Nghị định 99/2012/NĐ-CP phân công phân cấp thực hiện quyền trách nhiệm

THE GOVERNMENT -------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 99/2012/ND-CP	Hanoi, November 15, 2012

 

DECREE

ON THE ASSIGNMENT AND DECENTRALIZATION OF THE EXERCISE OF THE RIGHTS AND THE PERFORMANCE OF THE RESPONSIBILITIES AND OBLIGATIONS OF THE STATE OWNER TOWARD STATE ENTERPRISES AND STATE CAPITAL INVESTED IN ENTERPRISES

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Law on Enterprises;

At the proposal of the Minister of Planning and Investment,

The Government promulgates the Decree on the assignment and decentralization of the exercise of the rights and the performance of the responsibilities and obligations of the state owner toward state enterprises and state capital invested in enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

The State invests capital and assets in enterprises operating in key sectors, fields and stages, providing products and public-utility services essential for the society, national defense and security, acting as the core of the state economy to play the leading role and an important material force for the State to orientate and regulate the national economy and stabilize the macro-economy.

The Government is the highest state administrative agency uniformly managing and performing the function of the owner toward state enterprises and state capital invested in enterprises.

This Decree provides the assignment and decentralization of the exercise of the rights and the performance of the responsibilities and obligations of the state owner toward state enterprises and state capital invested in enterprises.

Article 2. Subjects of application

This Decree applies to:

1. Enterprises in which the State holds 100% of charter capital and appoints its authorized representatives.

2. Authorized representatives of state capital invested in:

a/ Enterprises in which the State holds over 50% of charter capital;

b/ Enterprises in which the State holds not more than 50% of charter capital.

3. State agencies, organizations and individuals involved in the exercise of the rights and the performance of the responsibilities and obligations of the state owner toward enterprises in which the State holds 100% of charter capital and state capital invested in enterprises.

Article 3. Interpretation of terms

In this Decree, the terms and expressions below are construed as follows:

1. State enterprises are enterprises in which the State holds over 50% of charter capital, including:

a/ Enterprises in which the State holds 100% of charter capital and which are single-member limited liability companies;

b/ Enterprises in which the State holds over 50% of charter capital and which are joint-stock companies or limited liability companies with two or more members.

2. Enterprises in which the State holds not more than 50% of charter capital, which are joint-stock companies or limited liability companies with two or more members and in which the state-contributed capital does not exceed 50% of charter capital.

3. State-contributed capital is the capital invested by the State in an enterprise and has its owner represented by a state agency or an economic organization assigned by the State.

4. Authorized representative of state capital in an enterprise (below referred to as representative) is an individual authorized in writing by the owner to exercise the rights and perform the responsibilities and obligations of the owner at the enterprise.

5. Companies under ministries or provincial-level People’s Committees include state corporations and single-member limited liability companies established under decisions of minis-tries or provincial-level People’s Committees or assigned to them for management.

Article 4. Assignment and decentralization of the exercise of the rights and performance of the responsibilities and obligations of the state owner

1. The Government directly exercises the rights and performs the responsibilities and obligations of the state owner, or assigns the Prime Minister, ministries, ministerial-level agencies or government-attached agencies (below collectively referred to as ministries), or decentralize the People’s Committees of provinces or centrally run cities (below collectively referred to as provincial-level People’s Committees), or the Members’ Councils or Presidents of companies or representatives to do so.

2. The State Capital Investment Corporation is an enterprise established under a decision of the Prime Minister, having its charter capital invested by the State and managing state capital in enterprises transferred from ministries or provincial-level People’s Committees, and having the following rights, responsibilities and obligations:

a/ To manage, effectively use, preserve and develop state-invested capital and state capital in enterprises assigned to it for management;

b/ To appoint and assess activities of representatives at enterprises assigned to it for management; to relieve from office, commend or discipline these representatives; to decide on their salary, bonus and allowance levels and other benefits;

c/ To assign the representatives to decide on contents specified in Clause 4, Article 20 and Clause 4, Article 29 of this Decree;

d/ To report the Ministry of Finance for evaluation and submission to the Prime Minister for approval the overall scheme on reorganization and renewal of enterprises assigned to it for management;

e/ To report to the Ministry of Finance for evaluation and submission to the Prime Minister for approval production and business strategies and plans and five-year development investment plans.

3. For joint-stock companies and limited liability companies with two or more members in which the State holds 100% of charter capital and which are owned by different organizations, each organization shall exercise the rights and perform the obligations of shareholders or capital contributors in proportion to its contributed capital amount in accordance with the Law on Enterprises.

Chapter II

ASSIGNMENT AND DECENTRALIZATION OF THE EXERCISE OF THE RIGHTS AND PERFORMANCE OF THE RESPONSIBILITIES AND OBLIGATIONS OF THE STATE OWNER TOWARD ENTERPRISES IN WHICH THE STATE HOLDS 100% OF CHARTER CAPITAL AND WHICH ARE SINGLE-MEMBER LIMITED LIABILITY COMPANIES

Section 1. RIGHTS, RESPONSIBILITIES AND OBLIGATIONS OF THE STATE OWNER

Article 5. Rights and responsibilities of the state owner

1. To decide on the establishment, objectives, tasks and business lines of enterprises; to reorganize, transform ownership, dissolve and request bankruptcy of enterprises; to contribute capital to other enterprises.

2. To approve, amend and supplement the charters of enterprises.

3. To decide on charter capital investment; to adjust or transfer part or the whole of charter capital.

4. To decide on organizational structure and management apparatus of companies; to appoint, re-appoint, relieve from office, approve resignation, sign or terminate contracts with, commend or discipline chairpersons and members of Members’ Councils or Presidents, Controllers or General Directors (Directors) of companies.

