Nghị định 80/2005/NĐ-CP về giao, bán, khoán kinh doanh, cho thuê công ty nhà nước

THE GOVERNMENT -------	SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ----------
No.80/2005/ND-CP	Hanoi, June 22, 2005

 

DECREE

ON ASSIGNMENT, SALE, BUSINESS CONTRACTING, LEASE OF STATE COMPANIES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;
Pursuant to State Enterprise Law No. 14/2003/QH11 dated November 26, 2003;
Pursuant to Enterprise Law No. 13/1999/QH10 dated June 12, 1999;
At the proposal of the Minister of Planning and Investment,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Objectives and requirements of the assignment, sale, business contracting and lease of state companies

Assignment, sale, business contracting and lease of state companies are measures for continued rearrangement and renewal of state companies which have done business inefficiently and suffered from prolonged losses, need not be further held by the state and cannot be equitized, aiming:

1. To create conditions for restructuring state companies, raising the economic efficiency and competitiveness of the state-run economic sector.

2. To use more efficiently capital and assets invested by the State in the companies, tap all potentials among various economic sectors for investment in production and business development.

3. To ensure jobs for laborers; to change mode of managing companies, creating motive force for promoting the laborers' mastery.

4. To reduce expenditures and direct business responsibilities of the State; ensure the common interests of the State and the laborers in the state companies.

Article 2. State companies to be assigned, sold, business-contracted or leased and conditions for application

State companies to be assigned, sold, business-contracted or leased and conditions for application

1. This Decree provides the assignment, sale, business contracting, lease of whole of independent state companies, independent cost- accounting member companies of corporations; sale of dependent units of state companies.

2. Regulation scope and application subjects shall be as follows:

a) Complete assignment of a state company (called company assignment for short): To apply to independent slate companies, independent cost-accounting member companies of corporations having the state capital of under VND 5 billion inscribed in the accounting books, which need not be further held by the State in terms of their equity and cannot be equitized:

b) Complete sale of a state company (called company sale for short): To apply to independent state companies, independent cost-accounting member companies of corporations, which need not be further held by the State in terms of capital and cannot be equitized, regardless of state capital amounts;

c) Sale of dependent units of state companies (called partial sale of companies for short): To apply to dependent cost-accounting units of state corporations; dependent cost-accounting sections of independent cost-accounting member companies of corporations; dependent cost-accounting sections of independent state companies;

d) Business contracting, lease of an entire state company (called company contracting, lease): To apply to independent state companies, independent cost-accounting member companies of corporations, regardless of state capital amounts.

3. The sale of dependent units of independent cost-accounting member companies of corporations or the sale of dependent units of independent state companies shall be carried out only when:

a) The dependent units do not belong to the subjects with 100% capital to be held by the State;

b) Dependent units have conditions for separation into independent cost-accounting units for sale without causing difficulties or adversely affecting production and business of state corporations, independent state companies, independent cost-accounting member companies of corporations or the remaining sections of these enterprises.

4. The business contracting within state companies, the lease of separate assets, the sale of separate assets of state corporations, independent state companies, independent cost-accounting member companies of corporations shall not be governed by this Decree.

Article 3. In this Decree, the terms and phrases below shall be constructed as follows:

Inthis Decree, the terms and phrases below shall be constructed as follows:

1. ''Assignment of company to labor collective" means the conversion of ownership of a state company and the state assets at such company into the ownership of the labor collective in the company with clear definition of ownership of each person, each member with binding conditions.

2. ''Sale of company or sections of company" means the conversion of ownership with money collection of an entire company, sections of a company into ownership of collectives, individuals or other legal persons.

3. ''Company contracting'' is a mode of managing enterprises thereby the contracted party is given the right to manage the enterprises, is obliged to achieve a number of targets, satisfy conditions and enjoy interests under contracts.

4. ''Company lease'' means the transfer to the lessees the rights to use assets and labor in the companies under the conditions inscribed in leasing contracts.

5. '' The assignee, the contracted, the lessee, the buyer of companies or sections of companies'' are representatives of labor collectives, representatives of legal persons, representatives of groups of people or individuals, that are assigned, contracted, rent or purchase companies or sections of companies.

6. ''Assignor, contractor, lessors or sellers of companies or sections of companies'' are representatives of agencies or enterprises assigning, selling, contracting or leasing the companies.

7. ''Sale, contracting, lease of companies, sale of sections of companies by direct mode'' are forms of negotiations, agreement and signing of contracts directly between sellers of companies, sellers of sections of companies and buyers of companies or buyers of sections of companies or between contractors or lessors of companies and the contracted, the lessees of companies in cases where only one organization or individual (hereinafter called person for short) registers.

8. "Sale, contracting, lease of companies, sale of sections of companies by mode of bidding'' are forms of selecting buyers of companies, buyers of sections of companies, the contracted, the lessees of companies through bidding when there are two or more persons register.

9. "Sale of companies, sections of companies by mode of auction'' is a form of selecting buyers of companies, sections of companies where there are two or more persons register through offering competitive prices at public auctions.

10. ''Minimum prices'' mean the lowest prices determined by sellers, lessors or contractors on the basis of the value of the state capital portions and the actual value of assets at enterprises and set prices when deciding on the sale, contracting or lease of companies.

11. "Leasing prices, sale prices of companies, sale prices of sections of companies'' are prices agreed on by the lessors and the lessees or the sellers and the buyers by direct mode or determined by mode of bidding or auction.

12. ''Value of companies, sections of companies according to accounting books'' means the total value of assets reflected in the balance sheets of accounts of the companies according to the current accounting regime.

13. ''The practical value of companies" mean the total value of the actual assets of companies at market prices at the time of valuating the companies.

14. ''Labor collectives'' mean the total number of laborers currently on the lists of regular laborers of companies or collectives of laborers voluntarily implementing the resolutions of the congresses of employees of the companies, sections of companies on acceptance of the assignment, purchase, contracting or rent of companies or sections of companies at the effective time of the decisions approving the schemes on arrangement of labor, represented by Trade Union Executive Committees of the companies or the persons elected as representatives by congresses of the companies' employees for acceptance of the assignment, purchase, contracting or rent of companies or sections of companies.

15. ''Ministries'' mean the ministries, ministerial-level agencies, Government-attached agencies.

16. ''The provincial-level People's Committees'' mean the People's Committees of provinces or centrally-run cities.

17. ''The Renewal Boards at companies'' mean the Boards for Renewal of Enterprises, set up at companies to carry out the assignment, sale, contracting or lease under decisions of ministries, provincial-level People's Committees or corporations.

18. ''The Enterprise Renewal and Development Boards'' mean boards for renewal and development of enterprises of ministries, provincial-level People's Committees, state corporations.

19. ''State companies where the State needs not hold equities'' are companies not on the lists of those where the State needs to hold equities according to the criteria, classification lists promulgated by the Prime Minister.

20. ''Companies which cannot be equitized'' are companies which, according to the restructuring master plans already approved by the Prime Minister, are on the lists of those to be equitized, but, after the application of all measures provided for by law on equitization, cannot be equitized, or companies which are on the lists of those to be equitized but fail to satisfy conditions for equitization or are determined by equitization-deciding agencies as being unable to be equitized.

Article 4. Subjects entitled to be assigned, to buy, to be business-contracted, to rent companies or sections of companies

Subjects entitled to be assigned, to buy, to be business-contracted, to rent companies or sections of companies

1. Subjects to be assigned companies shall be collectives of laborers working at the companies, that satisfy the conditions specified in Article 10 of this Decree and are represented by the companies' Trade Union Executive Committees or by the persons elected by the congresses of the companies' employees.

2. Subjects entitled to buy companies, sections of companies:

a) Labor collectives or individuals in companies;

b) Enterprises of all economic sectors, including foreign-invested enterprises in Vietnam;

c) Vietnamese citizens who have civil act capacity, excluding persons who are not allowed to establish and manage enterprises, defined in Clauses 2, 3, 4, 5, 6 and 7, Article 9 of the Enterprise Law;

d) Economic and financial organizations set up under foreign laws and conducting business activities overseas or in Vietnam, foreigners (hereinafter called foreign investors);

Foreign-invested enterprises in Vietnam and foreign investors may purchase state companies on the lists of branches, trades or domains where foreign investors are entitled to invest 100% foreign capital or to contribute joint-venture capital. The sale of companies to foreign-invested enterprises or foreign investors shall comply with the Regulation promulgated by the Prime Minister.

3. Subjects entitled to accept business contracting of or to rent companies:

a) Labor collectives or individuals in the companies;

b) Enterprises of all economic sectors, excluding foreign-invested enterprises in Vietnam;

c) Individuals having business registration.

Article 5. Principles for assignment, sale, business contracting, lease of companies

Principles for assignment, sale, business contracting, lease of companies

1. To assign, sell, business contract, lease companies for continued production and business; the assignees or buyers must not resell the companies within the duration prescribed in contracts.

2. All assets of the companies shall be calculated in value upon the assignment, sale, business contracting or lease. The value of companies, sections of companies subject to sale shall be calculated at the actual market prices.

3. Priorities and preferences in assignment, sale, business contracting or lease of companies:

a) To give priority to the buyers, the business-contracted persons, the lessees, that commit to employ more laborers; the buyers, the contracted persons or the lessees, that are labor collectives in the companies; the persons who are performing the contracts on business contracting or leasing companies and shift to buy the companies;

b) To give preferences by reducing sale prices to buyers who commit to continue employing more laborers and inherit debts. The sale price reduction levels depend on the percentages of laborers to be continually employed as committed by the buyers;

c) In cases where buyers do not inherit debts, the sale price reduction must ensure sources for payment of debts of the companies and must not exceed the state capital amounts existing at the time of sale.

4. Publicity in assignment, sale, business contracting, lease of companies:

a) The assignment, sale, business contracting, lease of companies must be publicized on the mass media and at the companies for the relevant subjects to know before the implementation thereof;

b) In cases where only one person registers for the purchase, rent or business contracting, the results of direct negotiations between the buyer and the seller, the lessee and the lessor, the business-contractor and the business-contracted shall be publicized at the company;

c) In cases where two or more persons register for the purchase, business contracting, rent of a company, bidding or auction must be organized.

The auction of companies shall be carried out only when the companies have already completely settled the questions related to laborers or have their plans on complete settlement of their laborers approved by competent authorities under the provisions of law on labor and policies towards redundant labor due to reorganization of state companies.

5. The duration for business contracting or lease of a company shall be agreed upon by the two parties, but shall not be shorter than 3 years.

