|
THE
GOVERNMENT
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
------------
|
|
No:
69/2002/ND-CP
|
Hanoi,
July 12, 2002
|
DECREE
ON MANAGEMENT AND HANDLING OF OUTSTANDING DEBTS FOR STATE
ENTERPRISES
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
At the proposal of the Finance Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Application
scope and objects
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. This Decree shall apply to:
a) The State enterprises which
are operating under the provisions in Article 1 of the State Enterprise Law.
b) The State enterprises which
are carrying out procedures for transformation ( put on the list of those to be
equitized, assigned, sold, business contracted, leased or transformed into
one-member limited liability companies) by decisions of competent State bodies
(hereinafter called the transformed enterprises for short).
The State-run commercial banks
shall be governed by separate regulations.
Article 2.- Outstanding
debts
1. The outstanding debts
mentioned in this Decree shall be construed as the receivable debts and payable
debts, which have become overdue and cannot be repaid though the enterprises
have applied various handling measures such as comparison for certification,
urging of repayment.
2. The outstanding debts
include:
a) State budget debts.
b) Debts owed to commercial
banks.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d) Social insurance debts.
e) Debts owed to organizations
and individuals outside the enterprises and officials and employees inside the
enterprises.
f) Other debts.
Article 3.-
Scope of handling of outstanding debts
1. For operating State
enterprises: The handling scope shall cover the outstanding debts up to
December 31, 2000. The outstanding debts which arise after December 31, 2000
must be repaid or recovered by the enterprises themselves.
2. For State enterprises subject
to transformation: The handling scope shall cover the outstanding debts up to
the time of transformation. The outstanding debts which arise after the time of
transformation shall be repaid or recovered by the enterprises themselves.
Article 4.-
Debt-handling requirements and principles
1. Enterprises have the
responsibility to compare, certify and classify debts, urge the recovery
thereof and actively handle the outstanding debts including the accounts
receivable and debts repayable under the provisions of this Decree.
2. The order of priority for
mobilization of sources for handling the outstanding debts of State
enterprises:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) Annual business profits of
State enterprises, which are accounted into business expenses or income of the
enterprises, depending on each debt.
c) Amounts subtracted from
profits or capital of creditors in cases of debt freezing, debt reschedule or
debt remission.
d) Amounts subtracted from the
value of the State capital portion at enterprises.
e) The sources of expense for
reform of State enterprises and the system of commercial banks in the 2001-2003
period under Decision No. 92/QD-TTg of January 29, 2002 of the Prime Minister.
3. For debts which cannot be
recovered or cannot be repaid, first of all, the enterprises shall have to find
by themselves every handling measure, share difficulties between creditors and
debtors to handle them through forms of debt freezing, debt reschedule, debt
remission and debt purchase and sale; cases falling beyond their handling
capabilities and competence must be reported by the enterprises to competent
bodies for measures to support the settlement.
4. The enterprises which are
carrying out procedures for transformation shall be entitled to immediately
handle the outstanding debt amounts in conformity with the mechanism for
transformation of State enterprises.
5. The debt handling measures
must be applied synchronously on the basis of reorganizing and raising the
efficiency of, the enterprises in order to obtain sources for debt repayment
with a view to making healthy and stabilizing for long-term the enterprise
finance.
Chapter II
HANDLING OF RECEIVABLE OUTSTANDING DEBTS OF ENTERPRISES
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Receivable overdue or due
debts falling into one of the following cases shall be considered bad debts:
a) Debtors are enterprises or
organizations that have completed their dissolution or bankruptcy under the
provisions of law.
b) Debtors have ceased their
operation and been insolvent.
c) Debtors are individuals who
have died or are missing or serving their imprisonment sentence, or are heirs
at law, who are incapable of repaying debts under court decisions.
d) Agricultural cooperatives
which have been dissolved, agricultural cooperatives which have been
transformed and made business registration under the Government’s Decree No.
