Chương 1 Nghị định 80/2005/NĐ-CP: Những quy định chung

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.