6. Signing of contracts on assignment, sale, business contracting or lease of companies:

The assignment, sale, business contracting or lease of companies must be made in written contracts. The contracts shall serve as a basis for the parties to fulfill their commitments, ensuring the legality of the payment and settlement of arising matters.

Article 6. Management and use of proceeds from sale, lease of companies

Management and use of proceeds from sale, lease of companies

1. The proceeds from company sale, after remitting into the state budget the land use right value (if any), may be used for the following purposes: payment of expenses in service of company sale, payment of debts not inherited by buyers, support for companies to implement policies towards laborers subject to job severance or loss upon the sale of companies; the remainders shall be managed and used as follows:

a) In case of selling independent cost-accounting member companies, dependent cost-accounting units of state corporations, dependent cost-accounting sections of independent state companies, such state corporations, independent cost-accounting member companies of corporations, independent state companies may use them for business activities;

b) In case of selling the whole of an independent state company, the remainder shall be transferred into the enterprise reorganization support fund at the Ministry of Finance and be managed and used according to the Prime Minister's regulations.

Where the proceeds from company sale are not enough for payment of expenses in service of company sale, payment of debts not inherited by buyers, support for implementation of policies towards laborers subject to job severance or loss upon company sale, supports shall be provided from the enterprise reorganization support fund at the Ministry of Finance.

2. Proceeds from company lease:

a) In cases where the leasing term expires while the lessee buys back the company or the company terminates its operation, after subtracting expenses in service of company lease, the proceeds from company lease shall be used as provided for in Clause 1 of this Article;

b) In case of lease with definite terms, the company that continues operating and registering is a state company, the proceeds from company lease shall be accounted into the turnover of the leased company.

Article 7. Expenses for organization of assignment, sale, business contracting, lease of companies

Expenses for organization of assignment, sale, business contracting, lease of companies

The actual, reasonable and necessary expenses for organization of the assignment, sale, business contracting, lease of companies shall comply with the guidance of the Ministry of Finance and be accounted as follows:

1. In case of company assignment: They shall be subtracted from the value of state capital at the companies; where the state capital is reduced to none, supports shall be provided from the enterprise reorganization support fund at the Ministry of Finance (in case of assignment of independent state companies) or from corporations' sources (in case of assignment of independent cost-accounting member companies).

2. In case of company sale: They shall be subtracted from the money amounts collected from company sale; if the state capital is reduced to none, supports shall be provided from the enterprise reorganization support fund at the Ministry of Finance (if it is the independent state company) or from the corporation's capital (if it is the dependent unit of the corporation, independent cost-accounting member company), from the company's capital (if it is dependent unit of the independent state company or independent cost-accounting member company of the corporation).

3. In case of business contracting: They shall be accounted into expenses for regular operations of the companies.

4. In case of company lease: They shall be subtracted from money amounts collected from company lease.

Article 8. Change between forms of business contracting, lease, sale or assignment of companies

Change between forms of business contracting, lease, sale or assignment of companies

In cases where contracts on business contracting or lease of companies are being performed and the change to other forms is desired for, the current contracts must be liquidated and direct negotiations must be conducted for signing of new contracts according to the provisions of this Decree.

Article 9. The State's protection

The State's protection

1. The State protects the ownership rights, the use rights as well as the legitimate rights and interests of company assignees, buyers, business- contracted persons or lessees under the provisions of law.

2. The State ensures the legitimate rights and interests of laborers in companies to be assigned, sold, business-contracted or leased in accordance with the provisions of labor law.

Chapter II

ASSIGNMENT OF COMPANIES TO LABOR COLLECTIVES

Article 10. Conditions on assignment of companies to labor collectives

Conditions on assignment of companies to labor collectives

Labor collectives in companies shall be considered for company assignment when fully satisfying the following conditions:

1. They voluntarily register to accept the company assignment.

2. They pledge to make additional investment in production and business development, ensuring minimum jobs for three years or more, fully paying insurance premiums for the laborers within the company according to law provisions (except for cases of voluntary termination of labor contracts in accordance with labor legislation and policies towards redundant laborers due to rearrangement of state companies).

3. They inherit debts and property obligations of the company after they were handled according to the provisions of Article 11 of this Decree; inherit rights and obligations towards laborers as provided for in Article 66 of the Labor Code.

4. They must not lease, transfer or dissolve the companies at their own will within a minimum period of 3 years after the assignment.

Article 11. Principles for handling of property, finance and debts upon assignment of companies

Principles for handling of property, finance and debts upon assignment of companies

1. The Renewal Boards in the companies shall conduct inventories, determining the quantity and actual conditions of assets; the long-term and short-term investments; the rented, borrowed, kept- or sold-for-others, consigned, appropriated, lease or lent assets; comparison and classification of debts; making of lists of creditors and payable debt amounts, lists of debtors and receivable amounts, clearly determining recoverable debts and irrecoverable debts; classification of assets, handling of assets and debts.

2. Principles for asset handling:

a) For assets contributed as joint-venture capital or received as joint-venture capital; assets rented from the outside or financial leased; assets borrowed, kept for others or other assets not belonging to the company: the company assignors and assignees and asset owners shall negotiate on inheritance or liquidation of previously signed contracts or signing of new contracts;

b) For appropriated assets: The company assignors shall decide them right after the assignment of company on the principle of returning them or signing contracts on re-borrowing the assets;

c) For assets in the welfare facilities: crèches, kindergartens, infirmaries and other welfare assets formed from reward or welfare funds shall be transferred to the new companies for management and use in service of labor collectives in the companies. Particularly for dormitories of employees, including those invested with state budget allocations, they shall be transferred to local house and land management bodies for management or sale to current users according to current regulations;

d) For assets used in production and business, which are invested with reward or welfare funds of the company, they shall be transferred to the company for continued use in production and business;

e) The pecuniary balance of the reward and welfare funds shall be divided to laborers working in the company before company assignment.

3. Principles for handling of debts:

a) For tax debts, remittances into the state budget and debts borrowed by companies from state-run commercial banks or from the development assistance fund, which cannot be repaid though the companies have applied various handling measures, they shall be handled according to current regulations;

b) For social insurance premium debts falling under the responsibilities of companies and laborers, which were collected by the companies, before the company assignment, they shall be subtracted from value of the state capital in the companies for repayment. In cases where the state capital is reduced to none, the repayment supports shall be provided from the enterprise reorganization support fund at the Ministry of Finance for independent state companies; or from corporations' capital for member enterprises of corporations;

c) Company assignees shall have to inherit receivable and payable debts of the companies after they are handled.

4. The remaining assets, after payment of necessary expenses for company assignment, shall be fully transferred to the labor collectives in the companies for ownership.

Article 12. Company-assigning order and procedures

Company-assigning order and procedures

1. The Trade Union Executive Committees shall join the company directors in organizing employees' congresses to vote by majority on voluntary acceptance of company assignment; elaborating and adopting the schemes on acceptance of company assignment, including schemes on labor reorganization; realizing the conditions on acceptance of company assignment, including the commitment to employ all laborers in the companies (excluding those who voluntarily terminate their labor contracts); nominating representatives to carry out procedures for company assignment and acceptance. At places where trade unions do not exist, the Renewal Boards at the companies shall coordinate with the company directors in nominating representatives of the labor collectives to participate in organizing the congresses of employees of the companies.

2. The Renewal Boards at the companies shall classify the assets; determine and classify debts; make financial reports. Basing themselves on the data on accounting books, the inventory results, the classification and handling of assets, finance and debts on the principles for handling assets, finance and debts mentioned in Article 11 of this Decree, the company directors and the Renewal Boards at the companies shall draw up schemes on determination of the value of the companies assigned to the labor collectives.

3. The Company Trade Union Executive Committees or the persons elected by the employees' congresses as representatives shall make the lists of and classify laborers and compile relevant dossiers on laborers; draw up production-business schemes and commit to receive the companies.

4. The representatives of labor collectives shall send dossiers of application for acceptance of the company assignment to the Enterprise Renewal and Development Board. Such a dossier shall include:

a) The application for acceptance of the company assignment;

b) The production and business scheme;

c) The scheme on employment, retraining of laborers;

d) The projected form of organization of the new enterprise;

e) The commitment of the labor collective in the company.

5. The competent authorities shall approve the dossiers of application for acceptance of companies and issue decisions to assign companies to labor collectives; such decisions shall be sent to the offices of Enterprise Finance, Tax, Business Registration, Planning and Investment; Labor, War Invalids And Social Affairs, the provincial/municipal Statistical Departments of the localities where the companies are headquartered; the Steering Committee for Enterprise Renewal and Development.

6. To organize the signing of contracts for company assignment and acceptance between representatives of the labor collectives and the persons authorized by ministers, provincial-level People's Committee presidents or the general directors of State corporations. A contract on company assignment and acceptance includes the following contents:

a) The name and address of the company to be assigned to the labor collective;

b) The full name and address of the representative of the labor collective;

c) The value of the assigned company, the mode of assignment and acceptance;

d) The commitments of the labor collective at the company;

e) The rights and obligations of the labor collective accepting the assigned company.

Enclosed with contracts are the lists of assets converted into value, the lists of laborers in the collectives assigned with the company.

7. The Enterprise Renewal and Development Boards shall join the company directors in organizing the company handover under the approved schemes to the labor collectives represented by Trade Union presidents or by the persons elected by the employees' congresses as representatives to receive and manage the companies, to the witness of the representatives of the authorities having decided on the company assignment and the enterprise finance offices.

8. The labor collectives' representatives shall organize shareholders' congresses, members' congresses or cooperative members' congresses, make the business registration in form of joint-stock company, limited liability company or cooperative according to the provisions of law on business registration. The dossier of business registration must cover the decision on company assignment, the handover and reception contracts and written records on handover of companies to labor collectives.

9. The enterprises' representatives shall publicly announce on mass media according to law provisions on company assignment and change of legal forms of companies within 30 days as from the date of being granted business registration certificates.

Article 13. Ownership over enterprises after the assignment

Ownership over enterprises after the assignment

1. The entire assets of companies, calculated in value, after the assignment, shall belong to the ownership of the labor collectives and divided into shares or contributed capital portions to be assigned to laborers participating in the acceptance of companies, who are on the payroll and pay social insurance premiums at the companies at the time of company assignment.

2. Each laborer in the companies participating in acceptance of companies may be given the right to own a part of the enterprise value in shares or contributed capital portions corresponding to the number of years working in the state sector, enjoy dividends, be entitled to bequeath but must not transfer the assigned shares within three years after the assignment of companies.

Article 14. Rights and obligations of company assignees

Rights and obligations of company assignees

1.To make business registration in the legal form of ''joint-stock company," "limited liability company'' or ''cooperative.''