5. To decide on production and business strategies and plans and development investment plans.

6. To approve policies on investment in, purchase and sale of assets and lending or borrowing contracts.

7. To prescribe the financial regime and regime of profit distribution, setting up and use of funds; to approve annual financial statements.

8. To prescribe the regime of recruitment, salaries and bonuses; to decide on salaries for chairpersons and members of Members’ Councils or Presidents, Controllers and General Directors (Directors) of companies.

9. To decide on market development, marketing and technological solutions; to stipulate a mechanism for task assignment and participation in the provision and assurance of products and public-utility services essential for the economy.

10. To supervise, examine and inspect the observance of law; to assess the achievement of assigned objectives and tasks, operation results and production and business efficiency; to manage, use, preserve and develop capital of companies. To evaluate Presidents and members of Members’ Councils, Controllers, General Directors (Directors), Deputy General Directors (Deputy Directors) and Chief Accountants of companies.

Article 6. Obligations of the state owner

1. To invest sufficient charter capital for companies.

2. To comply with the charters of companies.

3. To take responsibility for debts and other asset liabilities of companies within the limit of charter capital of companies; to identify and separate assets of the state owner from those of companies.

4. To abide by law in approving policies on investment, purchase and sale of assets and lending or borrowing contracts of companies.

5. To guarantee the right of companies to do business in accordance with law.

6. To perform other obligations prescribed by law.

Section 2. ASSIGNMENT AND DECENTRALIZATION OF THE EXERCISE OF THE RIGHTS AND PERFORMANCE OF THE RESPONSIBILITIES OF THE STATE OWNER

Article 7. Rights and responsibilities of the Government

1. To stipulate the establishment, reorganization, ownership transformation and dissolution of companies.

2. To promulgate, amend or supplement the charters of the following state economic groups and corporations: the State Capital Investment Corporation, Vietnam Airlines Corporation, Vietnam National Shipping Lines, Vietnam Railways Corporation, Northern Food Corporation and Southern Food Corporation. To promulgate the model charter for state corporations and enterprises in which the State holds 100% of charter capital.

3. To prescribe the appointment, reappointment, relief from office, resignation, signing and termination of contracts, commendation and disciplining of chairpersons and members of Members’ Councils, Controllers, General Directors (Directors), Deputy General Directors (Deputy Directors) and Chief Accountants; to prescribe the number of members of the Members’ Council and Deputy General Directors (Deputy Directors) of a company.

4. To stipulate the regime of financial management, profit distribution, setting up and use of funds; the regime of reporting and financial publicity of companies; the mechanism for implementation supervision and inspection.

5. To stipulate the regime of recruitment; salaries and bonuses of companies; salaries, bonuses and other benefits of chairpersons and members of Members’ Councils or Presidents, Controllers, General Directors (Directors) of companies.

6. To set a mechanism for task assignment and participation in the provision and assurance of products and public-utility services essential for the economy.

7. To stipulate the regime of supervision, examination and inspection of the observance of law and the implementation of strategies, plans, objectives and assigned tasks by companies; to manage, use, preserve and develop capital.

8. To promulgate criteria for evaluating results of achievement of objectives, performance of assigned tasks, operation results and production and business efficiency of companies; and criteria for evaluating chairpersons and members of Members’ Councils or Presidents, Controllers, General Directors (Directors), Deputy General Directors (Deputy Directors) and Chief Accountants of companies.

Article 8. Rights and responsibilities of the Prime Minister

1. For state economic groups and the State Capital Investment Corporation:

a/ To decide on the establishment, objectives, tasks and business lines; to reorganize, transform ownership, dissolve, or request bankruptcy of companies. To approve schemes on establishment of wholly state-owned affiliated companies. To approve policies to establish, reorganize or dissolve branches, representative offices and other dependent accounting units;

b/ To decide on charter capital at the time of establishment and adjust charter capital in the course of operation;

c/ To decide to appoint, reappoint, relieve from office, approve the resignation of, commend or discipline chairpersons of Members’ Councils;

d/ To approve production and business strategies and plans and 5-year development investment plans.

2. To approve schemes on establishment of single-member limited liability companies under decisions of ministries or provincial-level People’s Committees.

3. To approve policies to establish wholly state-owned affiliated companies of state corporations or companies under ministries or provincial-level People’s Committees at the latter’s request.

4. To approve overall schemes on reorganization and renewal of single-member limited liability companies (including schemes of state economic groups) at the request of line ministries and provincial-level People’s Committees.

5. To promulgate the Regulation on activities of controllers of companies.

Article 9. Rights and responsibilities of line ministries and provincial-level People’s Committees