16/CP of February 12, 1997 but met with financial difficulties and suffered from
business losses, being incapable of repaying their debts, and agricultural
cooperatives which have profitably conducted business and used debt amounts for
investment in infrastructure, but now such infrastructure are damaged due to
natural calamities, storms or floods, shall have their debts written off by the
State.
e) Debtors have enjoyed debt
remission under decisions of competent agencies as provided for by law.
f) The bad debt deficits after
individuals and/or collectives have been held responsible for payment of
material compensations.
g) The loss deficits accepted by
competent bodies due to the sale of receivable debts.
h) The receivable debts for
which the debt claim expenses are larger than their values
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. For operating State
enterprises, the receivable bad debts prescribed in Clause 1 of this Article
shall be handled in the following order:
a) Using the receivable bad debt
reserve sources to make up therefor.
b) Accounting them into the
business expenses or incomes of enterprises, depending on each specific case.
c) Where they are accounted into
business expenses but the enterprises have suffered from losses, being unable
to offset the losses for two consecutive years, and the enterprises do not fall
into cases of dissolution or bankruptcy, the competent bodies shall consider
and decide to decrease the State capital at the enterprises.
d) Where the measures prescribed
at Points a, b and c above have been applied but the enterprises still meet
with financial difficulties, the Finance Ministry shall coordinate with the
concerned agencies in considering and deciding on capital support or reduction
of losses of the enterprises from the source of expenses for reform of
enterprises under the Prime Minister’s decision. This support shall be provided
by the Finance Ministry directly or via intermediary financial organizations
having such function.
3. For State enterprises being
under transformation, the receivable bad debts, after being handled once under
the provisions at Points a and b, Clause 2 of this Article the enterprises
suffer from losses or when debts are not yet handled, the enterprises have
already suffered from losses, they shall be considered for the decrease of
State capital at enterprises before the transformation.
Where the value of the State
capital portion at the enterprises is not enough for handling the accumulated
losses and bad debts, or after handling with the decrease of the value of State
capital portion at enterprises the remaining value is too small, being not
enough to implement the policy of selling preferential equities to the laborers
in the enterprises as provided for, or failing to ensure the State capital
percentage in the joint-stock companies, the Finance Ministry shall decide to
transfer a number of receivable debt amounts to organizations with function of
buying and selling outstanding debts and assets handled by the State. In this
case, the difference between the value of the receivable debt amounts and the
amounts actually recovered by the organizations with function of buying and
selling outstanding debts and assets shall be offset from the sources of
expense for reform of enterprises.
4. For receivable bad debts,
which have already been handled but the debtors still exist, the enterprises
shall have to continue monitoring them outside the accounting balance sheet and
organize the recovery thereof within 5 years. The recovered money amounts shall
be accounted into incomes of the enterprises.
For transformed enterprises,
after being transformed, the representatives of the owners of the State capital
portions at enterprises shall have to continue monitoring them and organize the
recovery of receivable bad debts which have already been handled before the
transformation but can be recovered; the collected amounts, after subtracting
the expenses for debt recovery, shall be remitted into the State enterprise-
reorganizing and equitizing support fund or transferring the dossiers and
documents to the organizations with function of buying and selling outstanding
debts and assets by decisions of competent State bodies for continued
monitoring and organization of recovery thereof for the State budget.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. For the receivable outstanding
debt amounts which can be recovered, the enterprises must actively urge and
apply every measure for the recovery thereof.
2. For the receivable debt
amounts, which have become overdue for 2 years or more and can be recovered,
the enterprises must set up reserves and account them into the managerial
expenses of the enterprises in the year. The level of deduction for setting up
the reserves shall depend on the extent of possible losses, but the total
amount of reserve for receivable bad debts shall not exceed 20% of the total
debit balance of receivable amounts of the enterprises at the time of making
the annual financial reports.
Article 7.-
Handling of the State budget-related receivable debt amounts of State
enterprises
1. Amounts subsidized or supplementarily
allocated by the State budget according to regulations but not yet provided by
any budget level shall be fully allocated to the enterprises by such budget
level.
