Chương V Nghị định 93/2019/NĐ-CP: Hợp nhất, sáp nhập, chia, tách, đổi tên; đình chỉ có thời hạn và giải thể quỹ

Chapter V

CONSOLIDATION, MERGER, FULL OR PARTIAL DIVISION, RENAMING; SUSPENSION AND DISSOLUTION OF FUNDS

Article 39. Consolidation, merger, full or partial division and renaming of funds

1. The consolidation, merger, full or partial division of funds shall comply with relevant laws.

2. Procedures for consolidation, merger, full or partial division of funds:

a) The fund(s) involved in the consolidation, merger, full or partial division shall send an application as prescribed in Clause 3 of this Article to the competent authority prescribed in Article 18 hereof;

b) Within 30 business days from the receipt of a sufficient and valid application, the competent authority prescribed in Article 18 hereof shall consider and permit the consolidation, merger, full or partial division of the fund(s); if an application is refused, it shall issue a written response clearly stating reasons for such refusal;

c) The consolidating funds, merged fund or fully divided fund shall terminate their/its existence and operation after obtaining a decision permitting the consolidation, merger or full division from the competent authority prescribed in Article 18 hereof. The rights and obligations of the consolidating funds, merged fund or fully divided fund shall be transferred to the newly founded fund or merging fund. In case of partial division of a fund, the partially divided fund and a newly founded fund shall exercise the rights and perform the obligations in conformity with their respective operation objectives and take joint responsibility for the obligations of the original fund.

3. An application for consolidation, merger, full or partial division comprises:

a) An application form for consolidation, merger, full or partial division of the fund(s), clearly stating the reason and new name of the fund(s);

b) The draft charter of the fund(s);

c) Resolution(s) of the Fund Management Council(s) on the consolidation, merger, full or partial division of the fund(s); written consents of founding members of the fund(s) or their lawful representatives (if any);

d) Planned personnel of the Fund Management Council(s);

dd) Plans for handling of assets, finances and laborers upon the consolidation, merger, full or partial division of the fund(s).

4. Renaming of a fund:

a) The renaming of a fund must be decided in a resolution of the Fund Management Council and agreed in writing by the fund’s founding members or their lawful representatives (if any);

b) The fund shall send to the competent authority prescribed in Article 18 hereof an application for renaming of the fund, comprising: an application form for renaming of the fund; the Fund Management Council’s resolution on renaming of the fund; the draft of revised charter; written consents of the fund’s founding members or their lawful representatives (if any);

c) Within 15 business days from the receipt of a sufficient and valid application, the competent authority prescribed in Article 18 hereof shall consider and re-issue a license with the fund’s new name and acknowledge the revised fund’s charter. If an application is refused, it shall issue a written response clearly stating reasons for such refusal.

Article 40. Suspension of operation of funds

1. A fund shall be suspended from operation for 06 months if committing one of the following violations:

a) Operating for improper objectives or against its charter recognized by a competent authority; failing to handle serious internal conflicts; involving in complicated problems about public order and security in the course of its organization and operation;

b) Violating state regulations on management of assets and finances;

c) Using targeted donations of organizations and individuals for improper purposes;

d) Mobilizing donations for purposes other than those specified in its charter;

dd) Failing to operate for 06 consecutive months;

e) Failing to make sufficient reports on its organization and operation or annual financial statements and to remedy its violation within 30 business days after receiving a written reprimand from a competent authority prescribed in Article 18 hereof;

g) Failing to report on the relocation of its head office or change of members of the Fund Management Board or the fund director;

h) Failing to fulfill one of its obligations specified in Points , b, c, d, dd, e, g, l Clause 2 Article 8 and Clause 1 Article 49 hereof.

2. Within 15 business days after obtaining conclusions on the fund’s violations according to Clause 1 of this Article, the competent authority prescribed in Article 18 hereof shall issue a decision to suspend the fund’s operation. Apart from being suspended from operation, the fund shall, depending on the nature and severity of its violations, be liable to administrative penalties. If causing damage, the fund shall pay compensation therefor and its managers shall be handled according to law regulations.

3. If the fund remedies its violations during the suspension period, it may make and send an application for resumption of operation to the competent authority prescribed in Article 18 hereof for consideration and decision. An application comprises:

a) An application form for resumption of operation;

b) The Fund Management Council’s report on and documents proving the remedy of violations.

4. Within 15 business days from the receipt of a sufficient and valid application as prescribed in Clause 3 of this Article, the competent authority prescribed in Article 18 hereof shall permit the fund to resume its operation. If an application is refused, it shall issue a written response clearly stating reasons for such refusal.

5. At the end of the suspension period, if the fund cannot remedy its violations, this period shall be prolonged for 01 month. Over this time limit, if the fund still fails to remedy its violations, the competent authority prescribed in Article 18 hereof shall issue a decision to dissolve the fund.

6. The authority competent to license the establishment of the fund shall decide the imposition of administrative penalties and transfer documents on the case to a competent authority for handling.

Article 41. Dissolution of funds

1. A fund may dissolve at its own will or be dissolved.

2. A fund dissolves at its own will in the following cases:

a) It terminates its operation according to its charter;

b) Its operation objectives have been fulfilled;

c) It has no assets or finances for operation.