1. Line ministries are direct superiors of Members’ Councils of state economic groups and have the following rights and responsibilities:

a/ To propose the Prime Minister to decide on the establishment, objectives, tasks and business lines; to reorganize, transform ownership, dissolve, and request bankruptcy of state economic groups. To evaluate and submit to the Prime Minister for approval schemes on establishment of wholly state-owned affiliated companies; to decide to establish, reorganize or dissolve branches, representative offices and other dependent accounting units of state economic groups;

b/ To submit to the Government for promulgation charters of state economic groups and amendments and supplementations thereto;

c/ To propose the Prime Minister to decide on charter capital and adjust charter capital of state economic groups;

d/ To propose the Prime Minister to decide to appoint, reappoint, relieve from office, approve the resignation of, commend or discipline chairpersons of Members’ Councils;

e/ To propose the Prime Minister to approve production and business strategies and plans and 5-year development investment plans;

f/ To decide to appoint, reappoint, relieve from office, approve the resignation of, commend or discipline members of Members’ Councils, General Directors or specialized Controllers, and pay salaries to specialized Controllers;

g/ To approve annual lists of investment projects of groups A and B and notify them to the Ministry of Planning and Investment and the Ministry of Finance for summarization and oversight;

h/ To approve policies to contribute, hold, increase or reduce capital of state economic groups in other enterprises; to approve the admission of enterprises which voluntarily join state economic groups as affiliated or associated companies;

i/ To approve policies to borrow, lend, purchase or sell assets valued at 50% or more of charter capital or at a lower rate as stated in the charters of state economic groups; to approve policies to borrow foreign loans for these groups and request the Ministry of Finance to evaluate and approve them;

j/ To decide on salaries of chairpersons and members of Members’ Councils, General Directors and specialized Controllers, and annual salary funds of Members’ Councils after reaching agreement with the Ministry of Labor, War Invalids and Social Affairs;

k/ To permit Members’ Councils to approve financial statements, distribute profits and set up and use funds;

l/ To propose the Prime Minister to approve overall schemes on reorganization and renewal of state economic groups;

m/ To regularly supervise and examine and inspect the observance of law; the management, use, preservation and development of capital; the implementation of strategies and plans; the observance of the regime of recruitment, salaries and bonuses of state economic groups. To assess the achievement of objectives, performance of assigned tasks and business lines and operation results or production and business efficiency of state economic groups. To evaluate chairpersons and members of the Members’ Councils, specialized Controllers, General Directors, Deputy General Directors and Chief Accountants in the management and direction of state economic groups.

2. Rights and responsibilities of line ministries and provincial-level People’s Committees toward their attached companies:

a/ To decide on the establishment, objectives, tasks and business lines of companies specified in Clause 2, Article 8 of this Decree after relevant schemes are submitted to and approved by the Prime Minister. To approve policies to establish, reorganize or dissolve branches, representative offices and other dependent accounting units;

b/ To approve, amend and supplement the charters of state corporations specified in Clause 2, Article 7 of this Decree before submitting them to the Prime Minister for promulgation;

c/ To reorganize and renew companies after their overall reorganization and renewal schemes are submitted to and approved by the Prime Minister;

d/ To decide on charter capital of companies upon their establishment and adjust their charter capital in the course of operation. For companies attached to ministries, agreement with the Ministry of Finance must be obtained;

e/ To decide to appoint, reappoint, relieve from office, approve the resignation of, commend or discipline chairpersons and members of the Members’ Councils or Presidents, General Directors (Directors) and Controllers, and pay salaries to Controllers;

f/ To approve production and business strategies and plans and 5-year development investment plans; and annual lists of investment projects of groups A and B and notify them to the Ministry of Planning and Investment and the Ministry of Finance for summarization and oversight.

g/ To approve policies to contribute, hold, increase or reduce capital of companies in other enterprises; the admission of enterprises which voluntarily join companies as affiliated or associated companies;

h/ To approve policies to borrow, lend, purchase or sell assets valued at 50% or more of charter capital of companies or at a lower rate as stated in the charters of companies; to approve policies of companies to borrow foreign loans and request the Ministry of Finance to appraise and approve these policies;

i/ To decide on salaries of chairpersons and members of Members’ Councils or Presidents of companies, General Directors (Directors) or Controllers they have appointed; and annual salary funds of Members’ Councils or Presidents of companies;

j/ To allow Members’ Councils or Presidents of companies to approve annual financial statements, distribution of profits and setting up and use of funds;

k/ To regularly supervise and examine and inspect the observance of law; the management, use, preservation and development of capital; the implementation of strategies and plans; the observance of the regime of recruitment, salaries and bonuses of companies. To assess the achievement of objectives, performance of assigned tasks and business lines and operation results or production and business efficiency of companies. To evaluate chairpersons and members of Members’ Councils or Presidents, Controllers, General Directors (Directors), Deputy General Directors (Deputy Directors) and Chief Accountants in the management and direction of companies.

Article 10. Rights and responsibilities of the Ministry of Finance

1. To submit to the Government regulations on the regime of financial management, distribution of profits and setting up and use of funds; the regime of capital management, use, preservation and development; the regime of financial statement and publicity; and the regime of implementation supervision and inspection.

2. To submit to the Government regulations on criteria for assessment of results of the achievement of objectives, performance of assigned tasks, operation results and production and business efficiency of companies; and mechanisms of task assignment and participation in the provision and assurance of products and public-utility services essential for the economy.

3. To submit to the Government regulations on the transformation of single-member limited liability companies into joint-stock companies.

4. To evaluate and submit to the Prime Minister for decision charter capital and adjusted charter capital of state economic groups; to reach agreement on charter capital and adjusted charter capital of companies attached to line ministries.

5. To promulgate standards and conditions of Chief Accountants.

6. To propose the Prime Minister to decide on the appointment, reappointment, relief from office, resignation, commendation or disciplining of the Chairperson of the Members’ Council of the State Capital Investment Corporation. To decide on the appointment, reappointment, relief from office, resignation, commendation or disciplining of Financial Controllers of state economic groups and salaries for these persons.

7. To annually summarize and report to the Prime Minister on production and business efficiency and performance of assigned public-utility tasks, and the financial status of single-member limited liability companies nationwide. To scrutinize financial statements of state economic groups when so requested by the Prime Minister.

