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GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 10/2019/ND-CP
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Hanoi, January
30, 2019
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DECREE
IMPLEMENTING
RIGHTS AND RESPONSIBILITIES OF STATE OWNER’S REPRESENTATIVES
Pursuant to the Law on Government Organization
dated June 19, 2015;
Pursuant to the Law on Management and Use of
State Capital Invested in Business Activities of Enterprises dated November 26,
2014;
Pursuant to the Law on Enterprises dated
November 26, 2014;
Upon the request of the Minister of Planning and
Investment,
The Government hereby promulgates the Decree on
implementation of rights and responsibilities of state owner’s representatives.
Chapter I
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Article 1. Scope
This Decree provides for the implementation of
rights and responsibilities of state owner’s representatives in accordance with
the Law on Management and Use of State Capital Invested in Business Activities
of Enterprises.
Article 2. Subjects of
application
1. Representatives of state owners at wholly
state-owned enterprises and of state capital participation portions at
joint-stock companies and multiple-member limited liability companies.
2. Wholly state-owned enterprises
3. Other entities, organizations and individuals involved
in the investment, management and utilization of state capital at enterprises.
Article 3. State owner’s
representatives
1. The Government shall implement uniform rights
and responsibilities of the state owner’s representative for investment of state
capital in enterprises and management of state capital at enterprises under the
provisions of the Law on management and use of state capital invested in
business activities of enterprises and other relevant laws.
2. The Prime Minister shall carry out rights and
responsibilities of the state owner’s representative under the provisions of
the Law on management and use of state capital invested in business activities
of enterprises and other relevant laws.
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4. The owner’s representative shall directly carry
out rights and responsibilities of the state owner’s representative at
enterprises under the provisions of the Law on management and use of state
capital invested in business activities of enterprises and other relevant laws.
Article 4. Owner’s
representative agency
1. The Committee for management of state capital at
enterprises shall be the agency representing the owners of wholly state-owned
enterprises and the state capital invested in enterprises in accordance with
the Government’s regulations.
2. Ministries, Ministry-level agencies,
Governmental bodies (hereinafter referred to as ministry), People’s Committees
of provinces and centrally-affiliated cities (hereinafter referred to as
provincial People’s Committee) shall be the agency for owner’s representative
to the followings:
a) Wholly state-owned enterprises and state capital
contribution portions invested in enterprises that are established under the
decisions issued, or of which management is authorized, by ministries or provincial
People's Committees, and that are not transferred to the Committee for
management of state capital at enterprises and the State Capital Investment
Corporation in accordance with laws;
b) Wholly state-owned enterprises and state capital
contribution portions invested in enterprises that are transferred to the
Committee for management of state capital at enterprises and the State Capital
Investment Corporation during the period of pending transfer.
3. The State Capital Investment Corporation shall
exercise the right of representation for the state owner at enterprises that
are transferred from ministries or provincial People’s Committees in accordance
with laws.
Chapter II
IMPLEMENTATION OF RIGHTS
AND RESPONSIBILITIES OF STATE OWNER’S REPRESENTATIVES
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Article 5. Implementation of
rights and responsibilities of the Government
Rights and responsibilities of the Government prescribed
under the provisions of the Law on management and use of state capital invested
in business activities of enterprises shall be implemented as follows:
1. The Committee for management of state capital at
enterprises shall have the right to request competent regulatory authorities to
appeal to the Government to: Promulgate, amend and supplement the statutes of
wholly state-owned enterprises that are established under the Prime Minister’s
decisions and of which management is authorized to the Committee in accordance
with the Government’s regulations; promulgate, amend and supplement financial
management regulations of the Vietnam National Oil and Gas Group, and the
Vietnam Electricity Corporation.
2. The Ministry of National Defense shall appeal to
the Government to promulgate, amend and supplement the salary management
statutes and regulations of the Parent Company – Military Industry and
Telecommunications Corporation.
3. The Ministry of Finance:
a) Appeal to the Government to promulgate:
Regulations on transformation of wholly state-owned enterprises into
joint-stock companies; regulations on financial administration of wholly
state-owned enterprises; regulations on criteria for assessment of business
performance and efficiency of wholly state-owned enterprises; regulations on
supervision and inspection of investment, management and use of state capital
at enterprises;
b) Prepare the report on investment, management and
use of state capital at enterprises nationwide for submission to the Government
so that the Government may review it, and present it in the year-end meeting of
the National Assembly under its authority delegated by the Government.
