THE
GOVERNMENT
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|
THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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|
No.
91/2015/ND-CP
|
Hanoi,
October 13, 2015
|
DECREE
STATE CAPITAL INVESTMENT IN ENTERPRISES, USE AND MANAGEMENT
OF CAPITAL AND ASSETS IN ENTERPRISES
Pursuant to the Law on
Government Organization dated December 25, 2001;
Pursuant to the Law on use and
management of state capital invested in manufacturing and business operations
of enterprises dated November 26, 2014;
Pursuant to the Law on Enterprises
dated November 26, 2014;
Pursuant to the Law on
Investment dated November 26, 2014;
Pursuant to the Law on Public
Investment dated June 18, 2014;
At the request of the Minister
of Finance,
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Chapter I
GENERAL PROVISIONS
Article 1.
Scope of application
This Decree provides for state
capital investment in enterprises, financial management in state enterprises
and state capital investment management in joint stock companies and multiple
members limited liability companies.
Article 2.
Applicable entities
1. The state agency which exercises
rights and obligations of the state capital owner on behalf of the state
(hereinafter referred to as representative agency).
2. State enterprises shall include:
a) A single-member limited company
of which charter capital is wholly owned by a parent company of a state
economic corporation, a parent company of a state incorporation or a parent
company that belongs to the group of a parent company - subsidiary company.
b) An independent single-member
limited company of which charter capital is wholly owned by the state.
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4. Other agency, organization or
individual engaged in investment, use and management of state capital and
assets in state enterprises.
Article 3.
Application of related laws
In addition to complying with
provisions stated in this Decree, state enterprises that currently operate in
finance-specific industries or sectors must implement the Government’s specific
regulations applied to such specific financial aspects. Where there exists a
discrepancy between such regulations and those enshrined in this Decree, the
latter shall prevail.
Article 4.
Interpretation of terms
Terms used herein shall be
construed as follows:
1. Representative agency of state
capital owner refers to Ministries, Ministry-level agencies and Government
agencies (hereinafter referred to as managing Ministry); People’s Committees of
centrally-affiliated cities and provinces (hereinafter referred to as
provincial People’s Committee), or organizations established under legal
regulations.
2. Same-level financial institution
refers to the Ministry of Finance in a relationship with state enterprises
established under the decision of the Prime Minister and the managing Ministry
or delegated to exercise management authority; the Department of Finance in a
relationship with state enterprises established under the decision of the
provincial People’s Committee or delegated to exercise management authority.
3. Government-guaranteed loan and
state-owned investment and development loan will be defined as state capital
invested in state enterprises in the event that such loans have been repaid by
the state, transformed into state loans allocated to enterprises under the
decision of competent authorities.
4. Mobilized capital of a state
enterprise refers to the capital that such state enterprise borrows from credit
institutes, other financial organizations, or domestic and foreign individuals;
the capital that such state enterprise obtains by issuing bonds and employing
other methods of capital mobilization under laws for the purpose of financing
for manufacturing and trading activities.
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6. State enterprise’s intercorporate
investment capital refers to the capital of a state enterprise invested in a
joint stock company, limited liability company or invested in other forms as
stipulated by laws.
Chapter II
STATE CAPITAL INVESTMENT IN ENTERPRISES
Section 1.
STATE CAPITAL INVESTMENT IN ESTABLISHMENT OF STATE ENTERPRISES
Article 5.
Scope of state capital investment in establishment of state enterprises
1. State enterprises which supply
essential public products and services, and ensure the social security,
including:
a) Public postal services;
b) Publication (exclusive of
publication printing and release sector);
c) Agricultural and forestry
operations stipulated by laws;
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dd) Monitoring, operation and
management of national and urban rail infrastructural facilities; systems for
ensuring aviation and navigation safety;
e) Others decided by the Prime
Minister.
2. State enterprises involved in
the field of providing direct assistance for national defence and security
under the Government’s regulations.
3. State enterprises involved in
the field of natural monopoly, including:
a) National electric power
transmission systems; large and multiple-objective hydropower plants, nuclear
power plants which have special importance in socio-economic, national defence
and security aspects;
b) Printing of paper money and
coining of currency as well as manufacture of gold pieces;
c) Lottery;
d) State enterprises that have
functions such as state capital investment and trading and debt trading and
treatment for restructuring and macroeconomic regulation and stabilization
purposes;
dd) Others decided by the Prime
Minister.
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Article 6.
Procedures for state capital investment in establishment of state enterprises
1. Procedures for request for state
capital investment in establishment of state enterprises
a) The representative agency
prepares documents submitted to apply for state capital investment in
establishment of state enterprises to same-level finance agencies within a
permitted period of 30 days as from the date on which the decision on
establishment of a state enterprise was obtained from competent authorities.
Application documents shall be
composed of the followings:
- Copy of the decision on
establishment of a state enterprise granted by competent authorities, enclosing
the scheme for establishing such state enterprise. The scheme for establishing
such state enterprise must be implemented under the Government's regulations on
establishment, restructuring and dissolution of enterprises;
- Copy of the document explaining
funding sources used for investing in establishment of a state enterprise and
already approved by competent authorities (finances derived from the state
budget, finances derived from the Enterprise Arrangement and Development Fund
and other state capital).
b) Same-level financial
institution:
Within a maximum period of 15 days
of receipt of applications for state capital investment in establishment of
state enterprises, this same-level financial institution shall be held
responsible for verifying that submitted application documents conform to
specified regulations to initiate procedures for state capital investment in
establishment of state enterprises under the provisions of Clause 2 of this
Article.
Where documents submitted to apply
for state capital investment in establishment of state enterprises fail to meet
stipulated requirements, finance agencies must send written response in which
reasons are clearly stated to the representative agency within a permitted
period of 07 days of receipt of such documents.
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a) With regard to investment in
establishment of a new state enterprise and non-execution of projects for
investment in development of fixed asset formation works, given the charter
capital specified in the decision on establishment of state enterprises
approved by competent authorities, and the planned investment fund already
arranged in the state expenditure estimate approved and made known by competent
authorities or the investment capital from the Enterprise Arrangement and
Development Fund approved by the Government, finance agencies will provide such
funds for such state enterprise.
b) With regard to investment in
establishment of a new state enterprise on the basis of transfer of assets from
completed construction projects, given the decision on establishment of state
enterprises and the final account in completed construction works approved by
competent authorities in accordance with regulations, project owners or state
capital representative agencies will carry out the transfer of assets, identify
state capital sources and amounts invested in such projects transferred to such
state enterprise in order to complete procedures for providing financing for
the charter capital for such state enterprise.
Where the completed final account
of projects has not been approved by the competent authority, project owner or
representative agency shall have state capital amounts specified in the budget
plan accounted for by the state enterprise. After the completed final account
of projects has been approved by competent authorities, the state enterprise
shall proceed to adjust the difference between state capital amounts which have
been accounting for in accounting reports and those which have been approved.
c) With regard to a
newly-established state enterprise which is destined for execution of fixed
asset formation projects of such state budget, and allocation of state capital
for the purpose of payments during the process of implementation and final
account of state invested capital upon completion of such projects, that state
enterprise must comply with procedures for capital allocation in accordance
with current legislation on management and use of state investments.
d) Funding sources that the State
has been invested in establishment of an enterprise as stipulated in Point a, b
and c of this Clause shall be defined as the state-invested charter capital of
a state enterprise as it has been established.
Where the amount of charter capital
which is lower than that of the charter capital which has been registered in
the application for establishment of a state enterprise, such state enterprise
shall be responsible for making an adjustment to the charter capital amount
stated in the enterprise registration certificate so that it equals the actual
contributed capital amount under the provisions of the Enterprise Law 2014.
Section 2.
ADDITIONAL INVESTMENT IN THE CHARTER CAPITAL OF CURRENT STATE ENTERPRISES
Article 7.
Scope of additional investment in the charter capital of currently active state
enterprises
1. The additional investment in the
charter capital shall be applicable to state enterprises in accordance with
Article 5 hereof which are currently operating and fall in one of the following
circumstances stipulated in Clause 2 of this Article.