3. The order, procedures and application for voluntary dissolution of a fund: The Fund Management Council shall issue a resolution on dissolution of the fund and send an application to the competent authority prescribed in Article 18 hereof for approval for its voluntary dissolution. Such application comprises:

a) An application form for voluntary dissolution;

b) The Fund Management Council’s resolution on dissolution, clearly stating the reason;

c) An inventory of the fund’s assets and finances, bearing the signatures of the chairman of the Fund Management Council, head of the Control Board, fund director and accounting manager;

d) Planned methods of handling assets, finances and staff and time limit for debt payment;

dd) A notice of the time limit for payment of debts (if any) to related organizations or individuals according to law regulations on 03 consecutive issues of a central print or online newspaper, for funds licensed by the Minister of Home Affairs, or of a local print or online newspaper, for funds licensed by Chairpersons of provincial-level People’s Committees;

e) Documents proving the fulfillment of the fund’s asset and financial liabilities.

4. A fund is compulsorily dissolved in the following cases:

a) It fails to report on its organization, operation and finances as regulated or fails to publicize its financial statements, finalization reports and auditor’s opinions (if any) in 02 consecutive years; it fails to amicably handle serious internal conflicts significantly affecting operation of regulatory authorities;

b) It falsifies its accounting information or registered account number or fails to obtain the disbursement rate specified in this Decree;

c) It fails to apply for voluntary dissolution according to Clause 2 of this Article;

d) It commits one of the acts specified in Article 9 hereof;

dd) Over the operation suspension period, it fails to remedy its violations according to Clause 5 Article 40 hereof.

5. Responsibilities of the competent authority having licensed the establishment of the fund which will be voluntarily or compulsorily dissolved:

a) In case the fund applies for voluntary dissolution: After 15 business days from the expiration of the time limit stated in the notice of payment of debts and liquidation of assets and finances of the fund upon its dissolution, if receiving no complaints, the competent authority prescribed in Article 18 hereof shall consider and issue a decision to dissolve the fund and revoke its establishment license and written acknowledgement of the fund’s charter;

b) In case the fund is compulsorily dissolved: Within 15 business days after obtaining the written conclusions on the fund’s violations, the competent authority prescribed in Article 18 hereof shall publish an announcement on the dissolution and time limit for payment of debts and liquidation of assets and finances of the fund on 03 consecutive issues of a central print or online newspaper, for funds licensed by the Minister of Home Affairs, or of a local print or online newspaper, for funds licensed by Chairpersons of provincial-level People’s Committees. After 15 business days from the deadline for payment of debts and liquidation of assets and finances indicated in the announcement, if receiving no complaints, the competent authority prescribed in Article 18 hereof shall consider and issue a decision to dissolve the fund and revoke its establishment license and written acknowledgement of the fund’s charter;

c) If the to-be-dissolved fund does not agree with the dissolution decision, it may lodge a complaint according to law regulations. The fund may not operate pending the settlement of its complaint.

6. The fund shall terminate its operation from the effective date of the dissolution decision issued by a competent authority.

Article 42. Handling of assets upon consolidation, merger, full or partial division, suspension or dissolution of funds

1. When the consolidation, merger, full or partial division of fund(s) is permitted by a competent authority, the whole money and assets of the fund(s) must be fully and punctually inventoried before the consolidation, merger, full or partial division; and assets of such fund(s) must not be divided. Money and assets of the consolidating or merging fund must equal the total money and assets of the involved funds before the consolidation or merger according to the inventory of money and assets. Total money and assets of funds newly established after the full or partial division of a fund must be equal to money and asset of the original fund according to the inventory of money and assets.

2. In case a fund is suspended from operation, all its money and assets shall be inventoried and its assets shall be kept intact. During the operation suspension period, pending the issuance of a decision by a competent authority, the fund may pay regular expenses for its apparatus.

3. When a fund is dissolved, its assets may not be divided. The sale and liquidation of its assets comply with relevant laws.

4. The whole existing money amount of the fund and the proceeds from the sale or liquidation of its assets shall be used in the following order of priority:

a) Dissolution expenses;

b) Salaries, severance pays, social insurance and health insurance contributions and other benefits of its staff according to the collective labor agreement and signed labor contracts;

c) Tax debts and other payables.

5. The remaining money and assets self-earned by the fund or donated by domestic and overseas individuals and organizations shall be transferred to the budget of the competent authority that has licensed its establishment. Assets derived from or acquired with funding from state budget (if any) shall be transferred to state authorities for handling in accordance with the Law on management and use of public property.

Article 43. Responsibilities of Fund Management Councils for consolidation, merger, full or partial division, dissolution or renaming of funds

1. Fund Management Councils shall organize the implementation of decisions on consolidation, merger, full or partial division, dissolution or renaming of funds.

2. The handling of assets and finances upon consolidation, merger, full or partial division or dissolution of funds shall comply with the funds’ charters and law regulations.

Article 44. Complaints and denunciations

Complaints and denunciations shall be settled in accordance with the Law on complaints and denunciations.