4. Ministry of Home Affairs shall appeal to the
Government to promulgate regulations on recruitment, appointment,
re-appointment, dismissal, grant of awards to, and imposition of disciplinary
actions on, managers and comptrollers of wholly state-owned enterprises, and
the representatives for state capital contribution portions.
5. The Ministry of Labor, War Invalids and Social
Affairs shall appeal to the Government to: Promulgate regulations on the
compensation, remuneration and bonus package and other benefits granted to
managers and comptrollers of wholly state-owned enterprises, and the
representatives for state capital contribution portions; regulations on
policies for recruitment, compensation, reward package and other benefits of
employees working for wholly state-owned enterprises as provided in laws on
labor.
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Article 6. Implementation of
rights and responsibilities of the Prime Minister
The Prime Minister shall carry out rights and
responsibilities of the state owner’s representative under the provisions of
the Law on management and use of state capital invested in business activities
of enterprises as follows:
1. Investing state capital in establishment of
wholly state-owned enterprises under the following delegated powers:
a) The owner’s representative agency shall prepare
application documentation for establishment of enterprises and submit it to the
Prime Minister. The application documentation shall enclose the proposal for
establishment of an enterprise under the provisions of the Law on management
and use of state capital invested in business activities of enterprises and
other relevant documents prescribed in applicable provisions of laws.
b) The Prime Minister shall issue the Decision on
establishment of an enterprise after receipt of assessment opinions from the
Ministry of Planning and Investment and opinions from the Ministry of Finance,
the Ministry of Home Affairs, the Ministry of Justice, the Ministry of Labor,
War Invalids and Social Affairs, and other sectoral ministries involved, about
the proposal for establishment of an enterprise submitted by the owner's
representative agency.
c) The Prime Minister shall appoint the Chair of
the Board of Members upon the request of the owner's representative agency and
assessment conducted by the Ministry of Home Affairs.
2. Making the decision on the following issues
related to wholly state-owned enterprises established under the Prime
Minister’s decision:
a) Decide reorganization and transfer of ownership
and rearrangement of enterprises according to the request of the owner's
representative agency and opinions of the Ministry of Planning and Investment,
the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Justice,
the Ministry of Labor, War Invalids and Social Affairs, and sectoral ministries
involved.
b) Decide the charter capital of an enterprise upon
its establishment as provided in clause 1 of this Article; decide to approve
the adjustment to the charter capital of an enterprise during its business
period according to the owner’s representative agency and consenting opinions
given in writing by the Ministry of Finance under the Government’s regulations
on investment of state capital in enterprises, management and use of capital
and assets at enterprises.
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d) Decide personnel planning, appointment,
re-appointment, acceptance of resignation, dismissal, secondment, rotation,
grant of awards to, imposition of disciplinary sanctions on, sacking and
retirement of the Chair or the Board of Members according to the request of the
owner’s representative agency and assessment opinions of the Ministry of Home
Affairs. The Prime Minister shall appoint the Chair of the Board of Members
after receipt of consenting opinions from the collective of the Party’s
Committee for Civil Affairs of the Government in accordance with the
enterprise’s statutes.
The State Capital Management Committee operating at
each enterprise shall preside over and cooperate with the Ministry of Home
Affairs to appeal to the Prime Minister to appoint the General Director of the
State Capital Investment Corporation after receipt of consenting opinions from
the collective of the Government’s Party Civil Affairs Committee.
dd) Make the decision on appointment,
re-appointment, dismissal, resignation, secondment, rotation, grant of awards
to, impose disciplinary actions on and retirement of the Chair of the Parent
Company – Military Industry and Telecommunications Corporation according to the
request of the Ministry of National Defence and opinions of the Ministry of
Home Affairs. The Prime Minister shall appoint the Chair of the Parent Company
– Military Industry and Telecommunications Corporation after receipt of
unanimous opinions from the collective of the Government's Party Civil Affairs
Committee.
3. Approve the proposal for the general
organization and reform of enterprises that are established by the owner’s
representative agencies or of which management is authorized on the basis of
the request of these representative agencies and opinions of the Ministry of
Finance, the Ministry of Planning and Investment, the Ministry of Home Affairs,
the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Justice
and other relevant sectoral ministries.
Authority to grant the decision on restructuring of
credit institutions going into special administration shall be subject to
provisions of the Law on Credit Institutions.