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a) A currently active state
enterprise has demonstrated its operating effectiveness after being evaluated
according to the performance assessment criteria under the provisions of
Article 8 hereof, but such state enterprise has the current charter capital
amount can not afford its main scope of operations approved by competent
authorities.
b) A state enterprise is directly
involved in national defence and security but its current charter capital can
not afford implementation of duties assigned by the State.
Article 8.
Criteria for assessing the operating performance of currently active state
enterprises
The performance assessment criteria
shall be governed by the Government’s regulations on financial supervision and
performance assessment in state enterprises.
2. A state enterprise will be
accredited as an effectively operating one if it has held B-rank or higher
which has been announced by competent authorities in the ranking of state
enterprises specified in 3 years immediately preceding the year of
determination of additional investment in the charter capital.
Article 9.
Method of determining the charter capital of current active state enterprises
1. Basis and method of charter
capital determination:
a) The charter capital of a state
enterprise shall be allowed for any adjustment within a permitted period of 03
years from the date on which the decision on approval of such charter capital
was issued.
b) An increased amount of a state
enterprise's charter capital shall be determined in proportion to funding
sources coming from the state budget, enterprise arrangement and development
fund, internal enterprise arrangement fund or development investment fund in
state enterprises which have been specified in projects for formation of assets
used for manufacturing and trading activities that fall within the main scope
of operations, and directly for main business sectors under the competent
authority’s ratification or decision on investment intention within a minimum
duration of 03 years from the year of determination of charter capital
adjustment, including currently executing investment projects approved by
competent authorities.
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A maximum increased amount of
charter capital accounts for 30% of the difference (proposed increase) between
revenues generated from manufacturing and trading of products, commodities or
services in the following third year and realized revenues generated from
manufacturing and trading of products, commodities or services defined in the
audited financial report of an enterprise prepared in the year immediately
preceding the year of commencement of redetermination of the charter capital.
d) The adjusted charter capital of
a state enterprise shall be determined according to the following formula:
Redetermined
charter capital
=
Charter
capital which has been approved before redetermination date
+
Amount
of charter capital which will increase in 3 years from the redetermination
year
Amount
of charter capital which will increase in at least 3 years from the
redetermination year
=
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+
Amount
of investment capital derived from approved funding sources stipulated in
Point c Clause 1 Article 9 hereof
2. Procedures for approval of
charter capital adjustment:
a) A state enterprise which is
entitled to additional investment in its charter capital under the provisions
of Article 7 hereof prepares an application for adjustment to the permitted
amount of charter capital for submission to the representative agency for
verification purposes. Application documents shall be composed of the
followings:
- A copy of the decision on
approving the charter capital issued by competent authorities at the time prior
to a state enterprise’s request for charter capital adjustment;
- A document explaining the method
of determination of the adjusted amount of charter capital (enclosing a copy of
the decision on approval of construction investment projects concerning main
business sectors of such state enterprise); a document explaining funding
sources used for additional investment in the charter capital;
- A copy of the competent
authority’s decision on announcement of ranks that a state enterprise has held
for 3 years immediately preceding the year on which the application for charter
capital adjustment was filed.
b) The representative agency:
- Within a permitted period of 15
days of receipt of all application documents from a state enterprise, the
representative agency shall be responsible for checking and determining that
the charter capital amount complies with laws, and sending a written request
(including attached dossiers of such state enterprise) to the same-level
financial institution for its consideration and written opinions;
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- After consulting the written
opinion obtained from the same-level financial institution, the representative
agency proceeds to submit a complete report to request the Prime Minister’s
consideration and decision to adjust the charter capital of a state enterprise
established under the Prime Minister's decision, or a state enterprise of which
the charter capital is increased to an amount equivalent to the permitted
amount of capital invested in projects of national importance under the
National Assembly’s decision on investment intention;
- The representative agency shall
decide the redetermined amount of charter capital and a deficit in the amount
of charter capital that requires additional investment in enterprises
established under the representative agency’s decision or falling under its
delegated authority.
c) Same-level financial
institution:
- Within a permitted period of 15
days of receipt of the written request from the representative agency and
enterprise’s dossiers, the same-level financial institution must send the
written opinion on charter capital adjustment to the representative agency to
prepare a complete report for submission to the Prime Minister for his
consideration or decision, or decide the redetermined amount of charter capital
of an enterprise established under its decision or falling under its delegated
authority;
- If the same-level financial
institution rejects the application for charter capital adjustment, it must
send a written response (with clear reasons for such rejection) to the
representative agency and the applicant within a permitted period of 07 days of
receipt of the written request from the representative agency.
Article 10.
Procedures for preparation and approval of the application for additional
investment in the charter capital of currently active state enterprises
1. Given the redetermined amount of
charter capital and a deficit in the amount of charter capital that requires
additional investment after being approved by competent authorities under the
provisions of Article 9 hereof, a state enterprise prepares its application to
request competent authorities to allow additional investment in the charter
capital of such state enterprise. Documentation filed to the representative
agency shall be composed of the followings:
a) The request form for additional
investment in the charter capital.
b) The duplicate decision on
approval of the charter capital issued by competent authorities.
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d) Socio-economic objectives and
effectiveness generated from additional investments in the charter capital.
dd) The document explaining funding
sources used for additional investment in the charter capital which have been
approved under the competent authority's decision on investment intention, including
the funding source derived from the state budget, enterprise arrangement and
development fund and development investment fund or enterprise arrangement fund
in the state enterprise.
2. The representative agency:
a) Within a permitted period of 15
days of receipt of a state enterprise's dossiers, the representative agency
shall be responsible for checking whether submitted dossiers comply with legal
regulations, verifying information included in the assessment report and
explanation regarding the additional investment in the charter capital which
are enclosed in the enterprise's dossiers, and sending a written request
(enclosing documents prepared under the provisions of Clause 1 of this Article)
to the same-level financial institution with the intention of creating
cooperation in carrying out verification and perfection of the plans for such
additional investment before reporting to the Prime Minister.
b) Where enterprise’s dossiers fail
to meet statutory requirements, the representative agency is obliged to send a
written request to the applicant for any modification made to submitted
dossiers to make them comply with legal regulations within a maximum duration
of 07 working days of receipt of these dossiers.
3. The same-level financial
institution:
a) Within a permitted period of 15
days of receipt of the written request from the representative agency and
enterprise’s dossiers, the same-level financial institution must send the
written opinion on additional investment in the charter capital to the representative
agency to obtain its decision, or to make a complete report to the Prime
Minister to request his consideration or granting of the decision on the
additional amount of capital invested in the charter capital in the financial
year within its jurisdiction as prescribed in Article 15 of the Law on
management and use of state capital invested in enterprise's manufacturing and
business operations.
b) If the same-level financial
institution rejects the application for additional investment in the enterprise’s
charter capital in the financial year, it must send a written response (with
clear reasons for such rejection) to the representative agency and the
applicant within a permitted period of 07 days of receipt of the written
request from the representative agency.
4. With regard to the plan for
additional investment in the charter capital by investing finances derived from
the enterprise arrangement and development fund, or the enterprise arrangement
fund in the enterprise, the representative agency is required to put forward
the additional investment plan to the Ministry of Finance (enclosing the
application for additional investment in the enterprise’s charter capital) to
request its verification or report to the Prime Minister for the purpose of asking
for his consideration or granting of the decision.
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1. The representative agency
prepares a written request (enclosing the enterprise’s dossiers approved by
competent authorities under the provisions of Article 9 hereof) for the
financial institution's allocation of funds additionally invested in the
enterprise’s charter capital.
2. The same-level financial
institution allocates funds used for additional investment in the enterprise’s
charter capital which are categorized as follows:
a) With respect to the financing
for additional investment in the charter capital derived from the state budget
is defined in the state expenditure plan approved and made known by the
competent authority (according to the delegated authority over the state
budget), the financial institution shall allocate such financing from the state
budget to the state enterprise under procedures stipulated by the Law on State
Budget.
b) With respect to financing for
additional investment in the enterprise’s charter capital derived from the
enterprise arrangement and development fund, after consulting the decision
granted by the Prime Minister, the Ministry of Finance shall allocate such
financing from the enterprise arrangement and development fund.
