’ decisions which are detected through supervision.

7. Line ministers or chairpersons of provincial-level People’s Committees shall take responsibility before law and the Prime Minister for violations leading to losses of state capital or assets at enterprises assigned to them for management or under their management if they fail to implement or fully implement necessary preventive management measures.

Article 12. Responsibilities of agencies, organizations and units assigned by owners to act as focal points in uniformly supervising enterprises

1. To annually work out supervision contents and activities and include them in plans on supervision, examination and inspection of state enterprises for submission to owners for approval.

2. To receive information and reports on the contents of supervision of enterprises in the observance of law and owners’ decisions as prescribed in this Decree and other relevant regulations.

3. To implement regulations on information and reporting on the observance of law and owners’ decisions by enterprises under owners’ management in accordance with this Decree and other relevant regulations.

4. To propose owners according to their competence or request competent state agencies to examine and inspect enterprises based on supervision results.

5. To assume the prime responsibility for, or coordinate with agencies, organizations or units under owners’ management and related agencies and organizations in, examining or inspecting state enterprises.

6. Based on their assigned tasks, to assign full-time officers to regularly monitor and grasp the operation, management and organizational apparatus of state enterprises for organizing the supervision of state enterprises.

7. Heads of agencies, organizations or units assigned to act as focal points in uniformly supervising enterprises shall take responsibility before law and owners for the performance of their assigned tasks or for violations leading to losses of state capital or assets at enterprises.

Article 13. Responsibilities of Members’ Councils and company presidents at enterprises in which the State holds 100% charter capital

1. Pursuant to this Decree and relevant regulations, to supervise the observance of law and owners’ decisions within enterprises; to conduct regular supervision of capital-contributing enterprises through representatives.

2. Based on relevant regulations and owners’ guidance, to organize systems of information and reporting on the business and internal management situation to serve supervision at enterprises and supervision of capital-contributing enterprises through representatives.

3. To take measures to remove difficulties and problems or other management measures at the request of owners or competent state agencies in order to preserve capital and raise the business efficiency.

4. To handle according to their competent or propose owners or competent state agencies to handle agencies, organizations, units or individuals under their management that violate law or fail to observe owners’ decisions as prescribed by law.

5. To periodically or extraordinarily report the observance of law and owners’ decisions by enterprises to owners or competent state agencies in accordance with this Decree and other relevant regulations.

6. Members’ Councils and company presidents shall take responsibility before law and the Prime Minister, line ministers and chairpersons of provincial-level People’s Committees for violations leading to losses of state capital or assets at enterprises if they fail to implement or fully implement necessary preventive management measures.

Article 14. Responsibilities of controllers and representatives

1. Based on approved annual plans on supervision, examination and inspection of state enterprises, to formulate specific plans on supervision at enterprises of which they are representatives or which they are assigned to control.

2. To periodically or extraordinarily report the observance of law and owners’ decisions to owners or competent state agencies in accordance with this Decree and other relevant regulations.

3. To propose owners according to their competence or request competent state agencies to apply appropriate management measures to remove difficulties or problems for enterprises.

4. To propose owners according to their competence or request competent state agencies to examine and inspect enterprises based on supervision results.

5. To monitor and urge the implementation of management measures, proposals and petitions of owners and competent state agencies by enterprises.

6. To take responsibility before law and owners for the implementation of their responsibilities prescribed in this Article; for the accuracy of information and reports; or for violations leading to losses of state capital or assets at enterprises assigned to them for supervision if they fail to implement or fully implement necessary preventive measures.

Section 2. FORMS OF SUPERVISION

Article 15. Forms of supervision

1. For grade-1 enterprises in which the State holds 100% charter capital, owners being line ministries or provincial-level People’s Committees shall conduct supervision in the following forms:

a/ Considering, synthesizing and assessing self-supervision reports of enterprises;

b/ Considering, synthesizing and assessing reports of controllers;

c/ Synthesizing petitions, assessments, handling measures and implementation of examination, inspection or investigation conclusions and supervision or audit reports;

d/ Receiving, considering and settling according to their competence proposals, reports, complaints or denunciations related to enterprises.

2. For grade-1 enterprises in which the State holds over 50% of charter capital, their owners being line ministries or provincial-level People’s Committees shall conduct supervision based on reports of representatives and in the forms specified at Points c and d, Clause 1 of this Article.

