Chương 2 Nghị định 99/2012/NĐ-CP: Phân công, phân cấp thực hiện các quyền, trách nhiệm, nghĩa vụ của chủ sở hữu nhà nước đối với doanh nghiệp mà nhà nước nắm giữ 100% vốn điều lệ là công ty trách nhiệm hữu hạn một thành viên

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.