To coordinate with line ministries and provincial-level People’s Committees in conducting regular supervision and examination and inspection in accordance with regulations on capital management, use, preservation and development applicable to single-member limited liability companies.

8. To evaluate and approve foreign loans of state economic groups and other single-member limited liability companies based on regulations and approved plans on the borrowing of foreign loans.

9. To give opinions on the matters specified at Points a and d, Clause 1, and Clauses 2, 3 and 4, Article 8 of this Decree.

10. To advise line ministries and provincial-level People’s Committees on the contribution, holding increase or reduction of capital in other enterprises, and the admission of affiliated or associated companies of state economic groups and state corporations.

Article 11. Rights and responsibilities of the Ministry of Planning and Investment

1. To submit to the Government regulations on the establishment, reorganization, ownership transformation (except the provision of Clause 3, Article 10 of this Decree) and dissolution of single-member limited liability companies; to promulgate the model charter for state corporations and enterprises in which the State holds 100% of charter capital.

2. To submit to the Government regulations on the supervision and examination of the implementation of strategies, plans, objectives and assigned tasks.

3. To submit to the Prime Minister for promulgation the Regulation on operation of Controllers of single-member limited liability companies.

4. To appraise and submit to the Prime Minister for decision the establishment, objectives, tasks, business lines, reorganization, ownership transformation, dissolution and bankruptcy of state economic groups.

5. To appraise and submit to the Prime Minister production and business strategies and plans and 5-year development investment plans of state economic groups.

6. To annually review and report to the Government on the achievement of objectives and performance of tasks and business lines of single-member limited liability companies nationwide. To coordinate with line ministries and provincial-level People’s Committees in conducting annual supervision and examination and inspection in accordance with regulations of the implementation of production and business strategies and plans and 5-year development investment plans.

7. To give opinions on the matters specified at Points a and b, Clause 1, and Clauses 2, 3 and 4, Article 8 of this Decree.

8. To advise line ministries and provincial-level People’s Committees on the contribution, holding, increase or reduction of capital in other enterprises, and the admission of affiliated or associated companies of state economic groups and state corporations.

Article 12. Rights and responsibilities of the Ministry of Home Affairs

1. To submit to the Government regulations on the appointment, reappointment, relief from office, resignation, signing and termination of contracts, commendation and disciplining, and criteria for evaluation, of chairpersons and members of Members’ Councils, Presidents, Controllers, General Directors (Directors), Deputy General Directors (Deputy Directors) and Chief Accountants of companies; the number of members of the Members’ Council and Deputy General Directors (Deputy Directors) of a company.

2. To appraise and propose to the Prime Minister for decision the appointment, reappointment, relief from office, resignation, commendation and disciplining of chairpersons of Members’ Councils of state economic groups and the State Capital Investment Corporation.

3. To give opinions on the matters specified at Point a, Clause 1, and Clauses 2, 3 and 4, Article 8 of this Decree.

4. To coordinate with line ministries and provincial-level People’s Committees in supervising and examining the observance of the Party’s and the State’s regulations on personnel work in state economic groups and state corporations.

Article 13. Rights and responsibilities of the Ministry of Labor, War Invalids and Social Affairs

1. To submit to the Government regulations on the regime of recruitment, salaries and bonuses of companies; salaries, bonuses and other benefits of chairpersons and members of Members’ Councils or Presidents, Controllers and General Directors (Directors) of companies.

2. To coordinate with line ministries and provincial-level People’s Committees in conducting annual supervision and examination and inspection in accordance with regulations of the implementation of the regime of recruitment, salaries and bonuses of companies.

3. To reach agreement on the matters specified at Point j, Clause 1, Article 9 of this Decree; and give opinions on the matters specified at Point a, Clause 1, and Clauses 2, 3 and 4, Article 8 of this Decree.

Article 14. Rights and responsibilities of Members’ Councils and Presidents of companies

Members’ Councils and Presidents act as representatives of the owners directly at companies and have the following rights and responsibilities:

1. To decide on production and business strategies and plans and 5-year development investment plans of companies after these strategies and plans are submitted to and approved by competent agencies.

2. To decide on annual production and business plans and development investment plans of companies and send the decisions to line ministries, the Ministry of Planning and Investment and the Ministry of Finance (for state economic groups and state corporations) or to line ministries or provincial-level People’s Committees (for companies under these ministries or provincial-level People’s Committees) for summarization and oversight.

3. To propose to competent agencies the appointment, reappointment, relief from office, resignation, commendation and disciplining of chairpersons and members of Members’ Councils or Presidents and General Directors (Directors) of companies.

4. To decide on the appointment, reappointment, relief from office, resignation, signing and termination of contracts with, commendation and disciplining of Deputy General Directors (Deputy Directors) and Chief Accountants of companies.

5. To propose competent agencies to adjust charter capital; amend and supplement the charters of companies; reorganize, transform ownership, dissolve, or request bankruptcy of companies.

6. To decide on the contribution, holding, increase or reduction of capital of companies in other enterprises and the admission of affiliated or associated companies after it is proposed to and approved by line ministries or provincial-level People’s Committees.

7. To appoint representatives of contributed capital of companies in other enterprises; to assign these representatives to decide on the matters specified in Clause 4, Article 20 and Clause 4, Article 29, of this Decree.

8. To decide or authorize General Directors (Directors) to decide on investment projects and contracts on borrowing, lending, purchase or sale of assets within the ambit of their powers provided in the charters of companies and relevant regulations.

9. To request line ministries or provincial-level People’s Committees to approve policies to borrow foreign loans.

10. To decide on the establishment, reorganization or dissolution of branches, representative offices and other dependent accounting units after it is proposed to and approved by competent agencies.