2. Amounts remitted in excess by
enterprises into any budget level must be refunded to the enterprises or
subtracted by such budget level from the payable amount of the subsequent
period according to law provisions on tax.
3. Debt amounts regarding volume
of capital construction investment under works or projects approved according to
competence and invested with budget capital sources, already completed and put
to use, which have not yet been fully paid, must be paid in time by the budget
to the enterprises. Investment in works from any budget level must be fully and
timely paid to the enterprises by such budget level.
4. Amounts to be paid by local
budgets when the enterprises assets are mobilized for non-business units or
State management bodies in the localities must be paid to the enterprises from
the local budgets by the localities.
5. Enterprises receivable debt
amounts due to the construction of public works and infrastructure for
localities, the transfer or sale of assets and/or working offices to
non-business units and/or State management bodies in localities, which are
included in the investment plans already approved, but for which the
enterprises have not yet received the money, the authorities deciding the
investment in or transfer of assets must arrange budget of that level for
payment to the enterprises. Cases falling beyond their competence or the
budget’s capability shall be reported to the Prime Minister for decision. For
enterprises being transformed, they are entitled to decrease the State budget
portion in the total values of the enterprises and to inscribe capital increase
for units that receive those construction works and/or infrastructure or the
units that use the assets bought from the enterprises.
6. Enterprises money amounts
temporarily seized by State bodies in the process of examination, inspection or
investigation of cases must be returned to the enterprises by the agencies that
decided the seizure thereof after there are conclusions that the enterprises
were not at fault or shall not have to overcome the consequences.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Organizations and individuals
that provide guarantee for enterprises to borrow capital or purchase supplies
and goods with deferred payment shall have to repay debts for the enterprises
if past the payment time limits the guaranteed enterprises still cannot repay
their debts. The enterprises for which debts have been repaid must acknowledge
their debts and repay their debts to the organizations and/or individuals that
have provided them with guarantee as prescribed.
Article 9.-
Accounting of bad debt losses
The State enterprises are
entitled to handle and account once or gradually their bad debts into their
annual production and business results according to the provisions at Point b,
Clause 2, Article 5 of this Decree, but for 2 years at most.
Article
10.- Enterprises with large bad debts
The State enterprises, which
have too large receivable debts which cannot be recovered and cannot be fully
handled by measures prescribed at Clause 2, Article 5 of this Decree, thus
being unable to repay their payable due debts, must be dissolved or bankrupted
according to the provisions of law.
Where it is necessary to
maintain the enterprises and the enterprises have efficient business plans
approved by competent authorities, the provincial/municipal People’s Committees
or their managing ministries or branches shall propose the Finance Ministry to
consider the addition to the charter capital or take measures to provide
financial support so that the enterprises can maintain their normal operations.
For cases falling beyond its competence or beyond the budget capacity, the
Finance Ministry shall report them to the Prime Minister for decision.
Chapter III
HANDLING OF OUTSTANDING
PAYABLE DEBTS OF ENTERPRISES
Article
11.- Tax debt amounts and State budget remittance amounts
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The State enterprises which
are subject to assignment or sale under the Government’s Decree
No.103/1999/ND-CP of September 10, 1999 and Decree No.49/2002/ND-CP of April
24, 2002 and have their payable amounts larger than the value of the
enterprises assets or larger than the proceeds from the sale of the enterprises
shall be considered for remission of tax debts and amounts remittable to the
State budget.
3. Where State enterprises are
merged with other State enterprises under decisions of competent bodies, if
after the financial or credit support measures are applied the merging
enterprises remain unable to repay tax debts and amounts remittable to the
State budgets, they shall be entitled to the remission of tax debts and amounts
payable to the State budget, which, however, must not exceed the loss amounts
of the merged enterprises.