2. To take initiative in using the entire assigned assets, to organize production and business, to distribute incomes according to the organization and operation charter of the companies.

3. To inherit the rights of state companies as agreed upon in the contracts on company assignment and acceptance; inherit the contracts on land rent, power and water supply of the former companies according to law provisions. The companies are entitled to opt for perpetuating or form of land rent or land assignment of the previous state companies. The companies' land use rights after the assignment shall comply with the land law.

4. To be provided with assistance for organization of retraining in order to employ laborers from the Enterprise Reorganization Support Fund at the Ministry of Finance.

5. To have the responsibility to employ all the laborers as committed in the contracts for company assignment and acceptance, ensuring jobs for at least three years for laborers, excluding those who voluntarily terminate their labor contracts. After that duration, if due to the requirements of reorganization of production and business or technological changes, which make labors lose their jobs, the policies towards such laborers shall comply with the current regulations of the Government.

6. To fulfill the commitments in the contracts on company assignment and acceptance and the obligations towards the State according to the provisions of law.

Chapter III

SALE OF STATE COMPANIES

Article 15. Notices on decisions approving the sale and registration for purchase of companies, sections of companies

Notices on decisions approving the sale and registration for purchase of companies, sections of companies

The agencies which decide on sale of companies or sections of companies must publicize on the mass media and notify the companies or sections of companies of the selling decisions and organize the registration of purchasers of companies or sections of companies by mode of bidding or auction within 45 days. Past the 45 day-time limit, if there is only one registrant for the purchase, it shall be extended for 15 more days; if there is still only one registrant for the purchase, the companies or sections of companies shall be sold by direct mode.

The company directors shall notify them to the entire laborers in the companies, organize the registration of purchasers of the companies or sections of companies and send the lists thereof to the Enterprise Renewal and Development Boards of ministries, provincial-level People's Committees or State corporations.

Article 16. Organization of the sale of companies, sections of companies by bidding mode

Organization of the sale of companies, sections of companies by bidding mode

1. In cases where companies, sections of companies are sold together with employment of laborers and there are two or more registrants for purchase, the companies or sections of companies must be sold by mode of bidding.

2. Persons who decide on sale of companies, sections of companies shall set up the bidding councils, each comprising a representative of the agency deciding to sell the company, a representative of the finance agency of the same level, a representative of the corporation (if any), a representative of the company to be sold or the company having sections to be sold.

The bidding councils have the responsibility:

a) To promulgate the regulations on bidding and mode of marking bids;

b) To notify the purchase registrants to submit their applications for bidding participation, the minimum price level, the deposit amount, the deadline for submission of dossiers; publicize on the mass media and post up at the head-offices of the companies the bidding;

c) To organize and administer the bidding session;

d) To report to the agencies which decide to sell the companies, sections of companies on the bidding situation and results.

3. The purchasers shall file their applications for purchase of companies, sections of companies, made according to a form set by the bidding council and pay the deposits.

The bidding councils shall receive the applications, deposits and make lists of bidding participants and grant certificates to bidding participants.

4. The bidding participants may go to companies to study accounting books, asset lists and survey the actual situation of the companies, sections of companies; may be supplied by the Bidding Council with information on the bidding regulation, the principles for bid marking.

5. Within the registration time limit provided in Article 15 of this Decree, the purchase registrants must send their dossiers of application for bidding participation to the Bidding Council.

Such a dossier shall include:

a) The application for purchase of the company or section of the company (made according to a set form);

b) The scheme on employment of laborers working in the company or section of the company;

c) The projected type of new enterprise;

d) The price offered for purchase of the company or section of the company.

The bid dossiers must be put in sealed envelops.

6. Within 15 days as from the date of expiry of the time limit for dossier reception, the Bidding Councils send notices on bidding time and venue to every bidder. The Bidding Councils shall publicly post up the lists of bidders at the bidding venue for 5 days before the opening of bids.

7. Bids shall be opened within one day and as follows:

a) The Bidding Councils check the seals, publicly open the envelops of bidders one by one and announce the scheme on labor employment and the bid price offered by every bidder for recording in the minutes; announce the scheme on largest employment of laborers and the highest bid price offered by each bidder;

b) The presidents of the Bidding Councils and bidders shall sign the minutes on bid opening.

8. Bid consideration

a) The Bidding Councils shall consider, examine, analyze, evaluate and rank bid dossiers or hire functional counseling organizations to perform these jobs; base on the highest bid prices in combination with the labor employment schemes, the purchasing mode of debt inheritance or non-inheritance to select bid winners;

b) The Bidding Councils shall make records on bidding and send them to the Enterprise Renewal and Development Boards and the persons deciding on sale of companies or sections of companies.

Article 17. Sale of companies, sections of companies by mode of auction

Sale of companies, sections of companies by mode of auction

In cases where companies have completely settled the number of laborers or have their schemes on full labor employment approved under the provisions of law on labor and policies towards laborers redundant due to reorganization of state companies, if there are two purchase registrants or more, the companies or company sections must be sold by mode of auction under the Regulation on auction of state companies, promulgated by the Prime Minister.

Article 18. Sale of companies, sections of companies by direct mode

Sale of companies, sections of companies by direct mode

1. The mode of direct sale of companies or company sections shall apply only when there is only one purchase registrant.

2. Registrants for purchase of companies, sections of companies shall send their dossiers to directors or the Enterprise Renewal and Development Boards; the contents of the dossiers shall be the same as those stipulated for cases of selling companies, sections of companies by mode of bidding.

3. Registrants for purchase of companies, sections of companies may go to companies, sections of companies to study the accounting books, asset inventories and survey the actual situation of the companies, sections of the companies.

4. The Enterprise Renewal and Development Boards shall, together with company directors, exchange directly with the purchasers' representatives their opinions on contents of the trading contracts. The sale prices of companies with their total asset value of VND 30 billion or more as inscribed in the accounting books shall be determined in accordance with the provisions of Clause 5, Article 23 of this Decree and serve as a basis for negotiation with purchasers.

The Enterprise Renewal and Development Boards shall send dossiers and minutes to the persons who decide to sell the companies or sections of the companies.

Article 19. Responsibilities of the companies subject to complete sale or sectional sale

Responsibilities of the companies subject to complete sale or sectional sale

1. To inventory, determine the quantity of assets currently available in the companies or sections of the companies, including fixed assets and long-term investments, working assets and short-term investments, rented assets, leased assets, assets kept for others, consigned or appropriated; evaluate the actual conditions of such assets and recover receivable debts.

2. To classify assets currently available in the companies, sections of the companies into the following:

a) Assets, which can be further used;

b) Assets, which cannot be further used;

c) Assets formed from reward funds, welfare funds.

3. To compare and classify debts; make the lists of creditors and payable debts as well as receivable debts, to be further divided into recoverable debts and unrecoverable debts.

4. To make the financial statement of the quarter next to the time of selling the companies or sections of companies; draw up schemes on handling of assets, finance, debts on the principles defined in Articles 20 and 21 of this Decree.

5. To make the lists of, classify, and elaborate plans on rearrangement of, the existing number of laborers in the companies, sections of companies at the time of deciding to sell them:

a) The number of laborers subject to the implementation of social insurance policy;

b) The number of laborers enjoying the social insurance regimes on ailment, pregnancy and maternity, labor accidents and occupational diseases;

c) The number of laborers subject to temporary postponement of performance of labor contracts;

d) The number of laborers terminating labor contracts;

e) The number of laborers with labor contracts being still valid, who shall move to work in the post-sale companies;

f) The number of laborers awaiting jobs due to unavailability of jobs arranged for them.

6. To handle assets, finance, debts and labor under the plans approved by competent authorities and the contracts on sale and purchase of companies or sections of companies.

7. To hand over assets, books and relevant dossiers to company purchasers under the agreement inscribed in the trading contracts.

Article 20. Principles for asset and finance handling upon sale of companies, sections of companies

Principles for asset and finance handling upon sale of companies, sections of companies

1. Assets no longer needed for use, in stock, awaiting liquidation: Companies shall liquidate, sell or report them to competent agencies for transfer to other companies. By the time of valuating the enterprises, if these assets are yet handled, they shall be excluded from the value of the enterprises. In the course of sale, the companies shall continue handling these assets; if by the time of deciding to announce the enterprise value, they are still not handled yet, they shall be transferred to the companies trading in debts and unsold assets of enterprises.

2. Assets contributed as joint-venture capital or received as joint-venture capital; assets rented from outside, financially leased; assets borrowed or kept for others and other assets not owned by the companies: The asset sellers, purchasers and owners shall reach agreement on inheritance or liquidation of previously signed contracts or sign new contracts; appropriated assets shall be decided by authorities deciding on sale of enterprises.

3. For assets belonging to welfare facilities: crèches, kindergartens, infirmaries and other welfare assets formed from reward funds or welfare funds, they shall be transferred to new companies for management and use in service of labor collectives in the companies. Where purchasers only commit to employ less than 50% of the existing number of laborers of the companies or sections of the companies, the agencies which decide on the sale of the companies or sections of the companies may re-sell them to the company purchasers, or other organizations, individuals for division to the existing number of laborers in the companies, sections of companies.

Particularly for dwelling houses of officials and employees, including those invested with state budget allocations, they shall be transferred to local house and land management offices for management or sale to current users under the current regulations.

4. Assets invested with reward funds and/or welfare funds of the companies and continued to be used by purchasers in production and business activities shall be calculated into the value of the companies or sections of companies.

5. The pecuniary credit balance of the reward funds, welfare funds shall be divided to working laborers according to the actual number of years working in the pre-sale companies.

6. The expenses for unfinished construction of works postponed before the time of valuating the companies or sections of companies shall be settled under the agreement between the purchasers and the sellers in accordance with the interests of each party.

7. Reserves, undistributed losses or profits:

a) Reserves for: inventory price decrease, receivable bad debts, security price decrease, exchange rate differences shall be accounted into business results of the companies;

b) Reserves for job loss allowances: To be used by the companies to support redundant laborers in the course of selling the companies or sections of companies; the remainder, if any, shall be accounted into business results of the companies;

c) The risk reserve funds, operation reserve funds of the system of banks, insurance, financial institutions shall be transferred to the to be-sold companies for continued management;

d) The financial reserve fund shall be used to offset losses (if any), make up for lost assets, unrecoverable debts; the remainders shall be calculated into the value of the state capital portions at the companies;

e) The undistributed profits shall be used to offset the preceding year's losses (if any), to make up for lost assets, unrecoverable debts; the remainders shall be distributed according to current regulations before valuating the to be-sold enterprises;

f) The loss amounts by the time the sold companies shift to other forms of company shall be offset by the companies with the financial reserve funds and pre-tax profits up to the time of sale. In case of deficit, the measures of writing off the state budget debts and bank debts shall be applied under the State's current regulations on handling of outstanding debts.