11. To issue internal management regulations of companies. To approve financial statements, distribution of profits and setting up and use of funds after obtaining approval of competent agencies.

12. To decide on salaries for posts appointed by them.

13. To decide on market development, marketing and technological solutions of companies.

14. Rights and responsibilities of Members Councils and Presidents of companies toward wholly state-owned affiliated companies:

a/ To decide on the establishment, objectives, tasks, business lines, reorganization, ownership transformation, dissolution and bankruptcy of these companies after obtaining approval of competent agencies;

b/ To approve, amend and supplement their charters;

c/ To decide on their charter capital at the time of establishment and adjusted charter capital in the course of operation of these companies;

d/ To decide on the appointment, reappointment, relief from office, resignation, commendation and disciplining of chairpersons and members of Members’ Council or Presidents, General Directors (Directors) and Controllers of these companies;

e/ To approve production and business strategies and plans and 5-year development investment plans;

f/ To approve policies on borrowing, lending, purchase or sale of assets valued at 50% or more of charter capital of these companies or at a lower rate as stated in their charters;

g/ To approve their annual financial statements, distribution of profits and setting up and use of funds.

15. To reorganize and renew enterprises after competent agencies approve overall schemes thereon.

16. To manage and direct enterprises in abiding by law and the owner’s decisions on capital management, use, preservation and effective development; to promptly report to the owner on loss-making operation, insolvency or failure to achieve objectives and fulfill tasks assigned by the owner or other wrongdoings and violations of enterprises.

Section 3. ASSIGNMENT AND DECENTRALIZATION OF THE PERFORMANCE OF THE OBLIGATIONS OF THE STATE OWNER

Article 15. Obligation to allocate sufficient charter capital

1. The Ministry of Finance is obliged to allocate sufficient charter capital after competent authorities decide on charter capital of state economic groups and companies under line ministries.

2. Provincial-level People’s Committees are obliged to allocate sufficient charter capital to their attached companies.

3. Members’ Councils and Presidents of companies are obliged to allocate sufficient charter capital to wholly state-owned affiliated companies established under their decisions.

Article 16. Obligation to comply with company charters

Organizations and individuals that exercise the rights and perform the responsibilities of the owner are obliged to comply with company charters and take responsibility before law for decisions they have issued beyond their competence.

Article 17. Obligations for debts and other assets

1. The state owner is obliged for debts and other assets within the limit of charter capital of companies.

Members’ Councils, Presidents and General Directors (Directors) of companies shall manage and direct companies to assure their ability to pay debts and discharge other asset liabilities; identify and separate assets of the owner from those of companies.

2. Line ministries shall supervise, examine and assess debts and other asset liabilities of their attached state economic groups and companies.

Provincial-level People’s Committees shall supervise, examine and assess debts and other asset liabilities of their attached companies. If detecting that their companies encounter difficulties in paying debts and discharging other asset liabilities, line ministries or provincial-level People’s Committees shall request and direct these companies to work out plans to overcome such difficulties and report thereon to competent agencies for consideration and decision.

The Ministry of Finance shall annually report to the Government on the situation of debts and other asset liabilities of state economic groups, state corporations and other wholly state-owned enterprises nationwide.

3. When a company falls into bankruptcy, the concerned line ministry or provincial-level People’s Committee shall direct its Members’ Council, President and General Director (Director) in carrying out bankruptcy request procedures under the bankruptcy law.

Article 18. Obligation to approve policies on investment, asset purchase and sale and borrowing and lending contracts

1. Organizations and individuals exercising the rights and performing the responsibilities of the owner are obliged to approve policies on investment, asset purchase and sale and borrowing and lending contracts of companies within their competence and in accordance with law; and supervise the implementation of their decisions and approvals.

2. Members’ Councils, Presidents and General Directors (Directors) of companies shall implement investment projects, asset purchase and sale, borrowing and lending contracts of their companies according to approved policies and law.

Article 19. Obligation to guarantee the right of companies to do business in accordance with law

Organizations and individuals exercising the rights and performing the responsibilities of the owner are obliged to guarantee the right of companies to do business in accordance with law; and ensure that Members’ Councils, Presidents and General Directors (Directors) effectively manage and direct companies in accordance with law and the charters of companies.

Chapter III

ASSIGNMENT AND DECENTRALIZATION OF THE EXERCISE OF THE RIGHTS AND THE PERFORMANCE OF THE RESPONSIBILITIES OF THE STATE OWNER TOWARD ENTERPRISES IN WHICH THE STATE HOLDS OVER 50% OF CHARTER CAPITAL

Article 20. Rights and responsibilities of the state owner

1. To decide on the contribution of capital and transfer of state capital invested in enterprises; to exercise the rights of shareholders and capital contributors in accordance with law and the charters of enterprises; to take responsibility for debts and other asset liabilities of enterprises within the limit of capital amounts contributed by the State to enterprises.

2. To designate representatives to exercise the rights of shareholders and capital contributors; to relieve from office, commend and discipline representatives; to decide on salaries, bonuses, allowances and other benefits of representatives; to evaluate representatives.

3. To request representatives to perform the tasks assigned to them in Clause 4 of this Article, unless otherwise provided in the charters of enterprises; to periodically or extraordinarily report on investment, financial status, efficiency of use of state capital and business results of enterprises.