3. An enterprise shall carry out
additional investment in the charter capital under the following circumstances:
a) The enterprise uses the
development investment fund or the enterprise arrangement fund in the
enterprise for financing for additional investment in the charter capital.
Given the plan for additional
investment in the charter capital approved by competent authorities, the
enterprise shall carry out the carryforward of the development investment fund
and enterprise arrangement fund in the enterprise to make an increase in the
owner’s equity in the enterprise.
b) Where an enterprise is assigned
other transferred asset invested by the funding source derived from the state
budget, or government-contributed aids (those used for residential
resettlement, rearrangement, real property treatment and investment in
technical infrastructural facilities of industrial zones) in order to implement
projects for investment in construction, improvement and refurbishment of
manufacturing and trading facilities, this enterprise shall consult the asset
assignment decision issued by the competent authority and the record on asset
handover to make the final account of government-contributed aids and record an
increase in state capital invested in such enterprise.
4. The enterprise shall be
responsible for replacing the amount of charter capital registered in the
enterprise registration certificate by the actual amount of owner's equity
under the provisions of the Enterprise Law 2014.
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Article 12.
ADDITIONAL STATE CAPITAL INVESTMENT IN A JOINT STOCK COMPANY, MULTIPLE-MEMBER
LIMITED LIABILITY COMPANY
1. The additional state capital
investment aims at maintaining the rate of state-owned share and contributed
capital in a joint-stock company or a multiple-member limited liability company
if it falls into either of circumstances stipulated in Article 16 of the Law on
management and use of state capital invested in the enterprise's operations.
2. An enterprise will be eligible
for additional state capital investment in maintaining the rate of state-owned
share and contributed capital as stipulated in Clause 1 of this Article if it
is engaged in the following industries and sectors:
a) Operation and maintenance of
airports and runways; operation of seaports.
b) Management, maintenance of road
and inland waterways systems; maintenance of national rail infrastructure
systems.
c) Provision of telecommunications
facilities.
d) Mineral extraction; oil and
natural gas extraction.
dd) Oil and natural gas processing.
e) Cigarette production.
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h) Electric power distribution.
i) Urban drainage and sewerage;
environmental sanitation; urban lighting system; extraction, manufacturing and
supply of urban clean water.
k) Basic geological and
meteorological investigation; survey, exploration and investigation of land,
water and mineral resources as well as other natural resources.
l) Production and storage of plant
and animal varieties and frozen semen; production of human and veterinary
vaccines and biologics.
m) Production of basic chemicals,
chemical fertilizers and plant protection products.
n) International sea, rail and air
transport.
o) Agricultural and forestry
operations as stipulated by laws.
Article 13.
Procedures for preparation and submission of applications for additional state
capital investment in a joint stock company or multiple-member limited
liability company
1. The representative person of
state capital invested in a joint stock company, multiple-member limited
liability company shall prepare an application for additional state capital
investment in a joint stock company or a multiple-member limited liability
company to report to the representative agency for document verification and
perfection before submitting it to the Prime Minister for his consideration and
decision prior to the representative person's voting in the shareholders'
general meeting or the membership meeting. Application documents shall be
composed of the followings:
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b) The plan for additional state
capital investment in accordance with Clause 1 Article 18 of the Law on
management and use of state capital invested in the enterprise’s operations.
c) The copy of the audited financial
statement in the quarter or year closest to the date on which the plan for
additional state capital investment in the enterprise is devised.
d) The proposal of funding source
for additional state capital investment which aims at maintaining the rate of state-owned
share and contributed capital in a joint-stock company or a multiple-member
limited liability company, including funding source derived from the state
budget, enterprise arrangement and development fund, share dividends and
distributed profits (if applicable).
2. The representative agency:
Within a permitted period of 15
days of receipt of the application from the representative person, the
representative agency shall be responsible for checking that such application
complies with legal regulations and sending the written request (enclosing
dossiers stipulated in Clause 1 of this Article) to the same-level financial
institution for verification purposes before completing the plan submitted to
the Prime Minister for his consideration and decision, or for making its
decision on additional state capital investment which aims at maintaining the
rate of state-owned contributed capital in a joint stock company or a
multiple-member limited liability company under its delegated authority in
accordance with Article 17 of the Law on management and use of state capital
invested in the enterprise's operations.
Where application documents fail to
meet statutory requirements, the representative agency is obliged to send a
written request to the representative person for any modification made to
submitted documents to make them comply with legal regulations within a maximum
duration of 07 working days of receipt of such documents.
3. The same-level financial
institution: Within a permitted period of 15 days of receipt of application
documents and the written request from the representative agency, the
same-level financial institution must send its written opinion on additional
state capital investment in maintenance of the rate of state-owned shares and
contributed capital in the enterprise.
4. With respect to the plan for
additional state capital investment in a joint stock company, or a
multiple-member limited liability company that wishes to request the Prime
Minister to decide to use the enterprise arrangement and development fund for
investment purposes, the representative agency is required to send the proposal
for such investment (enclosing dossiers submitted to apply for additional state
capital investment) to the Ministry of Finance for its verification and
reporting to the Prime Minister to request his consideration and decision.
Article 14.
Procedures for financing for additional state capital investment in a joint
stock company or multiple-member limited liability company
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2. Given the time limit for
financing for additional state capital investment according to the notification
issued by a joint stock company or a multiple-member limited liability company,
and the written request filed by the representative agency, the same-level
financial institution shall finance additional state capital investment in a
joint stock company or a multiple-member limited liability company by taking
into account the approved amount of state capital investment under the
following circumstances:
a) With respect to the additional
state capital investment derived from the state budget as defined in the state
expenditure plan approved and made known by the competent authority (according
to the delegated authority over the state budget), the financial institution
shall allocate such financing from the state budget to the state enterprise
under procedures stipulated by the Law on State Budget.
b) With respect to financing for
additional state capital investment in a joint stock company or a
multiple-member limited liability company by using the enterprise arrangement
and development fund, after consulting the decision granted by the Prime
Minister, the Ministry of Finance shall allocate such financing from the
enterprise arrangement and development fund for enterprises.
c) With respect to use of share
dividends or distributed profits in proportion to the state-owned state capital
portion for the purpose of additional state capital investment in a joint stock
company or a multiple-member limited liability company, the enterprise shall
record an increase in state capital after obtaining the resolution of the
shareholders’ general meeting or the membership meeting.
Section 4.
STATE CAPITAL INVESTMENT IN PARTIAL OR COMPLETE ACQUISITION OF AN ENTERPRISE
Article 15.
Scope of state capital investment in partial or complete acquisition of an enterprise
1. The partial or complete
acquisition of an enterprise shall be carried out through the repurchase of
state-owned shares or contributed capital in an enterprise in accordance with
relevant laws.
2. The state capital investment in
the partial or complete acquisition of an enterprise that belongs to other
economic sector shall occur under the following circumstances:
a) The economy is restructured
through restructuring of enterprises that are currently operating in several
industries or sectors having significant socio-economic influence under the
Prime Minister’s decision.
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c) Such acquisition is aimed at
supplying essential public products and services to the society.
3. State capital investment in
partial or complete acquisition of an enterprise as per Clause 2 of this Article
must correspond to the general strategy and plan for socio-economic
development, or the industrial development proposal which has been approved
under the provisions of the Government's Decree No. 92/2006/ND-CP dated
September 7, 2006.
Article 16.
Principles of state capital investment in partial or complete acquisition of an
enterprise
1. State capital investment in
partial or complete acquisition of an enterprise shall only be applicable to
several circumstances stipulated in Article 15 hereof.
2. The plan for partial repurchase
of an acquired enterprise’s equity must ensure that the rate of state capital
invested in such acquired enterprise is sufficient to exercise the voting right
to such enterprise’s issues in the shareholders' general meeting or the
membership meeting as per Clause 3 Article 60 and Clause 1 Article 144 of the
Enterprise Law 2014.