If after applying the above-mentioned measures, the companies still suffer from losses, the losses shall be deducted from state capital.

Article 21. Principles for handling of debts of companies, sections of companies

Principles for handling of debts of companies, sections of companies

1. To be-sold companies or sections shall have to compare, certify and recover recoverable due debts before the sale; mobilize sources for payment of due debts or negotiate with creditors on handling thereof before the sale.

2. By the time of deciding to announce the enterprises' value, the selling companies shall have to hand over unrecoverable debts already excluded from their value (together with relevant dossiers and documents) to the company which trade in outstanding debts and assets of enterprises for handling according to law. For amounts pre-paid to goods and/or service providers such as house rents, land rents, goods purchase money, remunerations, they shall compare and calculate them into the companies' value.

3. For the remaining receivable debts and payable debts, depending on the conditions of trading with inheritance or non-inheritance of debts, they shall be handled according to the following principles:

a) Where the purchasers commit to inherit the debts, they shall have to pay the payable debts and recover the receivable debts under commitments; the commitments to inherit receivable and payable debts must be recorded in contracts on sale and purchase of companies or sections of companies and notified to the concerned parties;

b) Where the purchasers do not commit to inherit the debts, the to be-sold companies shall have to handle those debts according to the State's current regulations on handling of outstanding debts.

Article 22. Principles for handling laborers and managerial officials

Principles for handling laborers and managerial officials

1. Purchasers of companies or sections of companies shall have to receive laborers according to the labor employment schemes as committed upon the purchase of the companies. For laborers who voluntarily terminate their labor contracts, the current regimes shall apply.

2. The regimes towards laborers shall be as follows:

a) For laborers entitled to social insurance regimes, the directors of the companies or sections of companies and the social insurance agencies where the companies pay the social insurance premiums shall settle the interests for the laborers according to the current regimes;

b) For cases of terminating labor contracts, the laborers shall enjoy the regimes and policies under the legislation on labor and the policies toward redundant labor due to reorganization of state companies;

c) For laborers continuing to work in the new companies or new company sections, the directors shall have to carry out the procedures so that the social insurance agencies shall grant insurance books according to regulations and transfer the lists and dossiers of the laborers currently managed by the companies or company sections to the new enterprises.

3. For debts of social insurance premiums owed by companies and laborers, which were already collected by the companies, before the sale of companies, they shall be subtracted from the value of the state capital at the companies for payment of such debts. Where the state capital is reduced to none, the debt repayment shall be supported by the Enterprise Reorganization Support Fund at the Ministry of Finance.

4. Directors, deputy-directors and chief accountants of the companies shall be considered by the authorities that decide on the sale of companies, sections of companies on a case-by-case basis for job arrangement or settlement or entitlement to the job severance regime.

Managers showing irresponsibility which leads to business losses or state capital losses must not hold managerial positions at other state companies or state agencies.

5. After the issuance of decisions on sale of companies, sections of companies, if due to business reorganization or technological renewal, laborers in the sold companies or sections of companies lose their jobs or are subject to job severance, including voluntary severance, the cases shall be settled as follows:

Where the laborers lose or severe their jobs within 5 years as from the time of granting the business registration certificates, the new companies shall have to pay 50% of the total allowance level under the provisions of the Labor Code; the rest shall be covered by the State's proceeds from the sale of companies under the principles provided in Article 6 of this Decree. Beyond that time limit, the new companies shall have to fully pay the allowances to the laborers.

Article 23. Principles for determination of sale prices of companies, sections of companies

Principles for determination of sale prices of companies, sections of companies

1. General bases for determination of the minimum sale prices of companies, sections of companies:

a) Figures in the accounting books of the companies at the time of sale;

b) The current quality, technical properties, debt situation, business efficiency of the companies and the market prices of assets at the time of sale;

c) The use right value of the land being managed by the companies or sections of companies;

d) Sale with or without debt inheritance.

2. Principles for determination of land use right value upon sale of companies, sections of companies:

a) For land areas being used by companies or sections of companies as grounds for construction of working offices, transaction offices; construction of production and business establishments; land used for agricultural production, forestry, aquaculture, salt making (including land assigned by the State with or without the collection of land use levies), the companies may select the form of land rent or land assignment under the provisions of the Land Law:

- Where purchasers select the form of land rent, the land use right value shall not be accounted into the value of companies or sections of companies.

- Where purchasers select the form of land assignment, the land use right value must be accounted into the value of companies or sections of companies. The land use right value calculated into the value of companies or sections of companies shall be determined at the prices set by provincial/municipal People's Committees, which are close to the actual market prices of land use right transfer and announced on January 1 every year under the Prime Minister's regulations. The order and procedures for land assignment, land use levy payment and land use right certificate granting shall comply with the provisions of the current land law.

b) For land areas assigned by the State to companies, sections of companies for construction of houses for sale or lease; construction of infrastructure for transfer or lease, the land use right value must be calculated into the value of companies or sections of companies. The calculation of the land use right value into the value of companies, sections of companies shall comply with the provisions of Point a, Clause 2 of this Article.

3. The sale prices of companies, sections of companies, which are determined on the basis of the actual value of companies or sections of companies at the time of sale and acceptable to purchasers and sellers, shall depend on:

a) The conditions of trading with or without inheritance of debts; with or without calculation of land use right value;

b) The selling mode: auction, bidding or direct sale;

c) The mode of payment: in lump sum or installments;

d) The price discount for purchasers who commit to invest in maintaining production and business, ensuring jobs for laborers.

For purchasers inheriting rights and obligations of companies, sections of companies, the actual sale prices of companies shall be the actual value of the state capital portions at the companies at the time of sale, including the land use right value mentioned in Clause 2 of this Article and acceptable to purchasers and sellers.

For enterprise purchasers not inheriting the rights and obligations of companies, sections of companies, the actual sale prices of companies shall be the actual value of the entire assets currently available in the companies at the time of sale, including the land use right value mentioned in Clause 2 of this Article, which the purchasers wish to use, acceptable to the purchasers and the sellers.

4. When determining the actual value of companies, sections of companies with the total asset value of under VND 30 billion as inscribed in the accounting books, it is not necessary to hire the valuating organizations; the companies shall themselves determine their value and report it to the competent agencies for decision. For those companies, which fail to strictly observe the legal provisions on accounting and statistics, the agencies deciding on the sale prices of companies shall consider and hire independent auditing organizations for determination thereof. The audit hiring expenses shall be calculated into expenses for sale of companies, sections of companies.

5. For companies with the total asset value of VND 30 billion or more according to the accounting books, the valuation of company shall be conducted by organizations with function to valuate equitized enterprises, to be selected by the agencies deciding on the sale of companies or sections of companies from the list of valuating organizations, announced by the Ministry of Finance. In cases of selecting foreign valuating organizations, which have not yet operated in Vietnam, the agreement of the Ministry of Finance is required. For companies, which cannot be equitized and shall be sold, they may inherit the valuation results in the course of equitization.

The valuating organizations, when valuating the companies, must comply with the current legal provisions and complete the jobs on schedule under the signed contracts; must bear responsibility for the accuracy and legality of the valuation results.

The agencies competent to decide on the company value shall have to make verification before deciding on and announcing the sale prices of companies.

Article 24. Approving schemes on sale, sale prices, conclusion of contracts and issuing decisions on sale of companies, sections of companies

Approving schemes on sale, sale prices, conclusion of contracts and issuing decisions on sale of companies, sections of companies

At the proposal of the Enterprise Renewal and Development Boards, ministers, provincial-level People's Committee presidents and Managing Boards of state corporations shall perform the following jobs:

1. Approving the schemes on sale of companies or sections of companies and issuing decisions thereon. Such a decision shall include the following contents:

a) The name and address of the to be-sold company or company section;

b) The name and address of the purchaser;

c) The sale price, selling mode; the payment mode and deadline;

d) The time limit for conclusion of contract and hand over of company or company section;

e) Responsibilities of the company, the Enterprise Renewal and Development Board and relevant agencies in handling the existing and arising problems.

The decisions on sale and termination of operation of state companies, company sections shall be addressed to the offices of Enterprise Finance, Tax, Business Registration, Planning and Investment, and the Steering Committee for Enterprise Renewal and Development.

2. Organizing the signing of contracts with purchasers of companies or sections of companies. Such a contract shall cover the following principal contents:

a) The name and address of the to be-sold company or company section; its account number;

b) The name and address of the purchaser of the company, company section; account number (if any);

c) The sale price of the company or company section;

d) Commitments of the purchaser and the seller of the company or company section;

e) The mode of transferring assets, mode of payment for purchase of enterprise, the time limit for hand over of the company or company section;

f) The handling of arising problems or contractual disputes.

Enclosed with contracts are asset inventories, assessment of the asset conditions agreed upon by the purchasers and the sellers.

Article 25. Payment of deposits and handover of companies, company sections

Payment of deposits and handover of companies, company sections

1. In case of selling companies or company sections by mode of bidding or auction, within 10 days as from the date of signing the sale decisions, the Bidding Council or the Auction Council must pay the deposits to the bidding or auction participants who fail. The bidding or auction participants are not entitled to receive back their deposits in the following cases: winning but refusing to perform the contracts; withdrawing their bids after bidding closure. The bid winners' deposits shall be subtracted from their payments for purchase of companies, company sections.

2. Within the time limits agreed upon in the contracts, the Enterprise Renewal and Development Boards must organize the handover of enterprises to purchasers.

In case of handing over the assets of the companies or company sections with the actual quantity and conditions varying with those inscribed in the trading contracts, the purchasers may request the adjustment of the signed contracts in compatibility with the actual quantity and conditions of assets of the companies or company sections.

Article 26. Payment for purchase of companies, company sections

Payment for purchase of companies, company sections

Company or company section purchasers shall make payments within the time limits provided in the trading contracts, which, however, must not exceed two years as from the time of deciding on the sale of companies or company sections, of which the first payment must not be lower than 70% of the sale price.

Article 27. Business registration for companies, company sections after the sale

Business registration for companies, company sections after the sale

Where companies, company sections, after the sale, are transformed into new enterprises or dependent units, branches or representative offices of other enterprises, the purchasers must make business registration for the new enterprises at the business registries of the localities where the companies or company sections are headquartered or register to be dependent units, branches or representative offices of other enterprises according to the provisions of law.

The business registration dossiers must be enclosed with decisions on the sale of companies or company sections.

Article 28. Rights and obligations of company or company section purchasers

Rights and obligations of company or company section purchasers

1. To take initiative in using the purchased assets, select production and business lines, reorganize production, make new investments, change managerial apparatuses, decide on types of enterprises and continue renting the land according to the provisions of law.

2. In case of continuing to invest in development of production and business of companies or company sections, purchasers are entitled to inherit the interests of the companies as agreed upon in the contracts for sale and purchase of companies, company sections as well as signed economic contracts.

3. To make payments for company, company section purchase according to the time limits and conditions inscribed in the contracts for sale and purchase of companies, company sections; to strictly comply with the conditions and commitments to sellers of companies, company sections and provisions of law.

Article 29. Rights and obligations of foreign investors purchasing state companies

Rights and obligations of foreign investors purchasing state companies

The rights and obligations of foreign investors, foreign-invested enterprises, that purchase state companies, shall depend on the forms of enterprises transformed after the purchase under legal provisions of Vietnam and the Prime Minister's decision.

Article 30. Inspection and monitoring of realization of contractual commitments

Inspection and monitoring of realization of contractual commitments

The company, company section sale deciders shall have to monitor and inspect the realization of commitments made in the contracts for purchase and sale of companies, company sections; handle or propose competent state agencies to handle according to provisions of law cases of breaching the contractual commitments by purchasers.

Chapter IV

BUSINESS CONTRACTING AND LEASE OF COMPANIES

SECTION I. BUSINESS CONTRACTING

Article 31. Business contracting contents, targets and conditions

Business contracting contents, targets and conditions

Based on the characteristics of each branch and business results of companies, the business contracting deciders shall specify business-contracting contents, targets and conditions but must take into account the following requirements:

1. Preserving the state capital.

2. Ensuring jobs and fully paying insurance premiums for laborers. 3. Increasing profits or reducing losses of the companies.

4. Implementing the State's policies and the signed contracts.

Article 32. Bidding for or organizing the acceptance of business contracting by mode of direct negotiations

Bidding for or organizing the acceptance of business contracting by mode of direct negotiations

1. The agencies that decide to contract companies must publicly announce on the mass media and notify the companies of the decisions to permit the contracting and organize the registration of applicants for contracting within 45 days. If past the 45-day time limit there is only one registrant, the registration time limit must be prolonged for 15 days.

The company directors shall announce to the entire laborers in the companies, organize the registration for company contracting and send the lists of registrants to the Enterprise Renewal and Development Boards of ministries, provincial-level People's Committees or state corporations.

2. In cases where there is only one registrant for company contracting, direct negotiations on contracting contents, targets and conditions shall be organized. The business-contracting contents and conditions, the specific rights and obligations of the contracting parties; the contractual contents must be negotiated and agreed upon between the business contracted persons and the business contractors.

3. In cases where there are two or more registrants, bidding must be organized. The company contracting deciders shall set up the Bidding Councils which shall notify the registrants for business contracting the time limit for submission of bid dossiers, the minimum price level, the deposit amount and announce on the mass media and post up at the companies' headquarters the bidding for company contracting.

4. The contracting registrants file their dossiers of tender for company contracting and pay deposits to the Bidding Councils.

The Bidding Councils receive the dossiers and deposits, make lists of bidders and issue certification of participation in bidding.

Bidders may go to the companies to study the accounting books, lists of assets and survey the actual situation of the companies; shall be supplied by the Bidding Councils with information on bidding regulations and bid-marking principles.

5. Within the time limits defined in Clause 1 of this Article, the company contracting registrants must send the dossiers of application for participation in the bidding to the Bidding Councils.

Such a dossier shall include:

a) The application for business contracting, clearly stating the full name, address, the number of people's identity card, the serial number of bank account (if any), the business registration certificate of the business-contracted person;

b) The business contracting contents, mode, targets, conditions and time limit;

c) The scheme on employment of laborers currently working in the company;

d) The proposed contracting level;

e) The report on financial capability of the business-contracted person.

6. Within 15 days after the expiry of the time limit for reception of dossiers, the Bidding Councils shall send the notices on the bidding time and venue to every bidder and publicly post up the list of bidders at the bidding venue for 5 days before bid opening.

7. Bids shall be opened within one day as follows:

a) The Bidding Councils shall check the seals and publicly open the envelops of each bidder and publicize the scheme on labor employment, bid price offered by each bidder for inscription in the records; publicize the scheme on the most labor employment and the highest bid price of each bidder;

b) The presidents of the Bidding Councils and bidders shall sign the records on bid opening.

8. Bid consideration:

a) The Bidding Councils shall examine, analyze, assess and rank bid dossiers or hire counseling organizations with such function to perform the job; base themselves on the highest bid price in combination with the labor employment scheme to select bid winners;

b) The Bidding Councils shall make records on bid consideration and send them to the Enterprise Renewal and Development Boards and the company contracting deciders.

Article 33. Business contracting contracts

Business contracting contracts

A business contracting contract shall cover the following principal contents:

1. Names and addresses of the state company subject to business contracting and the business-contracted person.

2. The contracting contents, mode, targets, conditions and duration.

3. The rights and responsibilities of the parties in the course of contracting; the contracting duration shall be agreed upon by the two parties but must not be less than 3 years; the termination of contracts ahead of time.

4. The handling of contractual breaches, changes affecting the interests and obligations of the contracting and contracted parties; commendation, reward and penalties in the course of contracting.

5. Other contents related to business contracting.

Article 34. Rights and obligations of business-contracted persons

Rights and obligations of business-contracted persons

1. To manage and use the capital and assets and receive laborers of the companies under the provisions of the contracts on business contracting in accordance with legal provisions; to inherit rights and obligations of the companies.

2. To decide on business organization, mode of salary and bonus payment in the companies.

3. To enjoy and decide by themselves the distribution of incomes in excess of the contracting level. For profits in excess of the contracting levels, after offsetting the previous years' losses under the provisions of the Enterprise Income Tax Law, paying the enterprise income tax, making up for the profits in deficit of the business contracting targets of the previous years and deducting for reserve funds, the business-contracted persons may take initiative in using the remainder.

4. To have their incomes reduced if failing to achieve the contracting targets and requirements inscribed in the contracting contracts; in case of business losses entailing the loss of state capital or contractual breaches leading to losses, to pay compensations therefor.

5. To have assets mortgaged, pledged, deposited as security collateral, escrow account or to be guaranteed for performance of contracts.

Article 35. Rights and obligations of business contracting deciders

Rights and obligations of business contracting deciders

1. To inspect and monitor the realization of commitments in the contracts for business contracting, handle cases of breaching the commitments inscribed in the contracts.

2. Not to intervene in the administration by the business-contracted persons; to create favorable conditions for them to fulfill their commitments inscribed in the contracts for business contracting.

SECTION II. LEASE OF COMPANIES

Article 36. Forms of leasing companies, notifying decisions on lease of companies and registration for lease of companies

Forms of leasing companies, notifying decisions on lease of companies and registration for lease of companies

1. The lessees may opt to lease companies in the following forms:

a) Lease of assets of companies: Leasing assets constituting the production and business establishments of the companies, which is accompanied with the hiring of laborers of the companies, but not inheriting the rights and obligations of the leased companies;

b) Lease of operational companies: Leasing assets constituting the production and business establishments of the companies, which is accompanied with the hiring of laborers of the companies while inheriting debts, economic contracts and other rights and obligations of the companies under the agreements of the concerned parties.

2. The agencies deciding on the lease of companies must publicly announce on the mass media and notify the companies of the decisions on lease and organize the registration of lease applicants within 45 days. If past the 45-day time limit, there is only one registrant, such time limit must be prolonged for 15 days; if there is still only one registrant after the prolongation, the companies shall be leased by mode of direct lease.

The company directors shall notify such to the laborers in the companies, organize the registration for lease of companies and send the lists of registrants to the Enterprise Renewal and Development Boards of ministries, provincial-level People's Committees or state corporations.

Article 37. Leasing companies by mode of bidding

Leasing companies by mode of bidding

1. In cases where there are two or more registrants for lease, a bidding must be held.

2. The company lease deciders shall set up the Bidding Councils which shall notify the lease registrants of the time limit for bid submission, the minimum price level, the deposit amount, publicly announce on the mass media and post up at the companies' head-quarters the bidding for company lease.

3. The lease registrants shall submit their bids for company lease and deposit money to the Bidding Councils.

The Bidding Councils shall receive bid dossiers, deposit money, make lists of bidders and issue certification of participation in the bidding.

4. The bidders may go to the companies to study the accounting books, lists of assets and survey the actual situation of the companies; be supplied by the Bidding Councils with information on bidding regulations and bid-marking principles.

5. Within the registration time limit specified in Clause 2, Article 36 of this Decree, as from the date of notifying the registration for participation in bidding, the company lease registrants must send bid dossiers to the Bidding Councils.

Such a dossier comprises:

a) The lease application clearly stating the full name, address, serial number of people's identity card, the number of bank account (if any) and the business registration certificate of the lessee;

b) The leasing form and duration;

c) The scheme on employment of laborers working in the company;

d) The proposed company leasing price;

e) The report on financial capability of the lessee.

6. Within 15 days after the expiry of the time limit for reception of dossiers, the Bidding Councils shall send notices on the bidding time and venue to every bidder and publicly post up lists of bidders at the bidding venue for 5 days before bid opening.

7. The bid opening shall be conducted within one day as follows:

a) The Bidding Councils shall check the seals and publicly open the envelope of each bidder and announce the labor employment scheme, bid offer of each person for inscription in the records; announce the highest labor employment scheme and the highest bid price of each bidder;

b) The presidents of the Bidding Councils and bidders sign the records on bid opening.

8. Bid consideration:

a) The Bidding Councils shall consider, analyze, assess and rank bid dossiers or hire counseling organizations with such function to perform the job; base themselves on the highest bid prices and the labor employment schemes to select bid winners;

b) The Bidding Councils shall make records on bid consideration and send them to the Enterprise Renewal and Development Board and the company lease deciders.

Article 38. Leasing companies by direct mode

Leasing companies by direct mode

1.The leasing of companies by direct mode shall be conducted when there is only one registrant for lease.

2. The lease registrants may go to the companies to study the accounting books, asset inventories and survey the actual conditions of the companies' assets.

3. The lease registrants shall file their dossiers of application for company lease to the Enterprise Renewal and Development Board. The dossier contents shall be the same as for the case of leasing companies by mode of bidding.

4. The Enterprise Renewal and Development Board shall, together with the company directors, have the tasks:

a) To draw up schemes on company lease, including scheme on rearrangement of laborers of the companies;

b) To set the starting, leasing price for use as basis for negotiation and agreement with the lessees;

c) To directly discuss with the lessees on labor employment schemes, leasing prices, leasing duration and terms of the company lease contracts;

d) To negotiate with the lessees on the leasing prices and the company lease contracts;

e) To submit dossiers, records and draft contracts to lease deciders.

