Nghị định 106/2015/NĐ-CP quản lý người đại diện phần vốn nhà nước nắm giữ trên 50% vốn điều lệ

DECREE

PRESCRIBING MANAGEMENT OF STATE CAPITAL REPRESENTATIVES HOLDING MANAGERIAL POSITIONS IN ENTERPRISES OF WHICH OVER 50% OF CHARTER CAPITAL IS HELD BY THE STATE

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

Pursuant to the Law on Officials dated November 13, 2008;

Pursuant to the Law on Enterprises dated November 26, 2014;

Pursuant to the Law on management and use of state capital invested in manufacturing and business operations of enterprises dated November 26, 2014;

At the request of the Minister of Home Affairs;

The Government promulgates a Decree prescribing the management of state capital representatives holding managerial positions in enterprises of which over 50% of charter capital is held by the State.

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GENERAL PROVISIONS

Article 1. Scope

This Decree deals with the determination of authority to make decisions; dual office-holding regime, quantity; assessment; appointment, re-appointment and dismissal; commendation and disciplinary actions; naming of officials for voting, dismissal and appointment; resignation, retirement and management of dossiers of state capital representatives holding managerial positions in enterprises of which over 50% of charter capital is held by the State.

Article 2. Regulated entities

1. Representatives of state capital who are voted or appointed to hold managerial positions in equitized state companies, economic groups and corporations, and multi-member limited liability companies (hereinafter referred to as “economic groups/corporation/companies”) of which over 50% of charter capital is invested in by Ministries, ministerial agencies, Governmental agencies (hereinafter referred to as “supervisory ministries”), or People's Committees of central-affiliated cities and provinces (hereinafter referred to as “provincial People's Committees”), including:

a) Chairperson of Board of Directors;

b) Chairperson of Board of Members;                          

c) Members of Board of Directors;                         

d) General Director;

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e) Director;

g) Deputy director.

Representatives of state capital mentioned in this Clause are hereinafter referred to as "representatives.”

2. Regulatory authorities, organizations and individuals involved in the management of state capital representatives in enterprises.

Article 3. Definitions

For the purpose of this Decree, these terms are construed as follows:

1. “representative” means a person who is appointed by a state capital owner to represent partial or entire state capital invested in an economic group, corporation or company and perform all or some rights, responsibilities and obligations of the state shareholder or capital-contributing member in that economic group, corporation or company in accordance with regulations of law.

2. “representative appointment decision” means a document issued by the state capital owner to appoint or assign its representative to exercise rights of the shareholder or capital-contributing member at an economic group, corporation or company.

3. “age of appointment as representative” means the representative's age calculating from his/her date of birth to the date on which a competent authority gives a written approval of the proposal to appoint a representative.

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a) Organization and Personnel Departments of supervisory ministries;

b) Departments of Home Affairs affiliated to provincial People's Committees.

Chapter II

AUTHORITY TO MAKE DECISIONS ON REPRESENTATIVE MANAGEMENT TASKS

Article 4. Authority of supervisory ministries

Each supervisory ministry shall have the authority to:

1. Issue decisions to appoint or re-appoint representatives for election to or request dismissal of representatives from the following positions:

a) Chairpersons or members of Boards of Directors of economic groups or corporations;

b) Chairpersons or members of Boards of Directors or Presidents of companies.

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a) General Directors or Deputy General Directors of economic groups or corporations;

b) Directors or Deputy Directors of companies.

3. Issue commendation or disciplinary decisions, and decisions to approve resignation or retirement of representatives holding the following positions:

a) Chairpersons or members of Boards of Directors, General Directors or Deputy General Directors of economic groups or corporations;

b) Chairpersons or members of Boards of Directors or Presidents, Directors or Deputy Directors of companies.

Article 5. Authority of provincial People’s Committees

Each provincial People’s Committee shall have the authority to:

1. Issue decisions to appoint or re-appoint representatives for election to or request dismissal of representatives from the following positions:

a) Chairpersons or members of Boards of Directors of corporations;

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2. Issue decisions to appoint or re-appoint representatives for appointment to or request dismissal of representatives from the following positions:

a) General Directors or Deputy General Directors of corporations;

b) Directors or Deputy Directors of companies.

