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Decree No. 99/2012/ND-CP dated November 15, 2012 of the Government on assignment, decentralization of the implementation of the rights, responsibilities and obligations of state owner for the state-owned enterprises and state capital invested in the enterprises

 

DECREE

ON ASSIGNMENT, DECENTRALIZATION OF THE IMPLEMENTATION OF THE RIGHTS, RESPONSIBILITIES AND OBLIGATIONS OF STATE OWNER FOR THE STATE-OWNED ENTERPRISES AND STATE CAPITAL INVESTED IN THE ENTERPRISES

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

Pursuant to the Law on Enterprises dated November 29, 2005;

At the proposal of the Minister of Planning and Investment;

The Government issues a Decree on assignment, decentralization of the implementation of the rights, responsibilities and obligations of state owner for the state-own enterprises and state capital invested in the enterprises,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of governing

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

The Government is the highest state administrative agency, unifies in management and implementation of the function of state-owner for the state-own enterprises and the state capital invested in the enterprises.

This Decree provides for the assignment, decentralization of the implementation of the rights, responsibilities and obligations of state owner for the state-own enterprises and state capital invested in the enterprises.

Article 2. Application subjects

Subjects of application of the Decree include:

1. State-own enterprises in which the State holds 100% charter capital and the authorized representatives in the enterprise.

2. Authorized representatives for the capital that the State invested in:

a) The enterprises in which the State holds more than 50% of charter capital;

b) The enterprises in which the State holds not more than 50% of the charter capital.

3. The State agencies, organizations and individuals related to the implementation of the rights, responsibilities and obligations of state owner for the enterprises in which the State holds 100% of the charter capital and the capital that the state invested in the enterprises.

Article 3. Interpretation of terms

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

1. State-own enterprises are the enterprises, in which the State holds more than 50% of the charter capital, including:

a) The enterprises in which the State holds 100% of the charter capital are the one member limited liability companies;

b) The enterprises in which the State holds more than 50% of the charter capital are the joint stock companies, limited liability companies with two or more members.

2. The enterprises in which the State holds not more than 50% of the charter capital are the joint stock companies, limited liability companies with two or more members in which the state-own capital shall not exceed 50% of the charter capital.

3. The state-contributed capital is the capital which is invested by the state in an enterprise and is represented as owner by a state agency or an economic organization assigned by the state.

4. Authorized representatives of the state-own capital in the enterprises (hereinafter referred to as the representatives) are the individuals who are authorized by the owner in writing to exercise their rights, responsibilities and obligations of the owner in the enterprises.

5. The Companies under the Ministries, the provincial-level People's Committees, including: The state corporations, the one member limited liability companies decided on establishment or assigned to manage by the Ministries, the provincial-level People's Committees.

Article 4. Assignment, decentralization of the implementation of the rights, responsibilities and obligations of state owner

1. The Government directly implements or assigns the Prime Minister, ministries, ministerial-level agencies, the Governmental agencies (hereinafter referred to as the Ministries); decentralizes the People’s Committees of provinces and cities directly under the Central Government (hereinafter referred to as the provincial-level People's Committees); assigns the Members’ Councils or chairmen of the companies, the representatives to exercise the rights, responsibilities and obligations of state owner.

2. The State Capital Investment Corporation is the enterprise decided on the establishment by the Prime Minister, invested charter capital by the State and managing state capital in the enterprises transferred by the Ministries, the provincial-level People's Committees has the following rights, responsibilities and obligations:

a) To manage, use efficiently, conserve and develop the capital invested by the state and state-own capital in the enterprises assigned task of management;

b) To appoint and evaluate the activities of the representatives; to dismiss, reward or discipline the representatives; to decide the salaries, bonuses, allowances and other benefits of the representatives in the enterprises assigned task of management;

c) To assign the task for the representative to decide on the contents specified in Clause 4 of Article 20 and Clause 4 of Article 29 of this Decree;

d) To report to the Ministry of Finance for evaluation, submission to the Prime Minister for approving the overall scheme of reorganization and renewal of the enterprises assigned task of management;

đ) To report to the Ministry of Finance for evaluation, submission to the Prime Minister for approving the strategy, business, production plan, development and investment plans in five years.

3. For joint stock companies, limited liability companies with two or more members that the State holds 100% of charter capital owned by the different organizations, each organization shall exercise the rights and perform obligations of each shareholder, partner corresponding to the contributed capital according to the provisions of the Law on Enterprises.

Chapter 2.

ASSIGNMENT, DECENTRALIZATION OF THE IMPLEMENTATION OF THE RIGHTS, RESPONSIBILITIES, OBLIGATIONS OF STATE OWNER FOR THE ENTERPRISES THAT THE STATE HOLDS 100% CHARTER CAPITAL AS ONE MEMBER LIMITED LIABILITY COMPANY

SECTION 1. RIGHTS, RESPONSIBILITIES AND OBLIGATIONS OF STATE OWNER

Article 5. The rights and responsibilities of state owner

1. To decide on the establishment, objectives, tasks and lines of business; reorganization, change of ownership, dissolution and bankruptcy requirement; to contribute capital to the other enterprises.

2. To approve Charter; to amend and supplement the Charter.

3. To decide on investment in charter capital; adjustment, transfer of part or all of the charter capital.

4. To decide on structure of organization, management of company; on appointment, reappointment, dismissal, resignation, signing contract, termination of the contract, reward or discipline of chairman and members of the Members’ Council or the chairman of company, the Comptroller, General Director (Director) of company.