4. To assign representatives to decide on the following matters of enterprises:

a/ Objectives, tasks, business lines, reorganization, dissolution and bankruptcy of enterprises;

b/ Charters of enterprises and amendments and supplementations thereto;

c/ Increase or reduction of charter capital; time and method of capital raising; types of share and total number of shares of each type permitted to be offered; redemption of over 10% of the total number of sold shares of each type;

d/ Nomination for election, proposed relief from office, dismissal, commendation and handling of violations of members and chairpersons of Boards of Directors, chair-persons of Members’ Councils and members of Control Boards; nomination for election or proposed relief from office of, and signing and termination of contracts with, General Directors (Directors) of enterprises; remunerations, salaries, bonuses and other benefits of members of Boards of Directors, Members’ Councils and Control Boards, and General Directors (Directors) of enterprises; numbers of members of Boards of Directors, members of Control Boards and Deputy General Directors (Deputy Directors) of enterprises.

e/ Production and business strategies and plans and 5-year development investment plans of enterprises; annual lists of investment projects of groups A and B;

f/ Policies to contribute, hold, increase or reduce state capital invested in other enterprises; the establishment, reorganization or dissolution of branches, representative offices and other dependent accounting units; the admission of enterprises which voluntarily join enterprises as their affiliated or associated companies;

g/ Policies to purchase and sell assets and borrowing and lending contracts valued at 50% or more of charter capital of enterprises or at a lower rate as stated in the charters of enterprises; and policies to borrow foreign loans for enterprises;

h/ Financial statements, distribution of profits and setting up and use of funds and annual dividends;

i/ Regimes of recruitment, remunerations, salaries and bonuses of enterprises.

5. To request representatives to make reports for regular supervision and examination and inspection in accordance with regulations of the observance of law; the management, use, preservation and development of state capital in enterprises; the implementation of strategies and plans; and assessment of the achievement of objectives and performance of assigned tasks, operation results, and production and business efficiency.

Article 21. Rights and responsibilities of the Government

To regulate the following issues as grounds for guiding the state capital owner and representatives in exercising the rights and performing the obligations of shareholders and capital contributors of enterprises:

1. Designation, relief from office, commendation and disciplining of representatives; criteria for evaluation of representatives; nomination for election, relief from office, dismissal, commendation and handling of violations of members and chairpersons of Boards of Directors, chairpersons of Members’ Councils, members of Control Boards; appointment and relief from office of, signing and termination of contracts with, General Directors (Directors) of enterprises; numbers of members of Boards of Directors, members of Control Boards and Deputy General Directors (Deputy Directors) of enterprises.

2. Regimes of financial management, distribution of profits and setting up and use of funds; regime of financial statement and publicity of enterprises; mechanism for implementation supervision and examination.

3. Regimes of recruitment, remunerations, salaries and bonuses of enterprises and representatives of state capital in enterprises.

4. Mechanism of task assignment and participation in the provision and assurance of products and public-utility services essential for the economy.

5. Regimes of supervision, examination and inspection of the observance of law; assessment of the implementation of strategies, plans, objectives and assigned tasks, operation results and production and business efficiency; management, use, preservation and development of capital of enterprises.

6. Criteria for evaluation of operation results and production and business efficiency of enterprises.

Article 22. Rights and responsibilities of the Prime Minister

1. To decide on the holding, increase or reduction of state capital invested in equitized economic groups.

2. To permit line ministries to assign representatives to decide on the following matters of equitized economic groups:

a/ Charters and amendments and supplementations thereto;

b/ Objectives, tasks, business lines, reorganization, dissolution and bankruptcy;

c/ Increase or reduction of charter capital; time and method of capital raising; types of share and total number of shares of each type permitted to be offered, and redemption of over 10% of the total number of sold shares of each type;

d/ Production and business strategies and plans and 5-year development investment plans.

3. To approve overall schemes on holding, increase and reduction of state capital invested in transformed or equitized enterprises under ministries or provincial-level People’s Committees.

Article 23. Rights and responsibilities of line ministries and provincial-level People’s Committees

1. Line ministries exercise the following rights and perform the following responsibilities toward equitized economic groups:

a/ To designate, relieve from office, commend and discipline representatives; to decide on salaries, bonuses, allowances and other benefits of representatives; to evaluate representatives;

b/ To propose the Prime Minister to decide on the holding, increase or reduction of state capital invested in equitized economic groups;

c/ To propose the Prime Minister to permit the assignment of representatives to decide on the following matters: Charters and amendments and supplementations thereto; objectives, tasks, business lines, reorganization, dissolution and bankruptcy; increase or reduction of charter capital, time and method of capital raising, types of share and total number of shares of each type permitted to be offered, redemption of over 10% of total number of sold shares of each type; production and business strategies and plans and 5-year development investment plans;

d/ To permit representatives to decide on the matters specified at Points d, f, and h, Clause 4, Article 20 of this Decree, and approve annual lists of investment projects of groups A and B, and report them to the Ministry of Planning and Investment and the Ministry of Finance for summarization and oversight; to approve polices to purchase and sell assets, borrowing and lending contracts valued at 50% or more of charter capital or at a lower rate as stated in the charters of groups; and policies to borrow foreign loans for groups, and propose them to the Ministry of Finance for evaluation and approval;

e/ To request representatives to make reports for regular supervision and examination and inspection in accordance with regulations of the observance of law; the management, use, preservation and development of state capital in enterprises; the implementation of strategies and plans; and assessment of the achievement of objectives and performance of assigned tasks, operation results and production and business efficiency of equitized economic groups.

