Chương IV Nghị định 69/2014/NĐ-CP: Quản lý, giám sát đối với tập đoàn kinh tế, tổng công ty

Chapter IV

MANAGEMENT AND SUPERVISION OF ECONOMIC GROUPS AND CORPORATIONS

Article 35. The state owner and its representative at the parent company

1. The Government shall uniformly perform the function of the state owner at parent companies operating as state-owned single-member limited liability companies and of state capital at parent companies operating as joint stock companies or limited liability companies with two or more members with controlling shares or capital contributions of the State.

The assignment and decentralization for the performance of the function of the state owner at parent companies in economic groups and corporations must comply with Decree No. 99/2012/ND-CP.

2. The following agencies, organizations and persons may be appointed as representatives of the state owner at parent companies:

a/ For parent companies in economic groups operating as state-owned single-member limited liability companies: the Prime Minister, the Government, the line ministry and persons appointed as members of the Members’ Council of the parent company;

b/ For parent companies in economic groups operating as joint stock companies or limited liability companies with two or more members in which the State holds the controlling right: the Prime Minister, the line ministry and persons authorized to exercise the rights and perform the responsibilities and obligations of the shareholder or capital contributor at the parent company;

c/ For parent companies in corporations operating as state-owned single-member limited liability companies: the line ministry or the provincial-level People’s Committee and persons authorized to exercise the rights and perform responsibilities and obligations of the state owner at the parent company;

d/ For parent companies in corporations operating as joint stock companies or limited liability companies with two or more members in which the State holds the controlling right: the line ministry, provincial-level People’s Committee or the State Capital Investment Corporation and persons authorized to perform the rights, responsibilities and obligations of the shareholder or capital contributor at the parent company.

Article 36. Management of economic groups and corporations by the state owner

1. The state owner shall manage economic groups and corporations through parent companies in those groups and corporations.

2. The state owner shall manage parent companies in economic groups and corporations by issuing decisions, assigning, decentralizing and authorizing the issuance of decisions, and examining the implementation of decisions of the owner at parent companies in economic groups and corporations in accordance with Decree No. 99/2012/ND-CP.

Article 37. Supervision of economic groups and corporations by the state owner

1. Supervision of an economic group or a corporation by the owner shall be conducted through supervision of the parent company in that group or corporation.

2. Contents subject to supervision include:

a/ Business operations, covering business objectives, orientations and strategies of the group or corporation; investment portfolio, main business lines and related business lines; investment in risky sectors, industries, geographical areas and projects; performance of public- utility tasks; support for macro-regulation and social security assurance; the parent company’s development strategy and investment, finance and production and business plans; results of fulfillment of objectives and tasks assigned by the owner;

b/ Organization and personnel work, covering the implementation of the owner’s decisions on establishment, reorganization and termination of operation as an economic group or a corporation; process of changing the ownership structure of affiliate companies which lead to loss of the parent company’s controlling right; implementation of the parent company’s charter; evaluation of operation results of, and implementation of the salary and bonus regime applicable to, the Members’ Council, controllers and the director general of the parent company; appointment, re-appointment, dismissal of deputy directors general and the chief accountant of the parent company by the Members’ Council; implementation of regimes and policies for employees; observance of the owner’s other decisions and relevant provisions of the charter;

c/ Finance, covering equity preservation and development at the parent company; production and business situation and results; capital raising and use situation; issuance of bonds and stocks (if any); return on state equity ratio; return on sales ratio; return on assets ratio; profits or dividends divided to the State; situation of investment inside and outside enterprises; loans, debts and solvency status; investment and business efficiency; expenses for salary payment; charter capital, adjustment of charter capital and its structure; investment projects beyond the powers decentralized to the Members’ Council or the Board of Directors of the parent company and other necessary financial indicators.

3. Assignment and decentralization of supervision jobs prescribed in Clause 2 of this Article toward economic groups and corporations with parent companies operating as state- owned single-member limited liability companies:

a/ Line ministries shall supervise parent companies in economic groups and corporations prescribed in Clause 2, Article 7 of Decree No. 99/2012/ND-CP and their attached corporations, regarding main and related business lines; assessment of the structure of main and related business lines; capital management, use, preservation and development; supervision, examination and assessment of debts and other asset liabilities; implementation of strategies and plans; implementation of recruitment, salary and bonus regimes; evaluation of the fulfillment of assigned business objectives, tasks, sectors and lines and operation results and production and business efficiency; evaluation of management and administration work of the chairperson and members of the Members’ Council, controllers, the director general, deputy directors general and the chief accountant;

b/ Provincial-level People’s Committees shall supervise their attached corporations regarding main and related business lines; assessment of the structure of main and related business lines; capital management, use, preservation and development; supervision, examination and assessment of debts and other asset liabilities; implementation of strategies and plans; implementation of recruitment, salary and bonus regimes; evaluation of the fulfillment of assigned business objectives, tasks, sectors and lines and operation results and production and business efficiency; evaluation of management and administration work of the chairperson and members of the Members’ Council, controllers, the director general, deputy directors general and the chief accountant;