4. Make a decision on the policies for transfer of
state capital invested at enterprises amongst the owner's representative
agencies and between owner's representative agencies and enterprises
specialized in state capital investment and business in accordance with laws on
transfer of the right to represent the owner of state capital invested at
enterprises in accordance with laws.
5. Implement other rights and responsibilities of
the state owner’s representatives as regulated by laws and assigned by the
Government, and in accordance with this Decree.
Section 2. IMPLEMENTATION OF
RIGHTS AND RESPONSIBILITIES OF OWNER’S REPRESENTATIVE AGENCIES
Article 7. Rights and
responsibilities of the owner’s representative agencies for establishment of
wholly state-owned enterprises
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2. After receipt of the Prime Minister’s approval of
the proposal for establishment of enterprises, the owner’s representative
agencies shall implement the following rights and responsibilities:
a) Make the decision on establishment of
enterprises, except for cases under the decision-making authority of the Prime
Minister.
b) Submit the request documentation to same-level
financial institutions for assessment for investment of capital and
disbursement of funds to enterprises.
c) Promulgate the charter, appoint the Chair and
members of the Board of Members, and the Chair of the enterprise, except for
cases under the authority of the Government and the Prime Minister.
3. Procedures and processes for implementation of
rights and responsibilities specified in clause 1 and clause 2 in this Article
shall be subject to the Government’s regulations on investment of state capital
in enterprises, management and use of state capital and property at
enterprises, and establishment of wholly state-owned enterprises.
Article 8. Rights and
responsibilities of the owner’s representative agencies for reorganization,
transfer of ownership, dissolution, insolvency and disposition of wholly
state-owned enterprises
1. The owner’s representative agencies shall
cooperate with relevant agencies in formulating and appealing to the Prime
Minister to approve the general proposal for reorganization and reform of
enterprises established under their decision or of which management is
authorized, based on legislative regulations on management and use of state
capital invested in business activities of enterprises, and criteria for
classification of state enterprises and state-invested enterprises, which are
decided by the Prime Minister over periods of time.
2. The proposal stated in clause 1 of this Article
must define forms of arrangement, reform and reorganization, transfer of
ownership and dissolution of each enterprise which is established under the
owner’s representative agency or of which management is authorized, and
implementation schedule.
3. Regarding the splitting, division, consolidation
and acquisition of enterprises based on the general proposal for arrangement
and reform of enterprises which has already been approved by the Prime
Minister:
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b) As for the acquisition of enterprises belonging
to different owner's representative agencies, the representative agency of the
owner of the acquirer enterprise shall issue the decision on corporate
acquisition after receipt of the consenting opinion from the representative
agency of the owner of the acquired enterprise.
c) Authority to decide acquisition of enterprises
under the control of different owner’s representative agencies shall be subject
to the Government’s instructions.
d) The owner’s representative agency shall appeal
to the Prime Minister to decide the splitting, division, consolidation and
acquisition of enterprises established under the Prime Minister’s decision.
dd) Application and documentation requirements,
procedures and processes for the splitting, division, consolidation and
acquisition of enterprises shall be subject to legislative regulations on
enterprises and instructional regulations of the Government.
4. Regarding transformation of wholly state-owned
enterprises into joint-stock enterprises:
Procedures, processes for and authority over grant
of the decision on transformation of enterprises into joint-stock enterprises
shall be subject to regulations of the Government on transformation of state
enterprises and single-member limited liability enterprises whose charter
capital is wholly owned by the State into joint-stock companies.
5. Regarding transformation of enterprises into
multiple-member limited liability companies:
Based on application and documentation
requirements, methods, procedures and processes for transformation of
enterprises into multiple-member limited liability companies as provided in the
Law on Enterprises, the Law on management and use of state capital invested in
business activities of enterprises and instructional regulations of the
Government, the owner's representative agency shall implement the following
rights and responsibilities:
a) Appeal to the Prime Minister to make the
decision on transformation of enterprises established under the Prime
Minister’s decision.
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c) Make the decision on selection of valuation
consulting and auctioning service providers; approve the results of
determination of corporate value.
d) Approve the plan for corporate transformation or
appeal to the Prime Minister to seek his approval of the plan for transformation
of enterprises established under the Prime Minister’s decision.
dd) Cooperate with related bodies in approving the
final financial accounts and the final accounts of corporate transformation
expenses and the final accounts of funds for employee severance package and the
final accounts of revenues generated from the corporate transformation.
e) Assign the representative for the state capital
contribution portion in a transformed enterprise; deal with difficulties,
complaints or denunciations related to corporate transformation under its
authority and in accordance with applicable laws.
g) Instruct, inspect and supervise the process for
corporate transformation in accordance with laws.