2. Rights and responsibilities of line ministries and provincial-level People’s Committees toward their transformed or equitized enterprises:

a/ To decide on the holding, increase or reduction of state capital invested in enterprises; to designate, relieve from office, commend and discipline representatives; to decide on salaries, bonuses, allowances and other benefits of representatives; to evaluate representatives;

b/ To permit representatives to decide on the matters specified in Clause 4, Article 20 of this Decree. To notify annual lists of projects of groups A and B for the Ministry of Planning and Investment and the Ministry of Finance for summarization and oversight. To approve policies on foreign loans of enterprises and propose them to the Ministry of Finance for evaluation and approval.

c/ To request representatives to make reports for regular supervision and examination and inspection in accordance with regulations of the observance of law; the management, use, preservation and development of state capital in enterprises; the implementation of strategies and plans; and assessment of the achievement of objectives and performance of assigned tasks, operation results and production and business efficiency of enterprises;

d/ To propose the Prime Minister to approve overall schemes on holding, increase and reduction of state capital invested in enterprises.

Article 24. Rights and responsibilities of the Ministry of Finance

1. To submit to the Government regulations on the regime of financial management, distribution of profits, setting up and use of funds; the regime of capital management, use, preservation and development; the regime of financial statement and publicity; and the mechanism of implementation supervision and inspection.

2. To submit to the Government regulations on criteria for evaluation of operation results and production and business efficiency of enterprises; mechanisms of task assignment and participation in the provision and assurance of products and public-utility services essential for the economy.

3. To annually review and report to the Government on production and business efficiency and performance of assigned public-utility tasks of enterprises in which the State holds over 50% of charter capital nationwide. To coordinate with line ministries and provincial-level People’s Committees in requesting representatives to make reports for regular supervision and examination and inspection in accordance with regulations of the management, use, preservation and development of state capital invested in enterprises nationwide.

4. To evaluate and submit to the Prime Minister for decision the holding, increase and reduction of state capital invested in equitized economic groups.

5. To evaluate and submit to the Prime Minister for approval the increase or reduction of charter capital; time and method of capital raising; types of share and total number of shares of each type permitted to be offered; the redemption of over 10% of total number of sold shares of each type of equitized economic groups.

6. To nominate persons to join Control Boards of equitized economic groups.

7. To evaluate and approve foreign loans of enterprises based on regulations and approved plans on the borrowing of foreign loans at the request of line ministries and provincial-level People’s Committees.

8. To give opinions on the matters specified at Points a, b and d, Clause 2, and Clause 3, Article 22 of this Decree.

9. To advise line ministries and provincial-level People’s Committees on the contribution, holding, increase or reduction of capital invested in other enterprises, and the admission of enterprises which voluntarily join equitized state economic groups or corporations as their affiliated or associated companies.

Article 25. Rights and responsibilities of the Ministry of Planning and Investment

1. To submit to the Government regulations on the regime of supervision and examination of the implementation of strategies, plans, objectives and assigned tasks of enterprises.

2. To appraise and submit to the Prime Minister for approval objectives, tasks, business lines, reorganization, dissolution and bankruptcy, production and business strategies and plans and 5-year development investment plans of equitized state economic groups.

3. To annually review and report to the Government on the achievement of objectives and performance of tasks and business lines of equitized economic groups and corporations under line ministries. To coordinate with line ministries and provincial-level People’s Committees in requesting representatives to make reports for annual supervision and examination and inspection in accordance with regulations of the implementation of production and business strategies and plans and 5-year development investment plans.

4. To give opinions on the matters specified in Clause 1, Points a and c, Clause 2, and Clause 3, Article 22 of this Decree.

5. To advise line ministries and provincial-level People’s Committees on the contribution, holding, increase or reduction of capital invested in other enterprises, and the admission of enterprises which voluntarily join equitized state economic groups or corporations as their affiliated or associated companies.

Article 26. Rights and responsibilities of the Ministry of Home Affairs

1. To submit to the Government regulations on the designation, relief from office, commendation and disciplining of representatives; criteria for evaluation of representatives; nomination for election, relief from office, dismissal, commendation and handling of violations of members and chairpersons of Boards of Directors, chairpersons of Members’ Councils, members of Control Boards; appointment, relief from office of, signing and termination of contracts with, General Directors (Directors) of enterprises; numbers of members of Boards of Directors, members of Control Boards, Deputy General Directors (Deputy Directors) of enterprises.

2. To coordinate with line ministries and provincial-level People’s Committees in requesting representatives to make reports for supervision and examination of the observance of the Party’s and the State’s regulations on personnel work applicable to equitized economic groups and corporations.

3. To give opinions on the matters specified at Points a and b, Clause 2, Article 22 of this Decree.

Article 27. Rights and responsibilities of the Ministry of Labor, War Invalids and Social Affairs

1. To submit to the Government regulations on the regime of recruitment, remunerations, salaries and bonuses of enterprises and representatives of state capital in enterprises.

2. To coordinate with line ministries and provincial-level People’s Committees in conducting annual supervision and examination and inspection in accordance with regulations of the implementation of the regime of recruitment, remunerations, salaries and bonuses of enterprises.

3. To give opinions on the matters specified at Points and b, Clause 2, Article 22 of this Decree.

Article 28. Rights and responsibilities of representatives

Representatives authorized to exercise the rights and perform the responsibilities of the state owner shall abide by law; properly perform tasks assigned by the state owner when deciding on the matters specified in Clause 4, Article 20 of this Decree; and promptly report to the state owner on enterprises’ loss-making operation, insolvency, failure to achieve objectives and perform tasks assigned by the owner, or other wrongdoings and violations.