3. The state capital investment in
partial or complete acquisition of an enterprise must have the proposal decided
or approved under the decision on investment intention by the competent
authority as per Article 20 of the Law on management and use of state capital
invested in the enterprise's operations in order to secure legal rights and
interests of shareholders in such enterprise as prescribed by current laws.
Article 17.
Procedures for preparation and submission of the application for state capital
investment in partial or complete acquisition of an enterprise
1. The representative agency shall
take charge of setting up a plan for state capital investment in partial or
complete acquisition of an enterprise and collaborate with the same-level
financial institution in carrying out verification and perfection of the final
plan submitted to the Prime Minister for his consideration and decision, or
shall decide on state capital investment in partial or complete acquisition of
an enterprise under its delegated authority. Key elements of the plan shall
consist of the followings:
a) Evaluation of financial status
and operating performance of the target enterprise.
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c) Investment outlay.
d) Proposed funding sources,
including funds derived from the state budget, the enterprise arrangement and
development fund and other legal financing.
2. The same-level financial
institution:
a) Within a permitted period of 15
days of receipt of the written request and the plan for state capital
investment in partial or complete acquisition of an enterprise from the
representative agency, the same-level financial institution shall carry out
verification of contents of the plan and send its written opinion on state
capital investment in partial or complete acquisition of an enterprise to the
representative agency.
b) Where the plan for state capital
investment in partial or complete acquisition of an enterprise fail to meet
stipulated requirements, the same-level financial institution must send written
response in which reasons are clearly stated to the representative agency so
that the plan will be further checked and improved within 07 days of receipt of
such plan.
3. With respect to the plan for
state capital investment in partial or complete acquisition of an enterprise
under which the Prime Minister is requested to decide on the finance derived
from the enterprise arrangement and development fund for such investment, the
representative agency shall send that plan to the Ministry of Finance so that
it will be subject to the Ministry’s appraisal before being submitted to the
Prime Minister to request his consideration or decision.
Article 18.
Procedures for financing for state capital investment in partial or complete
acquisition of an enterprise
1. The representative agency shall
prepare and send a written request along with the plan for state capital
investment in partial or complete acquisition of an enterprise which has been
approved by the competent authority in accordance with Article 17 hereof in
order to request the same-level financial institution to commence the procedure
for allocation of the fund for payments to sellers for partial or complete
acquisition of an enterprise.
2. The same-level financial
institution:
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b) With respect to financing for
partial or complete acquisition of an enterprise derived from the state budget
and specified in the state expenditure plan approved or made known by the
competent authority (according to the delegated authority over the state
budget), the financial institution shall follow the procedure for financing
derived from the state budget as per the Law on State Budget.
c) With respect to financing for
partial or complete acquisition of an enterprise derived from the enterprise
arrangement and development fund, the Ministry of Finance shall allocate such
financing from the enterprise arrangement and development fund to pay sellers
in accordance with laws.
Chapter III
FINANCIAL MANAGEMENT IN STATE ENTERPRISES
Section 1.
MANAGEMENT AND USE OF STATE-OWNED CAPITAL AND ASSETS IN STATE ENTERPRISES
Article 19.
Charter capital of a state enterprise
1. With regard to newly-established
state enterprises, the charter capital shall be determined by taking into
account the followings:
a) The scale and designed capacity
of manufacturing and trading industries, sectors or operations of an
enterprise.
b) The development investment
strategy and plan of that enterprise, and main business sectors of that
enterprise approved in the enterprise establishment proposal by the competent authority.
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d) The amount of charter capital
which is not allowed to be less than the amount of legal capital required for
manufacturing and business industries, sectors or operations in accordance with
laws.
2. With regard to currently active
state enterprises:
a) The charter capital of state
enterprises, after making an adjustment to the charter capital, shall be
determined by applying regulations laid down in Clause 1 of this Article.
b) The method of determination of
the charter capital shall be subject to regulations laid down in Article 9
hereof.
c) Procedures for preparation and
submission of the application for additional state capital investment in the
charter capital and allocation of financing for additional investment in the
charter capital under the provisions of Article 10 and 11 hereof.
Article 20.
Capital mobilization in state enterprises
1. The capital mobilization in
state enterprises shall comply with regulations laid down in Article 23 of the
Law on management and use of state capital invested in the enterprise’s
operations.
2. State enterprises shall be
entitled to directly apply for foreign loans and autonomously repay their debts
to foreign lenders as agreed upon in loan agreements. Requirements and
procedures for consideration and approval of a foreign loan taken out by an
enterprise shall comply with legislation on management of the enterprise’s
foreign loan application and repayment in terms of loans which are not
guaranteed by the Government. An enterprise’s foreign loan must fall within the
annual national limits on an amount of foreign loan under the Prime Minister’s
decision, and must be registered and endorsed by the State Bank of Vietnam in
accordance with current regulations.
3. State enterprises shall use
loans for predetermined purposes, take all risks and legal liabilities during
the process of mobilizing, managing and utilizing loans and obeying loan
repayment due dates. The state shall not be held responsible for repaying debts
incurred from the enterprise’s direct application for loans, except for
Government-guaranteed loans.
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a) The equity reported on a balance
sheet in a(n) quarterly or annual financial report compiled by a state
enterprise in which the item "other funding resources and funds" is
not included, and the equity mentioned in this Point which is applicable to the
content stated in Point a Clause 1 Article 26 and point a Clause 2 Article 27
hereof.
b) The liabilities reported on a
balance sheet in a(n) quarterly or annual financial report compiled by a state
enterprise in which items such as “reward and welfare fund”, “price
stabilization fund", and “scientific and technological development fund”,
are not included.
5. State enterprises shall provide
their subsidiary companies with guarantees for loans made by domestic credit
institutions on condition that these subsidiary companies demonstrate their
healthy financial status and do not owe undue debts. The guarantee for loans
for investment projects shall be subject to the evaluation of efficiency of
such projects and commitments to make repayments on guaranteed loans according
to the agreed schedule. State enterprises shall assume their responsibility to
monitor the utilization of loans for predetermined purposes and make repayments
on enterprise-guaranteed loans according to the agreed schedule.
Article 21. Intercorporate
investment
1. State enterprises shall be
vested with the right to use assets and capital amounts that fall within their
remit for intercorporate investment purposes, including overseas investment
activities that such state enterprises perform under the provisions of Article
28 and 29 of the Law on management and use of state capital invested in an
enterprise's operations.
a) Intercorporate investment
operations must adhere to legal regulations, correspond to their main scope of
operations, cause no impact on their manufacturing and business activities and
ensure efficiency, conservation and development of their invested capital.
b) State enterprises shall not be
allowed to contribute their capital to or invest in real estate (except those
whose main businesses are types of real estate stipulated in the Law on Real
Estate Business), or contribute their capital or buy shares of banks, insurance
companies, securities companies, venture investment funds, securities
investment funds or securities investment companies, except for special cases
decided by the Prime Minister.
c) Where state enterprises have
already contributed their capital to or invested in sectors stipulated in Point
b of this Clause and excepted from the Prime Minister’s investment permission,
they are required to implement the plan for restructuring and assignment of all
invested capital in compliance with legal regulations.
2. The representative agency shall
be charged with inspecting and supervising management and use of capital used
for intercorporate investment purposes in compliance with legal regulations.
Where any state enterprise has made intercorporate investment in sectors
stipulated in Clause 1 of this Article, but failed to restructure invested
capital amounts, the representative agency shall be responsible for cooperating
with the Ministry of Finance in submission of a final report to the Prime
Minister so that he will consider, decide and handle responsibilities assumed
by the Board of Members or the Chairperson of such state enterprise in
accordance with current legislation.
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4. The management of state
enterprise's intercorporate investment capital in a joint stock company, or a
multiple-member limited liability company, must be subject to Section 2 Chapter
III hereof.
Article 22.
Conservation of state enterprises’ equity
1. State enterprises shall be
responsible for conserving and developing the state invested capital. All
changes (increase or decrease) in the state capital invested in state
enterprises must be reported to the representative agency and financial
institution for monitoring and supervisory purposes.