5. To decide on strategy, business production plan and plan of development and investment.

6. To approve policy of investment, purchase and sale of assets and the borrowing, loan contracts.

7. To provide for the financial regime, profit distribution, appropriation and use of funds; to approve the annual financial statements.

8. To regulate the recruitment, salaries and bonuses; decide on salary for the Chairman and members of the Members’ Council or chairman of company, Comptroller, General Director (Director) of company.

9. To decide on the solutions of market development, marketing and technology; regulate mechanism of assigning task and participate in the implementation of the provision and assurance of products, essential and public services of the economy.

10. To supervise, examine and inspect the observance of law; to evaluate the implementation of the targets, tasks assigned, results of operation, business, and production efficiency; to manage, use, conserve, and develop capital of the company. To evaluate chairman and members of the Members’ Council or chairman of company, the Comptroller, General Director (Director), Deputy General Director (Deputy Director), Chief Accountant of the company.

Article 6. Obligations of state owner

1. To invest sufficient charter capital for the company.

2. To comply with the company charter.

3. Take responsibility for the debts and other property obligations of the company within the company's charter capital; to identify and separate property of the state owner and property of the company.

4. To comply with the law when approving policy of investment, purchase and sale of assets and the borrowing, loan contracts.

5. To ensure the legal business right of the company.

6. To perform other duties as prescribed by law.

SECTION 2. ASSIGNMENT, DECENTRALIZATION OF THE IMPLEMENTATION OF THE RIGHTS, RESPONSIBILITIES OF THE STATE OWNER

Article 7. Rights, responsibilities of the government

1. To provide for the establishment, reorganization, change of ownership, dissolution of the company.

2. To issue Charter, amendments and additions of the charter of the State economic groups and the corporations: The State Capital Investment, Vietnam Airlines, Vietnam National Shipping Lines, Vietnam Railways, VinaFood 1, VinaFood 2. To provide for the Charter form of state-own corporations and the enterprises in which the State holds 100% of the charter capital.

3. To provide for the appointment, reappointment, dismissal, resignation, signing contract, termination of the contract, reward or discipline of chairman and members of the Members’ Council or the chairman of company, the Comptroller, General Director (Director), Deputy General Director (Deputy Director), Chief Accountant of company; number of members of the Members’ Council and Deputy General Director (Deputy Director) of company.

4. To provide for the regime of financial management, profit distribution, appropriation and use of funds; regime of report and publication of finance of company; mechanism of monitoring, inspection of the implementation.

5. To regulate the recruitment, salaries and bonuses of company; salary, bonus and other benefits of the Chairman and members of the Members’ Council or chairman of company, Comptroller, General Director (Director) of company.

6. To regulate mechanism of assigning task and participate in the implementation of the provision and assurance of products, essential, public services for the economy.

7. To regulate the regime of supervision, examination and inspection of the observance of law; implementation of strategy, plans, objectives, assigned tasks; management, use, conservation and development of the capital.

8. To regulate criteria for evaluating the performance of assigned objectives, tasks, result of activities and efficiency of the company's production, business; criteria to evaluate Chairman and members of the Members’ Council or the chairman of the Company, Comptroller, General Director (Director), Deputy General Director (Deputy Director), Chief Accountant of the company.

Article 8. Rights and responsibilities of the Prime Minister

1. For economic groups and State Capital Investment Corporations:

a) To decide on the establishment, objectives, tasks and lines of business; reorganization, change of ownership, dissolution and bankruptcy requirement; to approve the scheme to establish the subsidiaries with 100% of state capital; to approve the policy of establishment, reorganization and dissolution of branches, representative offices and the other dependent accounting units.

b) To decide on charter capital upon the establishment and adjustment of charter capital in the operation process;

c) To decide on the appointment, reappointment, dismissal, resignation, reward, discipline of chairman of the Members’ Council;

d) To approve the strategy, business, production plan, development and investment plans in five years.

2. To approve the scheme to set up one-member limited liability companies decided on establishment by the Ministries, the provincial-level People's Committees.

3. To approve the policy to establish subsidiaries with 100% of state capital of state-own corporations, companies under the Ministries, the provincial-level People's Committees, at the request of the Ministries, the provincial-level People's Committees.

4. To approve the overall Scheme of reorganization and renewal of one-member limited liability companies (including the Scheme of the State economic groups) at the request of the line-managing ministry, provincial-level People's Committees.

5. To provide for the Regulation on activities of the Comptroller of the company.

Article 9. Rights and responsibilities of line-managing ministry, provincial-level People's Committees

1. Line-managing ministry as the superior of the Council of Members in the state economic groups, has the following rights and responsibilities:

a) To propose the Prime Minister to decide on the establishment, objectives, tasks and lines of business; reorganization, change of ownership, dissolution and bankruptcy requirement. To evaluate and submit to the Prime Minister for approving the scheme to establish subsidiaries with 100% of state capital; policy of establishment, reorganization and dissolution of branches, representative offices and other dependent accounting units;

b) To submit to The Government for issuing the charter, amendment and supplement to the Charter;

c) To propose the Prime Minister to decide on charter capital and adjustment of charter capital;

d) To propose the Prime Minister to decide on the appointment, reappointment, dismissal, resignation, reward, discipline of chairman of the Members’ Council;