Article 39. Responsibilities of leased state companies

Responsibilities of leased state companies

1. To inventory and classify all the assets existing in the companies, the rented assets, the leased assets, the borrowed assets, the kept-for-other or appropriated assets; to assess their actual conditions.

2. To compare and determine assorted debts, make lists of creditors and payable debts, lists of debtors and receivable debts, dividing them into recoverable debts and irrecoverable debts; the companies are obliged to handle the finance according to the financial regulation promulgated by the Government before deciding to lease the companies.

3. To make financial statement of the quarter next to the time of deciding on company lease.

4. To make lists of laborers of the companies and relevant dossiers of the laborers.

5. To hand over the assets, laborers, dossiers, and relevant books to the lessees under the agreement inscribed in the company lease contracts.

6. To manage books, documents and dossiers on assets and laborers of the companies in the leasing duration.

7. To fulfill obligations towards the State, to observe policies and regimes towards laborers according to legal provisions and company lease contracts.

8. To propose the lease deciders to terminate the leasing contracts ahead of time (if the lessees breach the contracts).

Article 40. Principles for handling of assets, finance of the companies upon the lease thereof

Principles for handling of assets, finance of the companies upon the lease thereof

The assets, finance and debts shall be handled upon the lease of companies as follows:

1. The existing assets of the companies shall be inventoried to determine their quantity and actual conditions, including fixed assets and long-term investments; working assets and short-term investments; ass8ets rented, borrowed, leased, kept for others, sold for others, consigned for sale, appropriated.

Assets rented, borrowed, kept for others, accepted for processing, consigned, appropriated shall be inventoried and classified separately.

2. The assets existing in the companies shall be classified and handled as follows:

a) The leased assets shall be classified and assessed in terms of their actual value, quality, technical properties and determined in term of practical value.

The practical value of leased assets shall be determined on the basis of accounting books of the companies at the time of lease, the lessees' use demands and the market prices at the time of lease.

The practical value of assets at the time of lease shall be used as basis for determining the company rentals;

b) The assets not on the list of leased assets must be handled before the lease in form of transfer, liquidation, sale or hired preservation pending the handling;

c) The working assets shall be agreed upon by the lessors and the lessees;

d) Assets formed from reward funds, welfare funds shall be transferred to labor collectives and managed by the companies' Trade Unions in cooperation with the employers. For the balances (if any) of reward and welfare funds, the directors and Trade Union Executive Committees in the companies shall have to draw up the schemes on handling byway of dividing them to laborers before signing contracts on handover of companies.

3. The companies shall have to settle the receivable and payable debts. If the lessees do not inherit the receivable and payable debts, the companies' remaining management sections tasked by the lease deciders to monitor the leasing contracts shall have to continue recovering the receivable debts and paying the payable debts.

4. In case of renting operational of companies: The lessors shall join the lessees in discussing with the relevant parties to reach agreement on inheritance of interests and obligations of the legal persons being the leased companies.

Article 41. Labor settlement upon company lease

Labor settlement upon company lease

1. The leased companies shall make lists of the existing number of laborers at the time of deciding on the lease, classify laborers and compile dossiers related to laborers:

a) The number of laborers subject to the implementation of social insurance policy;

b) The number of laborers enjoying social insurance for illness, pregnancy and maternity, labor accidents and occupational diseases;

c) The number of laborers for whom the performance of labor contracts is postponed;

d) The number of laborers for whom the labor contracts are terminated;

e) The number of laborers with labor contracts being still valid, who will continue working in the leased companies;

f) The number of laborers awaiting jobs due to unavailability of jobs arranged for them.

2. If the company lease is accompanied with the hiring of labor, the company lessees shall have to admit, arrange jobs for, and ensure interests of, laborers under leasing contracts not contrary to the provisions of labor law.

The company directors shall have to carry out procedures so that the social insurance agencies shall grant insurance books according to regulations and transfer the lists and dossiers of laborers being managed by the companies to the new enterprises.

3. For laborers entitled to social insurance regimes, the company directors and the social insurance agencies where the companies pay the insurance premiums shall settle interests for laborers according to the provisions of the Social Insurance Regulation.

4. For cases of terminating labor contracts, the company directors shall settle regimes and policies for laborers according to provisions of labor law and the policies towards laborers redundant due to reorganization of state enterprises.

5. In cases where companies are leased but the lessees refuse to employ all the existing laborers, the lease deciders and the leased companies shall have to arrange jobs for them or apply policies towards the remaining laborers.

Article 42. Principle for determining the company-leasing prices

Principle for determining the company-leasing prices

1. Company-leasing prices shall be determined on the basis of: leasing form, minimum leasing prices set by lease deciders, the real value of the company, the direct negotiation on rentals between the lessors and the lessees (in case of direct lease) or bid-winning prices (in case of bidding), but must not be lower than the minimum leasing prices set by the lease deciders.

2. The minimum leasing prices shall be determined on the following principles:

a) Ensuring the compensation for expenses for wear of leased assets;

b) Offsetting reasonable expenditures of the lessors in the course of organizing, managing and supervising the leased assets;

c) Calculating interests in the company-leasing prices, depending on the value and conditions of financial assets, technology, product quality, product salability; business situation and results of the companies before the lease:

- For companies doing business with profits: The interest portion in the company-leasing prices shall not be lower than the minimum profit level already attained before the lease.

- For companies doing business at a loss or without profits: when being leased, the profits shall not be calculated into the starting leasing price level.

Article 43. Decisions on lease of companies

Decisions on lease of companies

1. At the proposal of the Enterprise Renewal and Development Board, competent authorities shall issue company-leasing decisions.

2. A company-leasing decision shall comprise the following principal contents:

a) Names, addresses and account numbers of the leased company and the lessee;

b) The leasing contents, form, duration;

c) The leasing price and payment mode;

d) The tasks of the Enterprise Renewal and Development Board and the person authorized to sign the contract in the company-leasing organization;

e) Responsibilities of the leased company, the Enterprise Renewal and Development Board and relevant agencies in handling other existing and arising problems.

3. Company-leasing decisions shall be addressed to the offices of: Enterprise Finance; Tax, Business Registration, Labor, War Invalids and Social Affairs, the Statistical Departments of the localities where the companies are headquartered; and the Steering Committee for Enterprise Renewal and Development.

Article 44. Company-leasing contracts

Company-leasing contracts

The company-leasing contracts shall be signed by the lessees and the persons authorized by the lease deciders, comprising the following principal contents:

1. Names, addresses and account numbers of the leased companies and the lessees.

2. The company-leasing price and mode of paying rentals.

3. The company-leasing duration agreed upon the contractual parties but must not be less than 3 years; termination of leasing contracts ahead of time.

4. The rights and responsibilities of company lessors and lessees.

5. The handling of labor, assets, finance, the companies' rights and obligations to be inherited in case of teasing operation of companies.

6. The return or handling of companies upon the expiry of contracts.

7. Commitments of the contractual parties.

8. Principles for handling of arising problems, contractual disputes; handling of contractual breaches, changes affecting the interests and obligations of the lessees and the lessors; rewards and penalties in the leasing course.

Enclosed with leasing contracts are lists of assets owned by the companies, assessing the remaining values of such assets and the lists of laborers (in case of leasing operational companies).

Article 45. Payment of deposits and handover of companies

Payment of deposits and handover of companies

1. In case of leasing companies by mode of bidding, within 10 days as from the date of signing the company-leasing decisions, the Bidding Councils must pay the deposit money to the failing bidders. Bidders must not receive back their deposit money in the following cases: winning the bids but refusing to perform the contracts; withdrawing bid dossiers after bidding closure. The deposit money of bid winners shall be subtracted from the company rentals.

2. Within the time limit agreed in the contracts, the Enterprise Renewal and Development Board shall join the company leasing-contract signing persons and the company directors in organizing the handover of companies to the lessees.

Upon the handover, if the quantity and value of the companies' assets are at variance with the asset quantity and value inscribed in the contracts, the lessees may postpone the acceptance of the handover and request the adjustment of the signed contracts.

Article 46. Rights and obligations of company lessees

Rights and obligations of company lessees

Apart from the rights and obligations of the asset lessees, provided for in Section 5, Chapter II, Part Three of the Civil Code, the company lessees shall also have the following rights and obligations:

1. Rights of the company lessees:

a) To take initiative in managing and using the leased assets and laborers of the companies in service of business activities not contrary to the agreements in the contracts and legal provisions;

b) To change, reorganize production, make new investments, renew technologies, improve techniques, maintain, replace and repair assets damaged in the course of production and business activities. The replacement or sublease of assets must be consented by the lease deciders;

c) To decide by themselves the organization of the managerial apparatus, business, mode of payment of salaries and bonuses in the companies;

d) To enjoy interests brought about by the company lease after the fulfillment of obligations towards the State and the lessors;

e) To inherit all contracts on lease of land, ground, power and water supply of the leased state companies (if they have demands therefor).

2. Obligations of the company lessees:

a) To pay company rentals as agreed upon in the contracts;

b) To use assets for the right purposes agreed upon in the leasing contracts; not to use leased assets (excluding new investments of their own capital) for pledge or mortgage; not to sublease the land use rights;

c) To ensure that assets operate normally and in suitability with the degree of asset depreciation as agreed upon in the contracts;

d) To join the lessors in settling arising problems related to the rights and obligations under the contracts on land lease, power, water, materials and raw materials supply, product sale, labor contracts; to improve the working conditions for laborers and environmental hygiene;

e) To submit to the inspection and supervision of the use of leased assets by the lessors;

f) To perform other obligations defined in the company-leasing contracts.

3. Apart from the common rights and obligations specified in Clauses 1 and 2 of this Article, the lessees shall also have the following rights and obligations:

a) Where the company lessee is a state company, apart from the contractual rights and obligations as provided for in Clauses 1 and 2 of this Article and other legal provisions, after paying assorted taxes, such state company shall have the full right to use the profits earned from activities of the company it has leased;

b) Where the company lessees register their business under the Enterprise Law or the Cooperative Law, they may use the leased assets and labor for the business purposes under the mechanism defined for the registered types of enterprise while observing the provisions of the leasing contracts and the provisions in Clauses 1 and 2 of this Article;

c) Where the company lessees are labor collectives or individuals in the companies, they must have their own sources of capital, register the establishment of enterprises of the labor collectives or individuals and have the rights to use the leased state companies under the mechanism defined for the registered types of enterprise.

