Nghị định 97/2024/NĐ-CP sửa đổi Nghị định 10/2019/NĐ-CP về thực hiện quyền, trách nhiệm của đại diện chủ sở hữu Nhà nước

DECREE

AMENDMENTS TO SOME ARTICLES OF GOVERNMENT’S DECREE NO. 10/2019/ND-CP DATED JANUARY 30, 2019 ON EXERCISE OF RIGHTS AND RESPONSIBILITIES OF STATE OWNER’S REPRESENTATIVE

Pursuant to Law on Government Organization of Vietnam dated June 19, 2015; Law on amendments to some Articles of the Law on Government Organization of Vietnam and Law on Local Government Organization of Vietnam dated November 22, 2019;

Pursuant to the Law on Management and Use of State Capital Invested in Business Activities of Enterprises dated November 26, 2014;

Pursuant to the Law on Enterprises dated June 17, 2020;

At the request of the Minister of Planning and Investment;

The Government hereby promulgates Decree on amendments to some articles of Government’s Decree No. 10/2019/ND-CP dated January 30, 2019 on exercise of rights and responsibilities of state owner’s representative.

Article 1. Amendments to some articles of Government’s Decree No. 10/2019/ND-CP dated January 30, 2019 on exercise of rights and responsibilities of state owner’s representative

1. Clause 2 of Article 3 shall be amended as follows:

“2. The Prime Minister shall carry out rights and responsibilities of the state owner’s representative under the regulations of the Law on management and use of state capital invested in business activities of enterprises and other relevant laws with regard to enterprises established under the Prime Minister’s decision to invest capital and mentioned in the Appendix I enclosed with this Decree.”

2. Clause 3 of Article 3 shall be amended as follows:

“3. The owner’s representative agency shall implement rights and responsibilities as a state owner’s representative according to regulations of the Law on management and use of state capital invested in business activities of enterprises and other relevant laws to:

a) enterprises that the representative agency decides to establish;

b) enterprises that the representative agency is authorized to manage or directly act as an owner’s representative, including enterprises established under the Prime Minister’s decision before the effective date of the Law on management and use of state capital invested in business activities of enterprises and not mentioned in the Appendix I enclosed with this Decree;

c) state capital contribution portions at joint-stock companies and multiple-member limited liability companies”.

3. Point c clause 2 of Article 6 shall be amended as follows:

“c) Approve the business strategy and plan, and the 5-year investment and development plan of each enterprise at the request of the owner’s representative agency and according to assessment opinions of relevant sectoral ministries. Sectoral ministries specified in the Appendix II enclosed with this Decree shall preside over and cooperate with the Ministry of Finance, the Ministry of Planning and Investment and relevant authorities in formulating assessment reports and sending them to the owner’s representative agency which consolidates and submits these reports to the Prime Minister for consideration and decision.

Regarding the business strategy and plan, and the 5-year investment and development plan of the enterprise directly serving national defense and security, the Ministry of National Defense and the Ministry of Public Security shall preside over and cooperate with the Ministry of Finance, the Ministry of Planning and Investment and relevant authorities in formulating assessment reports and submitting them to the Prime Minister for consideration and decision.

Contents of the business strategy and plan, and the 5-year investment and development plan shall comply with regulations in clause 3 Article 9 of the Decree No. 10/2019/ND-CP.”

4. Point c clause 4 of Article 9 shall be amended as follows:

“c) The supervision and inspection of the implementation of the approved plan shall comply with the Government’s regulations on supervision of state capital investment in enterprises, financial supervision, assessment of operational efficiency and disclosure of financial information of state enterprises or state-invested enterprises.”

5. Point b clause 1 of Article 10 shall be amended as follows:

“b) Grant the approval so that the Board of Members and the enterprise's President can issue the decision on appointment, re-appointment, dismissal, issuance of awards to and imposition of disciplinary actions on the General Director and the Director of the enterprise; approve the policy at the request of the Board of Members, the enterprise's President on appointment to Deputy General Director (Deputy Director) of the enterprise.

The owner’s representative agency shall preside over and cooperate with the Ministry of Home Affairs in sending reports to and asking for opinions of the Government’s Party Civil Affairs Committee before sending the written consent in order for the Board of Members of the enterprise that the Prime Minister has decided to establish to appoint the General Director in accordance with regulations and the enterprise's charter.

6. Clause 2 of Article 10 shall be amended as follows:

“2. Controllers:

a) Make decisions on planning, appointment, re-appointment, resignation, dismissal, transfer, rotation, issuance of rewards to, imposition of disciplinary actions on, resignation and retirement of controllers in accordance with law.

b) The owner’s representative agency shall decide to establish the Control Board that has 01 to 05 controllers according to the enterprise’s scale. If the Control Board only has 01 member, this member shall currently act as the head of the Control Board and meet standards applicable to the head of the Control Board.

c) The owner’s representative agency shall choose and decide to appoint an official or public employee under its management to hold office as a controller and shall be responsible for assigning work suitable for officials and public employees who have resigned as controllers”.

7. Clause 3 of Article 11 shall be amended as follows:

“3. Consider granting approval at the request of the Board of Members and the enterprise’s President for the following contents:

a) Capital mobilization plan for each project with the amount of mobilized funds greater than the limit prescribed in point a of clause 3 of Article 23 of the Law on management and use of state capital invested in production and business activities of enterprises.

Mobilization of funds by wholly state-owned enterprises which are credit institutions shall comply with regulations of the law on credit institutions and other relevant laws.

b) Plan for mobilization of funds from foreign organizations and individuals.

Regarding foreign loans that enterprises take out according to the method wherein enterprises have to exercise responsible autonomy to borrow funds and assume responsibility for debt repayment, except for foreign loans in the form of import of goods for which deferred payments are allowed, the owner’s representative agency shall approve the policy for lending of foreign funds by each enterprise. Mobilization of funds by enterprises according to the method wherein enterprises have to exercise responsible autonomy to borrow funds and assume responsibility for debt repayment shall comply with regulations of relevant laws.

Loans guaranteed by the Government shall be subject to legislative regulations on public debt management and other regulations of relevant laws.

c) Projects on investment, construction, purchase and sale of fixed assets of enterprises that have values greater than those specified in point a of clause 1 of Article 24 in the Law on management and use of state capital invested in production and business activities of enterprises

d) Outward investment projects that have values greater than those specified in point a of clause 4 of Article 28 in the Law on management and use of state capital invested in production and business activities of enterprises.

Procedures for preparation, assessment and approval of projects and plans specified in clause 2 of this Article shall comply with regulations of relevant laws”.

8. Clause 4 of Article 11 shall be amended as follows:

“4. Make a decision to allow the Board of Members and the enterprise’s President to sign the contract to lease, mortgage and hypothecate fixed assets of enterprise that have values greater than the limits under the authority delegated to the Board of Members and the enterprise's President in accordance with the Law on management and use of state capital invested in production and business activities of enterprises and other instructional regulations of the Government.”

9. Point e Clause 5 of Article 13 shall be amended as follows:

“e) The policy of capital contribution, increase and reduction in capital of enterprises in subsidiaries; establishment, reorganization and dissolution of branches and representative offices; acceptance of enterprises voluntarily participating as subsidiaries, joint-venture companies and associate companies

10. Point g Clause 5 of Article 13 shall be amended as follows:

“g) The policy on buying and selling fixed assets and borrowing and lending contracts with a value equal to or greater than 50% of the enterprise's charter capital or another percentage less than the value prescribed in the charter of the enterprise; the policy for borrowing of foreign funds of enterprises;”

11. Point i clause 5 of Article 13 shall be amended as follows:

“i) Plan for employment of employees, and plan for compensation, remuneration and bonus package of managers;”

12. Clause 5 of Article 14 shall be amended as follows:

“5. Request the owner’s representative agency to appeal to the competent authority to adjust the charter capital; amend and supplement the Charter; reorganize, transfer ownership of, dissolve and order the bankruptcy of an enterprise. Decide establishment, reorganization and dissolution of dependent accounting units according to regulations of the Law on Enterprises and notify the owner’s representative agency within 180 days from the date of establishment, reorganization and dissolution of dependent accounting units.

The establishment of branches and representative offices of wholly state-owned enterprises which are credit institutions shall comply with regulations of the law on credit institutions.

The establishment of branches and representative offices of wholly state-owned enterprises affiliated to the Ministry of National Defense and the Ministry of Public Security shall comply with regulations of relevant laws and enterprises' charters.

13. Clause 6 of Article 14 shall be amended as follows:

“6. Request the owner’s representative agency to consider appealing to the Prime Minister to approve a policy on establishment, reorganization, transfer of ownership of a subsidiary wholly owned by the enterprise according to regulations in clause 3 Article 54 of the Government's Decree No. 23/2022/ND-CP dated April, 05 2022.”

14. Clause 8 of Article 14 shall be amended as follows:

“8. Request the owner’s representative agency to consider deciding the policy of investment in supplementing capital or not continuing to invest additional capital in joint-stock companies and multiple-member limited liability companies; make an investment decision after receipt of the decision on the investment policy from the owner’s representative agency.

15. Point a clause 1 of Article 15 shall be amended as follows:

“a) Make a decision on reorganization and transfer of ownership, dissolution and bankruptcy of an enterprise.  The establishment of branches and representative offices of wholly state-owned enterprises affiliated to the Ministry of National Defense and the Ministry of Public Security shall comply with regulations of relevant laws and enterprises' charters.”

16. Point e clause 1 of Article 15 shall be amended as follows:

“e) Approve the plan for capital mobilization, projects on investment, construction, purchase and sale of fixed assets, investment projects outside enterprises having value greater than the limit within which the Board of Members and the enterprise’s President is authorized to make their decision in accordance with the law;”

17. Clause 1 of Article 17 shall be amended as follows:

“1. Responsibilities of relevant organizations and individuals:

a) The owner’s representative agency shall formulate and implement internal regulations on implementation of rights and responsibilities to wholly state-owned enterprises and state capital contributions to enterprises that they have established or they are authorized to manage.

b) The Ministry of Finance shall provide guidance on settlement of financial issues in case of re-organization (merger, consolidation, division, separation) and dissolution of wholly state-owned enterprises.

c) Each political organization or socio-political organization shall apply regulations of this Decree to organize the implementation of rights and responsibilities as a state owner’s representative to enterprises under its ownership.”

Article 2. Effect

1. This Decree comes into effect from September 10, 2024.

2. This Decree annuls regulations in clause 11 Article 11 of the Government’s Decree No. 10/2019/ND-CP dated January 30, 2019

3. In case of discrepancies between regulations on exercise of rights and responsibilities of state owner’s representative agencies in the Government’s Decree No. 01/2018/ND-CP dated January 03, 2018 and the Government's Decree No. 11/2018/ND-CP dated January 16, 2018 and regulations of this Decree, regulations of this Decree shall apply.

The Government’s Decree No. 01/2018/ND-CP dated January 03, 2018 and the Government's Decree No. 11/2018/ND-CP dated January 16, 2018 shall cease to have effect after 24 months from the effective date of this Decree and the Committee for management of state capital at enterprises shall be responsible for issuing charters for organization and operation of Vietnam Northern Food Corporation and Vietnam Railways according to regulations in clause 1 Article 9 of the Government's Decree No. 10/2019/ND-CP dated January 30, 2019.

4. Ministers, Heads of ministerial agencies, Heads of Governmental agencies and Presidents of People’s Committees of provinces and central-affiliated cities, Boards of Members, Presidents of wholly state-owned enterprises, and state capital representatives shall be responsible for the implementation of this Decree./.