3. For grade-2 enterprises, grade-1 enterprises and line ministries or provincial-level People’s Committees being owners of grade-1 enterprises shall conduct supervision based on reports of representatives.

Article 16. Supervision through considering, synthesizing and assessing self-supervision reports of enterprises or reports of controllers or representatives

1. Pursuant to Article 7 of this Decree, agencies, organizations or units assigned to act as focal points in uniformly supervising enterprises shall regularly consider, synthesize and assess self-supervision reports of enterprises or reports of controllers or representatives.

2. When considering and assessing self-supervision reports of enterprises or reports of controllers or representatives, agencies, organizations or units assigned to act as focal points in uniformly supervising enterprises may request enterprises, controllers or representatives to provide

additional information or documents or to explain relevant matters for clarifying the contents of supervision. When necessary, they may request persons representing enterprises, controllers or representatives to directly present unclear contents in the reports.

3. Agencies, organizations or units assigned to act as focal points in uniformly supervising enterprises shall take the initiative in coordinating with agencies, organizations, units or individuals involved in the business fields or lines of enterprises in clarifying, or hire independent assessment organizations to clarify, the contents of supervision.

Article 17. Supervision through synthesizing petitions, assessments, handling measures and implementation of examination, inspection or investigation conclusions, supervision and audit reports

1. Agencies with supervision, examination, inspection, audit or investigation competence shall send examination, inspection or investigation conclusions or supervision and audit reports of enterprises to owners for supervision.

2. Agencies, organizations or units assigned to act as focal points in uniformly supervising enterprises shall synthesizing petitions, assessments, handling measures and implementation of supervision, examination, inspection or investigation conclusions or audit and supervision reports on enterprises.

Article 18. Supervision through receiving, considering and settling proposals, reports, complaints or denunciations related to enterprises

1. Owners shall, according to their competence, receive, consider and settle proposals, reports, complaints or denunciations directly related to the operation of enterprises, or decisions or acts of managers and laborers of enterprises in accordance with the laws on complaints and denunciations and relevant legal documents.

2. The results of receiving, considering and settling proposals, reports, complaints or denunciations related to the operation of enterprises, or decisions or acts of managers and laborers of enterprises shall be sent to agencies, organizations or units assigned to act as focal points in uniformly supervising enterprises for inclusion in supervision reports.

Section 3. REPORTING REGIME AND HANDLING OF SUPERVISION RESULTS

Article 19. Self-supervision reports of enterprises

Based on the guidance of their owners being line ministries or provincial-level People’s Committees as prescribed in Clause 2, Article 11 of this Decree, enterprises in which the State holds 100% charter capital shall prepare self-supervision reports on the observance of law and owners’ decisions.

Article 20. Reports of controllers or representatives

1. Reports of controllers or representatives at grade-1 enterprises are prescribed as follows:

a/ Reports shall be made on a quarterly basis and an annual basis and sent to owners and corporate finance management agencies (the Ministry of Finance, for enterprises under its management, or provincial-level Finance Departments, for enterprises managed by provincial-level People’s Committees);

b/ Quarterly reports must be sent no later than the 15^th of the first month of the subsequent quarter while annual reports must be sent no later than January 31 of the subsequent year.

2. For grade-2 enterprises, their owners being grade-1 enterprises shall issue the reporting regime applicable to representatives. Representatives at grade-2 enterprises shall send reports to their owners and concurrently to line ministries or provincial-level People’s Committees being owners of grade-1 enterprises.

Article 21. Reports on supervision results of owners being line ministries or provincial-level People’s Committees

1. Every six (6) months and every year, based on the results of supervision in the forms specified in Articles 16, 17 and 18 of this Decree, owners being line ministries or provincial-level People’s Committees shall make and send reports on supervision results to the Ministry of Finance, the Ministry of Planning and Investment, the Government Inspectorate and related agencies. A report on supervision results must be enclosed with a self- supervision report of each enterprise and the supervision report of the controller or representative. Biannual reports must be sent no later than August 31 of the reporting year while annual reports must be sent no later than May 31 of the subsequent year.