6. Regarding sale of an enterprise:
a) The owner’s representative agency shall decide
to approve the plan for sale and the selling price of an enterprise, except for
the cases stated in point b of this clause.
b) The owner’s representative agency shall appeal
to the Prime Minister to approve the plan for sale and the selling price of an
enterprise that the Prime Minister has decided to establish.
c) The owner’s representative agency or the
authorized person shall sign the contract for sale of the enterprise with the
buyer according to the plan for sale and the selling price of the enterprise
which has been approved in point a and point b of this clause.
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7. Dissolution of an enterprise:
a) The owner’s representative agency shall make the
decision on corporate dissolution upon the request of the competent authority
requesting corporate dissolution in accordance with laws, except the cases
specified in point b of this clause.
b) The owner’s representative agency shall appeal
to the Prime Minister to grant his decision on dissolution of the enterprise
that the Prime Minister has decided to establish.
c) The enterprise to be dissolved shall be
determined according to the general proposal for arrangement and reform of
enterprises which has already been approved by the Prime Minister. In case
where the corporate dissolution has not been yet regulated in the general
proposal for arrangement and reform of state enterprises, the entity granting
the decision on establishment of state enterprises shall have to appeal to the
Prime Minister to consider granting a decision on such dissolution.
d) Requirements, procedures and processes for
corporate dissolution in accordance with laws.
8. Insolvency of an enterprise:
The owner’s representative agency shall submit the
application for initiation of corporate insolvency procedures in accordance
with laws.
9. Transfer of the right to represent the owner:
The owner’s representative agency shall carry out
the transfer of state capital at an enterprise to another owner’s
representative agency in accordance with the Government’s regulations.
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Article 9. Rights and
responsibilities of the owner’s representative agency regarding the charter,
strategy and plan of a wholly state-owned enterprise
1. The owner's representative agency shall adopt
the charter and the revised or amended one of the enterprise upon the request
of the Board of Members and the enterprise’s Chairman, except the cases in
which the authority to adopt the charter is delegated to the Government.
2. The owner’s representative agency shall approve
that charter so that the Board of Members and the enterprise’s Chairman can
decide the 5-year plan (including the business strategy and plan and 5-year
investment and development plan) and the annual business plan of the
enterprise, except the cases in which the authority to grant approval is delegated
to the Prime Minister.
3. The decision on approval of plans specified in
clause 2 of this Article must contain the following main information:
a) Planned objectives and tasks;
b) Indices measuring revenues, profits, payments to
the state budget and other plan-related indices.
c) Plan implementation solutions;
d) Assignment of tasks of implementation,
supervision and assessment of results of implementation of these plans.
dd) Others.
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a) The owner’s representative agency shall have to
carry out the supervision and inspection of implementation of plans stated in
clause 2 of this Article and the assessment of results of implementation of
these plans.
b) The owner’s representative agency shall instruct
and encourage an enterprise to prepare and submit the mid-term and final
assessment report on implementation of plans to serve the purposes of
supervision and inspection, including the following main information:
- Latest updates on implementation of assigned
objectives, tasks and targets in the plan;
- Latest updates on implementation of solutions
specified in the plan;
- Restrictions and causes of failure or
unsuccessful implementation of the plan (if any);
- Subsequent solutions to accomplishing objectives
in the plan of the following period.
c) Sequences and time limits for submission of
review reports shall be subject to the Government’s regulations on the regime
for supervision and inspection of implementation of strategies, plans,
objectives and tasks under the delegated authority of state enterprises.
Article 10. Rights and
responsibilities of the owner’s representative agency regarding management of
staff working for wholly state-owned enterprises
1. Managers:
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b) Grant the approval so that the Board of Members
and the enterprise's President can issue the decision on appointment,
re-appointment, discharge, grant of awards to and imposition of disciplinary
actions on the General Director and the Director of an enterprise.
The owner’s representative agency shall preside
over and cooperate with the Ministry of Home Affairs in sending reports to and
asking for opinions of the Government’s Party Civil Affairs Committee before
sending the written consent in order for the Board of Members of an enterprise
that the Prime Minister has decided to establish to appoint the General
Director in accordance with regulations and the enterprise's charter.
c) Implement rights and responsibilities regarding
compensation, remuneration and bonus package and other benefits of the manager
in accordance with the Government’s regulations on compensation, remuneration
and bonus package for the manager of the single-member limited liability
company whose charter capital is wholly owned by the State.
d) The decision on appointment, re-appointment,
dismissal, acceptance of resignation and discharge from holding office,
secondment, rotation, military rank grant and promotion, pay classification,
pay raise, salary-based allowance, grant of awards to, imposition of
disciplinary actions on and retirement of the General Director, the Director
and other managerial rank holders in the enterprise affiliated to the Ministry
of Public Security and the Ministry of National Defense shall be subject to the
regulations on personnel affairs in the military and police forces, legislative
regulations and the enterprise’s charter.
2. Comptrollers:
a) Make decisions on planning, appointment,
re-appointment, resignation, dismissal, transfer, rotation, grant of rewards
to, imposition of disciplinary actions on, resignation and retirement of comptrollers
in accordance with law.
b) Establish the Control Board composed of 05
comptrollers at maximum at a parent company of the state economic corporation.
c) Establish the Control Board composed of 03
comptrollers at the parent company of the state general company.
d) Appoint 01 comptroller or establish the Control
Board composed of 03 comptrollers at other state enterprises, depending on the
capital size, scope of locality and business sectors or industries of state
enterprises that the comptroller has established or is authorized to manage.
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Article 11. Conduct of
implementation of rights and responsibilities regarding financial and
investment activities of wholly state-owned enterprises
The owner’s representative agency:
1. Promulgate financial regulations of enterprises
according to the Government's regulations on investment of state capital in
enterprises and management and use of capital and assets at enterprises, except
for cases in which the authority to promulgate such regulations is delegated to
the Government.
2. Approve the charter capital amount of the
enterprise (including adjust the charter capital during its business period),
except for cases falling under the Prime Minister's competence; appraise
dossiers and plans for supplementing the charter capital of enterprises;
cooperate with the finance agencies at the same level in: supplementing the
charter capital of enterprises in accordance with regulations by using proper
funding sources as such supplementary funds.
Dossiers, plans, sequences and procedures for
granting capital according to the provisions of the Law on Management and Use
of State Capital Invested in Production and Business activities of Enterprises
and the Government's directives.
3. Consider granting approval of the request of the
Board of Members and the enterprise’s Chairman related to the followings:
a) Capital mobilization plan for each project with
the amount of mobilized funds greater than the limit prescribed in point a of
clause 3 of Article 23 of the Law on Management and Use of State Capital
Invested in Production and Business Activities of Enterprises.
b) Plan for mobilization of funds from foreign
organizations and individuals.
For foreign loans that enterprises take out
according to the method wherein enterprises have to exercise responsible
autonomy to borrow funds and assume responsibility for debt repayment, except
for foreign loans in the form of import of goods for which deferred payments
are allowed, the owner’s representative agency shall approve the policy for
lending of foreign funds by each enterprise and shall request the Ministry of
Finance to conduct assessment and grant approval. Loans guaranteed by the
Government shall be subject to legislative regulations on public debt
management and other provisions of relevant law.
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d) Outward investment projects that have values
greater than those specified in point a of clause 4 of Article 28 in the Law on
management and use of state capital invested in production and business
activities of enterprises.
Mobilization of funds by wholly state-owned
enterprises which are credit institutions shall be subject to regulations of
laws on banks and other relevant laws.
Processes and procedures for preparation,
assessment and approval of projects and plans specified in clause 2 of this
Article shall be subject to provisions of relevant laws.
4. Make a decision to allow the Board of Members
and the enterprise’s President to sign the contract to rent, lease, mortgage
and hypothecate property of enterprises that has values greater than the limits
under the authority delegated to the Board of Members and the enterprise's
President in accordance with the Law on management and use of state capital
invested in production and business activities of enterprises and other
instructional regulations of the Government.
5. Grant the approval of the plan to liquidate and
sell unmovable property of enterprises that has values greater than the limits
under the authority delegated to the Board of Members and the enterprise's
President in accordance with the Law on management and use of state capital
invested in production and business activities of enterprises and other
instructional regulations of the Government.
6. Make a decision on the policy for outbound
investment, except cases in which the authority to make such decision is
delegated to the National Assembly and the Prime Minister, according to laws on
management and use of state capital invested in business activities of
enterprises, laws on investment and laws on foreign exchange management and
other relevant ones.
7. Make a decision on the policy for capital
contribution, increase or decrease in contributed capital and transfer of
investment capital invested in joint-stock companies and multiple-member
limited liability companies.
8. Make a decision on the policy for accepting a
joint-stock company or multiple-member limited liability company into an
affiliate or subsidiary company of the enterprise.
9. Approve financial statements, annual plans for
profit distribution and creation of funds of the enterprise.
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11. Approve the policy to allow the Board of
Members and the enterprise’s Chairman to decide on the establishment,
reorganization and dissolution of branches, representative offices and
dependent accounting units of enterprises according to the provisions of law.
Establishment of branches or representative offices
of wholly state-owned enterprises which are credit institutions shall be
subject to regulations of laws on banks.
Report to the Prime Minister to consider approving
the policy to allow the Board of Members and the enterprise’s Chairman to
decide on the establishment, reorganization and dissolution of branches,
representative offices and dependent accounting units of enterprises that the
Prime Minister has decided to establish.
Article 12. Conduct of
implementation of rights and responsibilities regarding surveillance,
inspection and assessment of operations of wholly state-owned enterprises
1. The owner’s representative agency shall organize
the monitoring and inspection of the management, use, preservation and
development of capital, implementation of strategies, development investment
plans, recruitment of labor, implementation of the salary and bonus regime of
these enterprises; shall give opinions on supervision, inspection and audit by
other competent agencies and organizations with respect to investment,
management and use of state capital in enterprises in accordance with the Law
on management and use of state capital invested in production and business of
enterprises and regulations of the Government.
2. The owner’s representative agency shall conduct
the evaluation of the performance and efficiency of production and business
activities of these enterprises, the assessment of the level of accomplishing
the tasks in the management and administration of business managers and
comptrollers in compliance with the law on management and use of state capital
invested in production and business in enterprises and the Government's
instructional regulations.
3. Authority, procedures and processes for carrying
out the inspection of operations of wholly state-owned enterprises shall be
subject to legislative regulations on inspection and provisions of relevant
laws.
Article 13. Conduct of
implementation of rights and responsibilities regarding the state capital
contribution portion in joint-stock companies and multiple-member limited
liability companies
The owner’s representative agency:
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2. Appoint, dismiss, discharge, reward, discipline,
pay salary, responsibility allowances, bonuses and other benefits to the
representative for state capital in accordance with the Law on management and
use of state capital invested in production and business of enterprises and the
Government's regulations on representatives of state capital who hold
managerial positions at enterprises of which over 50% of the charter capital is
owned by the State, and on labor, salaries, remuneration and bonuses for
companies in which that State holds voting shares and contributed capital, and
other relevant laws.
3. Cooperate with finance agencies of the same
level in investing in an increase in the state capital contributed to
joint-stock companies and multiple-member limited liability companies after
receipt of the approval of additional investment from the competent authority.
Dossiers, plans, sequences and procedures for supplementary investment in an
increase in state capital investment in enterprises shall be subject to the
provisions of the Law on Management and Use of State Capital Invested in
Production and Business activities of Enterprises and the Government's
regulations.
Develop a roadmap, decide the plan and organize the
implementation of state capital transfer in joint stock companies and
multiple-member limited liability companies according to the list of
state-invested enterprises eligible for transfers under the Prime Minister’s
decisions over periods of time.
In case of transfer of state capital in an
enterprise not yet included in the list of state-invested enterprises eligible
for transfer under the Prime Minister’s decisions, the owner’s representative
agency must report such transfer to the Prime Minister to seek his decision
before elaborating transfer plans and organizing the implementation of state
capital transfer at this enterprise.
Dossiers, plans, sequences and procedures for
transfer of state capital investment in enterprises shall be subject to the
provisions of law on investment of state capital in enterprises, management and
use of capital and assets at enterprises.
4. Supervise the recovery of investment capital,
the collection of profits and share dividends distributed by joint-stock
companies and multiple-member limited liability companies in accordance with
law.
