Nghị định 71/2017/NĐ-CP hướng dẫn về quản trị công ty đối với công ty đại chúng

DECREE

GUIDELINES ON CORPORATE GOVERNANCE OF PUBLIC COMPANIES

Pursuant to the law on organization of the government dated June 19^th, 2015

Pursuant to the Law on enterprises dated November 26^th, 2014

Pursuant to the Law on securities dated June 29^th, 2006

Pursuant to the amendments to the Law on securities dated November 24^th, 2010

At the request of the Minister of Finance;

Government provides the guidelines for corporate governance of public companies

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope

This Decree provides guidelines for the issues in connection with corporate governance of public companies, including:

a) General assembly of shareholders

b) Board of directors;

c) Board of controllers

d) Transactions with related persons

đ) Reporting and information publishing

2. Regulated entities

a) Public companies;

b) Public company shareholders and organizations and individuals related to them

c) Members of the board of directors, controllers, public company executives and their related organizations and individuals.

d) Organizations and individuals whose interests are related to public companies

Article 2. Terms and definitions

For the purposes of this decree, the terms below shall be construed as follows:

1. Corporate governance is a system of rules including:

a) Ensuring proper organizational structure;

b) Ensuring the effective operation of the board of directors and board of controllers

c) Ensuring the interests for shareholders and related persons;

d) Ensuring that all shareholders are treated fairly

đ) Making the information about the entire company’s operations publicly available

2. A public company is a joint stock company defined in Clause 1 Article 25 of the Law on securities

3. Majority shareholders are defined in Clause 9 Article 6 of the Law on securities

4. Enterprise managers are defined in Clause 18 Article 4 of the Law on enterprises

5. Enterprise executives include directors (general directors), deputy directors (deputy general directors), chief accountants, and other executives specified in the company’s charter

6. A non-executive member is the member of the board of directors other than the director (general director) or deputy director (deputy general director), chief accountant, and other enterprise executives specified in the company’s charter.

7. Independent members are specified in Clause 2 Article 151 of the Law on enterprises

8. A company’s manager is the person who has the rights and obligations specified in the Article 18 of this decree.

9. The related persons are individuals and organizations specified in Clause 17 Article 4 of the Law on enterprises and Clause 34 Article 6 of the Law on securities.

Article 3. Rules for application of regulations of relevant law

In the cases where other regulations of law on corporate governance are different from the regulations of this decree, the former must prevail.

Chapter II

SHAREHOLDERS AND GENERAL ASSEMBLY OF SHAREHOLDERS

Article 4. Rights and obligations of shareholders

1. Apart from the rights and obligations specified in Article 114 and Article 115 of the Law on enterprises and the company’s charter, a shareholder of a public company also has the following rights:

a) The right to be treated fairly. Each share of the same type gives its holders the equal rights, obligations and interests. The rights and obligations associated with preferred shares (if any) must be approved by the general assembly of shareholders and made publicly available to shareholders;

b) The right to fully access the periodical and unscheduled information published by the company in accordance with regulations of law.

2. The right to protect their legal interests In the cases where a decision made by the General assembly of shareholders or the board of directors violates the law or the company’s charter, causing damage to the company, shareholders have the right to request cancellation or suspension of such decision in compliance with the Law on enterprises.

Article 5. Obligations of majority shareholders

In addition to the obligations specified in the Law on enterprises, a majority shareholder also has the following obligations

1. A majority shareholder must not take advantage of his or her influence to affect the rights and interests of the company and other shareholders in accordance with regulations of law and the company’s charter;

2. A majority shareholder has the obligation to publish information in accordance with regulations of law

Article 6. Company’s charter

1. Company’s charter must be subject to approval from the general assembly of shareholders and must not violate the Law on enterprises, Law on securities, articles specified in this Decree and other relevant legislative documents.

2. The Ministry of Finance must provide a sample charter on which public companies can base to formulate their own ones

Article 7. Internal regulations on corporate governance

1. Internal regulations on corporate governance must be drafted by the board of directors and submitted to the general assembly of shareholders for approval. Internal regulations on corporate governance must not violate the regulations of law and company’s charter.