c/ The Ministry of Finance shall supervise and assess financial operations; supervise the issuance of stocks, adjustment of charter capital of parent companies and member enterprises; expenses for salary payment; borrowing of loans for investment in finance, banking, real estate and securities; and transfer of capital, investment and resources within economic groups or corporations and from economic groups or corporations to the outside and vice versa; monitor consolidated financial statements of economic groups and corporations; annually summarize and report to the Government on production and business efficiency, performance of assigned public-utility tasks; financial status, debts and other asset liabilities of economic groups and corporations nationwide; and assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, conducting supervision and regular examination and inspection according to regulations on capital management, use, preservation and development;

d/ The Ministry of Planning and Investment shall monitor and supervise the implementation of plans on establishment of economic groups or corporations; supervise and evaluate the implementation of development strategies of economic groups and corporations; periodically summarize and report to the Government on the fulfillment of business objectives, tasks, sectors and lines of all economic groups and corporations nationwide; assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, supervising and annually examining the implementation of production and business strategies and plans and five-year development investment plans; and give opinions about receipt of subsidiary and affiliate companies of economic groups and corporations;

dd/ The Ministry of Home Affairs shall assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, supervising and examining the observance of the Party’s and the State’s regulations on personnel work at economic groups and corporations;

e/ The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, supervising and periodically examining economic groups and corporations in implementing recruitment and salary and bonus regimes.

4. Assignment and decentralization of supervision jobs prescribed in Clause 2 of this Article toward economic groups and corporations with parent companies operating as joint stock companies or limited liability companies with two or more members with controlling shares or capital contributions of the State:

a/ Line ministries shall request authorized representatives to report on the implementation of law; management, use, preservation and development of state capital; implementation of strategies and plans; evaluation of fulfillment of assigned business objectives, tasks, sector and lines and operation results and efficiency of parent companies and the entire economic groups with main business lines under the ministries’ management, and of parent companies and the entire corporations under the ministries;

b/ Provincial-level People’s Committees shall request authorized representatives to report on the implementation of law; management, use, preservation and development of state capital; implementation of strategies and plans; evaluation of fulfillment of assigned business objectives, tasks, sector and lines and operation results and efficiency of parent companies and the entire corporations under provincial-level People’s Committees;

c/ The Ministry of Finance shall assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, requesting authorized representatives to report on management, use, preservation and development of state capital invested in enterprises nationwide;

d/ The Ministry of Planning and Investment shall assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, requesting authorized representatives to report on the implementation of production and business strategies and plans and five-year development investment plans;

dd/ The Ministry of Home Affairs shall assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, requesting authorized representatives to report on the implementation of the Party’s and the State’s regulations on personnel work at economic groups and corporations;

e/ The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with line ministries and provincial-level People’s Committees in, requesting authorized representatives to report on the implementation of recruitment, salary and bonus regimes of economic groups and corporations.

5. Ministries, agencies and organizations prescribed in Clauses 3 and 4 of this Article shall annually report to and take responsibility before the Prime Minister for the state and results of supervision and assessment and concurrently send a copy of the report to the Ministry of Planning and Investment.

The Ministry of Planning and Investment shall summarize results of owner supervision nationwide under this Article and report them to the Prime Minister.

Article 38. Methods of and bases for management and supervision of economic groups and corporations

1. Economic groups and corporations shall be supervised by the following methods:

a/ Direct methods: Through examination, supervision and evaluation activities of the agencies prescribed in Clause 3, Article 37 of this Decree.

- Through evaluation by agencies representing the owner of operation results of economic groups and corporations and holders of titles appointed and signed contracts by these agencies.

An agency representing the owner shall establish an advisory council for ^valuation of operations of state enterprises, comprising specialists from state agencies, institutes and universities who have deep knowledge about industries and fields of operation of economic groups and corporations. This council shall provide advice and assessment before decisions are made to ensure objective evaluation of economic groups and corporations and title holders under the agency’s management. The agency representing the owner shall issue the operation regulation of the advisory council.

- Through the audit of parent companies and subsidiary and affiliate companies.

- Through direct reporting by the Members’ Council or authorized representative to the agency representing the owner at the latter’s request.

b/ Indirect methods:

- Through the reports of the Members’ Council or authorized representative at the parent company.

- Through the periodical and extraordinary reports of the parent company.