4. For company lessees who breach the contractual commitments thus causing losses to the leased companies, apart from the liabilities agreed upon in the leasing contracts, the lease deciders are entitled to terminate the contracts and compel the lessees to pay compensations for damage they have caused.

Article 47. Rights and obligations of company lease deciders and company-leasing contract signing persons

Rights and obligations of company lease deciders and company-leasing contract signing persons

1. The company lease deciders are entitled to direct the performance of company-leasing contracts; to settle proposals of the Enterprise Renewal and Development Board or the contract signing persons; to decide on company-leasing prices; to decide on recovery of leased companies at the proposals of the company-leasing contract signing persons.

2. The company-leasing contract signing persons have the following rights and obligations:

a) To organize the realization of contents and commitments in company-leasing contracts;

b) To organize the monitoring, supervision and inspection of contract performance; not to intervene in production and business activities of the companies; to create favorable conditions for the lessees to strictly comply with the commitments in company-leasing contracts;

c) To handle according to competence arising problems; to propose the handling according to provisions of law of lessees who fail to strictly comply with the contractual commitments.

Article 48. Termination of company-leasing contracts

Termination of company-leasing contracts

1. Upon the expiry of the company-leasing terms inscribed in contracts, the company lessors and lessees must inventory and determine the quantity, actual conditions and value of the remaining assets, newly and additionally invested assets, the payments between the lessors and the lessees against the contracts, determine the responsibility of each party and reach agreement on handling of the value of newly invested assets and proceed to liquidate contracts.

2. Where lessees have the demand to buy the companies which they are leasing or for which the leasing terms have expired, the two parties shall liquidate the leasing contracts and shift to mode of selling state companies; if after the expiry of the duration of the notification on sale of the companies, no other organizations or individuals register for the purchase, the current lessees shall carry out the procedures for the purchase by direct mode; if there are two or more registrants (including the current lessee) for the purchase, auction or bidding must be held under the provisions of this Decree; if the registrants get equal marks in bid evaluation, the current lessees shall be given priority to purchase the companies.

3. If upon the expiry of the leasing contracts the leased companies continue operating, they shall be obliged to receive back the former laborers. In case of operation termination due to division, separation, merger, consolidation, dissolution or bankruptcy of companies, the regimes and policies shall comply with the provisions of law.

Chapter V

PREFERENCES FOR COMPANIES AND THE COMPANY ASSIGNEES, PURCHASERS AND LESSES AS WELL AS LABORERS

Article 49. Preferences for the assigned, sold or leased companies

Preferences for the assigned, sold or leased companies

1. Companies assigned to labor collectives; companies sold to collectives, individuals or legal persons:

a) To enjoy preferences like newly established enterprises and under the provisions of law on investment promotion, without having to carry out procedures for being granted investment preference certificates;

b) To be exempt from the business registration fee, registration fee for assets managed and used by state companies, then transferred to new enterprises for ownership;

c) To continue maintaining the former companies' contracts for house, workshop and land lease under the provisions of the Land Law and current legislation;

d) To continue borrowing capital of commercial banks, financial companies and other state-run, credit institutions at the interest rates applicable to state companies;

e) To continue with goods export and import according to the current regulations applicable to state companies;

f) Before being assigned, sold or leased, companies may take initiative in dividing the balances (in cash) of the reward and welfare funds to laborers currently working in the companies (without having to pay income tax);

g) To maintain and develop the welfare funds in form of kind, cultural works, clubs, infirmaries, sanatoriums to ensure welfare for the laborers who continue to work at the assigned or sold companies. These assets are owned by the labor collectives and managed jointly by the companies' Trade Unions and employers.

2. The leased enterprises shall enjoy the preferences provided for at Points c, d, e, f and g, Clause 1 of this Article.

Article 50. Preferences for purchasers being labor collectives in the companies

Preferences for purchasers being labor collectives in the companies

For labor collectives satisfying the conditions defined in Clause 14, Article 3 of this Decree for company purchase, the Trade Union presidents or the labor collectives' representatives elected by the company employees' congress shall, on behalf of the labor collectives, carry out procedures for company purchase and enjoy the following preferences:

1. The labor collectives purchasing companies which have the state capital of under VND 5 billion each on the accounting books and suffer from so heavy losses that they are incapable of paying debts while the estimated proceeds from sale of enterprises are not enough to pay all debts:

a) If the labor collectives ensure that between 50% and 100% of the existing number of laborers of the companies shift to work at the new enterprises, guarantee jobs for those laborers for one year or more constantly, they shall enjoy the 70% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies;

b) If the labor collectives can only ensure that less that 50% of the existing number of laborers of the companies shift to work at the new enterprises and guarantee jobs for those laborers for one year or more constantly, they shall enjoy the 50% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies.

2. The labor collectives purchasing companies, which have the state capital of under VND 5 billion each on the accounting books, do business with profits or not at a loss, and the estimated proceeds from the sale of enterprises may be enough for payment of debts:

a) If the labor collectives ensure that 50% to 100% of the existing number of laborers of the companies shift to work at new enterprises, guarantee jobs for those laborers for one year or more constantly, they shall enjoy the 50% reduction of the sale price, excluding the land use right value; the maximum reduction level shall equal the state capital portion at the companies;

b) If the labor collectives can only ensure that less than 50% of the existing number of the laborers of the companies shift to work at the new enterprises and guarantee jobs for those laborers for one year or more constantly, they shall enjoy the 40% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies.

3. For labor collectives purchasing companies, which have the state capital of VND 5 billion or more each on the accounting books, by mode of inheritance of debts, continuing to maintain production and business, ensuring jobs for them and committing to admit the existing number of laborers of the companies (excluding those who voluntarily terminate their labor contracts):

a) If they can arrange between 70% and 100% of the existing number of laborers of the companies to work in the new enterprises, ensure jobs for those laborers for one year or more constantly, they shall enjoy the 50% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies;

b) If they can arrange between 50% and under 70% of the existing number of laborers of the companies to work at the new enterprises, ensure jobs for those laborers for one year or more constantly, they shall enjoy the 45% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the existing state capital portions at the companies.

4. For labor collectives purchasing companies, which have the state capital of VND 5 billion or more each on the accounting books, by mode of non-inheritance of debts, continuing to maintain

production and business, ensuring jobs for themselves and committing to admit the existing number of laborers of the companies (excluding those who voluntarily terminate their labor contracts):

a) If they guarantee to arrange between 70% and 100% of the existing number of laborers of the companies to work at the new enterprises and ensure jobs for those laborers for one year or more constantly, they shall enjoy the 40% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies;

b) If they guarantee to arrange between 50% and under 70% of the existing number of laborers of the companies to work at the new enterprises and ensure jobs for these laborers for one year or more constantly, they shall enjoy the 35% reduction of the sale price, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies.

The price reduction levels specified at Points a and b, Clause 2 of this Article must conform to the principles defined in Clause 3, Article 5 of this Decree.

5. Purchasers being individuals or groups of laborers in the companies, that are not recognized as representatives of the labor collectives in the companies, shall not be entitled to enjoy the preferences applicable to the labor collectives purchasing the companies.

6. Each laborer in the labor collectives which buy the companies is entitled to own a part of the company value corresponding to his/her contributed capital portion, has the rights and obligations of a capital contributor but must not transfer his/her shares to persons outside the company within one year after purchasing the company.

Article 51. Preferences for purchasers other than labor collectives

Preferences for purchasers other than labor collectives

1. In case of purchasing companies with the state capital of under VND 5 billion each on the accounting books:

a) If the purchasers employ all the existing number of laborers of the companies (excluding those who voluntarily terminate their labor contracts) and ensure jobs for them for one year or more constantly, they shall enjoy the 50% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies;

b) If the purchasers employ only between 50% and under 100% of the existing number of laborers of the companies to work at the new enterprises and ensure jobs for them for one year or more constantly, they shall enjoy the 30% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies;

c) If the purchasers employ only between 20% and under 50% of the existing number of laborers of the companies to work at the new enterprises and ensure jobs for them for one year or more constantly, they shall enjoy the 20% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies.

2. In case of purchasing companies with the state capital of VND 5 billion or more each on the accounting books by mode of debt inheritance, committing to admit the number of regular laborers on the list at the time of selling the companies (excluding those who voluntarily terminate their labor contracts):

a) If they guarantee to employ between 70% and 100% of the existing number of laborers of the companies (excluding those who voluntarily terminate their labor contracts) and ensure jobs for them for one year or more constantly, they shall enjoy the 40% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions at the companies;

b) If they guarantee to employ only between 50% and under 70% of the existing number of laborers of the companies (excluding those who voluntarily terminate their labor contracts) and ensure jobs for them for one year or more constantly, they shall enjoy the 30% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the state capital portions in the companies.

3. In case of purchasing companies with the state capital of VND 5 billion or more each on the accounting books, by mode of non-inheritance of debts, committing to admit the number of regular laborers on the lists at the time of selling the companies (excluding those who voluntarily terminate their labor contracts):

a) If they guarantee to employ between 70% and 100% of the existing number of laborers of the companies (excluding those who voluntarily terminate their labor contracts) and ensure jobs for them for one year or more constantly, they shall enjoy the 35% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the slate capital portions at the companies;

b) If they guarantee to employ between 50% and under 70% of the existing number of laborer of the companies (excluding those who voluntarily terminate their labor contracts) and ensure jobs for them for one year or more constantly, they shall enjoy the 25% reduction of the sale prices, excluding the land use right value; the maximum reduction level shall equal the existing state capital portions at the companies.

The price reduction levels specified in this Article must conform to the principles defined in Clause 3, Article 5 of this Decree.

Article 52. Preferences for purchasers making immediate payments in cash

Preferences for purchasers making immediate payments in cash

If the company purchasers immediately cash down in lump sum upon their purchase, they shall enjoy the maximum reduction level of 10% of the sale prices, excluding the land use right value. The maximum sale price reduction level covering the preference for immediate cash payment shall equal the state capital portions at the companies.