Chapter IV

ASSIGNMENT AND DECENTRALIZATION OF THE EXERCISE OF THE RIGHTS AND PERFORMANCE OF THE RESPONSIBILITIES OF THE STATE OWNER TOWARD ENTERPRISES IN WHICH THE STATE HOLDS NOT MORE THAN 50% OF CHARTER CAPITAL

Article 29. Rights and responsibilities of the state owner

1. To decide on the contribution of and transfer of state capital invested in enterprises; to exercise the rights of shareholders and capital contributors in accordance with law and the charters of enterprises; to take responsibility for debts and other asset liabilities of enterprises within the limit of capital amounts contributed by the State to enterprises.

2. To designate representatives to exercise the rights of shareholders and capital contributors; to relieve from office, commend and discipline representatives at enterprises; to decide on salaries, bonuses, allowances and other benefits of representatives; to evaluate representatives.

3. To request representatives to perform the tasks assigned to them in Clause 4 of this Article, unless otherwise provided in the charters of enterprises; to periodically or extraordinarily report on investment, financial status, efficiency of use of state capital and business results of enterprises.

4. To assign tasks to representatives to decide on the following matters of enterprises:

a/ Objectives, tasks, business lines, reorganization, dissolution and bankruptcy of enterprises;

b/ Charters of enterprises and amendments and supplementations thereto;

c/ Increase or reduction of charter capital; time and method of capital raising; types of share and total number of shares of each type permitted to be offered; the redemption of over 10% of the total number of sold shares of each type;

d/ Nomination for election, relief from office, dismissal, commendation and handling of violations of members and chairpersons of Boards of Directors, chairpersons of Members’ Councils and members of Control Boards; nomination for election or relief from office of, and signing and termination of contracts with, General Directors (Directors) of enterprises; remunerations, salaries, bonuses and other benefits of members of Boards of Directors, Members’ Councils and Control Boards, and General Directors (Directors) of enterprises; numbers of members of Boards of Directors, members of Control Boards, and Deputy General Directors (Deputy Directors) of enterprises.

e/ Production and business strategies and planes and 5-year development investment plans of enterprises;

f/ Policies to establish affiliated companies or to establish, reorganize or dissolve branches and representative offices;

g/ Policies to invest, purchase and sell assets, and borrowing and lending contracts valued at 50% or more of the total asset value stated in latest financial statements of enterprises or at a lower rate as stated in their charters;

h/ Annual financial statements, distribution of profits and setting up and use of funds and annual dividends of enterprises;

5. To request representatives to make reports for regular supervision and examination and assessment of use efficiency of state capital in enterprises.

Article 30. Rights and responsibilities of the Government and the Prime Minister

1. The Government shall prescribe the regime of management and use of state capital in enterprises to serve as a basis for guiding the state capital owner and representatives in exercising the rights and performing the obligations of shareholders and capital contributors of enterprises.

2. The Prime Minister shall approve overall schemes on holding, increase and reduction of state capital invested in enterprises at the proposal of line ministries and provincial-level People’s Committees and on the basis of opinions of the Ministry of Finance and the Ministry of Planning and Investment.

Article 31. Rights and responsibilities of line ministries and provincial- level People’s Committees

1. To designate, relieve from office, commend and discipline representatives; to decide on salaries, bonuses, allowances and other benefits of representatives; to evaluate representatives.

2. To assign representatives to decide on the matters specified in Clause 4, Article 29 of this Decree.

3. To request representatives to make reports for regular supervision and examination and assessment of use efficiency of state capital in enterprises.

4. To propose the Prime Minister to approve overall schemes on holding, increase and reduction of state capital invested in enterprises.

Article 32. Rights and responsibilities of the Ministry of Finance

1. To submit to the Government regulations on the regime of management and use of state capital in enterprises.

2. To coordinate with line ministries and provincial-level People’s Committees in requesting representatives to make reports for regular supervision and examination. To annually review and report to the Government on use efficiency of state capital in enterprises nationwide.

3. To give opinions on the matters specified in Clause 2, Article 30 of this Decree.

Article 33. Rights and responsibilities of representatives

Representatives authorized to exercise the rights and perform the responsibilities of the state owner shall abide by law; properly perform tasks assigned by the state owner when deciding on the matters specified in Clause 4, Article 29 of this Decree; and promptly report to the state owner on enterprises’ loss-making operation, insolvency, failure to achieve objectives and perform tasks assigned by the owner, or other wrongdoings and violations.

Chapter V

IMPLEMENTATION PROVISIONS

Article 34. Effect

This Decree takes effect on December 30, 2012.

The Government’s Decree No. 132/2005/ND-CP of October 20, 2005, on the exercise of the rights and performance of the obligations of the state owner toward state companies, and Decree No. 86/2006/ND-CP of August 21, 2006, amending and supplementing a number of articles of Decree No. 132/2005/ND-CP, and all previous regulations which are contrary to this Decree are annulled.

Article 35. Responsibility to implement and organize the implementation of this Decree

1. The Ministry of Finance shall promulgate the Regulation on operation of authorized representatives of state capital invested in enterprises.

2. The Ministry of Planning and Investment shall annually report to the Government on the exercise of the rights and the performance of the responsibilities and obligations of the state owner toward state enterprises.

3. The Government Inspectorate shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment and the Ministry of Finance in, submitting to the Government for promulgation the Regulation on supervision, examination and inspection of enterprises in their observance of law and compliance with decisions of the state owner.

4. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, Members’ Councils or Presidents of single-member limited liability companies of which the State holds 100% of charter capital, and authorized representatives of state capital invested in enterprises shall implement this Decree.-

 

ON BEHALF OF THE GOVERNMENT PRIME MINISTER Nguyen Tan Dung