2. Ministry of Finance must provide a model of internal regulations on corporate governance on which public companies can base to formulate their own ones

Article 8. The meeting of the general assembly of shareholders.

In addition to regulations of the Law on enterprises, the meeting of general assembly of shareholders must comply with the following regulations:

1. A public company must follow the procedures for convening the meeting of general assembly of shareholders in compliance with regulations of law, its charter and internal regulations; publish the information about the list of shareholders who have the right to participate in the meeting of general assembly of shareholders at least 20 days before the deadline for registration. The public company’s internal regulations on corporate governance must specify authorization procedures and authorization letters for shareholders;

2. The board of directors or the individual who convenes the meeting of general assembly of shareholders must establish the agenda and prepare the place and time to discuss and vote on each issue in the meeting of general assembly of shareholders in accordance with Clause 7 Article 136 of the Law on enterprises;

3. The public company’s internal regulations on corporate governance must specify the application of modern information technology for the shareholders to participate and give opinions in the meeting of general assembly of shareholders best including guidelines for shareholders to vote through the online meeting of the general assembly of shareholders, cast electronic votes or other forms of electronic voting specified in the Article 140 of the Law on enterprises and the company's charter;

4. A public company must convene the annual meeting of general assembly of shareholders in compliance with the Law on enterprises. The annual meeting of general assembly of shareholders must not collect written opinions from shareholders. In the cases where the auditor's report on the company's annual financial statements contains material qualified opinions, the public company may invite the representatives of the independent auditing firm to attend the annual meeting of general assembly of shareholders.

Article 9. A report on the operations of the board of directors submitted to the annual meeting of general assembly of shareholders

A report on the operations of the board of directors which has to be submitted to the annual meeting of general assembly of shareholders must contain the following information in addition to that specified in Clause 2c Article 136 of the Law on enterprises and the company’s charter:

1. Remuneration, operating costs and other interests of the board of directors and each member thereof specified in Clause 3 Article 158 of the Law on enterprises and the company's charter;

2. Summaries of the meetings and decisions of the board of directors;

3. Independent members’ opinions about the board of directors (if any);

4. The operation of the internal audit team affiliated to the board of directors of the public company specified in Clause 1b Article 134 of the Law on enterprises;

5. Operations of other sub-boards affiliated to the board of directors (if any)

6. Results of monitoring the director (general director);

7. Results of monitoring other enterprise executives;

8. Future plans

Article 10. A report on the operation of the board of controllers to the annual meeting of general assembly of shareholders

In addition to the regulations specified in Clause 2d5 and 2đ Article 136 of the Law on enterprises, the board of controllers’ report on the public company specified in Clause 1a Article 134 of the Law on enterprises submitted to the annual general assembly of shareholders must contain the following information:

1. Remuneration, operating costs and other interests of the board of controllers and each controller specified in Clause 3 Article 167 of the law on enterprises and the company's charter;

2. Summaries of the meetings and conclusions and recommendations of the board of controllers;

3. Results of monitoring the company's financial status and operation;

4. Results of monitoring the board of directors, directors (general directors) and other enterprise executives;

5. The results of monitoring the coordination of operation between the board of controllers and the board of directors, the director (general director) and shareholders.

Chapter III

BOARD OF DIRECTORS AND MEMBERS OF THE BOARD OF DIRECTORS

Article 11. Nomination of members for the board of directors

1. When the candidates for a board of directors have been identified, the information related to them must be published at least 10 days before the opening day of the meeting of general assembly of shareholders on the website of the company so that shareholders can find out about the candidates before voting. The candidates of board of directors must have written commitments to provide truthful, accurate and reasonable information and to perform the tasks honestly, faithfully, cautiously and in the best interest of the company if elected as members of the board of directors.

Information related to the candidates of the board of directors to be published must include at least:

a) Name, date of birth

b) Professional qualifications;

c) Work experience;

d) Other information (if any) specified in the company's charter.