5. Request representatives of the state capital at
enterprises of which 36% of charter capital or more is owned by the State to
report to the owner’s representative before giving comments, casting votes and
making decisions at the General Meeting of Shareholders, the meeting of the
Board of Directors and the Board of Members in accordance with the law and the
Charter of the enterprise on the following issues:
a) Objectives, tasks and business sectors or
industries; business reorganization, dissolution and bankruptcy;
b) Charter, amendments and supplements to the
charter of an enterprise;
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d) The nomination for election, petition to
dismiss, discharge, reward, handle violations of members of the Board of
Directors, Chairman of the Board of Directors, Chairman of the Members' Council
and members of the Control Board. Nomination to appoint, propose to dismiss,
sign a contract, terminate the contract with the General Director (Director) of
the enterprise. Remuneration, salary, bonus and other benefits of members of
the Board of Directors, members of the Members' Council, members of the Control
Board, General Director (Director) of the enterprise; number of members of the
Board of Directors, members of the Supervisory Board, Deputy General Director
(Deputy Director) of the enterprise;
dd) Business strategies, plans and investment and
development plans;
e) The policy of capital contribution, holding,
increase and reduction of capital of enterprises in subsidiaries;
establishment, reorganization and dissolution of branches and representative
offices; acceptance of enterprises voluntarily participating as subsidiaries
and affiliates of enterprises;
g) The policy on buying and selling assets and
borrowing and lending contracts with a value equal to or greater than 50% of
the enterprise's charter capital or another percentage less than the value
prescribed in the charter of the enterprise; the policy for borrowing of
foreign funds of enterprises;
h) Financial statements, distribution of profits,
establishment and use of funds and annual share dividends;
i) Employee recruitment regime; employee
compensation, remuneration and bonus package of enterprises;
k) Other issues that conform to regulations on
performing tasks of the representative of state capital issued by the owner’s representative
agency and that are not in breach of the provisions of Article 48 of the Law on
management and use of state capital invested in production and business in
enterprises and relevant laws.
6. Set forth the operational regulations of
representatives of state capital on issues that representatives of the state
capital must report to, consult with the owner’s representatives before giving
comments, casting votes, making decisions at an enterprise of which less than
36% of the charter capital is owned by the State (if any). These regulations
shall not be contrary to the provisions of Article 48 of the Law on Management
and Use of State Capital Invested in Production and Business in Enterprises,
charter of enterprises and relevant laws
7. Give timely opinions in writing on issues under
the management of the representative.
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9. Take responsibility for effective use,
preservation and development of allocated state capital.
10. Implement other rights and responsibilities
under the provisions of the Law on management and use of state capital invested
in business activities of enterprises, the enterprise’s charter and other
relevant laws.
Section 3. OWNER’S DIRECT
REPRESENTATIVE
Article 14. Rights and
responsibilities of the owner’s direct representative at wholly state-owned
enterprises established under the Prime Minister’s decision
The Board of Members of the parent company of a
state economic group, the State Capital Investment Corporation and the
enterprise established under the Prime Minister’s decision to invest state
capital under the provisions of the Law on management and use of state capital
invested in production and business in enterprises shall:
1. Develop and report to the owner’s representative
agency to appeal to the Prime Minister to approve the business strategy and
plan, and the 5-year investment and development plan of each enterprise
(including the business strategy, plan and 5-year investment and development
plan).
2. Make a decision on the annual business,
investment and development plan of an enterprise and send such decision to the
owner's representative agency, the Ministry of Planning and Investment and the
Ministry of Finance for synthesis and supervision purposes.
3. Petition the authority to decide the planning,
appointment, re-appointment, dismissal, secondment, rotation, approval of
resignation, commendation, discipline and assessment of performance of the
Chairman and members of the Board of Members, approval of the compensation and
remuneration package paid to the enterprise’s managers in accordance with law.
4. Make a decision on planning, appointment,
assessment of performance, re-appointment, resignation, dismissal, secondment,
grant of rewards to, imposition of disciplinary actions on, resignation and
retirement of the General Director of the enterprise after obtaining approval
from the owner’s representative agency.
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6. Request the owner’s representative agency to
consider appealing to the Prime Minister to make his decision on a policy on
establishment of a subsidiary wholly owned by the enterprise. Make a decision on
establishment of a subsidiary wholly owned by the enterprise after the Prime
Minister grants his approval of the policy for such establishment.
7. Request the owner’s representative agency to
consider deciding on the policy of investment in new capital contribution,
establishment of new domestic and foreign enterprises in a form of
multiple-member limited liability companies, joint-stock companies or
foreign-invested companies, or acquire enterprises voluntarily participate as
subsidiaries and affiliates. Make a decision on investment after receipt of the
decision on the investment policy from the owner’s representative agency.
8. Request the owner’s representative agency to
consider deciding on the policy of investment in supplementing capital or not
continuing to invest additional capital in subsidiaries and affiliates; make an
investment decision after receipt of the decision on the investment policy from
the owner’s representative agency.