đ) To propose the Prime Minister to approve the strategy, business, production plans and plans of investment and development in five years;

e) To decide on the appointment, reappointment, dismissal, resignation, reward or discipline of members of the Members’ Council, General Director, the specialized Comptroller and salary payment for the specialized Comptroller position;

g) To approve the list of investment projects of groups A and B each year and inform the Ministry of Planning and Investment, the Ministry of Finance for synthesis, supervision;

h) To approve the policy of capital contribution, hold, increase or decrease of capital of the state economic groups in the other enterprises; receipt of enterprises voluntarily participating in being subsidiaries, associated companies;

i) To approve the policy of borrowing, lending, purchase and sale of assets with a value equal to or more than 50% of the charter capital or a smaller percentage specified in the charter of the groups; To approve the policy of loaning from foreign countries of the state economic groups and propose the Ministry of Finance to evaluate and approve;

k) To decide on wages of the Chairman and members of the Members’ Council, General Director, the specialized Comptroller, the annual salary fund of the Council of Members after obtaining the agreement of the Ministry of Labor, War Invalids and Social Affairs;

l) To agree for the Members’ Council to approve the financial statements, profit distribution, appropriation and use of funds;

m) To propose the Prime Minister to approve the overall scheme of reorganization and renewal of state economic groups;

n) To supervise, examine frequently and inspect the observance of law; management, use, conservation and development of capital; implementation of strategies and plans; implementation of the regimes of recruitment, salaries and bonuses of state economic groups; to evaluate the implementation of the targets, tasks, business lines assigned, and results of operation, business, production efficiency of state economic groups; to evaluate chairman and members of the Members’ Council, the specialized Comptroller, General Director, Deputy General Director, Chief Accountant in the management, administration of the state economic groups.

2. Rights and responsibilities of line-managing ministry, provincial-level People's Committees for the companies under the Ministry, the provincial-level People's Committees:

a) To decide on the establishment, objectives, tasks and lines of business for the companies specified in clause 2 of Article 8 of this Decree after the submission of the scheme and being approved by the Prime Minister; to approve the policy of establishment, reorganization and dissolution of branches, representative offices and other dependent accounting units;

b) To approve the charter, amendments and supplements of the Charter; to submit to the Government for promulgation, amendment, supplement to the charter of the state corporations referred to in Clause 2 of Article 7 of this Decree;

c) To implement the arrangement, renewal of companies after the submission of the scheme and being approved by the Prime Minister;

d) To decide on the charter capital upon the establishment and adjustment of charter capital in the operation of the company. For the companies under the Ministry, it must be obtained agreement of the Ministry of Finance;

đ) To decide on the appointment, reappointment, dismissal, resignation, reward, discipline of chairman and members of the Members’ Council or the chairman of company, General Director (Director), the Comptroller and payment of salary for the position of Comptroller;

e) To approve the strategy, business, production plans and plans of investment and development in five years; the list of investment projects of groups A, B every year and inform the Ministry of Planning and Investment, the Ministry of Finance for synthesis, supervision;

g) To approve the policy of capital contribution, hold, increase or decrease of the company's capital in other enterprises; the receipt of enterprises voluntarily participating in being subsidiaries, associated companies;

h) To approve the policy of borrowing, lending, purchase and sale of assets with a value equal to or more than 50% of the charter capital or a smaller percentage specified in the charter of the company; to approve the policy of loaning from foreign countries of the company and propose the Ministry of Finance to evaluate and approve;

i) To decide on wages of the Chairman and members of the Members’ Council, or Chairman of the company, General Director (Director), Comptroller appointed by their own, the annual salary fund of the Council of Members or Chairman of the company;

k) To approve for the Members’ Council or the chairman of the company to approve the annual financial statements, profit distribution, appropriation and use of funds;

l) To supervise and check often and inspect the observance of law; management, use, conservation and development of capital; implementation of strategies and plans; implementation of recruitment mode, salaries and bonuses of the company. Evaluate the implementation of the objectives, mission, industry, business and results of operation, business efficiency of the company. Evaluation of the Chairman and members of the Board members or the chairman of the company, the Comptroller General Director (Director), Deputy Director (Deputy Director), chief accountant in the management, the company

l) To supervise, examine frequently and inspect the observance of law; management, use, conservation and development of capital; implementation of strategies and plans; implementation of the regimes of recruitment, salaries and bonuses of company; to evaluate the implementation of the targets, tasks, business lines assigned, and results of operation, business, production efficiency of company; to evaluate chairman and members of the Members’ Council, or chairman of company;  Comptroller, General Director (Director), Deputy General Director (Deputy Director), Chief Accountant in the management, administration of company.

Article 10. Rights and responsibilities of the Ministry of Finance

1. To submit to the Government for defining the regimes of financial management, profit distribution, appropriation and use of funds; the regimes of management, use, preservation and development of capital; the regime of report and financial publication; mechanism of monitoring, inspection of the implementation.

2. To submit to the Government for defining criteria to evaluate performance of objectives, tasks assigned, results of operation and business, production efficiency of company; mechanism of assigning tasks with and participating in the implementation of the provision and assurance of products, essential, public services for the economy.

3. To submit to the Government for defining the transformation of one-member limited liability companies into joint-stock companies.

4. To evaluate, submit to the Prime Minister for deciding charter capital and adjustment of charter capital of the state economic groups; agreement on charter capital and adjustment of charter capital for the companies under the line-managing Ministry.

5. To provide for standards, conditions for Chief Accountant.

6. To propose the Prime Minister to decide on the appointment, reappointment, dismissal, resignation, reward, discipline of chairman of the Council of Members of State Capital Investment Corporation. To decide on the appointment, reappointment, dismissal, resignation, reward, discipline of financial Comptroller in the state economic groups and payment for this position.

7. Annually synthesize, report to the Government on business, production effectiveness and implementation of public-utility tasks assigned, the financial situation of the one-member limited liability companies in the whole country. Consider specifically financial statements of the state economic groups at the request of the Prime Minister.

To coordinate with line-managing ministry, provincial-level People's Committees to supervise, examine regularly and inspect in accordance with provisions on the management, use, conservation and development of capital for the one-member limited liability companies.

8. Based on the provisions and plan to loan from foreign countries approved, appraise and approve the loans from foreign countries of the state economic groups and the other one member limited liability companies.

9. To raise comments on the issues stipulated in Points a, d, Clause 1, Clause 2, 3 and 4 of Article 8 of this Decree.

10. To raise comments to line-managing ministry, provincial-level People's Committees of the capital contribution, hold, increase or decrease of capital in the other enterprises, receipt of the subsidiaries, associated companies of the state economic groups, state corporations.

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

1. To submit to the Government for regulating the establishment, reorganization, transfer of ownership (except for the provisions of Clause 3 of Article 10 of this Decree), the dissolution of one member limited liability companies; the Charter forms of the state corporations and enterprises in which the State holds 100% of the charter capital.

2. To submit to the Government for regulating the regime of monitoring, inspecting the implementation of strategy, plans, objectives and tasks assigned.

3. To submit to the Prime Minister for promulgating the Regulation on activities of the Comptroller of one member limited liability companies.

4. To evaluate, submit to the Prime Minister for deciding on the establishment, objectives, tasks and lines of business; reorganization, transfer of ownership, dissolution and bankruptcy requirement for the state economic groups.

5. To evaluate, submit to the Prime Minister the strategy, business, production plans and plans of investment and development in five years of the state economic groups.

6. To annually synthesize, report to the Government on implementation of the objectives, tasks and lines of business of the one member limited liability companies in the whole country. To coordinate with line-managing ministry, provincial-level People's Committees to supervise; examine annually and inspect in accordance with provisions on the implementation of the strategy, business, production plans and plans of investment and development in 5 years.

7. To raise comments on the issues stipulated in Points a, b, Clause 1, Clauses 2, 3 and 4 of Article 8 of this Decree.

8. To raise comments to line-managing ministry, provincial-level People's Committees of the capital contribution, hold, increase or decrease of capital in the other enterprises, receipt of the subsidiaries, associated companies of the state economic groups, state corporations.

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

1. To submit to the Government for regulating the appointment, reappointment, dismissal, resignation, contract signing, termination of the contract, reward, discipline and criteria to evaluate chairman and members of the Members’ Council, chairman of company, Comptroller, General Director (Director), Deputy General Director (Deputy Director), Chief Accountant of the company; number of members of the Members’ Council and Deputy General Director (Deputy Director) of company.

2. To evaluate, submit to the Prime Minister for deciding on the appointment, reappointment, dismissal, resignation, reward, discipline of chairman of the Members’ Council of state economic group and State Capita Investment Corporation.

3. To raise comments on the issues stipulated in Point a, Clause 1, Clauses 2, 3 and 4 of Article 8 of this Decree.

4. To coordinate with line-managing ministry, provincial-level People's Committees to supervise, examine the compliance of the provisions of the Party and State on personnel in the 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 for defining regime of recruitment; regime of salary, bonus of company; salary, bonus and other benefits of the chairman and members of the Members’ Council or the chairman of the company, Comptroller, General Director (Director) of the company.

2. To coordinate with line-managing ministry, provincial-level People's Committees to supervise; examine regularly and inspect in accordance with provisions on the implementation of regime of recruitment, salary, bonus of company.

3. To raise agreement on the matters specified in point k Clause 1 of Article 9 of this Decree; to raise comments on the issues specified at Point a, Clause 1, Clause 2, 3 and 4 of Article 8 of this Decree.

Article 14. Rights and responsibilities of the Members’ Council, Chairman of the company

The Members’ Council, and the chairman of the company are represented owner directly at the company, have the following right and responsibilities:

1. To decide on strategy, business, production plans and plans of investment and development in five years of the company after the proposal is approved by the competent authority.

2. To decide on business, production plans and annual plans of investment and development of the company and send the decision to the line-managing ministry, the Ministry of Planning and Investment, Ministry of Finance (for the state economic groups, State corporations), to the line-managing ministry, provincial-level People's Committee (for companies under the ministries, provincial-level People's Committees) for synthesis, supervision.

3. To propose the competent authority of the appointment, reappointment, dismissal, resignation, reward and discipline of the Chairman and members of the Members’ Council or the chairman of company, General Director (Director) of company.

4. To decide on the appointment, reappointment, dismissal, resignation, contract signing, termination of contract, reward, and discipline of Deputy General Director (Deputy Director), Chief Accountant of the company.

5. To request the competent authority to adjust charter capital; amend and supplement the company's charter; to make reorganization, transfer of ownership, dissolution and bankruptcy requirement of the company.

6. To decide on the capital contribution, hold, increase or decrease of the company's capital in the other enterprises; receipt of subsidiaries, associated companies, after the policy proposal is approved by the line-managing ministry, provincial-level People's Committee.

7. To assign the representatives of the company's share capital in the other enterprises; to assign task for the representatives of the company's share capital to decide on the contents specified in Clause 4, Article 20, Clause 4 of Article 29 of this Decree.

8. To decide or authorize the General Director (Director) to decide on investment projects, lending, loaning contract, purchase and sale contract of assets within the jurisdiction specified in the company's charter and the provisions of the law.

9. To propose the line-managing ministry, provincial-level People's Committee to approve policy of foreign loans.

10. To decide on the establishment, reorganization, dissolution of branches, representative offices and the other dependent accounting units after the proposal is approved by competent authority.

11. To provide for the internal management Regulation of company; to approve the financial statements, profit distribution, appropriation and use of funds after being approved by the competent authority.

12. To decide on wages for the titles appointed by the Members’ Council or chairman of company.

13. To decide on solutions of market development, marketing and technology of company.

14. Rights and responsibilities of the Members’ Council, chairman of the company for the subsidiaries with 100% of state capital:

a) To decide on the establishment, objectives, tasks and lines of business; reorganization, transfer of ownership, dissolution and bankruptcy requirement after being approved by the competent authority;

b) To approve charter, amendments and additions of the Charter;

c) To decide on charter capital upon the establishment and adjustment of charter capital during the operation of the company;

d) To decide on the appointment, reappointment, dismissal, resignation, reward, and discipline of chairman and members of the Council of Members, or chairman of company, General Director (Director), Comptroller.

đ) To approve the strategy, business, production plans and plans of investment and development in five years;

e) To approve the policy of borrowing, lending, purchase and sale of assets with a value equal to or more than 50% of the charter capital of the company or a smaller percentage stipulated in the charter of company;

g) To approve the annual financial statements, profit distribution, appropriation and use of funds.

15. To arrange, renew enterprises after the overall scheme is approved by the competent authority.

16. To take responsibility for managing and operating enterprises in compliance with the provisions of the law and the decisions of the owner; for management, use, conservation and development of capital efficiently; timely reporting to owner for enterprises’ lost operation, not guaranteeing the ability to pay, not completing goals and tasks assigned by the owner or other cases of violation.

SECTION 3. ASSIGNMENT, DECENTRALIZATION OF THE IMPLEMENTATION OF THE OBLIGATIONS OF STATE OWNER

Article 15. Obligations of enough charter capital investment

1. The Ministry of Finance is obliged to invest enough charter capital after the competent authorities decide on the charter capital for the state-owned economic groups and the companies under line-managing Ministry.

2. Provincial-level People's Committees are obliged to invest enough charter capital for the companies under the provincial-level People's Committees.

3. Council of Members, the chairman of the company is obliged to invest enough charter capital for the subsidiaries with 100% of charter capital founded by its own.

Article 16. Obligations to comply with the company's charter

Organizations, individuals exercising rights and responsibilities of the owner are obliged to comply with the charter of the company and take responsibility before law for their decision ultra vires.

Article 17. Obligations for debts and other assets

1. The state owner is obliged for the debts and other assets within the company's charter capital.

Council of members, chairman of the company, General Director (Director) of the company must manage, operate the company to ensure the ability of payment for the debts and other asset obligations; identify and separate assets of the owner and the company's assets.

2. Line-managing ministry must monitor, inspect and evaluate the debts and other asset obligations of the state economic groups and companies under the Ministry. Provincial-level People's Committees must monitor, inspect and evaluate the debts and other asset obligations of the companies under the People's Committees. In case of detecting the companies got difficulty in payment of debts and other asset obligations, the line-managing ministry, provincial-level People's Committees request and direct the companies having the schemes of remediation and report to the competent authorities for consideration and decision.

The Ministry of Finance annually reports to the Government on the status of the debts and other asset obligations of the State economic groups, state corporations and other enterprises with 100% of state capital within the whole country.

3. When the companies fall into bankruptcy, the line-managing ministry, provincial-level People's Committees direct the Council of Members, the company chairman, General Director (Director) of company conduct the procedures for bankruptcy requirement under the provisions of the Bankruptcy Law.

Article 18. Obligations in approval of the policy of investment, purchase and sale of assets and loaning, lending contracts

1. Organizations, individuals exercising rights and responsibilities of the owner are obliged to comply with authority, comply with law when approving the policy of investment, purchase and sale of assets, loaning, lending contracts of company; to monitor the implementation of its decisions and approval.

2. Council of Members, the company's chairman, General Director (Director) of company must implement the projects of investment, purchase and sale of assets, loaning, lending contracts of company in accordance with approved policy and law provisions.

Article 19. Obligations to ensure the company's legal business right

Organizations, individuals exercising rights and responsibilities of the owner are obliged to ensure the legal business right of the company; to ensure for the Council of Members, Chairman, General Director (Director) to initiatively manage and administer the company effectively as prescribed by law and the company's charter.

Chapter 3.

ASSIGNMENT, DECENTRALIZATION OF THE IMPLEMENTATION OF THE RIGHTS AND RESPONSIBILITIES OF THE STATE OWNER FOR THE ENTERPRISES THAT THE STATE HOLDS MORE THAN 50% OF CHARTER CAPITAL

Article 20. The rights and responsibilities of state owner

1. To decide on the contribution of capital, transfer of state capital invested in the enterprises; to implement the rights of shareholders, limited partners in accordance with the law provisions and the charter of the enterprise; to take responsibility for the debts and other asset obligations of the enterprise within the State capital contributed into the enterprise.

2. To appoint the representatives to exercise the rights of shareholders, limited partners; to dismiss, reward and discipline the representatives; to decide on salaries, bonuses, allowances and other benefits of the representatives; to evaluate the representatives.

3. To require the representatives to exercise the contents assigned as specified in Clause 4 of this Article, unless the charter of enterprise otherwise provides for; to send periodical or irregular reports on the investment, finance and effectiveness of use of the state capital, enterprise’s business results.

4. The State owner assigns task for the representative to decide on the following items of the enterprise:

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

b) The charter, the amendment and supplement of charter of the enterprise;

c) The increase or decrease of the charter capital; time and method of raising capital; class of shares and the total number of shares of each class to be offered; acquisition of more than 10% of the total shares sold of each class;

d) The nomination for the election, proposal for dismissal, removal, reward and handling of violations of the members of the Board of Management, Chairman of Board of Management, Chairman of the Members’ Council, members of the Supervisory Board; the nomination for appointment, proposal for dismissal, contract signing, termination of the contract for the General Director (Director) of company. Remuneration, salary, bonuses and other benefits of the members of the Board of Management, members of the Members’ Council, members of the Supervisory Board, General Director (Director) of company; number of members of the Board of Management, members of the Supervisory Board, Deputy General Director (Deputy Director) of company;

đ) Strategy, business, production plans and plan of investment and development in 5 years of company; the list of the investment projects of groups A, B every year;

e) The policy of capital contribution, hold, increase or decrease of state capital invested in the other enterprises; establishment, reorganization and dissolution of branches, representative offices and other dependent accounting units; receipt of enterprises voluntarily participating in being subsidiaries and associated companies;

g) The policy of purchase, sale of assets and lending, loaning contracts with a value equal to or more than 50% of the charter capital of the enterprise or a smaller rate stipulated in the charter of the enterprise; loan policy from foreign countries of the enterprise;

h) Financial statements, profit distribution, appropriation and use of funds, the annual dividend;

i) Regime of recruitment; of remuneration, salaries and bonuses of the enterprise.

5. To require the representatives to report for implementing the supervision, regular examination and inspection in accordance with provisions on the observance of the law; management, use, conservation and development of the state capital in the enterprises; the implementation of strategies, plans; to evaluate the implementation of the goals, tasks assigned, results of operation, business, production efficiency.

Article 21. Rights and responsibilities of the Government

To define the following issues as a basis for guiding the state capital owner and the representatives in the implementation of the rights and obligations of shareholders, limited partners in the enterprises:

1. To specify the appointment, dismissal, reward or discipline of the representatives; criteria to evaluate the representatives; nomination for the election, dismissal or removal, reward, handling of violations of members of the Management Board, Chairman of the Management Board, Chairman of the Council of Members, members of the Supervisory Board; appointment, dismissal, contract signing, termination of the contract with the General Director (Director) of company; number of members of the Management Board, members of the Supervisory Board, Deputy General Director (Deputy Director) of company.

2. To prescribe the regime of financial management, profit distribution, appropriation and use of funds; regime of report and financial publication of company; mechanism of monitoring, inspecting the implementation.

3. To regulate the regime of recruitment; regimes of remuneration, salaries and bonuses of the enterprise and representatives of state capital in the enterprises.

4. To regulate mechanism of assigning task and participate in the implementation of the provision and assurance of products, essential, public services for the economy.

5. To regulate the regime of supervision, examination and inspection of the observance of law; to evaluate the implementation of strategies, plans, objectives, tasks assigned, results of operation, business, production efficiency; management, use, conservation, development of enterprise’s capital.

6. To define criteria for evaluating the performance and efficiency of production, business of the enterprise.

Article 22. Rights and responsibilities of the Prime Minister

1. To decide on the hold, increase or decrease of state capital invested in the state economic groups after equitization.

2. To approve for the line-managing ministry to assign task for the representatives to decide on the following contents for the economic groups after equitization:

a) Charter, amendments and supplements of the Charter;

b) Objectives, tasks and lines of business; reorganization, dissolution or bankruptcy requirement;

c) The increase or decrease of the charter capital; time and method of raising capital; class of shares and the total number of shares of each class to be offered; acquisition of more than 10% of the total shares sold of each class;

d) Strategy, business, production plans and plans of investment and development in five years.

3. To approve the overall scheme on the hold, increase or decrease of state capital invested in the enterprises of transformation, equitization of the Ministry, provincial-level People's Committees.

Article 23. Rights and responsibilities of the line-managing ministry, provincial-level People's Committees

1. The line-managing ministry exercises the following rights, responsibilities for the economic groups after equitization:

a) To appoint, dismiss, reward or discipline the representatives; to decide on salaries, bonuses, allowances and other benefits of the representatives. To evaluate the representatives;

b) To propose the Prime Minister to decide on the hold, increase or reduction of state capital invested in the state economic groups after equitization;

c) To propose the Prime Minister to approve for assigning task to the representatives to decide on the following contents: Charter, amendments and additions of the Charter; objectives, tasks and business lines, reorganization, dissolution and bankruptcy requirement; increase or decrease of charter capital, time and method of raising capital, classes of shares and the total number of shares of each class to be offered, the acquisition of more than 10% of the total shares sold of each class; strategy, business, production plans and plans of investment and development in five years;

d) To approve for the representatives to decide on the contents specified at Points d, e, h, Clause 4 of Article 20 of this Decree; the list of the investment projects of groups A and B each year and notify the Ministry of Planning and Investment, the Ministry of Finance for synthesis, supervision; policy of purchase and sale of assets and lending, loaning contracts with a value equal to or more than 50% of the charter capital or a smaller percentage specified in the Group Charter; policy on loan from foreign countries of the Group and propose the Ministry of Finance to evaluate and approve;

đ) To require the representatives to report for implementing the supervision, regular examination and inspection in accordance with provisions on the observance of the law; management, use, conservation and development of the state capital in the enterprises; the implementation of strategies, plans; to evaluate the implementation of the goals, tasks assigned, results of operation, business, production efficiency.

2. Rights and responsibilities of line-managing ministry, provincial-level People's Committees for the enterprises of transformation, equitization of the Ministry, provincial-level People's Committees:

a) To decide on the hold, increase or decrease of state capital invested in the enterprises; to appoint, dismiss, reward or discipline the representatives; to decide on salaries, bonuses, allowances and other benefits of the representatives; to evaluate the representatives.

b) To approve for the representatives to decide on the contents specified at Clause 4, Article 20 of this Decree; to notify the list of the investment projects of groups A and B each year for the Ministry of Planning and Investment, the Ministry of Finance to synthesize, supervise; to approve the policy and request the Ministry of Finance to appraise, approve loans from foreign countries of the enterprises.

c) To require the representatives to report for implementing the supervision, regular examination and inspection in accordance with provisions on the observance of the law; management, use, conservation and development of the state capital in the enterprises; the implementation of strategies, plans; to evaluate the implementation of the goals, tasks assigned, results of operation, business, production efficiency of the enterprises;

d) To propose the Prime Minister to approve the overall plan on hold, increase or decrease of state capital invested in the enterprises.

Article 24. Rights and responsibilities of the Ministry of Finance

1. To submit to the Government for prescribing the regime of financial management, profit distribution, appropriation and use of funds; regime of management, use, conservation and development of capital; regime of report and financial publication; mechanism of monitoring, inspecting the implementation.

2. To submit to the Government for prescribing criteria to evaluate the performance and efficiency of production, business of the enterprises; mechanism of assigning task and participating in the implementation of the provision and assurance of products, essential, public services for the economy.

3. To synthesize annually, report to the Government on business, production effectiveness and implementation of assigned public-utility tasks of the enterprises in which the State holds more than 50% of charter capital within the whole country. To coordinate with the line-managing ministry, provincial-level People's Committee to request the representatives to report for implementing the supervision, regular examination and inspection in accordance with provisions on the management, use, conservation and development of State capital invested in the enterprises within the whole country.

4. To evaluate, submit to the Prime Minister for deciding on the hold, increase or decrease of state capital invested in the economic groups after equitization.

5. To evaluate, submit to the Prime Minister for approving the increase or decrease of charter capital; time and method of raising capital; class of shares and the total number of shares of each class to be offered; acquisition of 10% of the total number of shares sold of each class for the economic groups after equitization.

6. To nominate participants in the Supervisory Board in the economic groups after equitization.

7. Based on the provisions and the plan of loaning from foreign countries approved, appraised and approval of the loans from foreign countries of enterprises at the request of the line-managing ministry, provincial-level People's Committee.

8. To raise comments on the matters specified in the points a, b, d, Clause 2, Clause 3, Article 22 of this Decree.

9. To raise comments to the line-managing ministry, provincial-level People's Committee for the capital contribution, hold, increase or decrease of capital invested in the other enterprises, receipt of the enterprises voluntarily participating in being subsidiaries, associated companies of the state economic groups, state corporations after equitization.

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

1. To submit to the Government for prescribing the regime of monitoring, inspecting the implementation of strategy, plans, objectives, tasks assigned of the enterprises.

2. To evaluate, submit to the Prime Minister for approving the objectives, tasks, lines of business; reorganization, dissolution or bankruptcy requirement; strategy, business, production plans and plans of investment and development in 5 years for the economic groups after equitization.

3. To synthesize annually, report to the Government on the implementation of the objectives, tasks, lines of business of the economic groups and corporations after equitization under the line-managing ministry. To coordinate with the line-managing ministry, provincial-level People's Committee to request the representatives to report for implementing the supervision, annual examination and inspection in accordance with provisions on the implementation of strategies, plans of production, business and plans of investment and development in 5 years.

4. To raise comments on the matters specified in Clause 1, points a, and c, Clause 2, Clause 3, Article 22 of this Decree.

5. To raise comments to the line-managing ministry, provincial-level People's Committee for the capital contribution, hold, increase or decrease of capital invested in the other enterprises, receipt of the enterprises voluntarily participating in being subsidiaries, associated companies of the economic groups, and corporations after equitization.

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

1. To submit to the Government for defining the appointment, dismissal, reward and discipline of the representatives; criteria to evaluate the representatives; to nominate for election, dismissal or removal, reward and handling of violations of the members of the Management Board, Chairman of the Management Board, Chairman of the Council of Members, members of the Supervisory Board; appointment, dismissal, contract signing, termination of the contract with the General Director (Director) of the enterprise; number of members of the Management Board, members of the Supervisory Board, Deputy General Director (Deputy Director) of the enterprise.

2. To coordinate with line-managing ministry, provincial-level People's Committee to request the representatives to report for supervising and inspecting the observance of the provisions of the Party and State on personnel of the economic groups, and corporations after equitization.

3. To raise comments on the issues stipulated in Points a, 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 for defining regime of recruitment; remuneration, salaries, bonuses of the enterprises and representatives of state capital in the enterprises.

2. To coordinate with the line-managing ministry, provincial-level People's Committee to supervise and examine annually and inspect in accordance with provisions on the implementation of regime of recruitment; remuneration, salaries and bonuses of the enterprise.

3. To raise comments on the issues stipulated in Points a, b, Clause 2, Article 22 of this Decree.

Article 28. Rights and responsibilities of the representatives

The representatives authorized to exercise the rights, the responsibilities of the state owner are responsible for complying with law; complying with tasks assigned by the state owner as deciding the contents specified in Clause 4, Article 20 of this Decree; promptly reporting to the owner for the enterprises’ loss, not guaranteeing the ability of payment, not completing the objectives and tasks assigned by the owner or other cases of violation.

Chapter 4.

ASSIGNMENT, DECENTRALIZATION OF THE IMPLEMENTATION OF THE RIGHTS AND RESPONSIBILITIES OF THE STATE OWNER FOR THE ENTREPRISES THAT THE STATE HOLDS NOT MORE THAN 50% OF THE CHARTER CAPITAL

Article 29. Rights and responsibilities of state owner

1. To decide on the contribution of capital, transfer of state capital invested in the enterprises; to implement the rights of shareholders, limited partners in accordance with the law provisions and the charter of the enterprises; to take responsibility for the debts and other asset obligations of the enterprises within the amount of capital that the State has contributed to the enterprises.

2. To designate the representatives to exercise the rights of shareholders, limited partners; to dismiss, reward and discipline the representatives in the enterprises; to decide on salaries, bonuses, allowances and other benefits of the representatives; to evaluation the representatives.

3. To request the representatives to implement the contents specified in Clause 4 of this Article, unless the charter of enterprise otherwise provides for; to report periodically or irregularly the investment, finance and effectiveness of use of the state capital, enterprises’ business results.

4. State owner assigns tasks to the representatives to decide on the following items of the enterprise:

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

b) Charter, amendment and supplement of charter of the enterprise;

c) The increase or decrease of charter capital; time and method of raising capital; class of shares and the total number of shares of each class to be offered; acquisition of more than 10% of the total shares sold of each class;

d) The nomination for the election, proposal for dismissal or removal, reward and handling of violations of the members of the Management Board, Chairman of the Management Board, Chairman of the Council of Members, members of the Supervisory Board; nomination for appointment, dismissal, contract signing, termination of the contract with the General Director (Director) of the enterprise; remuneration, salaries, bonuses and other benefits of the members of the Management Board, members of the Council of Members, members of the Supervisory Board, General Director (Director) of the enterprise; number of members of the Management Board, members of the Supervisory Board, Deputy General Director (Deputy Director) of the enterprise.

đ) The strategy, business, production plans and plans of investment and development in 5 years of the enterprises;

e) The policy to establish subsidiaries; establishment, reorganization and dissolution of branches and representative offices;

g) The policy to invest in, purchase, sell assets and lending, loaning contracts with a value equal to or more than 50% of the total value of assets recorded in the financial statements at the closest time of publication of the enterprise or a smaller percentage specified in the charter of the enterprise;

h) Annual financial statements, profit distribution, appropriation and use of funds, the annual dividend of the enterprise.

5. To request the representatives to report for implementing supervision, regular inspection and evaluation of efficiency of state capital use in the enterprise.

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

1. The Government regulates the regime of management and use of state capital in the enterprise, as a basis for guiding the state capital owner and the representatives in the implementation of rights and obligations of shareholders, limited partners in the enterprise.

2. The Prime Minister approves the overall plan on hold, increase or decrease of state capital invested in the enterprises at the request of the line-managing ministry, provincial-level People's Committee, the opinion of the Ministry of Finance, Ministry of Planning and Investment.

Article 31. Rights and responsibilities of line-managing ministry, provincial-level People's Committees

1. To appoint, dismiss, reward or discipline the representatives; to decide on the salaries, bonuses, allowances and other benefits of the representatives; to evaluate the representatives.

2. To assign task for the representatives to decide the contents specified in Clause 4 of Article 29 of this Decree.

3. To request the representatives to report for implementing supervision, regular inspection and evaluation of efficiency of state capital use in the enterprise.

4. To propose the Prime Minister to approve the overall plan on hold, increase or decrease of state capital invested in the enterprise.

Article 32. Rights and responsibilities of the Ministry of Finance

1. To submit to the Government for regulating the regime of management and use of State capital in the enterprise.

2. To coordinate with the line-managing ministry, provincial-level People's Committee to request the representative to report for implementing the supervision, regular inspection. Synthesize annually, report to the Government on effectiveness of use of state capital in enterprises within the whole country.

3. To raise comments on the issues specified in Clause 2 of Article 30 of this Decree.

Article 33. Rights and responsibilities of the representatives

The representatives authorized to exercise the rights, the responsibilities of the state owner are responsible for complying with law; complying with tasks assigned by the state owner as deciding the contents specified in Clause 4, Article 20 of this Decree; promptly reporting to the owner for the enterprises’ loss, not guaranteeing the ability of payment, not completing the objectives and tasks assigned by the owner or other cases of violation.

Chapter 5.

IMPLEMENTATION PROVISIONS

Article 34. Effect

This Decree takes effect from December 30, 2012.

The Decree No.132/2005/ND-CP of October 20, 2005 of the Government on the implementation of the rights and obligations of the state owner for the state companies, the Decree No.86/2006/ND-CP dated August 21, 2006 of the Government amending and supplementing a number of Articles of the Decree No.132/2005/ND-CP and the regulations contrary to this Decree are hereby annulled.

Article 35. Responsibility for implementation

1. The Ministry of Finance promulgates the Regulation on activities of the authorized representative for the state capital invested in the enterprise.

2. The Ministry of Planning and Investment annually reports to the Government on the implementation of the rights, responsibilities and obligations of the state owner for the state enterprise.

3. The Governmental inspectorate presides over and coordinates with the Ministry of Planning and Investment, Ministry of Finance to submit to the Government for promulgating the Regulation on supervision, examination and inspection of the enterprises in the observance of law and compliance with the decisions of the owner.

4. Ministers, heads of ministerial-level agencies, the heads of the Governmental agencies, Presidents of the People's Committees of provinces and cities directly under the Central Government, the Council of Members or the chairman of the company that the State holds 100% of the charter capital to be one member limited liability companies and the authorized representatives for the State capital invested in the enterprises are responsible for the implementation of this Decree./.

 

FOR THE GOVERNMENT PRIME MINISTER Nguyen Tan Dung

 

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