Thông tư 03/2021/TT-BTNMT hướng dẫn nội dung chi tiết phương án sử dụng đất khi cổ phần hóa doanh nghiệp nhà nước; lập và phê duyệt phương án sử dụng đất đối với đơn vị sự nghiệp công lập thực hiện chuyển đổi thành công ty cổ phần do Bộ trưởng Bộ Tài nguyên và Môi trường ban hành

CIRCULAR

PROVIDING GUIDANCE ON DETAILS OF PLAN FOR USE OF LAND UPON EQUITIZATION OF STATE ENTERPRISES; FORMULATION AND APPROVAL OF PLAN FOR USE OF LAND FOR PUBLIC SERVICE UNITS TRANSFORMED INTO JOINT-STOCK COMPANIES

Pursuant to the Law on Land dated November 29, 2013;

Pursuant to the Government's Decree No. 36/2017/ND-CP dated April 4, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Natural Resources and Environment;

Pursuant to the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017 on transformation of state enterprises and single-member limited liability companies of which charter capital is wholly owned by the state into joint-stock companies;

Pursuant to the Government’s Decree No.140/2020/ND-CP dated November 30, 2020, amending and supplementing several articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017, regarding transformation of state enterprises and single-member limited liability companies of which 100% of charter capital is held by state enterprises into joint-stock companies; the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015, regarding investment of state capital in enterprises and management, use of capital and assets at enterprises and the Government's Decree No. 32/2018/ND-CP dated March 8, 2018, prescribing amendments and supplements to several Articles of the Decree No. 91/2015/ND-CP;

Pursuant to the Government’s Decree No. 150/2020/ND-CP dated December 25, 2020, prescribing the transformation of public service units into joint-stock companies;

Pursuant to the Government’s Decree No. 167/2017/ND-CP dated December 31, 2017, prescribing the reorganization and disposal of public assets;

Pursuant to the Government's Decree No. 01/2017/ND-CP dated January 6, 2017 on amendments and supplements to a number of Decrees, elaborating on the implementation of the Law on Land;

Pursuant to the Government’s Decree No. 118/2014/ND-CP dated December 17, 2015 on the organization, reform, development and improvement of efficiency of operations of agro-forestry companies;

Upon the request of the Director of the General Department of Land Administration and the Director of the Department of Legal Affairs;

The Minister of Natural Resources and Environment hereby promulgates the Circular providing guidance on details of plan for use of land upon equitization of state enterprises; formulation and approval of plan for use of land for public service units transformed into joint-stock companies.

Article 1. Scope and subjects of application

1. Scope of application:

This Decree shall prescribe:

a) The plan for use of land upon equitization of state enterprises under the provisions of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017, regarding the transformation of state enterprises and single-member limited liability companies of which 100% of charter capital is held by state enterprises into joint-stock companies (hereinafter referred to as 126/2017/ND-CP); the Government’s Decree No. 140/2020/ND-CP dated November 30, 2020, prescribing amendments and supplements to  several Articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017, regarding the transformation of state enterprises and single-member limited liability companies of which 100% of charter capital is held by state enterprises into joint-stock companies; the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015, regarding investment of state capital in enterprises and management, use of capital and assets at enterprises and the Government's Decree No. 32/2018/ND-CP dated March 8, 2018, prescribing amendments and supplements to several Articles of the Decree No. 91/2015/ND-CP (hereinafter referred to as Decree No. 140/2020/ND-CP);

b) Formulation and approval of the plan for use of land for public service units transformed into joint-stock companies under the provisions of the Government’s Decree No. 150/2020/ND-CP dated December 25, 2020, regarding transformation of public service units into joint-stock companies (hereinafter referred to as Decree No. 150/2020/ND-CP).

2. Subjects of application

State enterprises, single-member limited liability companies of which 100% charter capital is held by state enterprises as prescribed in Clause 3, Article 2 of the Decree No. 126/2017/ND-CP and Clause 1, Article 1 of Decree No. 140/2020/ND-CP (hereinafter referred to as equitized enterprises); public service units transformed into joint-stock companies specified in Clause 1, Article 2 of the Decree No. 150/2020/ND-CP (hereinafter referred to as transformed public service units) and other related agencies, organizations and individuals.

Article 2. Details of the plan for use of land upon equitization of state enterprises

1. Current conditions of management and use of land of transformed enterprises

An equitized enterprise shall be responsible for making a report on the current state of management and use of land that they are managing and using till the time of enterprise valuation, and submitting it to the governing body for its approval, including the following main contents:

a) Total area and number of land plots under their management and in use at each commune, ward, township and assets attached to each land plot;

b) Usage form and area of land relevant to its usage form, including:  The State allocation of land without land levies; the State allocation of land with land levies; the State allocation or lease of land on which exemption from payment of levies and rents is granted; the State lease of land on which one-off payment of rents is required; the State lease of land on which rental payments must be made on an annual basis; land acquired through the legal transfer from other organizations and individuals;

c) Land use term (i.e. long term and residual land use term in case of fixed-term use of land);

d) Area of land for which the certificate of land use right has been granted; area of land that has not yet obtained a certificate of land use right (clearly describe reasons for not yet being granted a certificate of land use right and make recommendations);

dd) Area of land is being used for the right purpose;

e) Area of ​​land used for improper purposes; area of land allocated, leased, lent, used as contributed capital, for participation in joint venture, affiliation or cooperation in contravention of the provisions of law; area of land in dispute, illegally encroached or occupied land; other cases (if any);

g) Area of land not put to use.