4. The State enterprises, which
had suffered from losses in the production and business activities and still
owed tax debts and State budget remittance amounts from December 31, 1998
backward due to changes in mechanism and policies, to natural calamities, the
lack of capital for renewal of technologies, machinery and equipment and/or due
to difficulties in labor rearrangement, if they are not subject to dissolution,
bankruptcy or merger and after the application of tax exemption or reduction,
financial or credit support and other measures the enterprises still suffer
from losses and remain unable to repay the tax debts and State budget remittance
amounts, shall be entitled to remission of tax debts and State budget
remittance amounts, which, however, must not exceed the loss amounts of the
enterprises by the time of debt handling.
5. The enterprises, which are
engaged in export and/or import business activities and subject to
retrospective collection of taxes and tax fines for export and/or import
business activities due to objective causes shall be considered for remission
of tax and fine arrears for case by case.
6. The enterprises, which are
subject to transformation as decided but still owe tax debts and State budget
remittance amounts and after the handling of receivable debts the enterprises
remain unable to repay their tax debts and State budget remittance amounts due
to losses shall be considered for remission of their debts which, however, must
not exceed the loss amounts incurred by the time of issuing transformation
decisions.
7. Where the enterprises use
budget advances to buy export goods for repayment of foreign debts, for export
to earn foreign currencies for setting up of the State reserve fund or buying
reserve goods for future circulation, but due to price fluctuation the
enterprises fail to buy enough goods as prescribed, have owed budget debts by
the time of promulgating this Decree, have made declarations and got the
certifications by provincial/municipal debt settlement boards or their managing
ministries or branches, they shall be entitled to debt remission.
8. Where the enterprises have
owed to the State budget the imported goods money under the Government’s
protocol due to their failure to collect the goods sale money or failure to
fully remit the collected money into the budget, they shall be handled as
follows:
a) Where the enterprises have sold
goods with deferred payment to units according to direction and regulations of
the State and have so far been unable to collect the money, they shall be
considered for debt remission.
b) Where the enterprises import
goods under protocols, which are incompatible with the market requirements,
thus having to reduce the sale prices to the level lower than the prices agreed
upon with the State and having suffered from losses which have not yet been
handled, they shall be considered for remission of debts equivalent to the
deficit due to sale at prices lower than the prices agreed upon with the State
but not exceeding the arising debt amounts not yet handled.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article
12.- Debts owed to State-run commercial banks by State enterprises
1. The operating State
enterprises which owe debts to State-run commercial banks, have been put into
debt repayment plans and certified by provincial/municipal debt settlement
boards but have conducted business at a loss shall be classified and handled as
follows:
a) Enterprises, which have
repeatedly suffered from unredeemable losses, must be dissolved or bankrupted
according to the provisions of law.
b) Enterprises, which have
suffered from losses, reorganized their production and see development
prospects, shall be handled as follows:
- Enterprises with debts owed to
State-run commercial banks, which have been frozen, shall be entitled to
remission of lending interest debts and considered for prolongation of
debt-freezing duration.
- Enterprises with debts owed to
State-run commercial banks, which have been put into the debt repayment plans,
but, due to objective reasons, have not yet enjoyed the debt freezing, shall be
entitled to the remission of lending interest debts and the freezing of
principal debts as provided for by law.
2. For the State enterprises
subject to transformation as already decided, but meeting with difficulties in
balancing sources for repayment of overdue debts, the general directors of the
concerned State-run commercial banks shall consider and decide to let the
enterprises have their overdue debts owed by the time of issuing the
transformation decisions rescheduled or frozen for between 3 and 5 years. Where
these enterprises have suffered from losses, being unable to repay their debts,
they shall be entitled to the remission of lending interest debts, including
the interest amounts already principalized at the level not exceeding the
remaining loss amount.
The enterprises, which are
carrying out procedures for equitization, assignment or sale, in addition to
the above-mentioned measures of debt freezing or debt remission, shall
coordinate with the creditor banks and organizations with function to buy and
sell debts in handling the remaining overdue debt principal amounts along the
direction of rebuying or reselling debts or converting debts into the banks
contributed capital in the equitized enterprises according to law provisions on
contributed capital percentages.