2. Bases for supervision of economic groups and corporations:

a/ Regulations of the owner and related state management agencies;

b/ Organization and operation charter and finance management regulation of the parent company;

c/ Production and business and development investment plans and results; annual evaluation and ranking criteria applicable to economic groups and corporations; criteria for performance evaluation of the Members’ Council or the Board of Directors, director general, deputy directors general and chief accountant of the parent company as prescribed by the Government;

d/ Annual financial statements of the parent company and audited consolidated financial statements of the entire economic group or corporation approved by the Members’ Council or the Board of Directors; quarterly financial statements, periodical operational reports and other extraordinary reports as requested by the owner;

dd/ Results of inspection, examination and audit at enterprises by professional agencies;

e/ Other related information and documents as prescribed by law.

3. Supervision and evaluation results shall serve as the basis for deciding on salary and bonus levels, appointment, re-appointment, dismissal, contract renewal or termination, commendation, disciplining and responsibility handling of the chairperson and members of the Members’ Council or the Board of Directors, the director general, deputy directors general and the chief accountant of the parent company.

The chairperson and members of the Members’ Council or the Board of Directors, the director general, deputy directors general and the chief accountant of the parent company who commit acts of infringing upon or harming the interests of the parent company or the entire economic group or corporation, the owner, members, shareholders and creditors of enterprises or others shall, depending on the severity and nature of their acts, be disciplined or examined for penal liability and shall pay damages (if any) in accordance with law.

Article 39. Information disclosure and transparency mechanism for economic groups and corporations

1. Economic groups and corporations shall make public and transparent major information relating to their operations in accordance with the enterprise law regarding information disclosure and transparency. Information to be made public and transparent includes:

a/ For the parent company in an economic group or a corporation: Information prescribed in Chapter IV of the Regulation on financial supervision, evaluation of operation efficiency and disclosure of financial information for state-owned enterprises and state-invested enterprises promulgated together with the Government’s Decree No. 61/2013/ND-CP of June 25, 2013, and the following information:

- Tasks assigned by the state owner in different forms.

- Detailed information on ownership and asset structures.

- Investment portfolio, forms of investment, total investment budget and implementation progress of current investment projects.

- Large transactions, loans and debts.

b/ For an economic group or a corporation:

- Six-month consolidated financial statements. Audited annual consolidated financial statements of the economic group or corporation.

- Structures, operations and changes in equity of companies; managerial apparatuses of the parent company and subsidiary companies.

- Annual reports of the economic group or corporation.

- Biannual and annual reports on administration of the entire economic group or corporation.

2. An economic group or a corporation shall send to the agency representing the owner periodical and extraordinary reports on:

- The use of capital, land, natural resources and other resources at the parent company and the entire economic group or corporation.

- The organization and results of implementation of long-term strategies and plans of the parent company; decision on annual plans of the parent company already approved by the owner; decision on long-term strategies and plans and business sectors and lines of subsidiary companies with charter capital wholly owned by the parent company.

- The process and results of implementation of investment projects under long-term development master plans and plans of the economic group or corporation already approved by the Prime Minister.

- The process and results of implementation of plans on organization of management, organization of business operations, payroll and use of the managerial apparatus, internal management rules of the company, labor planning and training, establishment of branches and representative offices of the parent company.

- The appointment, re-appointment, relief from duty, dismissal, commendation and disciplining of, and contract signing and termination for, the director general after being approved by the Prime Minister; decision on salary level of the director general.

- Results after use of after-tax profits or handling of losses in the course of business operation.

- The process and results of examination and supervision of the Members’ Council, the Board of Directors and controllers of single-member limited liability companies with charter capital wholly owned by the parent company.

- Other contents to be reported by an enterprise to the owner as prescribed by the Enterprise Law and its guiding documents.

3. Means and forms of information disclosure include annual reports, corporate administration reports and publication on websites of economic groups or corporations. The information made public and transparent under Clause 1 of this Article shall be published on the business website of the Ministry of Planning and Investment (www.business.gov.vn) for thirty (30) days after being approved by the owner. The form of the information disclosure report must comply with regulations of the Ministry of Planning and Investment.

4. Types of information to be disclosed and time of disclosure:

a/ Annual financial statements, including annual financial statements of the parent company and consolidated financial statements of the entire economic group or corporation.

The time limit for disclosure of annual financial statements is ninety (90) days after the end of a fiscal year;

b/ Annual reports: The time limit for disclosure of annual reports is twenty (20) days after disclosure of annual financial statements;

c/ Corporate administration reports: Biannually and annually, the parent company shall disclose information on administration of the parent company and the entire economic group or corporation. The time limit for reporting and disclosing biannual and annual corporate administration reports is thirty (30) days after the end of the reporting period;

d/ Irregular information and other information as prescribed by law.

5. In addition to complying with Clauses 1, 2, 3 and 4 of this Article, economic groups and corporations with parent companies operating as joint-stock companies shall disclose information under the guidance on information disclosure on the stock exchange.

6. Economic groups and corporations shall take responsibility for the accuracy, truthfulness and consistency of disclosed information.