Request the owner’s representative agency to
consider appealing to the Prime Minister to make a decision on the policy for
investment in supplementing capital or not continuing to invest additional
capital in subsidiaries and associated companies in case of the authority to
grant such decision is delegated to the Prime Minister in accordance with law;
make an investment decision after receipt of the approval of the investment
policy from the Prime Minister.
9. Make a decision on additional investment of
capital in subsidiaries and affiliates, capital contribution to business
cooperation contracts after receipt of the decision on the investment policy
from the owner’s representative on investment of capital having the value
exceeding the equivalent value of Group B projects according to the
classification defined in the Law on Public Investment.
10. Request the owner’s representative agency to
approve annual financial statements of an enterprise (including financial
statements of parent companies and consolidated financial statements),
distribute profits, set aside and use funds.
11. Proactively make a decision on and bear
responsibility for making a decision on issues under the authority of the Board
of Members of wholly state-owned enterprises in accordance with the Law on
management and use of state capital invested in business and production of
enterprises, the Law on enterprises, other provisions of relevant laws and the
enterprise's Charter.
Article 15. Rights and
responsibilities of the owner’s direct representative at wholly state-owned
enterprises that are established under the decision of the owner’s
representative agency or which it is authorized to represent
Board of Members and President of wholly
state-owned enterprises shall not be governed by Article 14 herein.
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a) Make a decision on reorganization and transfer
of ownership, dissolution and bankruptcy of an enterprise;
b) Promulgate, amend and supplement the charter;
decide and adjust the charter capital;
c) Approve the 5-year investment and development
plan and strategy, and the annual business plan, of each enterprise;
d) Make a decision on appointment, reappointment,
discharge, grant of rewards to, imposition of disciplinary actions on, grant of
compensation, remuneration and bonus package and other benefits to, the
Chairman and members of the Board of Members and the President of an
enterprise;
dd) Approve the appointment, re-appointment,
dismissal, grant of rewards to, and imposition of disciplinary actions on, the
General Director or Director of an enterprise;
e) Approve the plan of capital mobilization,
investment projects, construction, purchase and sale of fixed assets,
investment projects outside enterprises, overseas investment projects of enterprises
having value greater than the limit within which the Board of Members and the
enterprise’s President is authorized to make their decision in accordance with
the law;
g) Provide funds to carry out state capital
investment in enterprises after receipt of approval from competent authorities;
decide on the transfer of investment capital of enterprises at joint-stock
companies and multiple-member limited liability companies in case the transfer
value is lower than the value recorded in the accounting books of the
enterprise after provisions for losses of investment capital have already been
set off;
h) Make the decision on the policy of capital
contribution, increase, decrease of contributed capital, transfer of investment
capital of enterprises at joint-stock companies or multiple-member limited
liability companies; make a decision on the policy for adoption of joint stock
companies or multiple-member limited liability companies as subsidiaries and
affiliates of enterprises;
i) Approve financial statements, annual plans for
profit distribution and creation of funds of the enterprise.
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Chapter III
IMPLEMENTARY PROVISIONS
Article 16. Entry into force
1. This Decree shall be in effect on March 15,
2019.
2. This Decree shall replace the Government’s
Decree No. 99/2012/ND-CP dated November 15, 2012 on assignment and delegation
of authority to implement rights, responsibilities and obligations of the state
owner of wholly state-owned enterprises and state capital contributions to
enterprises.
Article 17. Implementation
1. The owner’s representative agency shall
formulate and implement internal regulations on implementation of rights and
responsibilities to wholly state-owned enterprises and state capital
contributions to enterprises that they have established or they are authorized
to manage.
2. In case of acceptance of transferred right to
represent the owner of the state capital at enterprises, the owner’s
representative agency shall preside over and cooperate with the relevant
agencies in carrying out the arrangement, reform, reorganization, transfer of
ownership and restructuring of state capital at enterprises according to plans
and proposals approved by competent authorities prior to the date of transfer.
3. Ministers, Heads of Ministry-level agencies,
Heads of Governmental bodies, Chairpersons of People’s Committees of
centrally-affiliated cities and provinces, the Boards of Members, Presidents of
wholly state-owned enterprises, and the owner’s representatives, shall be
responsible for implementing this Decree./.
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PP. GOVERNMENT
PRIME MINISTER
Nguyen Xuan Phuc