Article 53. Policies towards laborers who leave the companies

Policies towards laborers who leave the companies

Laborers who are not further employed by purchasers or automatically terminate their labor contracts:

1. Before the company sale, they shall be divided with balances of the reward and welfare funds (in cash).

2. They are entitled to enjoy other regimes as provided for by labor law.

Chapter VI

ORGANIZING THE ASSIGNMENT, SALE, BUSINESS CONTRACTING, LEASE OF STATE COMPANIES

Article 54. Competence to decide on assignment, sale, business contracting, lease of companies

Competence to decide on assignment, sale, business contracting, lease of companies

Based on the master plan on reorganization of state companies, which has been approved by competent authority:

1. The ministers of branch-managing ministries, the heads of the ministerial-level agencies, the heads of the Government-attached agencies, the presidents of the provincial-level People's Committees shall:

a) Decide on assignment, sale, business contracting or lease of the companies they have decided to establish, including dependent cost-accounting member companies, dependent cost-accounting units of the corporations they have decided to set up;

b) Decide on the sale of sections of the companies, where the remaining asset values of those sections exceed 30% of the total remaining asset values of such companies (for companies without Managing Boards) or exceed 50% of the total remaining asset values reflected on the companies' financial statements announced in the latest quarter (for companies with Managing Boards); where such company sections have completely settled the number of laborers or have their schemes on the complete settlement of the number of laborers approved by competent authorities in accordance with provisions of labor law and policies towards laborers redundant due to reorganization of state companies;

c) Decide on the sale of company sections where laborers still work.

2. The Managing Boards of state corporations shall decide or assign or authorize the general directors to decide on the sale of sections of companies, where the remaining asset values of such sections do not exceed 50% of the total remaining asset values reflected on the companies' financial statements in the latest quarter, such company sections have completely settled the number of laborers or have their schemes on complete settlement of the number of laborers approved by competent authorities in accordance with the provisions of labor law and the policies towards laborers redundant due to reorganization of state companies.

3. Directors of the companies without Managing Boards shall decide on the sale of company sections whose remaining asset values do not exceed 30% of such companies' total remaining asset values reflected on their financial statements announced in the latest quarter, where such company sections have completely settled the number of laborers or have their schemes on complete settlement of the number of laborers approved by competent authorities in accordance with the provisions of labor law and the policies towards laborers redundant due to reorganization of state companies.

Article 55. Responsibility to organize the assignment, sale, business contracting, lease of state companies

Responsibility to organize the assignment, sale, business contracting, lease of state companies

1. The Enterprise Renewal and Development Boards are agencies assisting the ministers, the provincial-level People's Committee presidents, the Managing Boards of the state corporations in carrying out the assignment, sale, business contracting, lease of state companies.

Depending on natures of branches or occupations, forms of assignment, sale, business contracting or lease of companies and the financial situation of the companies, the Enterprise Renewal and Development Boards shall invite representatives of banks, companies, laborers in the companies and relevant agencies to join.

2. The ministries, the provincial-level People's Committees, the state corporations shall set up the Enterprise Renewal Boards in the companies to carry out the preparatory work, draft the schemes, organize the inventories of assets, capital money and debts; the Enterprise Renewal Boards in the companies make the lists of laborers of the companies and carry out other necessary procedures under the guidance of the superior Enterprise Renewal and Development Boards.

3. Where companies do not realize the schemes on assignment, sale, business contracting or lease of companies, which were approved by competent authorities, in accordance with the provisions of this Decree, the company directors must be subject to various forms of discipline and the heads of the agencies managing such companies shall jointly bear the responsibility as provided for by the State Enterprise Law.

Article 56. Tasks of the Enterprise Renewal and Development Boards in organizing the assignment, sale, business contracting, lease of companies

Tasks of the Enterprise Renewal and Development Boards in organizing the assignment, sale, business contracting, lease of companies

1. In case of company assignment:

a) To elaborate schemes on company assignment; announce the company assignment to the entire laborers in the companies and on the mass media;

b) To appraise the company value, determine the current conditions, quality and technical properties of the assets, inspect the comparison of debts, lists of creditors and debtors of the companies, debt amounts of creditors and payable debts; to formulate schemes on handling of existing problems on finance and labor of the companies;

c) To make contracts on company assignment and report thereon to the ministers, provincial-level People's Committee presidents, the Managing Boards of state corporations;

d) To guide, inspect and supervise the Renewal Boards in the companies to recover the assets of the companies, return the assets rented, borrowed, kept for other by the companies; recover receivable debts and pay payable debts of the companies; hand over the assets, books and relevant dossiers to the company assignees under the agreement in the company assignment contracts;

e) To handle within the scope of their competence problems arising from the assignment of companies.

2. In case of company sale:

a) To elaborate the schemes on company sale; to announce to the entire laborers of the company and on the mass media the sale of companies;

b) To appraise the company value, determine the projected sale prices of the companies on the basis of values in books, current conditions, quality and technical properties of assets and at market prices; cross-check debts, make lists of creditors and debtors of the companies, debts payable to creditors; formulate schemes on handling of existing problems on finance and labor of the companies;

c) To organize the direct sale, bidding or auction of state companies; analyze, evaluate bid dossiers, propose sale prices (in case of direct sale) and select bid winners (in case of bidding), highest price offerers (in case of auction) for the company sellers to decide;

d) To make company sale contracts and report thereon to ministers, provincial-level People's Committee presidents, Managing Boards of state corporations for decision;

e) To guide, inspect, supervise the Renewal Boards at the companies in recovering assets of the companies, returning assets rented, borrowed, kept for other by the companies; recovering and paying debts of the companies; handing over assets, books and relevant dossiers to purchasers under the agreement in the company sale contracts;

f) To handle according to competence problems arising from the sale of companies.

3. In case of company lease:

a) To elaborate schemes on company lease; to determine the targets and conditions of company lease; to announce at the companies and on the mass media the company lease;

b) To guide the Renewal Boards in the companies to inventory the entire assets of the companies, determine the financial and asset situation of the companies and convert them into value before the lease;

c) To determine the minimum leasing prices and propose the company leasing prices;

d) To analyze, evaluate the leasing schemes; exchange and negotiate directly with the lessees on the leasing contracts or organize bidding for company lease. To recommend direct lessees (in case of direct lease) or bid winners (in case of bidding) to company lease deciders for decision;

e) To make contracts on company lease and report them to ministers, provincial-level People's Committee presidents, Managing Boards of state corporations for decision;

f) To handle according to competence problems arising from the lease of companies.

4. In case of business contracting of companies:

a) To determine the targets and conditions of business contracting; organize the elaboration of schemes on business contracting of companies;

b) To directly negotiate with business-contracted persons or hold bidding to select the business-contracted persons;

c) To make contracts on business contracting, report them to ministers, provincial-level People's Committee presidents, Managing Boards of state corporations for decision.

Article 57. Responsibilities of Enterprise Renewal and Development Boards

Responsibilities of Enterprise Renewal and Development Boards

The Enterprise Renewal and Development Boards take responsibility for the contents and results of their assigned work before the persons who decide on the assignment, sale, business contracting, lease of companies and before law.

Article 58. Competence to approve schemes on assignment, sale, business contracting, lease of enterprises

Competence to approve schemes on assignment, sale, business contracting, lease of enterprises

1. Based on the proposals of the Enterprise Renewal and Development Boards, ministers, provincial-level People's Committee presidents, Managing Boards of state corporations shall decide on:

a) The business contracting targets and conditions, leasing prices and the approval of schemes on company assignment, business contracting or lease, provided for at Point c, Clause 2, Article 2 of this Decree;

b) The sale prices of companies, company sections and approval of the schemes on sale of companies, company sections, provided for at Points b and d, Clause 2, Article 2 of this Decree.

2. In case of selling companies with the state capital of VND 30 billion or more each on the accounting books, ministers, provincial-level People’s Committee presidents, Managing Boards of state corporations shall report thereon to the Prime Minister for decision.

Article 59. Competence to sign contracts on assignment, sale, business contracting or lease of enterprises

Competence to sign contracts on assignment, sale, business contracting or lease of enterprises

1. The contracts on assignment, sale, business contracting or lease of companies managed by ministries shall be signed by ministers or persons authorized by ministers.

2. The contracts on assignment, sale, business contracting or lease of companies managed by localities shall be signed by provincial-level People's Committee presidents or persons authorized by provincial-level People's Committee presidents.

3. The general directors of the state corporations shall sign contracts on assignment, sale, business contracting or lease of member companies of the state corporations.

Article 60. Responsibility to perform and monitor the performance of contracts on assignment, sale, business contracting or lease of companies

Responsibility to perform and monitor the performance of contracts on assignment, sale, business contracting or lease of companies

The persons who sign the contracts on assignment, sale, business contracting or lease of companies have the responsibility:

1. To organize the performance of contracts on assignment, sale, business contracting or lease of companies.

2. To organize the monitoring, supervision and inspection of the contract performance and handle arising problems.

3. All problems arising in the course of performing the contracts on assignment, sale, business contracting, lease of companies shall be settled by the two signing parties; if there still remain disputes, they shall bring the cases to the provincial-level People's Courts according to provisions of law.

Article 61. Announcement and registration for purchase, business contracting or lease of companies

Announcement and registration for purchase, business contracting or lease of companies

The Enterprise Renewal and Development Boards of ministries, provinces or centrally run cities, state corporations shall notify the companies of, and announce on the mass media, the undertaking to apply form of assignment, sale, business contracting or lease of companies, and register the lists of assignees, purchasers, business-contracted persons or lessees within 45 days as from the date the competent authorities decide on the form of company transformation.

Past the above time limit, if there is no registrant for any of the above forms, the Enterprise Renewal and Development Boards shall prolong such time limit for 15 days; if there is still no registrant, they shall propose the competent authorities to carry out the procedures for dissolution of the companies subject to assignment or sale; in cases where the companies fall into the state of bankruptcy, the company directors must file their written applications to the provincial-level Economic Tribunals for opening of procedures for settlement of bankruptcy for the companies.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 62. Implementation effect

1. This Decree takes effect 15 days after its publication in "CONG BAO".

2. To annul the Government's Decree No. 103/1999/ND-CP dated September 10, 1999, on assignment, sale, business contracting or lease of state enterprises, and Decree No. 49/2002/ND-CP dated April 24, 2002, amending and supplementing a number of articles of Decree No. 103/1999/ND-CP dated September 10, 1999, on assignment, sale, business contracting or lease of state enterprises.

3. Enterprises which have carried out the company assignment before the effective date of this Decree but have not yet paid back to the State 30% of the equity value as provided for in Clause 5, Article 10 of Decree No. 103/1999/ND-CP shall not have to pay back to the State this 30% of the equity value.

Article 63. Responsibility for enforcement and organization of implementation

Responsibility for enforcement and organization of implementation

1. The Ministries of Planning and Investment; Finance; Labor, War Invalids and Social Affairs; and Natural Resources and Environment, and the State Bank of Vietnam shall have to coordinate with the relevant agencies in guiding the implementation of this Decree.

2. The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies, the presidents of the provincial/municipal People's Committees, and the Managing Boards of the state corporations shall have to implement this Decree.

The Minister of Planning and Investment shall have to monitor the implementation of this Decree.

 

ON BEHALF OF THE GOVERNMENT PRIME MINISTER Phan Van Khai