2. Conservation of state capital
invested in state enterprises shall be carried out by taking the following
measures:
a) Comply with policies on
management of use of equity, assets, distribution of profits as well as other
financial management policies and accounting standards as stipulated by laws.
b) Buy asset insurance in
accordance with legal regulations.
c) Promptly deal with lost or
damaged asset values, irrecoverable debts and setting aside provisions against
risks as follows:
- Provision against devaluation of
inventories;
- Provision against bad debts;
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- Provision for warranties over
products, goods and construction works.
d) Implement other measures
regarding conservation of state capital invested in enterprises in accordance
with laws.
3. State enterprises are required
to conduct the annual evaluation of the level of state capital conservation by
employing the following evaluation methods:
a) If, after setting aside
stipulated provisions, the bottom line of income statement shows neutral or
positive numbers, such state enterprises have succeeded in conserving their
capital.
b) If, after setting aside
stipulated provisions, the bottom line of income statement shows negative
numbers (including accumulated losses), such state enterprises have failed to
conserve their capital.
Article 23.
Fixed asset investment, development and shopping in state enterprises
1. Fixed asset investment,
development and shopping in state enterprises shall comply with regulations
laid down in Article 24 of the Law on management and use of state capital
invested in the enterprise’s operations. In which:
a) With regard to fixed asset
investment and shopping carried out by such state enterprises, the process of
fixed asset investment and development must comply with legal regulations on
construction, procurement and other relevant laws.
b) With regard to investment in and
shopping for external fixed assets for use, such state enterprises must comply
with legal regulations on procurement and other relevant laws.
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2. State enterprises that belong to
business sectors that require particular regulations on specialized fixed asset
investment, construction, shopping, management and use shall comply with both
regulations hereof and specialized law regulations.
Article 24.
Rental of operating assets
1. State enterprises shall be
entitled to rent assets (even in a finance lease form) for manufacturing and
business operations to meet their demands and ensure business efficiency.
2. Rental and use of leased assets
must comply with regulations enshrined in the Civil Code and relevant law
regulations.
Article 25.
Use and management of fixed assets
1. State enterprises shall use and
manage fixed assets during business operations in compliance with regulations
laid down in Article 25 of the Law on management and use of state capital
invested in the enterprise’s operations. In which:
a) State enterprises shall be
responsible for establishing, issuing and implementing rules and regulations on
management and use of their fixed assets.
b) Depending on requirements for
management of specific fixed assets, rules and regulations on management of
fixed assets that is adopted by state enterprises must specify cooperation
between divisions and responsibilities of each division or individual engaged
in monitoring and management of fixed assets used by such enterprises.
2. State enterprises shall lease
out and offer fixed assets as pledges or collateral in accordance with Article
26 hereof.
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1. State enterprises shall be
vested with the right to lease out, offer their assets as pledges or collateral
by adhering to the principle that efficiency, capital conservation and
development is assured in accordance with laws, whereby:
a) The Board of Members or the
Chairperson of a state enterprise shall decide on the contract to lease out an
asset of which the value is restricted to under 50% of the equity reported in
the quarterly or annual financial report at the time closest to the time of
making decision to lease out such assets, and of which the residual value does
not exceed the investment outlay financing group-B projects in accordance with
regulations enshrined in the Law on Public Investment.
b) The authority to make a decision
to put an enterprise’s assets up as pledges or collateral for loans shall be
governed by regulations laid down in Article 23 of the Law on management and
use of state capital invested in an enterprise's operations.
2. With regard to state enterprises
established to serve the purpose of regular and stable manufacturing and supply
of public products, and directly meet national defence and security
requirements, once leasing out or providing assets directly assisting in
performing these duties, the representative agency's consent must be obtained.
3. Using assets for lease purposes,
or as pledges or collateral, must comply with regulations enshrined in the
Civil Code and other relevant law regulations.
Article 27.
Disposal, transfer or sale of fixed assets
1. State enterprises shall be
allowed to act on their initiative in disposal, transfer or sale of fixed
assets which have been damaged beyond repair, technically obsolete, removed
from service or worn beyond utilization in order to recover invested capital on
the principle of public disclosure, transparency and capital conservation in
accordance with applicable legislation.
2. The authority to make a decision
on disposal, transfer or sale of fixed assets:
a) The Board of Members or the
Chairperson of a state enterprise shall decide on the plan for disposal,
transfer or sale of an asset of which the residual value is restricted to 50%
of the equity reported in the quarterly or annual financial report at the time
closest to the time of making such decision on disposal, transfer or sale of
such asset and this value does not exceed the investment outlay financing
group-B projects in accordance with regulations enshrined in the Law on Public
Investment.
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b) With regard to state enterprises
established to serve the main purpose of manufacturing and supply of essential
public products to the society and economy, and directly meet national defence
and security requirements, once disposing of, transferring or selling assets
directly assisting in performing these duties, the representative agency's
consent must be obtained.
c) Where the state enterprise’s
plan for transfer or sale of fixed assets is not capable of recovering a full
amount of invested capital, state enterprises must clearly state reasons for
and report this incapability to the representative agency and same-level
financial institution prior to transfer or sale of such fixed assets to serve
supervision purposes.
d) If newly-shopped fixed assets
have already been used for 03 first years but failed to achieve economic
efficiency as stated in an investment project approved by the competent
authority, and such assets have no longer been used by state enterprises but
the transfer or sale of these assets fail to recover the invested capital,
which leads to such enterprises’ default on debt repayment as agreed upon in
the specified loan contract or arrangement, related persons’ liabilities for
this must be clearly defined so that the representative agency will be reported
to find appropriate resolutions in accordance with laws.
dd) With regard to disposal,
transfer or sale of fixed assets that belong to certain particular sectors
(such as tobacco, seafaring ships and aircraft), these activities shall be
subject to both regulations laid down in this Decree and relevant specialized
laws.
3. Method of fixed asset disposal,
transfer or sale:
a) State enterprises shall carry
out the transfer or sale of fixed assets by way of an auction conducted by an
organization which is competent to auction assets or by enterprises on their
own in an open manner according to the legitimate procedures for asset
auctions. In the event of transfer or sale of fixed assets of which the
residual value reported in accounting records equals less than VND 100 million,
the Director General or Director shall decide on an auction sale or a deal but
the selling price should not be less than the market price. In the event of
fixed assets which are not available for transactions on the market, state
enterprises shall be allowed to hire an organization that is competent to
conduct an appraisal to determine the price at which such assets shall be sold
by employing aforesaid methods.
b) The disposal or transfer of
fixed assets associated with land must comply with laws on land.
4. Procedures for asset disposal,
transfer or sale:
a) The Board of Members or the
Chairperson of a state enterprise makes a decision on establishment of the
council on fixed asset disposal, transfer and sale in such enterprise. The
council is composed of a Director General or Director, Chief Accountant,
related department heads; representatives of the Executive Board of Trade Union
in a state enterprise and several experts on technical specifications of these
fixed assets (when necessary). The council on fixed asset disposal, transfer
and sale shall take on the following duties:
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- Define the reasons and
responsibilities of collectives or individuals for the circumstance under which
newly-shopped fixed assets do not generate required economic value, have to be
disposed of, transferred or sold without assurance of the invested capital
recovery, or fixed assets which have not been fully depreciated have been damaged
beyond repair and must be held for disposal, transfer or sale in order to
report to owners in accordance with legal regulations;
- Identify or hire other
organization competent to conduct appraisal to determine the value which may be
obtained from asset disposal, transfer or sale;
- Conduct an auction sale or hire
an organization competent to conduct an auction sale of these assets in
accordance with relevant laws;
- Automatically terminate
operations of the council on asset disposal, transfer and sale upon completion
of the enterprise's asset disposal, transfer or sale.
b) Where a state enterprise is
executing construction investment projects approved by the competent authority,
and such enterprise is obliged to demolish or eliminate old fixed assets, the
disposal or transfer of such assets and recording of such assets into
accounting records must be carried out in the same manner as the disposal or
transfer of fixed assets in accordance with this Point.