2. A report on supervision results has the following contents:

a/ Characteristics and situation of enterprises under owners’ management and actual state of management of enterprises in the reporting period (legal grounds and owners’ decisions);

b/ Summary of the results of self-supervision by enterprises, reports of controllers or representatives;

c/ Results of owners’ supervision of enterprises in the observance of law and owners’ decisions, based on the contents specified in Article 7 of this Decree;

d/ Assessment of the results of supervision by owners, ministries, ministerial-level agencies and related agencies, organizations and individuals, of the observance of law and owners’ decisions by enterprises (by the following levels: full observance, partial observance, and non-observance); assessment of the preservation and development of state capital at enterprises;

dd/ Solutions already taken by owners or related agencies, organizations or individuals (if any); proposed remedies or examination or inspection (if any).

3. Reports on supervision results shall be filed with owners’ dossiers of management of state enterprises and publicized in accordance with law.

Article 22. Handling of supervision results

Based on supervision results, owners or agencies or units assigned by owners shall:

1. Consider and promptly solve according to their competence difficulties and problems related to the operation of enterprises; and create conditions for enterprises to fulfill approved business targets and plans.

2. Urge and timely apply according to their competence measures to rectify the operation of enterprises.

3. Propose the Prime Minister to discipline chairpersons of Members’ Councils or company presidents of enterprises established under the Prime Minister’s decisions. Handle according to their competence enterprise managers or representatives who fail to implement or fully implement information and reporting regulations, fail to observe or fully observe regulations of owners, or commit other violations.

4. Decide on examination or inspection of enterprises according to their competence defined in this Decree.

5. Forward dossiers of violations to competent investigation agencies for examination of penal liability when detecting criminal signs.

Chapter III

EXAMINATION OF ENTERPRISES

Article 23. Examination responsibility

1. Within their competence, owners being line ministries or provincial- level People’s Committees shall:

a/ Assume the prime responsibility for, and coordinate with related ministries and sectors in, conducting regular or extraordinary examination of the observance of law and owners’ decisions by enterprises, based on the contents specified in Article 7 of this Decree;

b/ Guide the order, procedures and contents of examination of enterprises under their management in accordance with this Decree and other relevant legal documents.

2. Grade-1 enterprises shall conduct examination within grade-2 enterprises and examine the observance of law and owners’ decisions by grade-2 enterprises.

3. Regular examination of enterprises under owners’ management shall be conducted based on the functions, tasks and powers of owners or agencies or organizations assigned by owners.

4. Extraordinary examination shall be conducted when detecting enterprises’ violations of law or failure to observe owners’ decisions or to meet management requirements of owners and competent state agencies.

5. Examination shall be conducted by examination teams or persons assigned with the examination task.

Article 24. Examination competence

1. In case owners are line ministries, line ministers may decide to examine or assign heads of their attached agencies or units to examine grade-1 and grade-2 enterprises.

2. In case owners are provincial-level People’s Committees, chairpersons of provincial-level People’s Committees may decide to examine or assign heads of their attached provincial-level Departments or sectors to examine grade-1 and grade-2 enterprises.

3. In case owners are grade-1 enterprises, their Members’ Councils, company presidents or Boards of Directors may decide to examine the observance of law and owners’ decisions by grade-2 enterprises.

4. Ministries, ministerial-level agencies and provincial-level People’s Committees other than owners and related agencies and units shall, within their functions and tasks prescribed by law, coordinate with owners or agencies or units assigned by owners in examining enterprises.

Article 25. Organization of examination teams

1. Issuance of examination decisions:

a/ Based on approved annual plans on supervision, examination or inspection of enterprises, owners or heads of agencies or units assigned by owners shall issue examination decisions and send them to to-be-examined enterprises, except for extraordinary examination;

b/ In case of extraordinary examination, examination teams shall notify to-be-examined enterprises of the time and contents of examination at least 1 working day before the date of examination.

2. An examination decision must have the following contents:

a/ Bases for examination;

b/ Subjects of examination;

c/ Contents and scope of examination;

d/ Examination duration;

dd/ Full names, positions and workplaces of the head and members of the examination team or examiners.

3. The duration of an examination must not exceed 10 working days from the date of announcement of the examination decision; in case an examination involves different subjects, is conducted in large areas and is of complicated nature, the duration of examination may be longer but must not exceed 15 working days from the date of announcement of the examination decision.

4. During examination, the head of the examination team shall make a record of violations of the enterprise or to certify the collection and provision of information and documents relating to the contents of examination. Such a record must have the following contents:

a/ Date of making the record;

b/ Full name and position of the head of the examination team;

c/ Full name and position of the representative of the examined enterprise;

d/ Violations of the examined enterprise or the collected and provided information and documents;

dd/ Certification by the head of the examination team and the representative of the examined enterprise.

Article 26. Rights and obligations of examined enterprises

1. An examined enterprise has the following rights:

a/ To refuse to provide information or documents or refuse to explain the matters falling beyond the scope and contents of examination, and clearly state the reason for such refusal;

b/ To explain and clarify matters related to the contents of examination;

c/ To lodge complaints about, or notify competent agencies, organizations or persons of, illegal decisions or acts of the head or members of the examination team or of the owner in accordance with law.

2. An examined enterprise has the following responsibilities:

a/ To observe the examination decision;

b/ To cooperate with, and provide accurate, adequate and prompt information and documents at the request of, the examination team or examiner;

c/ To strictly comply with requests of the examination team or examiner; and decisions and conclusions of the examination decision issuer.

Article 27. Reports on examination results, examination conclusions

1. Within 5 working days after concluding an examination, the head of the examination team or the examiner shall report examination results to the examination decision issuer. A report on examination results has the following contents:

a/ Assessment of the situation and results of examination;

b/ Conclusion on the contents of examination;

c/ Proposed measures to handle violations and other contents (if any);

d/ Proposal to a competent agency to conduct inspection (if any);

dd/ Remedies (if any).

2. A report on examination results shall be sent to the examination decision issuer.

3. Within 5 working days after receiving a report on examination results and explanations of the examined enterprise (if any), the examination decision issuer shall issue an examination conclusion.

4. An examination conclusion must be made in writing and sent to the examined enterprise and related agencies, organizations and individuals, and inserted in the enterprise management dossier.

Article 28. Handling of examination results

1. Based on examination results, examination decision issuers shall apply according to their competence measures to remove difficulties and problems of enterprises, and request enterprises to set out solutions or implement remedies.

2. In case examination results are insufficient for assessing the actual state of enterprises, examination decision issuers shall decide according to their competence or propose heads of owners’ agencies to decide on inspection according to their competence to propose competent agencies to issue inspection decisions.

3. In the course of considering and handling examination results, if detecting criminal signs, examination decision issuers shall forward dossiers of violations to competent investigation agencies in accordance with law.

Chapter IV

INSPECTION OF ENTERPRISES

Article 29. Inspection responsibility

1. Line ministries or provincial-level People’s Committees being owners of enterprises and agencies with the inspection function shall, within their competence, conduct inspection or participate in the inspection of the observance of law and owners’ decisions by enterprises when having one of the bases prescribed in the Inspection Law and this Decree.

2. For investment or management and use of state capital and assets invested in enterprises, line ministries being owners of enterprises shall, based on supervision and examination results, inspect the observance of law and owners’ decisions at least every two (2) years by enterprises under their management as prescribed at Point a, Clause 2, Article 30 of this Decree; provincial-level People’s Committees being owners of enterprises shall inspect the observance of law and owners’ decisions at least once (1) every year by enterprises under their management as prescribed in Clause 3, Article 30 of this Decree.

3. When line ministries being owners of enterprises fail to perform the responsibilities defined in Clause 2 of this Article or when detecting enterprises’ violations, chairpersons of provincial-level People’s Committees of localities where enterprises are based may issue decisions based on the contents under the management of provincial-level People’s Committees to inspect enterprises under the management of line ministries as prescribed in Clause 2, Article 30 of this Decree. Chairpersons of provincial-level People’s Committees shall take responsibility for the issuance of inspection decisions and send inspection decisions to line ministries for coordination during inspection.

Article 30. Inspection competence

1. The Government Inspectorate may inspect the observance of law and owners’ decisions by grade-1 enterprises established under the Prime Minister’s decisions and by grade-2 enterprises.

2. Inspectorates of line ministries:

a/ To inspect the observance of law and owners’ decisions by grade-1 enterprises established under ministers’ decisions or transformed from state enterprises under ministries or assigned to ministries for management, and b y grade-2 enterprises.

For grade-1 enterprises established under the Prime Minister’s decisions of which line ministries are assigned to act as immediate superior agencies of Members’ Councils, inspectorates of ministries shall conduct inspection after reporting to and reaching agreement with the Inspector General;

b/ To inspect the observance of specialized laws, professional-technical regulations and sectoral management rules under state management of ministries by enterprises in accordance with the inspection law.