A public company must ensure that shareholders can access the information about the companies in which the candidates are members of the board of directors or managers and other interests related to the companies of the candidates (if any)

2. Shareholders or groups of shareholders holding common shares for at least 6 consecutive months shall have the right to nominate candidates for the board of directors in compliance with the Law on enterprises and the company's charter

3. When the number of the candidates for the board of directors through nomination fails to reach the minimum number specified in Clause 4 Article 114 of the Law on enterprises, the incumbent board of directors can introduce or nominate more candidates as specified in the company’s charter and the internal regulations on corporate governance The introduction of candidates by the board of directors must be published clearly before the general assembly of shareholders votes for the members of the board of directors in compliance with regulations of law

Article 12. Membership of the board of directors

1. Members of the board of directors must meet the criteria and conditions specified in Clause 1 Article 151 of the Law on enterprises and the company's charter; a member of the board of directors is not required to be the shareholder of the company

2. The chairman of the board of directors must not take over the position as the director of the same public company

3. A member of the board of directors of a public company must not be the member of the board of directors of more than 5 other companies.

Article 13. Composition of the Board of directors

1. The board of directors of a public company must have 3-11 members. The composition of the board of directors must be balanced in terms of the number of members having knowledge and experience in law, finance and business operations of the company and gender balance.

2. At least 1/3 of the members of board of directors are non-executive members.

3. A public company needs to minimize number of members of the board of directors who concurrently hold several executive titles of the company to ensure independence of the board of directors.

4. If an unlisted public company operates under the model specified in Point b Clause 1 Article 134 of the Law on enterprises, at least 1/5 of members of the board of directors are independent members. If the board of directors of such company has fewer than 5 members, one of them must be the independent member

5. At least 1/3 of the members of the board of directors of a listed company are independent members.

Article 14. Rights and obligations of members of a board of directors

1. A member of a board of directors has all rights specified in the Law on enterprises, related law and companies' charter including the right to access information and documents about financial status and business operation of the company and different units of the company

2. In addition to the obligations specified in the Law on enterprises and the company’s charter, each member of the board of directors must:

Perform duties honestly and cautiously in the best interests of shareholders and the company;

b) Participate in all the meetings of the board of directors and give clear opinions about the discussed issues.

c) Report adequately and promptly to the board of directors on the remuneration they receive from subsidiaries, affiliated companies and other organizations in which they are the representatives of the company's capital contribution;

d) Report to the State Securities Commission and local stock exchange and publish information when trading the shares of the company in compliance with regulations of law

3. The company may purchase liability insurance for the members of its board after approval is granted by the general assembly of shareholders; the insurance does not cover the liabilities of the members of the board of directors in connection with the violation of the law and the company’s charter.

Article 15. Duties of the board of directors

In addition to the duties specified in the Law on enterprises and the company’s charter, the board of directors must:

1. Take responsibility to the shareholders for the company’s operations;

2. Treat fairly all the shareholders and protect the interests of the persons whose interests are related to the company;

3. Ensure the operations of the company in compliance with regulations of law and the company’s charter and internal regulations;

4. Make the internal regulations on corporate governance and submit to the general assembly of shareholders for approval as specified in the article 7 of this Decree;

5. Report on the operation of the board of directors to the general assembly of shareholders as specified in the Article 9 of this Decree.

Article 16. The meeting of the general assembly of shareholders.

1. The board of directors must hold at least one meeting every three months in the procedures specified in the company's charter and internal regulations on corporate governance The meeting of the board of directors, agenda and related documents must be informed in advance to the members of the board of directors within the time limit specified in regulations of law and the company’s charter

2. The minutes of meetings of the board of directors must be detailed and clear; be signed by the chairman of the meeting and retained in accordance with regulations of law and the company’s charter.

3. The board of directors shall require the independent members to submit annual reports on the operation of the board of directors which can be published at the annual meeting of general assembly of shareholders

Article 17. Teams affiliated to the board of directors of a listed company

1. The board of directors of a listed company can establish teams to assist its operations including personnel and payroll management teams and other teams. The board of directors needs to nominate 01 independent member of its members as the head of personnel and payroll management teams; the establishment of these teams must be approved by the general assembly of shareholders.

2. If the personnel and payroll management teams are not established, the board of directors can assign the independent members to assist it in the human resources, and payroll management activities.

3. The board of directors must specify in details the establishment of the teams and the duties of each of them, their members or the independent members in charge of human resources and payroll management.