Section 2.
MANAGEMENT OF STATE ENTERPRISE’S CAPITAL INVESTED IN A JOINT STOCK COMPANY AND
A LIMITED LIABILITY COMPANY
Article 28.
Management of state enterprise's capital invested in a subsidiary company which
is a single-member limited liability company and of which the charter capital
is wholly owned by that state enterprise, and management of state enterprise's
capital contributed to a joint stock company or a multiple-member limited
liability company
1. A state enterprise shall carry
out the financial management towards subsidiary companies of which the charter
capital is wholly owned by such state enterprise, and management of that state
enterprise's capital contributed to a joint stock company or a multiple-member
limited liability company in accordance with Article 30 of the Law on
management and use of state capital invested in the enterprise’s operations, in
which:
a) The state enterprise is required
to issue financial rules and regulations of these subsidiary companies under
which setting aside after-tax profits for funds, collecting remaining amounts
of after-tax profit after being set aside for funds in these subsidiary
companies, and collecting margins between the equity and the charter capital
from these subsidiary companies must be specified.
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c) If a state enterprise receives
stocks from a joint stock company to which that state enterprise contributes
its capital without having to make payment for such stocks because of the fact
that such joint stock company has used its share capital surplus or
equity-based funds, or has distributed share dividends by issuing stocks to
increase its charter capital, based on the number of received stocks it will
create accounting records to monitor, enter and post such stocks in its
financial statement in accordance with applicable corporate accounting
standards and regulations.
2. Appointment and eligibility
standards of the representative person of state enterprise’s capital
contributed to a joint stock company or a multiple-member limited liability
company shall be governed under Article 46 and 47 of the Law on management and
use of state capital invested in the enterprise’s operations.
Article 29.
Transferring investment capital out of a state enterprise
1. Transferring investment capital out
of a state enterprise is governed under the provisions of Article 31 of Law on
management and use of state capital invested in an enterprise's operations
while the method of transferring intercorporation investment capital of a state
enterprise (including the transfer of the right to buy shares or contribute
capital to a joint stock company or a multiple-member limited liability
company) is governed under the provisions of Clause 3, 4 and 5 Article 38
hereof.
2. If the transfer price is close
to the market price (this price evaluated by an organization competent to carry
out price appraisal and evaluation in accordance with legal regulations on
price appraisal and evaluation), but the value that may be achieved is still
lower than the value reported in accounting records of a state enterprise, and
that state enterprise has already set aside a provision fund, the following
actions must be taken:
a) If provisions are equal to or
greater than the difference between the value that may be gained and the value
reported on accounting records, the Board of Members or the enterprise’s
Chairperson shall make a transfer decision to recover intercorporate investment
capital.
b) If provisions remain less than
the difference between the value of invested capital reported on accounting
records and the transfer value that may be gained, the Board of Members or the
enterprise’s Chairperson must report to the representative agency for
consideration or decision prior to commencement of such transfer.
3. Revenues generated from the
transfer of a state enterprise’s intercorporate investment capital (shares,
contributed capital and the right to buy shares or contribute capital) after
deducting the value of invested capital, transfer cost and tax obligations in
accordance with laws, shall be determined as income from financial activities
of that state enterprise.
4. As for types of debentures and
bonds that a state enterprise has invested in to earn profits, the transfer
shall be governed under the same regulations as applied to the issue of these
ones, or accord with the issue method of the issuing organization or entity. If
a state enterprise transfers bonds prior to the maturity date, the transfer
price must adhere to the principle of capital conservation. Transfer of bonds
which have been deposited, listed or traded on the stock market shall be
governed under laws on securities.
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Article 30.
Management of revenue, other income and expense of a state enterprise
1. The Board of Members or the
enterprise’s Chairperson, the Director General or Director, shall be held
accountable to the representative agency and assume legal liability for their
management which is required to be sufficiently strict, and ensures the
accuracy, reliability and legitimacy of revenues, other income and operating
expenses of the state enterprise.
2. All revenues, other income and
expenses arising from the state enterprise’s manufacturing and business
operations must be fully documented in accordance with legal regulations and
entered into accounting records of the state enterprise in accordance with
applicable accounting standards and regulations.
3. Revenues, other income and
expenses arising from the state enterprise’s manufacturing and business
operations shall be denominated in Vietnamese dong. If collected or paid in
foreign currencies, they must be converted into Vietnamese dong in accordance
with applicable laws.
4. The state enterprise is obliged
to calculate a correct and adequate amount of operating expense, pay all costs
by spending their revenues and assume the sole responsibility for their
business result.
5. Calculating revenue, income and
expense to determine tax liabilities and other financial obligations in a state
enterprise shall be governed under laws on taxation and other relevant
legislation.
Article 31.
Profit distribution
Profit of a state enterprise after
being used for making up for prior-year losses under the provisions of the Law
on Corporate Income, setting aside of the scientific and technological
development fund under legal regulations, and paying corporate income tax,
shall be distributed in following order:
1. Distribute profits to associated
capital contributing parties under terms and conditions of a signed economic
contract (if any).
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3. Distribute the remaining amount
of profit after deductions stipulated in Clause 1, Clause 2 of this Article in
following order:
a) Set aside the special fund under
the Prime Minister's decision (if applicable).
b) Set aside a maximum amount
accounting for 30% of profit for the enterprise’s development investment fund.
c) Set aside the reward and welfare
fund for the enterprise’s staff:
- State enterprises rated A shall
be allowed to set aside an amount equivalent to three months’ earned income of
employees for two reward and welfare funds;
- State enterprises rated B shall
be allowed to set aside an amount equivalent to one and a half month’s earned
income of employees for two reward and welfare funds;
- State enterprises rated C shall
be allowed to set aside an amount equivalent to one month’s earned income of
employees for two reward and welfare funds;
- Unrated state enterprises shall
not be allowed to set aside two reward and welfare funds.
d) Set aside the reward fund for
the enterprise’s managers and comptrollers:
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- State enterprises rated B shall
be allowed to set aside an amount equivalent to one month’s earned income of
managers and comptrollers for this fund;
- State enterprises rated C or
unrated ones shall not be allowed to set aside the reward fund for their
managers and comptrollers.
dd) If the remaining amount of
profits after being set aside for the development investment fund stipulated in
Point b of this Clause are not adequate enough to set aside reward and welfare
funds, reward funds for managers or comptrollers at a stipulated level, the
state enterprise shall be allowed to deduct an amount of profits set aside for
the development investment fund to be added to a stipulated level of such
reward and welfare funds, reward funds for managers or comptrollers, but a
maximum deduction shall not be allowed to exceed an amount of profits set aside
for the development investment fund in a financial year.
e) The remaining amount of profits
after being set aside for funds stipulated in Point a, b, c and d of this
Clause shall be paid to the state budget.
Article 32.
Use and management of funds
1. Funds of a state enterprise must
be used to serve the right purpose and beneficiaries.
a) The state enterprise is obliged
to establish and enforce internal rules and regulations on management and use
of funds in accordance with laws, which must ensure the justice, democracy and
transparency with participation of the Executive Board of Trade Union and must
be made known in the enterprise before coming into force.
b) In a financial year, state
enterprises shall act on their initiative in temporarily setting aside funds on
the basis of their income statement which reports positive operating profits
and their corporate income tax which has been paid in accordance with legal
regulations in order to spend for stated purposes.
2. The development investment fund
shall be used for executing the enterprise development and investment projects
as well as for adding to the enterprise's charter capital.
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a) Providing year-end, periodic,
spontaneous rewards and those stipulated by laws on emulation and reward for
employees working in enterprises (including managers who work under employment
contracts). The enterprise’s reward funds shall not be allowed to provide
rewards for state-appointed managers and comptrollers (except for rewards
stipulated by laws on emulation and rewards).
b) Providing rewards for external
individuals or collectives that make a lot of contributions to business and
managerial activities in the enterprise.
c) Reward payments decided by the
Director General or Director shall be specified in the internal rules and
regulations on use and management of funds.