3. The amounts of interest on
bank loans, which cannot be collected as in cases prescribed at Point b,
Clauses 1 and 2 of this Article, the concerned State-run commercial banks may
account them into their expenses. The deficit amounts resulting from the sale
of outstanding debts shall be handled according to law provisions on handling
of outstanding debts for commercial banks.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. For the debt amounts due to
advance of money for purchase of paddy, processing of rice for export, borrowing
in paddy from the National Reserve in the 1988-1990 years, and the enterprises
have repaid the full advance amounts, the full amounts of money at the
paddy-buying prices at the time of borrowing, but, due to the quantitative
conversion at the repaying prices, still owe debts, they shall be entitled to
remission of such debts.
2. The paddy prices applicable
to the repayment of debts to the National Reserve, which have been declared and
certified, shall be the paddy prices used for calculation of agricultural tax
at the time of borrowing.
Article
14.- Handling of social insurance debts
1. For enterprises subject to
transformation, before being transformed, they shall have to definitely pay the
social insurance debts.
2. For enterprises subject to
sale while they do not inherit debts, they shall be given priority to use the
proceeds from the sale of enterprises for repayment of their debts to the
social insurance agencies. In case of deficit, they shall be considered and
provided with payment support from the fund for reorganization and equitization
of State enterprises.
Article
15.- Handling of debts owed to organizations, individuals
The enterprises, which are
subject to transformation as already decided, shall, before being transformed,
have to definitely repay all debts to their creditors being organizations
and/or individuals inside and outside the enterprises. Where the enterprises
meet with difficulties or have demands to mobilize more capital, restructure
their debts and obtain the approval from their creditors, such debt amounts may
be converted into equities in the transformed enterprises but in compliance
with the law provisions on the minimum number of shareholders and the right to
buy the first-time equities in the equitized enterprises.
Article
16.- Other payable debt amounts of operating enterprises
1. The enterprises which import
goods under the directives of competent State bodies and distribute them
according to State plans but cannot collect money to repay their debts shall
have to report such to the Finance Ministry for sum-up and further report to
the Prime Minister for handling decisions so that the enterprises shall have
sources for repayment of their debts.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. For the enterprises which
borrow foreign capital to import goods under the directives of competent State
bodies or under the assigned State plans, if there appears the difference
between the exchange rates at the time of borrowing for goods import and the
exchange rates at the time of repaying debts, thus making the enterprises
unable to repay their debts, the Finance Ministry shall examine the cases and
consider the budget allocation equal to the exchange rate difference amount for
the enterprises to repay their debts.
4. For the enterprises which
borrow foreign capital with the guarantee of competent State bodies or other
organizations but conduct their business at a loss, thus being unable to repay
their debts, the guaranteeing agencies or organizations shall take initiative
in negotiating with foreign creditors for the reduction of the payable debt
amounts to the lowest level and arrange sources from the budget of the same
level for repayment of foreign debts. The enterprises whose foreign debts have
been repaid by the budgets shall have to refund such amounts to the budgets. If
meeting with difficulties, the agencies or organizations, which have provided
guarantee for the enterprises to borrow capital, shall report them to the
Finance Ministry for submission to the Prime Minister for decision.
Article
17.- Handling of enterprises having large bad debts
The State enterprises, which
have reorganized their production and had large amounts of payable debts but
cannot repay them, must be dissolved or bankrupted according to the provisions
of law. Where it is necessary to maintain the enterprises and the enterprises
have efficient business plans already approved by competent bodies, the
provincial/municipal People�s
Committees, their managing ministries or branches and corporations shall
propose handling measures to the Finance Ministry which shall consider the
partial support from the sources of expense for reform of State enterprises and
create financial conditions for the enterprises to resume their normal
operation. Cases falling beyond its competence shall be reported to the Prime
Minister for decision.