Article 18. Persons in charge of corporate governance

1. The board of directors of the listed companies must nominate at least 1 person to be in charge of corporate governance; the person in charge of corporate governance can take over the position as the company secretary as specified in Clause 5 Article 152 of the Law on enterprises

2. The person in charge of corporate governance must be knowledgeable about law and not work for the independent auditing company performing audits of the company’s financial statements.

3. A person in charge of corporate governance has the following rights and obligations:

a) Advising the board of directors on the organization of convening the meeting of general assembly of shareholders in compliance with regulations and law and the related work between the company and shareholders;

b) Preparing meetings of the board of directors, board of controllers and general assembly of shareholders at the request of the board of directors or the board of controllers;

c) Advising on the procedures of meetings

d) Participating in meetings

đ) Advising on procedures for resolutions of the board of directors in accordance with regulations of law;

e) Providing financial information, copies of meeting minutes of the board of directors and other information for members of the board of directors and controllers;

g) Monitoring and reporting to the board of directors on the operation of publishing information of the company;

h) Ensuring the security of information in accordance with regulations of law and the company’s charter;

i) Other rights and obligations in accordance with regulations of law and the company’s charter

Chapter IV

BOARD OF CONTROLLERS AND CONTROLLERS

Article 19. Nomination of candidates for controllers

1. Candidates for controllers must be nominated in accordance with Article 11 of this Decree, unless otherwise prescribed in the company’s charter.

2. If the number of the candidates for the board of controllers through nomination fails to reach the needed number, the incumbent board of controllers may nominate more candidates or organize to nominate in the form specified in the company's charter and internal regulations on corporate governance.

Article 20. Controllers

1. The number of controllers must be 3-5 members. A controller is not required to be the shareholder of the company.

2. A controller must meet the criteria and conditions specified in Clause 1 Article 164 of the Law on enterprises and the company's charter and must not:

a) Work in the accounting and finance departments of the company;

b) Be a member or employee of the independent auditing firm auditing the financial statements of the company over the last 3 years.

3. Controllers in the listed companies and public companies whose over 50% of charter capital is held by the state must be auditors or accountants.

4. The head of the board of controllers must be a professional auditor or accountant working full time at the company.

Article 21. Rights and obligations of a controller

1. A controller has all rights specified in the Law on enterprises, related Law and company's charter including the right to access information and documents about operational status of the company. Members of the board of directors, directors (general directors) and other enterprise executives must be responsible for supplying information promptly and adequately at the request of controllers.

2. Controllers must comply with regulations of law, the company’s charter and professional ethics in carrying out their assignments.

A public company may provide guidelines for operating and performing duties of controllers in compliance with regulations of law and the company's charter.

Article 22. Rights and obligations of board of controllers

In addition to the rights and obligations specified in the Article 165 of the Law on enterprises and the company’s charter, a board of controllers also has the following rights and obligations:

1. Proposing and recommending the general assembly of shareholders to grant approval for the independent auditing organization to audit the financial statements of the company;

2. Taking responsibility towards shareholders for monitoring activities;

3. Monitoring the financial status of the company, legitimacy of the activities of members of board of directors, the director (general director), other enterprise managers, coordination in operation between the board of controllers and board of directors , the director (general director) and shareholders;

4. In the cases of violation against regulations of law or the company’s charter committed by a member of the board of directors, the director (general director) and other enterprise executives, it must be notified in written text to the board of directors within 48 hours and ask the offenders to stop the violation and find solutions to tackle;

5. Reporting to the general assembly of shareholders as specified in the Article 10 of this Decree.

Article 23. Meetings of the board of controllers

1. A board of controllers must hold at least 2 meetings each year. At least 2/3 of the controllers must participate in the meetings. Minutes of the meetings of the board of controllers must be detailed and clear; be signed by the secretaries and controllers attending the meetings and retained to identify the responsibilities of each controller.

2. A board of controllers has the right to request members of the board of directors, the director (general director) and representatives of the independent auditing firm to answer the issues raised by the controllers.

Chapter V

PREVENTION OF CONFLICT OF INTERESTS

Article 24. Responsibility to be honest and avoid conflicts of interests of an enterprise manager

1. Members of a board of directors, controllers, directors (general directors) and other enterprise managers must publish the related interests in compliance with regulations of Law on enterprises and other relevant law.

2. Members of a board of directors, controllers, directors (general directors), other enterprise managers and their related persons must not take advantage of the information obtained by the influence of their own positions for personal purposes or in the interests of other individuals or organizations.

3. Members of a board of directors, controllers, directors (general directors) and other enterprise managers have the obligation to inform the board of directors and the board of controllers the transactions between companies, subsidiaries and companies with over 50% or more of charter capital controlled by a public company and themselves or their related persons in compliance with regulations of law. The public company must publish information about the transactions of the abovementioned persons which have been approved by the general assembly of shareholders or the board of directors in accordance with regulations of Law on securities and publishing information.

4. Members of a board of directors are not allowed to cast votes on the transactions that are beneficial for themselves or their related persons in compliance with the Law on enterprises and the company’s charter.

5. Members of the board of directors, controllers, directors (general directors), other enterprise managers and their related persons must not use the information not yet publicly disclosed by the company or disclose to others to carry out related transactions.

Article 25. Transactions with the related persons

1. When conducting transactions with the related persons, a public company must sign the written contracts equally and voluntarily.

2. A public company must implement the necessary measures to prevent the related persons from interfering in the operation of the company and harming the interests of the company through the control of transactions, sales and prices of both goods and services of the company.

3. A public company must implement the necessary measures to prevent shareholders and the related persons from carrying out transactions resulting in loss of capital, assets or other resources of the company

Article 26. Transactions with shareholders, enterprise managers and their related persons

1. A public company must not provide its shareholders that are individuals and the related persons that are individuals with loans or guarantee, unless it is a credit institution.

2. A public company must not provide its shareholders that are organizations and their related persons that are individuals with loans or guarantee, unless

a) The public company is a credit institution;

b) The shareholder is a subsidiary whose share or stakes are not held by the State and has contributed capital or purchased the shares of the public company before July 1^st, 2015 as specified in Clause 6, Article 16 of the Decree No. 96/2015/ND-CP dated October 19^th, 2015 of the government specifying a number of articles of the Law on enterprises.

3. A public company must not provide its shareholders’ related persons that are organizations with loans or guarantee, unless:

a) The public company is a credit institution;

b) The public company and its shareholders’ related persons are subsidiaries in the same company or companies operating under a group of companies including parent companies- subsidiaries, economic groups; the transaction must be approved by the general assembly of shareholders or the board of directors in accordance with the company's charter

c) The law specifies otherwise

4. A public company must not make the following transactions unless they are approved by the general assembly of shareholders:

a) Grant of loans or guarantees to the members of the board of directors, controllers, directors (general directors), other enterprise managers and the individuals and organizations related to them unless the public company and organizations related to its shareholders are companies in the same group or companies operating in a group of companies including parent companies-subsidiaries, economic groups, and the relevant law specifies otherwise.

b) Any transaction that has the total value of 35% or more of the total value of assets recorded in the latest financial statement between the public company and one of the following entities

- Members of the board of directors, controllers, directors (general directors), other enterprise managers and their related persons

- Shareholders, authorized representatives of shareholders owning more than 10% of the common shares of the company and their related persons;

- Enterprises related to the subjects specified in Clause 2 Article 159 of the Law on enterprises

5. The board of directors may approve the contracts and transactions specified in Point b Clause 4 of this Article which are valued at less than 35% of the total asset value inscribed in the most recent financial statement or a smaller percentage in accordance with the company’s charter;

Article 27. Ensuring the legitimacy of the persons having the interests related to the company

1. Public companies must take responsibility to the community and to the persons having the interests related to the company in compliance with the prevailing laws and the company’s charter.

2. A public company must comply with the laws on labor, environment and society.

Chapter VI

REPORTING AND INFORMATION PUBLISHING

Article 28. Obligation to publish information

1. A public company must publish regularly, accurately and promptly the information influencing share price and decisions made by shareholders and investors. Information and information publishing must be in compliance with regulations of law and the company’s charter.

2. Shareholders and the public must have equal access to the published information. Language used to publish information should be clear, comprehensible and avoid misunderstanding by shareholders and investors.