3. Inspectorates of provinces or centrally run cities (below referred to as provincial-level inspectorates) shall inspect the observance of law and owners’ decisions by grade-1 enterprises established under decisions of chairpersons of provincial-level People’s Committees or transformed from state enterprises under provincial-level People’s Committees, and by grade-2 enterprises; inspect the observance of law by enterprises under Clause 3, Article 29 of this Decree as assigned by chairpersons of provincial-level People’s Committees. Provincial-level inspectorates that fail to meet the necessary requirements for conducting inspection shall report such to the Government Inspectorate for consideration and handling.

4. The inspectorates of provincial-level Departments shall inspect the observance of specialized laws, professional-technical regulations and sectoral management rules under the management of provincial-level Departments by grade-1 enterprises established under decisions of chairpersons of provincial-level People’s Committees or transformed from state enterprises under provincial-level People’s Committees; and the observance of specialized laws by enterprises under Clause 3, Article 29 of this Decree as assigned by chairpersons of provincial-level People’s Committees.

Article 31. Tasks and powers of inspection decision issuers and heads and members of inspection teams

While conducting inspection of enterprises, inspection decision issuers and heads and members of inspection teams shall perform the tasks and exercise the powers defined in Articles 46, 47, 48, 53, 54 and 55 of the Inspection Law and in the Government’s Decree No. 86/2011/ND-CP of September 22, 2011, detailing and guiding a number of the Inspection Law, and the Government’s Decree No. 07/2012/ND-CP of February 9, 2012, defining agencies with the specialized inspection function and specialized inspection activities.

Article 32. Inspection bases, order and procedures; making and handling of inspection conclusions

The inspection bases, order and procedures and the making and handling of inspection conclusions with regard to enterprises in the observance of law and owners’ decisions must comply with the Inspection Law; the Government’s Decree No. 86/2011/ND-CP of September 22, 2011, detailing and guiding a number of the Inspection Law, and the Government’s Decree No. 07/2012/ND-CP of February 9, 2012, defining agencies with the specialized inspection function and specialized inspection activities.

Chapter V

HANDLING OF VIOLATIONS AND ORGANIZATION OF IMPLEMENTATION

Article 33. Handling of violations

1. Managers and representatives of enterprises shall, depending on the nature and severity of their violations, be disciplined in one of the following forms:

a/ Reprimand or caution, in case they violate the obligation to submit reports or provide information under this Decree and regulations on supervision, examination and inspection of state enterprises;

b/ Salary decrease or severance, in case they violate the obligation to implement management measures or decisions of owners and competent state agencies, leading to losses of state capital or assets at enterprises.

2. Line ministers or chairpersons of provincial-level People’s Committees being owners of enterprises shall, depending on the nature and severity of their violations, take responsibility and be handled under current regulations for losses of state capital or assets at enterprises under their management in the following cases:

a/ Failing to implement or fully implement the responsibility to supervise, examine and inspect state enterprises under their management or assigned to them for management in accordance with this Decree;

b/ Violating the reporting obligation or untruthfully reporting the results of supervision of state enterprises under their management or assigned to them for management in accordance with this Decree;

c/ Failing to implement or fully implement instructions of the Government or the Prime Minister and conclusions or handling decisions of corporate finance management agencies, inspection agencies, examination agencies or the State Audit Office of Vietnam regarding measures to address violations or remedy shortcomings or weaknesses in managing state enterprises or state capital and assets at enterprises.

3. Heads of agencies, organizations or units and persons assigned to supervise and examine enterprises who commit violations during their task performance; and inspection decision issuers and heads and members of inspection teams who show irresponsibility in detecting violations of enterprises, leading to losses of state capital or assets, shall, depending on the nature and severity of their violations, be handled in accordance with law.

Article 34. Effect

This Decree takes effect on July 10, 2014.

Article 35. Organization of implementation

Ministers, heads of ministerial-level agencies, heads of government- attached agencies, chairpersons of provincial-level People’s Committees, chairpersons of Members’ Councils, company presidents, chairpersons of Boards of Directors, controllers and representatives shall implement this Decree.-

 

ON BEHALF OF THE GOVERNMENT PRIME MINISTER Nguyen Tan Dung