Chapter IV
COMPETENCE AND
RESPONSIBILITY TO MANAGE AND HANDLE DEBTS
Article
18.- Competence to handle debts
1. The Finance Minister:
a) To decide the remission of tax
debts and State budget remittance amounts or the conversion of outstanding
State budget debts into budget capital allocations as investment support for
State enterprises.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) To decide the decrease of
capital for independent cost-accounting enterprises under State corporations or
ministries, ministerial-level agencies, agencies attached to the Government.
d) To decide on the provision of
capital support or the reduction of losses of enterprises with the sources of
expense for reform of State enterprises by decisions of the Government.
e) To decide the handling of tax
debts for export goods and/or import goods according to the provisions in
Article 11 of this Decree.
f) To assume the prime
responsibility together with Vietnam State Bank and relevant agencies in
guiding and organizing the implementation of debt handling for State
enterprises and financial handling for State- run commercial banks when effecting
the debt reschedule, debt freezing or debt remission for enterprises according
to the provisions of this Decree.
2. The General Director of
Customs shall coordinate with the Finance Ministry in considering the handling
of tax debts for export goods and import goods according to the provisions of
this Decree.
3. The Vietnam State Bank
Governor shall assume the prime responsibility and coordinate with the Finance
Ministry in guiding and deciding the implementation of debt reschedule, debt
freezing, debt remission and the conversion of capital borrowed from banks into
equity capital at the transformed enterprises.
4. The ministers, the heads of
the ministerial-level agencies or the agencies attached to the Government and
the managing boards of the State corporations shall coordinate with the Finance
Ministry in handling debts for their attached independent cost-accounting
enterprises.
5. The presidents of the
provincial/municipal People’s Committees shall consider and decide on capital
decrease and debt handling for independent cost-accounting enterprises under
the provinces or centrally-run cities.
Article
19.- Responsibility to manage and handle debts
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Where the overdue receivable
debts cannot be recovered, the enterprises shall have to analyze the subjective
and objective causes thereof, determine the responsibilities of individuals and
collectives for material compensations. If they are not handled yet due to
contractual disputes, the enterprises representatives at law shall have to seek
measures for definite settlement thereof. The enterprises shall have to make
deductions for setting up debt reserves for receivable bad debts and handle
receivable debts which cannot be recovered under the provisions of this Decree.
3. Debt amounts which have
arisen after December 31, 2000 must be settled definitely by enterprises when
the debts turn due without letting them to be outstanding. The enterprises
representatives at law shall have to bear responsibility for the arising of
outstanding debts. Particularly for receivable bad debts, the enterprises shall
have to actively handle them according to the provisions of law, without
leaving them unsettled for more than 3 years.
4. The managing boards or
directors (for enterprises without the managing boards) shall handle overdue
receivable debts, which cannot be recovered, according to the above provisions
and bear responsibility before law for their handling. For transformed
enterprises, the handling of the reduction of their values, the reduction of
the value of the State capital portions at enterprises must be reported by the
enterprise directors to the State bodies competent to decide the values of
enterprises for decision according to regulations.
Chapter V
IMPLEMENTATION PROVISIONS
Article
20.- Setting up organizations to perform the function of buying and selling
outstanding debts and assets
1. To set up the outstanding debt
and asset-buying and selling organizations in order to support the settlement
of debts and assets when reorganizing and restructuring the State enterprises,
to accelerate the process of transformation of State enterprises.
2. The outstanding debt and asset-
buying and selling organizations shall be provided by the State with adequate
charter capital from the sources of expense for reform of State enterprises for
operation and shall be provided by the State with support for the differences
between the values of the receivable debt amounts and the actually collected
amounts of the receivable outstanding debts, which can not be recovered and are
transferred from the transformed enterprises under decisions of competent State
bodies from the sources of expense for reform of enterprises.
Article
21.- Implementation effect
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article
22.- Implementation guidance
The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government, the presidents of the provincial/municipal People’s Committees, the
managing boards of corporations, the general directors or directors of the
State enterprises, the Central Steering Board for General Settlement of Debts
and the debt settlement boards of all levels shall have to guide, direct and
organize the implementation of this Decree.
ON BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Tan Dung