Article 29. Information publishing on the model of company organization and management

1. A public company must report to the State Securities Commission and the local stock exchange and publish the information on organizational structure of the management and operation of the company in compliance with the Article 134 of the Law on enterprises.

2. In the event that the public company changes its operating model, it must report to the State Securities Commission and the local stock exchange and publish information in 24 hours after the decision to change the model is made by the general assembly of shareholders

Article 30. Information publishing on corporate governance

1. A public company must publish information on corporate governance at the annual general assembly of shareholders and in the company's annual report in compliance with the Law securities on publishing information.

2. A listed company must report every six months and publish information on corporate governance status in compliance with the Law on securities on publishing information.

Article 31. Information publishing on the income of the director (general director)

The salary of the director (general director) and other enterprise managers must be shown separately in the annual financial statements of the company and reported at the annual meeting of general assembly of shareholders.

Article 32. Responsibility for reporting and publishing information of members of a board of directors, controllers and directors (general directors)

Apart from the responsibilities prescribed in the Article 24 of this Decree, members of the board of directors, controllers, directors (general directors) must report to the board of directors and the board of controllers on the following transactions:

1. Transactions between an ordinary company and a company in which the abovementioned members are founding members or members of the board of directors or the directors (general directors) over the last three years by the transaction time;

2. Transactions between an ordinary company and a company in which related persons of the abovementioned members are members of the board of directors, directors (general directors) or majority shareholders.

Article 33. Organization of information publishing

1. A public company must formulate and issue regulations on publishing information of the company in compliance with the Law on securities and guiding documents.

2. A public company must have at least one employee in charge of publishing information. Such employee of a public company must:

a) Publish the company's information publicly in compliance with regulations of law and the company’s charter;

b) Publicize his or her names and phone numbers for shareholders to contact

Chapter VII

SUPERVISION AND HANDLING OF VIOLATIONS

Article 34. Supervision of corporate governance

1. The State Securities Commission must supervise the contents related to corporate governance of public companies in compliance with provisions of this Decree.

2. Public companies and the related organizations and individuals must comply with regulations on corporate governance as specified in this Decree.

3. Public companies and related organizations and individuals must promptly and accurately supply information, documents and data related to corporate governance activities of such companies and explain the related events at the request of the State Securities Commission.

4. If a public company and its related organizations and individuals fail to comply with the Clause 3 of this Article, it must be handled in compliance with regulations of law.

Article 35. Handling of violations against regulations on corporate governance

A public company and its related organizations and individuals violating the regulations on corporate governance must be sanctioned in compliance with the government's Decree No. 108/2013 / ND-CP dated September 23^rd, 2013 on sanctioning against administrative violations of securities and securities market regulating the acts of violating against regulations on public companies’ corporate governance, Decree No. 145/2016 / ND-CP dated November 1, 2016 of the government amending a number of articles of the government's Decree No. 108/2013 / ND-CP dated September 23, 2013 on sanctioning against administrative violations of securities and securities market and current regulations of law.

Chapter VIII

TERMS ENFORCEMENT

Article 36. Transition clause

1. By the effective date of Clause 2, Article 12 of this Decree, the chairman of the board of directors can concurrently hold the title of director (general director) of the same public company.

2. By the effective date of Clause 3, Article 12 of this Decree, a member of the board of directors of a public company can concurrently be a member of the board of directors of another company.

Article 37. Effect of the Decree

1. Except for Clauses 2 and 3 of this Article, all the other provisions of this Decree shall come into force from August 1^st, 2017.

2. The provisions in Clause 2, Article 12 of this Decree shall come into force after three years from the effective date of this Decree.

3. The provisions of Clause 3, Article 12 of this Decree shall come into force after two years from the effective date of this Decree.

4. The Ministry of Finance's Circular No. 121/2012 / TT-BTC dated July 26^th, 2012 on corporate governance of public companies shall be repealed from the date this Decree comes into force.

Article 38. Implementation

1. The Ministry of Finance must provide the guidelines for the implementation of this Decree.

2. Ministers, heads of the ministerial-level agencies, heads of the agencies affiliated to the government and presidents of the people's committees of provinces and central affiliated cities must implement this Decree.

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