4. Welfare funds shall be used for:
a) Investing in development or
repair of welfare facilities in an enterprise.
b) Paying for welfare activities of
staff members, including managers and comptrollers who work under employment
contracts, and state-appointed managers and comptrollers.
c) Investing a portion of capital
in construction of welfare facilities commonly shared among industries or other
organizations as agreed upon in contracts.
d) Take advantage of a part of the
welfare fund to help staff members deal with their unexpected difficulties,
including those who are retired, incapable of working or suffer hardships,
homeless conditions, or serve charitable purposes.
dd) Welfare amounts decided by the
Director General or Director shall be specified in the internal rules and
regulations on use and management of funds.
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a) Providing annual rewards or
rewards for the Chairperson and members of the Board of Members, the President,
Director General, Director, Deputy Director General, Deputy Director,
Comptroller and Chief Accountant of the enterprise at the end of their term in
office.
b) Payments for annual rewards and
rewards provided at the end of term in office shall be decided by the
representative person, which conform to criteria for evaluating managers and
comptrollers as well as operating performance of the enterprise, as requested
by the Chairperson of the Board of Members or the enterprise's Chairperson.
c) Where the Chairperson and
members of the Board of Members, enterprise's Chairperson, Director General,
Director, Deputy Director General, Deputy Director, Comptroller and Chief
Accountant are provided with rewards or bonuses in accordance with laws on
emulation and reward, the enterprise shall use the enterprise’s reward funds
for paying abovementioned entities at amounts stipulated by laws on emulation
and reward in respect of specific emulation and reward forms.
Section 4.
FINANCIAL PLAN, AND ACCOUNTING, STATISTICAL, AUDITING AND REPORTING REGULATIONS
Article 33.
Financial plan
1. Based on the plan, scheme and
proposal for production and business development of state enterprises approved
by the representative agency, a state enterprise shall set up the plan for
operating activities and the long-term financial plan in alignment with the
enterprise’s scheme decided by the representative agency.
2. Every year, based on the
long-term production and business plan, enterprise’s capability and market
demands, a state enterprise shall prepare the following year’s production and
business plan for submission to the Board of Members or the enterprise’s
Chairperson for decision.
3. Based on the production and
business plan approved by the Board of Members or the enterprise’s Chairperson,
the state enterprise shall prepare an evaluation report on production and
business operations that take place in the reporting year and the following
year’s financial plan for submission to the representative agency and the
financial institution ahead of every July 31.
4. The representative agency shall
take charge of or cooperate with the same-level financial institution in review
of the financial plan prepared by state enterprises and shall send its written
opinions to such state enterprises to request them further improve their
financial plan. The final financial plan shall be considered the official plan
which serves as the basis for supervision, evaluation, management and operation
of the enterprise’s business activities carried out by the representative
agency and the same-level financial institution.
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State enterprises are obligated to
organize accounting and statistical operations in accordance with applicable
laws; create and write original documents, update accounting records, and
assure that economic and financial transactions be mirrored in a sufficient,
timely, honest, accurate and objective manner. Annual financial statements of
state enterprises must be audited before being submitted to state enterprises
and made known to the public.
Article 35.
Financial, statistical report and other report
1. At the end of an accounting
period (quarter or year), state enterprises must formulate, present and send
financial and statistical reports to state agencies and carry out financial
public disclosure in accordance with applicable laws. The Board of Members or
the enterprise’s Chairperson shall be responsible for the accuracy and fidelity
of financial and statistical reports as well as financial public disclosure.
2. In addition to financial and
statistical statements periodically prepared and sent in accordance with
aforesaid regulations, state enterprises must prepare and send ad-hoc reports
upon the request of the representative agency and state agencies. If state
enterprises have Government-guaranteed foreign or domestic loans, they are required
to prepare and send reports in accordance with applicable legal regulations on
Government-guaranteed debt management.
Chapter IV
MANAGEMENT OF STATE CAPITAL INVESTED IN A JOINT STOCK
COMPANY, MULTIPLE-MEMBER LIMITED LIABILITY COMPANY
Article 36. The
representative agency of owners of state capital invested in a joint stock
company or multiple-member limited liability company
1. The representative agency shall
carry out management of state capital invested in a joint stock company or
multiple-member limited liability company through its representative person.
2. Rights and responsibilities of
the representative agency shall comply with regulations laid down in Article 43
of the Law on management and use of state capital invested in the enterprise’s
operations.
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1. The representative person shall
be selected and appointed in writing by the representative agency in order to
exercise his/her rights and assume his/her responsibilities to act on behalf of
state capital owners to manage state capital invested in a joint stock company
or multiple-member limited liability company.
2. Appointment and eligibility
standards of the representative person of state enterprise’s capital
contributed to a joint stock company or a multiple-member limited liability
company shall be governed under Article 46 and 47 of the Law on management and
use of state capital invested in the enterprise’s operations.
3. Rights, responsibilities, wage,
remuneration, bonus and other benefits of the representative person shall be
governed under Article 48 and 50 of the Law on management and use of state
capital invested in the enterprise’s operations.
Article 38. Transfer
of state capital invested in a joint stock company, multiple-member limited
liability company
1. State capital transfer
principles:
a) The state capital transfer shall
be subject to the plan approved by competent authorities and conform to the criteria
for classification of enterprises under the Prime Minister's decision, and
shall not be allowed to fall within the scope of industries or sectors where
the state has decided to make additional investment in maintenance of its share
and contributed capital ratio as prescribed by Article 12 hereof.
b) This transfer must adhere to the
principle of market, public disclosure, transparency and capital conservation
at the highest level as well as maximum restriction on losses incurred from
investment activities if state capital is transferred at the price lower than
the face value.
c) Determination of the start price
of state capital before an open auction is held or an arrangement is made
through an organization competent to conduct price evaluation in accordance
with legal regulations on price evaluation must ensure that the actual value of
such state invested capital be determined, including the value generated from
the value of the title to the land under the legal land transfer or receipt as
stipulated in laws on land, and the value of intellectual rights (if any) of
these state enterprises in accordance with applicable legal regulations that
remain in force at the time of state capital transfer.
d) Transfer of state capital which
relates to the land title must comply with legal regulations on land.
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2. Authority to make a decision on
state capital transfer:
a) The Prime Minister shall make a
decision on the transfer of state capital invested in joint stock companies,
multiple-member limited liability companies which have been transformed from
state enterprises established under the Prime Minister's decision.
b) The representative agency shall
make a decision on the transfer of state capital invested in joint stock
companies, multiple-member limited liability companies which have been
transformed from state enterprises established under the representative
agency's decision or assigned to be managed under its authority after obtaining
opinions from the Ministry of Finance and the Ministry of Planning and
Investment.
3. Method of transfer of state
capital invested in multiple-member limited liability companies:
a) If the Prime Minister or the
representative agency requests a multiple-member limited liability company to
repurchase contributed capital, the sale of such state capital under agreements
shall be governed under the provisions of Article 52 of the Enterprise Law
2014. The agreed price shall be determined under the provisions of Point c
Clause 1 of this Article.
b) If the Prime Minister or the
representative agency transfers contributed to other members or organizations
or individuals which are not members of state enterprises, the transfer shall
be governed under Article 53 of the Enterprise Law, in which:
- If state capital is transferred
to other members of state enterprises, the transfer price must be agreed with
other members. The determination of the agreed price on the basis of results of
price evaluation conducted by a price evaluation organization shall be governed
under Point c Clause 1 of this Article;
- If state capital is transferred
to organizations or individuals that are not members of state enterprises, an
open auction must be held or direct agreement must be entered into in
accordance with Clause 4 of this Article.