3. Issue commendation or disciplinary decisions, and decisions to approve resignation or retirement of representatives holding the following positions:

a) Chairpersons or members of Boards of Directors, General Directors or Deputy General Directors of corporations;

b) Chairpersons or members of Boards of Directors or Presidents, Directors or Deputy Directors of companies.

Chapter III

REPRESENTATIVES WORKING UNDER DUAL OFFICE-HOLDING REGIME, QUANTITY OF REPRESENTATIVES RECOMMENDED FOR ELECTION TO POSITION OF MEMBERS OF BOARDS OF DIRECTORS OR APPOINTMENT TO POSITION OF DEPUTY GENERAL DIRECTORS OR DEPUTY DIRECTORS

Article 6. Regulations on dual office-holding

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If an official or public employee is appointed to act as a representative, the official must obtain a work transfer decision or the public employee must terminate his/her public employee contract.

2. A representative shall not concurrently act as the representative in another economic group, corporation or company the state capital invested in which is owned by a supervisory ministry or provincial People's Committee.

3. Representatives are not allowed to assign or re-authorize others to vote or decide contents assigned by state capital owners on their behalf.

4. A Chairperson of a Board of Directors is not allowed to concurrently act as a General Director.

5. A Chairperson of a Board of Members is not allowed to concurrently act as a General Director.

Article 7. Quantity of representatives recommended for election to position of members of Boards of Directors or appointment to position of Deputy General Directors or Deputy Directors

State capital owners shall decide the quantity of representatives recommended for election to position of members of Boards of Directors or appointment to position of Deputy General Directors or Deputy Directors based on their capital contribution percentages.

Chapter IV

ASSESSMENT OF REPRESENTATIVES

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Grounds for assessment include:

1. Rights and responsibilities of a representative as prescribed by law;

2. Annual work plans/programs approved by state capital owners.

Article 9. Assessment time

Representatives shall be assessed every year after economic groups, corporations or companies publish their annual financial statements and before they follow procedures for appointment, re-appointment, commendation or disciplinary actions against representatives.

Article 10. Authority to assess and responsibilities of persons making assessment

1. State capital owners shall directly assess representatives as prescribed in Article 4 and Article 5 hereof and assume responsibility for their assessment results.

2. Written ranking and assessment results shall be notified to representatives and included in their dossiers.

Article 11. Assessment contents

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a) Business income and operational efficiency of economic groups, corporations or companies;

b) The representative’s compliance with the state capital owner’s policy, resolution and direction.

2. Compliance with guidelines and polices of the Communist Party and the State law, the anti-corruption law, the law on thrift practice and waste combat, internal regulations and rules of economic groups, corporations or companies.

3. Moral and political credentials, lifestyle, working style and behavior.

Article 12. Assessment results

Representatives shall be assessed every year and ranked into 03 levels as follows: Having excellently completed tasks, having completed tasks and failing to complete tasks.

Article 13. Criteria for representatives assessed to have excellently completed tasks

A representative is assessed to have excellently completed tasks if meeting all of the following criteria:

1. He/she has completed all assigned tasks under the annual work plan/program with working hours and quality ensured;

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3. He/she has excellent moral and political credentials, healthy lifestyle, and standard working style.

Article 14. Criteria for representatives assessed to have completed tasks

A representative is assessed to have completed tasks if meeting all of the following criteria:

1. He/she meets the criteria in Clause 2 and Clause 3 Article 13 hereof;

2. He/she has completed at least 70% of assigned tasks under the annual work plan/program, except force majeure events or objective reasons.

Article 15. Criteria for representatives assessed to have failed to complete tasks

A representative is assessed to have failed to complete tasks if:

1. He/she has completed less than 70% of assigned tasks under the annual work plan/program;

2. He/she has failed to comply with or violated guidelines and polices of the Communist Party and the State law, the anti-corruption law and the law on thrift practice and waste combat, or has been disciplined by competent authorities;

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Article 16. Assessment procedures

1. The representative shall make a self-assessment report to self-evaluate his/her completion of tasks according to the assessment criteria prescribed in Articles 11, 12, 13, 14 and 15 hereof, and send it to the state capital owner.

2. The state capital owner shall request the Board of Directors or Board of Members in writing for its opinions about the representative’s self-assessment.

3. The personnel advisory agency shall prepare and submit the consolidated report on opinions given by the Board of Directors or Board of Members to the state capital owner.

4. Based on the representative’s self-assessment and opinions given by Board of Directors or Board of Members, the state capital owner shall assess and rank the representative into one of the following levels: Having excellently completed tasks, having completed tasks or failing to complete tasks.

Chapter V

APPOINTMENT, RE-APPOINTMENT, DISMISSAL, COMMENDATION AND DISCIPLINARY ACTIONS AGAINST REPRESENTATIVES

Section 1: APPOINTMENT AND RE-APPOINTMENT OF REPRESENTATIVES

Article 17. Term of office of a representative and time for calculation thereof

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a) In case of change of the managerial position due to change of the enterprise’s name, the term of office of the representative shall be calculated from the date on which he/she is appointed to hold the previous position (according to the previous name of enterprise).

b) If a representative is appointed for election or appointment to the managerial position in the middle of tenure of that position, the term of office of that representative shall be the remaining period of that tenure.

2. The term of office of a representative is calculated from the date on which he/she is elected or appointed to hold the managerial position.

Article 18. Qualifications of a representative

1. Meet general standards of the Communist Party and the State, and qualifications of the position to which the representative will be appointed as set by competent authorities.

2. Provide adequate personal documents verified and certified by competent authorities.

3. Meet age of appointment as representative requirements

a) The person to be appointed to act as a representative must meet age requirements (calculated in months) to work for a prescribed tenure of a managerial position.

b) If a representative is requested by the state capital owner to stop holding his/her representative position in order to act as a representative in another economic group, corporation or company of the same state capital owner, the age of appointment as representative must not comply with the provisions in Point a of this Clause.

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4. Be fit to complete assigned tasks as certified by a competent health facility. The certificate of fitness to work must be issued no more than 06 months before the date of submission of the representative dossier to the personnel advisory agency.

5. Be not prohibited from undertaking a position as prescribed by law.

6. Be not liable to any disciplinary actions or be not undergoing investigation, prosecution or adjudication.

Article 19. Procedures for appointment of representatives

1. Based on the value of state capital, scale or each economic group, corporation or company and qualifications of a representative, the personnel advisory agency shall provide the state capital owner with the proposal of quantity, structure and sources of personnel to be appointed as representatives, including the following information: full name, date of birth, native land, date of admission to the Communist Party, professional qualifications, political theory qualifications, foreign language competency, current position, and working place.

2. The state capital owner shall consider approving the quantity, structure and sources of personnel to be appointed as representatives.

3. Within 30 days from the date on which the state capital owner approves the quantity, structure and sources of personnel to be appointed as representatives, the state capital owner shall organize a meeting in which persons to be appointed as representatives shall directly present their action programs to the state capital owner and undertake to comply with the state capital owner’s policies, resolutions and directives, and perform their role, responsibilities and obligations during their assigned terms of office.

4. The state capital owner shall send a written request to the executive committee of the Communist Party of the same level for its opinions about persons to be appointed as representatives.

5. The state capital owner shall consider drawing conclusions on any arising issues, discuss opinions given by the executive committee of the Communist Party and issue decision.

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1. 03 months by the time of expiration of term of office of a representative, the state capital owner shall consider whether to re-appoint that representative or not.  If a representative is not re-appointed, the state capital owner shall assign other tasks to or solve benefits for that representative in accordance with regulations of law.

2. A person is appointed as a representative in an economic group, corporation or company for not more than 02 consecutive tenures.

3. Qualifications of a representative to be re-appointed

a) Meet the qualifications in Clauses 1, 2, 4, 5, 6 and Points a, b Clause 3 Article 18 hereof;

b) Have excellently completed tasks in 03 consecutive years before he/she is re-appointed.

4. In special cases, the state capital owner may consider re-appointing a representative if the period from the date on which the re-appointment is considered to his/her retirement age is at least 2/3 of the tenure in which he/she will be re-appointed as a representative.

5. The re-appointment of a representative shall comply with the procedures laid down in Clause 4 and Clause 5 Article 19 hereof.

Article 21. Appointment or re-appointment dossiers

1. A representative appointment dossier includes:

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b) The curriculum vitae (using Form No. 2C-BNV/2008 enclosed with the Decision No. 02/2008/QD-BNV dated October 06, 2008 of the Minister of Home Affairs. The curriculum vitae must be made no more than 06 months before the appointment dossier is submitted to a competent authority and must be certified by a competent authority;

c) The representative’s self-assessment;

d) The state capital owner’s assessment;

dd) Inspection conclusions serving the resolution of any complaints/denunciations and other relevant documents (if any);

e) Copies of professional qualifications/certificates;

g) Certificate of fitness to complete assigned tasks;

h) Property statement (using the prescribed form);

i) The assessment of the compliance with the law by the representative and his/her family given by the executive committee of Communist Party or local government of the place of the representative's permanent residence.

k) The action program and commitment to comply with the state capital owner’s policies, resolutions and directives, and perform the representative’s role, responsibilities and obligations.

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a) The statement made by the personnel advisory agency and the written approval for re-appointment of the representative given by the state capital owner;

b) Any additional curriculum vitae, qualifications/certificates and property statements;

c) The representative’s self-assessment;

d) The state capital owner’s assessment of representative’s performance in the whole tenure.

Section 2: DISMISSAL OF REPRESENTATIVES

Article 22. Dismissal conditions

1. A representative will be dismissed in one of the following cases:

a) The representative submits a resignation letter which has been approved by the state capital owner;

b) The representative is transferred to another job position as decided by a competent authority;

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d) The state capital owner no longer owns capital invested in the economic group, corporation or company;

dd) The representative is assessed to have failed to complete tasks in 02 consecutive tenures;

e) The representative violates moral standards or performs prohibited acts of party members, if the representative is a party member;

g) Other cases prescribed in relevant legislative documents.

2. After a representative is dismissed, the state capital owner is responsible for assigning other tasks to or solving benefits for the representative in accordance with regulations of law.

Article 23. Dismissal procedures

1. Based on the cases of dismissal mentioned in Clause 1 Article 22 hereof, the personnel advisory agency shall:

a) Prepare and submit the dismissal plan to the state capital owner for consideration;

b) Prepare the dismissal dossier, including: the curriculum vitae, the official dispatch requesting dismissal of representative prepared by the personnel advisory agency, and the representative’s self-assessment.

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Section 3: COMMENDATION AND DISCIPLINARY ACTIONS AGAINST REPRESENTATIVES

Article 24. Commendation

A representative shall be commended and rewarded for his/her achievement or contribution in accordance with regulations of law on emulation and commendation.

Article 25. Rules for taking disciplinary actions

1. Disciplinary actions must be taken in an objective, impartial and strict manner in accordance with regulations of law.

2. A disciplinary action shall be imposed on each violation. If a representative commits multiple violations, these violations shall be considered separately and the violating representative shall be liable to the disciplinary action that is more severe than the most severe one among the disciplinary actions imposed for such violations, except cases where the forced resignation is imposed.

3. If a representative commits a violation while he/she is subject to a valid disciplinary action decision, he/she will be liable to the following disciplinary actions:

a) If the representative commits a violation for which a disciplinary action that is less severe than or as severe as the one he/she is liable to is imposed, a disciplinary action that is more severe than the one he/she is liable to shall be imposed.

b) If the representative commits a violation for which a disciplinary action that is more severe than the one he/she is liable to is imposed, a disciplinary action that is more severe than the one he/she is liable to shall be imposed.

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4. The violating representative’s behavior and initiative to take remedial actions shall be considered as mitigating or aggravating factors when deciding disciplinary actions.

5. The time limit for disciplining a representative shall exclude the length of time for considering and deciding the disciplinary action taken against him/her in one of the cases prescribed in Clause 1 Article 31 hereof.

6. During the consideration of disciplinary actions, any acts bodily harming or offending dignity or reputation of representatives are prohibited.

Article 26. Prescriptive period and time limit for disciplining of violating representatives

1. Prescriptive period for disciplining of a violating representative

a) The prescriptive period for disciplining of a violating representative is 24 months from the time when the representative commits the violation to the day on which the state capital owner gives a written notice of consideration of disciplinary action.

b) The state capital owner shall give a written notice of consideration of disciplinary action when any representative is detected to commit a violation. Such notice must specify the time when the representative commits the violation, time of detecting that violation and the time limit for disciplining of the violating representative.

2. Time limit for disciplining of a violating representative

a) The time limit for disciplining of a violating representative is 02 months from the time of detecting the violation committed by the representative to the day on which the state capital owner issues a disciplinary action decision.

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Article 27. Disciplinary actions

Disciplinary actions include: reprimand, warning and forced resignation.

Article 28. Reprimand

A reprimand shall be issued when a representative commits one of the following violations:

1. He/she fails to complete assigned tasks without giving legitimate reasons and he/she commits this violation for the first time;

2. He/she abuses his/her position and authority to use capital and assets of the economic group, corporation or company to seek personal interests or seek interests for others;

3. He/she violates the Charter of the economic group, corporation or company, issues decisions beyond his/her authority, or abuses his/her position and authority to cause damage to the economic group, corporation or company, or the State;

4. He/she violates the anti-corruption law, the law on thrift practice and waste combat, work regulations, gender equality regulations, regulations on prostitution prevention and combat, and other relevant laws.

Article 29. Warning

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1. He/she uses illegal documents to be appointed as a representative; issues or certifies legal documents to ineligible persons or beyond his/her authority;

2. He/she uses information/documents of the economic group, corporation or company for self-seeking purposes;

3. He/she causes loss of state capital;

4. He/she submits 02 or more wrong reports on financial status of the economic group, corporation or company, or only one wrong report but it contains serious errors;

5. He/she commits a serious violation against the anti-corruption law, the law on thrift practice and waste combat, work regulations, gender equality regulations, regulations on prostitution prevention and combat, and other relevant laws.

Article 30. Forced resignation

A representative is forced to resign when he/she commits one of the following violations:

1. He/she is sentenced to imprisonment without being eligible for suspension;

2. He/she is a drug addict as certified by a competent health facility;

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4. He/she issues decisions/directives causing loss of state capital invested in the economic group, corporation or company;

5. He/she commits a special serious violation against the anti-corruption law, the law on thrift practice and waste combat, work regulations, gender equality regulations, regulations on prostitution prevention and combat, and other relevant laws.

Article 31. Suspension and exemption from disciplinary actions

1. Cases in which disciplinary actions are suspended

a) A representative is taking annual leave, sick leave or personal leave as prescribed by law with approval from a competent authority.

b) A representative is receiving medical treatment as certified by a competent health facility.

c) A female representative is pregnant, is taking maternity leave or has a child of less than 12 months of age.

d) A representative is impounded or kept in temporary detention pending a conclusion about the violation from the investigating, prosecuting or trying agency.

2. Cases in which a representative is exempted from disciplinary actions

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b) He/she is implementing a decision issued by a superior authority as prescribed in Clause 5 Article 9 of the Law on officials.

c) He/she commits the violation in force majeure circumstances when performing his/her duty as certified by a competent authority.

Article 32. Disciplinary council

1. Establishment of a disciplinary council

The competent state capital owner prescribed in Article 4 and Article 5 hereof shall decide to establish a disciplinary council that shall provide counseling on imposition of disciplinary actions against the violating representatives, except the case prescribed in Clause 2 of this Article.

2. Cases in which the disciplinary council is not established

a) The representative is sentenced to imprisonment without being eligible for suspension.

b) The imposition of disciplinary actions is considered when a competent authority has reached conclusions on that violation and proposed disciplinary actions.

3. Organization of review meetings

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a) The head or deputy head of a competent authority shall be responsible for organizing the review meeting and deciding meeting participants;

b) The violating representative shall make a self-review providing explanations about his/her violation and voluntarily proposing disciplinary actions. The self-review shall be sent to the competent authority at least 05 working days by the date of review meeting.

If the violating representative fails to make a self-review or is absent after 02 summons to the meeting has been sent without giving legitimate reasons, and continues being absent after receiving the third summon, the review meeting shall still be organized;

c) Contents of a review meeting: The violating representative shall read his/her self-review; the meeting participants shall give their opinions; the chairperson of and participants in the meeting shall ballot for proposed disciplinary actions.

Contents of the review meeting prescribed in this Article must be recorded. The proposed disciplinary action against the violating representative shall be specified in the meeting minutes. Within 05 working days from the end of the review meeting, the meeting minutes must be sent to the Chairperson of the disciplinary council or the person competent to take disciplinary actions in case no disciplinary council is established.

Article 33. Composition of a disciplinary council

1. A disciplinary council is composed of 05 members, including:

a) Council’s chairperson that is a representative of the state capital owner;

b) A council’s member that is a representative of the executive committee of the Communist Party of the same level with the state capital owner;

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d) A council’s member that is a representative of the executive board of the trade union of the economic group, corporation or company where the violation is committed;

dd) A council’s member cum secretary that is the person in charge of the personnel advisory agency.

2. Family members, including parents, children, spouse, siblings, siblings-in-law, and persons involved in the violation committed by the representative are not appointed as members of the disciplinary council.

Article 34. Working rules of disciplinary council

1. A council’s meeting is conducted if it is attended by at least 03 members, including the council’s Chairperson and member cum secretary. The disciplinary council shall propose a disciplinary action based on its ballot result with more than 50% of total votes of meeting participants is “yes” vote.

In case of equality of votes casted at a meeting of the disciplinary council in which there are 04 participants, the council’s Chairperson shall have the casting vote.

2. The meeting minutes must include opinions given by participants and ballot result.

3. The disciplinary council shall be automatically dissolved upon completion of its tasks.

Article 35. Procedures for taking disciplinary actions

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a) Preparation for the meeting:

- At least 07 working days before the meeting of the disciplinary council is convened, the summon to the meeting must be sent to the violating representative. If the violating representative is absent, he/she must give legitimate reasons. If the violating representative is absent after 02 summons to the meeting has been sent to him/her without giving legitimate reasons, and continues being absent after receiving the third summon, the disciplinary council shall stilly convene the meeting to consider the violation and propose appropriate disciplinary action;

- The disciplinary council may invite representatives of the political organization or socio-political organization where the violating representative is working to the meeting. Invited participants may give their opinions and propose disciplinary actions but may not vote on the disciplinary action;

- The member cum secretary of the disciplinary council shall prepare documents concerning the disciplinary action against the violation, and record the meeting of the disciplinary council;

- Disciplinary action dossier submitted to the disciplinary council include: The self-review, curriculum vitae, minutes of the review meeting of the economic group, corporation or company where the violating representative is working, and other relevant documents.

b) Procedures of the meeting:

- Chairperson of the disciplinary council declares reasons of the meeting and introduces participants of the meeting;

- The member cum secretary of the disciplinary council reads the curriculum vitae of the violating representative and other relevant documents;

- The violating representative reads his/her self-review. The self-review shall be read by the council’s secretary on behalf of the violating representative if he/she is absent from the meeting. If the violating representative does not make a self-review, the disciplinary council shall perform remaining procedural acts of the meeting as prescribed in this Clause;

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- Members of the disciplinary council and participants in the meeting express their opinions;

- The violating representative expresses his/her opinions. If the violating representative does not express his/her opinions or is absent from the meeting, the disciplinary council shall perform remaining procedural acts of the meeting as prescribed in this Clause;

- The disciplinary council shall ballot on proposed disciplinary actions;

- Chairperson of the disciplinary council declares the ballot result and gives approval of the meeting minutes;

- The Chairperson and member cum secretary of the disciplinary council sign the meeting minutes.

If two or more representatives commit violations in the same economic group, corporation or company, the disciplinary council shall convene meeting to consider the disciplinary action taken against each violating representative.

2. Disciplinary action decision

a) Procedures for issuing a disciplinary action decision:

- Within 05 working days from the end of the meeting, the disciplinary council shall send its proposed disciplinary action in writing (including the meeting minutes and disciplinary action dossier) to the authority competent to take disciplinary action prescribed in Article 4 and Article 5 hereof;

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- In case where there are complicated facts, the authority competent to take disciplinary actions shall decide to extend the time limit for disciplining of the violating representative as prescribed in Point b Clause 2 Article 26 hereof and take responsibility for its decision.

b) The disciplinary action decision must specify its effective date;

c) If the representative commits no violation for which a disciplinary action must be imposed 12 months after the disciplinary action decision comes into force, the disciplinary action decision shall be null and void without requiring any document on termination of its validity.

Article 36. Complaints

The disciplined representative is entitled to make complaint against the disciplinary action decision in accordance with regulations of the law on complaints.

Article 37. Disciplinary action dossier

1. A disciplinary action dossier includes: The written request for consideration of disciplinary action made by the disciplinary council; the self-review; minutes of review meetings; denunciation, investigation/inspection conclusions and other relevant documents; minutes of the meeting of the disciplinary council, and disciplinary action decision.

2. The disciplinary action dossier shall be included in the representative’s personal file. The representative’s curriculum vitae must include information about his/her disciplinary action decision.

Article 38. Representative’s responsibility to make compensations and refunds

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Chapter VI

APPOINTMENT OF REPRESENTATIVES FOR ELECTION TO AND REQUEST FOR DISMISSAL OF MEMBERS OF BOARDS OF DIRECTORS, CHAIRPERSONS OF BOARDS OF DIRECTORS OR BOARDS OF MEMBERS. RESIGNATION, RETIREMENT AND MANAGEMENT OF REPRESENTATIVE’S DOSSIERS

Article 39. Appointment of representatives for election to and request for dismissal of members of Boards of Directors, Chairpersons of Boards of Directors or Boards of Members

The state capital owner shall issue decisions to:

1. Appoint representatives for election to or request dismissal of representatives from the positions of members of Board of Directors, Chairperson of Board of Directors or Chairperson of Board of Members of an economic group, corporation or company.

2. Authorize representatives to give opinions, cast votes and make decisions at General Meeting of Shareholders or meetings of Board of Directors or Board of Members in accordance with regulations of law for election to, or request for dismissal of representatives from the positions of members of Board of Directors, Chairperson of Board of Directors or Chairperson of Board of Members.

Article 40. Resignation

1. A representative is allowed to resign:

a) to serve organizational arrangement;

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c) in the case prescribed in Clause 4 of this Article.

2. If the representative wishes to resign, he/she must submit a resignation letter to the state capital owner for consideration. Within 90 days from receipt of the resignation letter, the state capital owner shall give a written response to the representative. If the resignation letter is refused, reasons for such refusal must be given as prescribed in Clause 3 of this Article.

The representative is not entitled to severance pay if he/she deliberately leaves his/her position without the approval from the state capital owner.

3. A representative’s resignation is not approved in the following cases:

a) The representative is put under consideration of disciplinary actions or liable to criminal prosecution.

b) A female representative is pregnant or has a child of less than 36 months of age, unless she applies for resignation;

c) The representative does not yet complete payment of money/assets within his/her liability towards the economic group, corporation or company;

4. If a representative fails to complete his/her tasks in 02 consecutive years without legitimate reasons approved by the state capital owner, the state capital owner shall assign other tasks or solve resignation benefits for him/her in accordance with regulations of law.

5. The representative who resigns shall be entitled to severance pay as prescribed in Article 5 and Article 6 of the Government’s Decree No. 46/2010/ND-CP dated April 27, 2010.

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Article 41. Retirement 

Representatives are entitled to retirement benefits in accordance with regulations of the Law on Social Insurance. Representatives shall follow retirement procedures laid down in Articles 9, 10 and 11 of the Government’s Decree No. 46/2010/ND-CP dated April 27, 2010.

Article 42. Management of representative’s dossier

1. Personal dossiers of representatives shall be prepared, kept and managed in the same manner as officials’ dossiers.

2. Every year, economic groups, corporations and companies shall consider providing additional documents to representatives’ dossiers in the same manner as those of officials for reporting to state capital owners.

Chapter VII

IMPLEMENTATION

Article 43. Effect

1. This Decree comes into force as from December 10, 2015.

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Article 44. Guidelines for implementation

1. The Ministry of Home Affairs shall provide guidelines for representatives’ responsibility to make compensation and refunds as prescribed in Article 38 hereof.

2. The Ministry of National Defence and Ministry of Public Security shall provide for management of state capital representatives in enterprises of which over 50% of charter capital is invested in by the Ministry of National Defence or Ministry of Public Security.

3. Regulatory ministries and provincial People’s Committees shall provide for management of state capital representatives in enterprises of which less than 50% of charter capital is invested in by regulatory ministries and provincial People’s Committees.

4. Economic groups, corporations and companies shall provide for management of representatives of their capital.

Article 45. Responsibility for implementation

1. The Ministry of Home Affairs shall be responsible for instructing, inspecting and reporting on the implementation of this Decree to the Prime Minister.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of provincial People’s Committees, Chairpersons of Boards of Directors or Chairpersons of Boards of Members of economic groups, corporations or companies over 50% of charter capital of which is held by the State shall implement this Decree./.

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ON BEHALF OF THE GOVERNMENT
THE PRIME MINISTER




Nguyen Tan Dung