2. Recommendations about plans for use of land upon equitization

Pursuant to the approved and published land use plans and construction plans (if any) of localities; plans for rearrangement and disposal of houses and land in accordance with law on management and use of public property; land use plans according to the provisions of Decree No. 118/2014/ND-CP approved by competent authorities; strategies for development of enterprises or equitized enterprises, recommendations for land use plans shall be made, including the following information: total area, number of land plots proposed to be retained for use; clearly describing area, types of land, form of use, land use term of each land plot proposed to be retained for use in each commune, ward or township.

3. Comparison of the land use plan upon equitization with the plan on land use, construction planning (if any), the plan on rearrangement and disposal of houses and land in accordance with law on management and use of public property; the land use plan according to the provisions of Decree No. 118/2014/ND-CP that has been approved by the competent authority according to the following contents:

a) Area of land consistent with the plan on land use, construction planning (if any), and not different from the plan on rearrangement and disposal of houses and land approved by the competent authority in accordance with law on management and use of public property; the land use plan according to the provisions of Decree No. 118/2014/ND-CP;

b) Area of land inconsistent with the plan on land use, construction planning (if any), and different from the plan on rearrangement and disposal of houses and land approved by the competent authority in accordance with law on management and use of public property; the land use plan according to the provisions of Decree No. 118/2014/ND-CP that has been approved.

c) Area of land that ​​an enterprise is allocated, leased or acquired through legal transfers arising from the time of approval of the plan for rearrangement and disposal of houses and land in accordance with the law on management and use public property, the land use plan as prescribed in Decree No. 118/2014/ND-CP to the time of enterprise valuation.

d) Area of land not subject to the requirements for rearrangement and disposal of houses and land in accordance with law on management and use of public property and area of land not included in the land use plan as prescribed in Decree No. 118 /2014/ND-CP (if any).

4. For the area of land that has been changed compared with the plan on land use, construction plan (if any) of a locality or different from the land use purpose according to the plan on rearrangement and disposal of houses and land according to the provisions of law on management and use of public property; the land use plan according to the provisions of Decree No. 118/2014/ND-CP; the area of land that is not included in the land use plan specified in Clause 2 of this Article, the disposal thereof shall be governed under the provisions of Clause 15, Article 1 of Decree No. 140/2020/ND-CP.

The contents of the land use plan of the equitized enterprise and the summary table of the contents of the land use plan shall comply with Appendix I and Appendix II issued together with this Circular.

Article 3. Formulation and approval of land use plans for public service units transformed into joint-stock companies

1. Public service units transformed into joint-stock companies shall formulate the plan for use of land for submission to authorities having competence in deciding the transformation of public service units into joint-stock companies according to the regulations of Article 39 in the Decree No. 150/2020/ND-CP to seek their approval.

2. Contents of the land use plan for a public service unit transformed into a joint-stock company

a) Current conditions of management and use of land of a public service unit transformed into a joint-stock company.

The public service unit that is transformed into a joint-stock company shall be responsible for making a report on the current state of management and use of land, including land of its subordinate public service units, enterprises of which 100% of the charter capital is held by the public service unit, which is being managed and used till the time of valuation of the transformed public service unit, using the contents specified at Points a, b, c, d, dd , e and g Clause 1 Article 2 of this Circular.

b) Recommendation about the land use plan

Based on the approved and published plans on land use and construction plans (if any) of localities; plans on rearrangement and disposal of houses and land in accordance with law on management and use of public property approved by competent authorities; scope of public services, plans for use of land prepared using the contents specified in Clause 2, Article 2 of this Circular must be recommended.

c) Comparing the land use plan with the plan on land use, construction planning (if any), the plan on rearrangement and disposal of houses and land in accordance with law on management and use of public property that are approved by competent authorities according to the contents prescribed in points a, b, c and d of clause 3 of Article 2 herein.

The contents of the land use plan of the public service unit transformed into the joint-stock company and the summary table of the contents of the land use plan shall be subject to Appendix I and Appendix II issued together with this Circular.

Article 4. Grandfather clause

In case where a land use plan must be prepared upon equitization in accordance with the provisions of Decree No. 140/2020/ND-CP, Decree No. 150/2020/ND-CP after the land use plan upon equitization has been approved by a competent state authority, that plan must continue to be implemented; in case of not being approved yet, the provisions of this Circular must be observed.

Article 5. Entry into force

1. This Circular shall enter into force as of June 28, 2021.

2. Ministries, Ministry-level agencies, Governmental bodies, People’s Committees of provinces and centrally-affiliated cities and other entities, organizations or individuals concerned, shall be responsible for implementing this Circular.

3. The General Department of Land Administration shall be responsible for inspecting and facilitating the implementation of this Circular./.