4. Method of transfer of state
capital invested in joint stock companies:
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b) With regard to joint stock
companies which have not been listed or registered for transactions on the
Upcom, the transfer of state capital shall be carried out by employing the
following methods:
- Holding an open auction. If such
open auction is not successful, the competitive bidding shall be used in a form
of bidding for blocks of shares. As for transfer of state capital worth more
than VND 10 billion, it shall take place at the Stock Exchange. As for transfer
of state capital worth less than VND 10 billion, financial intermediaries shall
be hired to carry out auction sale or hold auctions on their own at state
enterprises or conduct auctions at the Stock Exchange;
- Selling state capital under a
direct agreement between the representative agency and investors in the event
that auction sale of blocks of shares is not successful (only one investor
applies for purchase of shares, or this is allowed in writing by the Prime
Minister);
- When transferring state capital
under direct agreement, persons delegated authority to decide state capital
transfer shall not be allowed to make their transfer decision on behalf of a
state enterprise of which wife, husband, father, foster father, mother, foster
mother, natural son/daughter, son/daughter-in-law, adopted son/daughter,
younger/elder brother, sister, or younger/elder son/daughter-in-law, is a
manager and shall not be entitled to make their decision to transfer state
capital to those stated above.
5. If state capital is invested in
enterprises outside of sectors or industries that require no more additional
investment from the state according to the classification criteria or list of
state enterprises issued by the Prime Minister, the representative agency shall
consider and decide transfer of the right to purchase additionally issued
shares (applicable to joint stock companies) and contribute capital (applicable
to multiple-member limited liability companies) to other organizations or
individuals.
The principle applied to the
transfer of the right to purchase shares or the right to contribute capital
shall be the same as the principle applied to the open auction. The
determination of the start price shall be carried out through an organization
competent to conduct price evaluation in accordance with laws on price
evaluation. In the event that the permitted duration within which shareholders
or capital contributing members exercise the right to purchase shares or the
right to contribute capital according to the stock issuing plan of the issuing
enterprise is too short for the representative agency to hold auctions to
transfer its state capital, it shall consider deciding the transfer price and
method of transfer under direct agreements in accordance with legal regulations
as well as ensure efficiency.
Persons delegated authority to
decide to transfer the right to purchase shares or the right to contribute
capital shall not be allowed to decide to transfer state capital to the
transferred enterprise of which wife, husband, father, foster father, mother,
foster mother, natural son/daughter, son/daughter-in-law, adopted son/daughter,
younger/elder brother, sister, or younger/elder son/daughter-in-law, is a manager
and shall not be entitled to make their decision to transfer state capital to
those stated above.
6. The Prime Minister shall issue
regulations on requirements and procedures for the auction sale of blocks of
shares.
Article 39.
Collection of receipts from transfer of equity, profits and share dividends of
a joint stock company or multiple-member limited liability company
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a) Receipts from the transfer of
state capital, transfer of the right to purchase additionally issued shares
(applicable to joint stock companies) and the right to contribute capital
(applicable to multiple-member limited liability companies ) to other
organizations or individuals (investors), after deducting reasonable
transfer-related costs, shall be deposited in the enterprise arrangement and
development fund.
b) The representative agency (or
the competent authority authorized or assigned in writing by the representative
agency) shall be responsible for providing sufficient information for investors
before paying such receipts to the enterprise arrangement and development fund
(information including beneficiary, address, bank account number, payment time,
and payment reason (auction-winning payment)).
c) Permitted duration of payment to
the enterprise arrangement and development fund:
- With regard to transfer of state
capital invested in joint stock companies which have been listed on the stock
market or registered for transactions on the Upcom, the permitted duration
within which investors are required to make payment to the enterprise
arrangement and development fund shall vary depending on specific transaction methods
when transferring shares in accordance with legal regulations on securities;
- With respect to transfer of state
capital invested in joint stock companies which have yet listed on the stock
market or have yet registered for transaction on the Upcom; transfer of state
capital invested in multiple-member limited liability companies; transfer of
the right to purchase additionally issued shares, the right to contribute
capital in a form of an open auction, a competitive bidding or an agreement,
the permitted duration within which investors are required to make payment to
the enterprise arrangement and development fund shall not be allowed to exceed
15 days from the date of announcement of the result of such open auction,
competitive bidding or signing of such transfer agreement.
If investors refusing making such
payment or do not abide by the due payment date, they shall be subjected to
sanctions or enforcement actions under the provisions of regulations on use and
management of the enterprise arrangement and development fund issued by the
Prime Minister.
d) The representative agency shall
be charged with inspecting and supervising payment to the enterprise
arrangement and development fund in compliance with laws.
2. Collection of profits and share
dividends on state capital invested in joint stock companies or multiple-member
limited liability companies shall be specified as follows:
a) Within a maximum duration of 15
days of receipt of profit, share dividend distribution notice from joint stock
companies or multiple-member limited liability companies, the representative
person shall be responsible for requesting these companies to pay distributed
profits or share dividends to the state budget.
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b) Joint stock companies or
multiple-member limited liability companies shall be responsible for making
payment to the state budget within 30 days of receipt of the request of the
representative person.
If joint stock companies or
multiple-member limited liability companies do not make payment or follow the
due payment date, they shall be subjected to sanctions or enforcement actions
as per regulations on tax payment failure or undue tax payment stated in laws
on taxation.
Chapter V
IMPLEMENTATION
Article 40.
Transitional provisions
1. With regard to financial rules
and regulations of state enterprises issued by competent authorities before
July 1, 2015, state enterprises shall be allowed to continue to implement these
rules and regulations by the end of December 31, 2015.
2. With regard to the projects for
state capital investment in enterprises approved or decided by competent
authorities before December 8, 2014, such projects shall be continued.
3. Activities relating to use and
management of state capital and assets invested in state enterprises, and
management of state capital invested in joint stock companies, multiple-member
limited liability companies that arise before July 1, 2015 shall be governed
under current legal regulations by the end of December 31, 2015.
4. Activities relating to state
capital investment in enterprises, and use and management of state capital,
assets invested in state enterprises, and use and management of capital and
assets invested in joint stock companies, multiple-member limited liability
companies that arise July 1, 2015 onwards shall be governed under regulations
laid down in this Decree.
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This Decree shall enter into force
from December 1, 2015 and replace Decrees, such as the Government’s Decree No.
71/2013/ND-CP dated July 11, 2013 on state capital investment in enterprises
and financial management towards enterprises of which the charter capital is
wholly held by the State; the Government’s Decree No. 09/2009/ND-CP dated
February 5, 2009 on providing for financial management in state enterprises and
management of state capital invested in other enterprises; regulations on
financial management towards state-owned single-member limited liability
companies laid down in the Government’s Decree No. 25/2010/ND-CP dated March
19, 2010.
Article 42.
Enforcement responsibilities and implementation
1. Authority to enforce financial
regulations provided for state enterprises:
a) The Government shall issue
financial regulations provided for certain state enterprises that are parent
companies of state-owned economic corporations and incorporations established
under the Prime Minister’s decision.
b) The representative agency shall
enforce financial regulations provided for parent companies, state-owned
incorporations established under the decision of the representative agency or
assigned to be managed under its authority after entering into an agreement
with the Ministry of Finance; enforce financial regulations provided for the
rest of state enterprises established under the decision of the representative
agency or assigned to be managed under its authority.
2. The Ministry of Finance shall
provide regulations on the depreciation of fixed assets of enterprises; dealing
with, taking an inventory of assets and setting aside provisions; dealing with
exchange rate differences; criteria for the enterprise’s financial plan;
accounting and financial reporting regulations.
3. The Minister of Finance shall bear
responsibility to provide guidance on, inspect and supervise the enforcement of
this Decree.
4. Political organizations,
socio-political organizations can apply provisions laid down in this Decree to
their implementation of financial management towards enterprises owned by these
organizations.
5. Parent companies of a state
economic corporations, parent companies of state incorporations or parent
companies that belong to the parent company - subsidiary company group shall
assume the following responsibilities:
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b) Contents of financial management
regulations issued by a parent company on the basis of applying regulations
laid down in this Decree must conform to regulations enshrined in the
Enterprise Law 2014 and other relevant laws.
4. Ministers, Heads of
Ministry-level agencies, Heads of Government agencies, the Presidents of the
People’s Committees of centrally-affiliated cities, provinces and state
enterprises, and representative persons of state capital, shall be responsible
for enforcing this Decree./.
PP.
THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung