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GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No:
71/2017/ND-CP
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Hanoi, June 6th,
2017
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DECREE
GUIDELINES ON CORPORATE GOVERNANCE OF PUBLIC COMPANIES
Pursuant to the law on organization of the
government dated June 19th, 2015
Pursuant to the Law on enterprises
dated November 26th, 2014
Pursuant to the Law on securities dated June
29th, 2006
Pursuant to the amendments to the Law on
securities dated November 24th, 2010
At the request of the Minister of Finance;
Government provides the guidelines for
corporate governance of public companies
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GENERAL PROVISIONS
Article 1. Scope and
regulated entities
1. Scope
This Decree provides guidelines for the issues
in connection with corporate governance of public companies, including:
a) General assembly of shareholders
b) Board of directors;
c) Board of controllers
d) Transactions with related persons
đ) Reporting and information publishing
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a) Public companies;
b) Public company shareholders and organizations
and individuals related to them
c) Members of the board of directors,
controllers, public company executives and their related organizations and
individuals.
d) Organizations and individuals whose interests
are related to public companies
Article 2. Terms and
definitions
For the purposes of this decree, the terms below
shall be construed as follows:
1. Corporate governance is a system of rules
including:
a) Ensuring proper organizational structure;
b) Ensuring the effective operation of the board
of directors and board of controllers
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d) Ensuring that all shareholders are treated
fairly
đ) Making the information about the entire
company’s operations publicly available
2. A public company is a joint stock company
defined in Clause 1 Article 25 of the Law on securities
3. Majority shareholders are defined in Clause 9
Article 6 of the Law on securities
4. Enterprise managers are defined in Clause 18
Article 4 of the Law on enterprises
5. Enterprise executives include directors
(general directors), deputy directors (deputy general directors), chief
accountants, and other executives specified in the company’s charter
6. A non-executive member is the member of the
board of directors other than the director (general director) or deputy
director (deputy general director), chief accountant, and other enterprise
executives specified in the company’s charter.
7. Independent members are specified in Clause 2
Article 151 of the Law on enterprises
8. A company’s manager is the person who has the
rights and obligations specified in the Article 18 of this decree.
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Article 3. Rules for
application of regulations of relevant law
In the cases where other regulations of law on
corporate governance are different from the regulations of this decree, the
former must prevail.
Chapter II
SHAREHOLDERS
AND GENERAL ASSEMBLY OF SHAREHOLDERS
Article 4. Rights and
obligations of shareholders
1. Apart from the rights and obligations
specified in Article 114 and Article 115 of the Law on enterprises and the
company’s charter, a shareholder of a public company also has the following
rights:
a) The right to be treated fairly. Each share of
the same type gives its holders the equal rights, obligations and interests.
The rights and obligations associated with preferred shares (if any) must be
approved by the general assembly of shareholders and made publicly available to
shareholders;
b) The right to fully access the periodical and
unscheduled information published by the company in accordance with regulations
of law.
2. The right to protect their legal interests In
the cases where a decision made by the General assembly of shareholders or the
board of directors violates the law or the company’s charter, causing damage to
the company, shareholders have the right to request cancellation or suspension
of such decision in compliance with the Law on enterprises.
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In addition to the obligations specified in the
Law on enterprises, a majority shareholder also has the following obligations
1. A majority shareholder must not take
advantage of his or her influence to affect the rights and interests of the
company and other shareholders in accordance with regulations of law and the company’s
charter;
2. A majority shareholder has the obligation to
publish information in accordance with regulations of law
Article 6. Company’s charter
1. Company’s charter must be subject to approval
from the general assembly of shareholders and must not violate the Law on
enterprises, Law on securities, articles specified in this Decree and other
relevant legislative documents.
2. The Ministry of Finance must provide a sample
charter on which public companies can base to formulate their own ones
Article 7. Internal
regulations on corporate governance
1. Internal regulations on corporate governance
must be drafted by the board of directors and submitted to the general assembly
of shareholders for approval. Internal regulations on corporate governance must
not violate the regulations of law and company’s charter.
2. Ministry of Finance must provide a model of
internal regulations on corporate governance on which public companies can base
to formulate their own ones
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In addition to regulations of the Law on
enterprises, the meeting of general assembly of shareholders must comply with
the following regulations:
1. A public company must follow the procedures
for convening the meeting of general assembly of shareholders in compliance
with regulations of law, its charter and internal regulations; publish the
information about the list of shareholders who have the right to participate in
the meeting of general assembly of shareholders at least 20 days before the
deadline for registration. The public company’s internal regulations on
corporate governance must specify authorization procedures and authorization
letters for shareholders;
2. The board of directors or the individual who
convenes the meeting of general assembly of shareholders must establish the
agenda and prepare the place and time to discuss and vote on each issue in the
meeting of general assembly of shareholders in accordance with Clause 7 Article
136 of the Law on enterprises;
3. The public company’s internal regulations on
corporate governance must specify the application of modern information
technology for the shareholders to participate and give opinions in the meeting
of general assembly of shareholders best including guidelines for shareholders
to vote through the online meeting of the general assembly of shareholders,
cast electronic votes or other forms of electronic voting specified in the
Article 140 of the Law on enterprises and the company's charter;
4. A public company must convene the annual
meeting of general assembly of shareholders in compliance with the Law on
enterprises. The annual meeting of general assembly of shareholders must not
collect written opinions from shareholders. In the cases where the auditor's
report on the company's annual financial statements contains material qualified
opinions, the public company may invite the representatives of the independent
auditing firm to attend the annual meeting of general assembly of shareholders.
Article 9. A report on the operations
of the board of directors submitted to the annual meeting of general assembly
of shareholders
A report on the operations of the board of
directors which has to be submitted to the annual meeting of general assembly
of shareholders must contain the following information in addition to that
specified in Clause 2c Article 136 of the Law on enterprises and the company’s
charter:
1. Remuneration, operating costs and other
interests of the board of directors and each member thereof specified in Clause
3 Article 158 of the Law on enterprises and the company's charter;
2. Summaries of the meetings and decisions of
the board of directors;
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4. The operation of the internal audit team affiliated
to the board of directors of the public company specified in Clause 1b Article
134 of the Law on enterprises;
5. Operations of other sub-boards affiliated to
the board of directors (if any)
6. Results of monitoring the director (general
director);
7. Results of monitoring other enterprise
executives;
8. Future plans
Article 10. A report on the
operation of the board of controllers to the annual meeting of general assembly
of shareholders
In addition to the regulations specified in
Clause 2d5 and 2đ Article 136 of the Law on enterprises, the board of
controllers’ report on the public company specified in Clause 1a Article 134 of
the Law on enterprises submitted to the annual general assembly of shareholders
must contain the following information:
1. Remuneration, operating costs and other
interests of the board of controllers and each controller specified in Clause 3
Article 167 of the law on enterprises and the company's charter;
2. Summaries of the meetings and conclusions and
recommendations of the board of controllers;
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4. Results of monitoring the board of directors,
directors (general directors) and other enterprise executives;
5. The results of monitoring the coordination of
operation between the board of controllers and the board of directors, the
director (general director) and shareholders.
Chapter III
BOARD OF DIRECTORS AND
MEMBERS OF THE BOARD OF DIRECTORS
Article 11. Nomination of
members for the board of directors
1. When the candidates for a board of directors
have been identified, the information related to them must be published at
least 10 days before the opening day of the meeting of general assembly of
shareholders on the website of the company so that shareholders can find out
about the candidates before voting. The candidates of board of directors must
have written commitments to provide truthful, accurate and reasonable
information and to perform the tasks honestly, faithfully, cautiously and in
the best interest of the company if elected as members of the board of
directors.
Information related to the candidates of the
board of directors to be published must include at least:
a) Name, date of birth
b) Professional qualifications;
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d) Other information (if any) specified in the
company's charter.
A public company must ensure that shareholders
can access the information about the companies in which the candidates are
members of the board of directors or managers and other interests related to
the companies of the candidates (if any)
2. Shareholders or groups of shareholders
holding common shares for at least 6 consecutive months shall have the right to
nominate candidates for the board of directors in compliance with the Law on
enterprises and the company's charter
3. When the number of the candidates for the
board of directors through nomination fails to reach the minimum number
specified in Clause 4 Article 114 of the Law on enterprises, the incumbent
board of directors can introduce or nominate more candidates as specified in
the company’s charter and the internal regulations on corporate governance The
introduction of candidates by the board of directors must be published clearly
before the general assembly of shareholders votes for the members of the board
of directors in compliance with regulations of law
Article 12. Membership of
the board of directors
1. Members of the board of directors must meet
the criteria and conditions specified in Clause 1 Article 151 of the Law on
enterprises and the company's charter; a member of the board of directors is
not required to be the shareholder of the company
2. The chairman of the board of directors must
not take over the position as the director of the same public company
3. A member of the board of directors of a
public company must not be the member of the board of directors of more than 5
other companies.
Article 13. Composition of
the Board of directors
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2. At least 1/3 of the members of board of
directors are non-executive members.
3. A public company needs to minimize number of
members of the board of directors who concurrently hold several executive
titles of the company to ensure independence of the board of directors.
4. If an unlisted public company operates under
the model specified in Point b Clause 1 Article 134 of the Law on enterprises,
at least 1/5 of members of the board of directors are independent members. If
the board of directors of such company has fewer than 5 members, one of them
must be the independent member
5. At least 1/3 of the members of the board of
directors of a listed company are independent members.
Article 14. Rights and
obligations of members of a board of directors
1. A member of a board of directors has all
rights specified in the Law on enterprises, related law and companies' charter
including the right to access information and documents about financial status
and business operation of the company and different units of the company
2. In addition to the obligations specified in
the Law on enterprises and the company’s charter, each member of the board of
directors must:
Perform duties honestly and cautiously in the
best interests of shareholders and the company;
b) Participate in all the meetings of the board
of directors and give clear opinions about the discussed issues.
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d) Report to the State Securities Commission and
local stock exchange and publish information when trading the shares of the
company in compliance with regulations of law
3. The company may purchase liability insurance
for the members of its board after approval is granted by the general assembly
of shareholders; the insurance does not cover the liabilities of the members of
the board of directors in connection with the violation of the law and the
company’s charter.
Article 15. Duties of the board
of directors
In addition to the duties specified in the Law
on enterprises and the company’s charter, the board of directors must:
1. Take responsibility to the shareholders for
the company’s operations;
2. Treat fairly all the shareholders and protect
the interests of the persons whose interests are related to the company;
3. Ensure the operations of the company in
compliance with regulations of law and the company’s charter and internal
regulations;
4. Make the internal regulations on corporate governance
and submit to the general assembly of shareholders for approval as specified in
the article 7 of this Decree;
5. Report on the operation of the board of
directors to the general assembly of shareholders as specified in the Article 9
of this Decree.
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1. The board of directors must hold at least one
meeting every three months in the procedures specified in the company's charter
and internal regulations on corporate governance The meeting of the board of
directors, agenda and related documents must be informed in advance to the
members of the board of directors within the time limit specified in
regulations of law and the company’s charter
2. The minutes of meetings of the board of directors
must be detailed and clear; be signed by the chairman of the meeting and
retained in accordance with regulations of law and the company’s charter.
3. The board of directors shall require the
independent members to submit annual reports on the operation of the board of
directors which can be published at the annual meeting of general assembly of
shareholders
Article 17. Teams
affiliated to the board of directors of a listed company
1. The board of directors of a listed company
can establish teams to assist its operations including personnel and payroll
management teams and other teams. The board of directors needs to nominate 01
independent member of its members as the head of personnel and payroll
management teams; the establishment of these teams must be approved by the
general assembly of shareholders.
2. If the personnel and payroll management teams
are not established, the board of directors can assign the independent members
to assist it in the human resources, and payroll management activities.
3. The board of directors must specify in
details the establishment of the teams and the duties of each of them, their
members or the independent members in charge of human resources and payroll
management.
Article 18. Persons in
charge of corporate governance
1. The board of directors of the listed
companies must nominate at least 1 person to be in charge of corporate
governance; the person in charge of corporate governance can take over the
position as the company secretary as specified in Clause 5 Article 152 of the
Law on enterprises
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3. A person in charge of corporate governance
has the following rights and obligations:
a) Advising the board of directors on the
organization of convening the meeting of general assembly of shareholders in
compliance with regulations and law and the related work between the company
and shareholders;
b) Preparing meetings of the board of directors,
board of controllers and general assembly of shareholders at the request of the
board of directors or the board of controllers;
c) Advising on the procedures of meetings
d) Participating in meetings
đ) Advising on procedures for resolutions of the
board of directors in accordance with regulations of law;
e) Providing financial information, copies of
meeting minutes of the board of directors and other information for members of
the board of directors and controllers;
g) Monitoring and reporting to the board of
directors on the operation of publishing information of the company;
h) Ensuring the security of information in
accordance with regulations of law and the company’s charter;
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Chapter IV
BOARD OF CONTROLLERS AND
CONTROLLERS
Article 19. Nomination of
candidates for controllers
1. Candidates for controllers must be nominated
in accordance with Article 11 of this Decree, unless otherwise prescribed in
the company’s charter.
2. If the number of the candidates for the board
of controllers through nomination fails to reach the needed number, the
incumbent board of controllers may nominate more candidates or organize to
nominate in the form specified in the company's charter and internal
regulations on corporate governance.
Article 20. Controllers
1. The number of controllers must be 3-5
members. A controller is not required to be the shareholder of the company.
2. A controller must meet the criteria and
conditions specified in Clause 1 Article 164 of the Law on enterprises and the
company's charter and must not:
a) Work in the accounting and finance departments
of the company;
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3. Controllers in the listed companies and
public companies whose over 50% of charter capital is held by the state must be
auditors or accountants.
4. The head of the board of controllers must be
a professional auditor or accountant working full time at the company.
Article 21. Rights and
obligations of a controller
1. A controller has all rights specified in the
Law on enterprises, related Law and company's charter including the right to
access information and documents about operational status of the company.
Members of the board of directors, directors (general directors) and other
enterprise executives must be responsible for supplying information promptly
and adequately at the request of controllers.
2. Controllers must comply with regulations of
law, the company’s charter and professional ethics in carrying out their
assignments.
A public company may provide guidelines for
operating and performing duties of controllers in compliance with regulations
of law and the company's charter.
Article 22. Rights and
obligations of board of controllers
In addition to the rights and obligations
specified in the Article 165 of the Law on enterprises and the company’s
charter, a board of controllers also has the following rights and obligations:
1. Proposing and recommending the general
assembly of shareholders to grant approval for the independent auditing
organization to audit the financial statements of the company;
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3. Monitoring the financial status of the
company, legitimacy of the activities of members of board of directors, the
director (general director), other enterprise managers, coordination in
operation between the board of controllers and board of directors , the
director (general director) and shareholders;
4. In the cases of violation against regulations
of law or the company’s charter committed by a member of the board of
directors, the director (general director) and other enterprise executives, it
must be notified in written text to the board of directors within 48 hours and
ask the offenders to stop the violation and find solutions to tackle;
5. Reporting to the general assembly of
shareholders as specified in the Article 10 of this Decree.
Article 23. Meetings of the
board of controllers
1. A board of controllers must hold at least 2
meetings each year. At least 2/3 of the controllers must participate in the
meetings. Minutes of the meetings of the board of controllers must be detailed
and clear; be signed by the secretaries and controllers attending the meetings
and retained to identify the responsibilities of each controller.
2. A board of controllers has the right to
request members of the board of directors, the director (general director) and
representatives of the independent auditing firm to answer the issues raised by
the controllers.
Chapter V
PREVENTION OF CONFLICT
OF INTERESTS
Article 24. Responsibility
to be honest and avoid conflicts of interests of an enterprise manager
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2. Members of a board of directors, controllers,
directors (general directors), other enterprise managers and their related
persons must not take advantage of the information obtained by the influence of
their own positions for personal purposes or in the interests of other
individuals or organizations.
3. Members of a board of directors, controllers,
directors (general directors) and other enterprise managers have the obligation
to inform the board of directors and the board of controllers the transactions
between companies, subsidiaries and companies with over 50% or more of charter
capital controlled by a public company and themselves or their related persons
in compliance with regulations of law. The public company must publish
information about the transactions of the abovementioned persons which have
been approved by the general assembly of shareholders or the board of directors
in accordance with regulations of Law on securities and publishing information.
4. Members of a board of directors are not
allowed to cast votes on the transactions that are beneficial for themselves or
their related persons in compliance with the Law on enterprises and the
company’s charter.
5. Members of the board of directors,
controllers, directors (general directors), other enterprise managers and their
related persons must not use the information not yet publicly disclosed by the
company or disclose to others to carry out related transactions.
Article 25. Transactions
with the related persons
1. When conducting transactions with the related
persons, a public company must sign the written contracts equally and
voluntarily.
2. A public company must implement the necessary
measures to prevent the related persons from interfering in the operation of
the company and harming the interests of the company through the control of
transactions, sales and prices of both goods and services of the company.
3. A public company must implement the necessary
measures to prevent shareholders and the related persons from carrying out
transactions resulting in loss of capital, assets or other resources of the
company
Article 26. Transactions
with shareholders, enterprise managers and their related persons
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2. A public company must not provide its
shareholders that are organizations and their related persons that are
individuals with loans or guarantee, unless
a) The public company is a credit institution;
b) The shareholder is a subsidiary whose share
or stakes are not held by the State and has contributed capital or purchased
the shares of the public company before July 1st, 2015 as specified
in Clause 6, Article 16 of the Decree No. 96/2015/ND-CP dated October 19th,
2015 of the government specifying a number of articles of the Law on
enterprises.
3. A public company must not provide its shareholders’
related persons that are organizations with loans or guarantee, unless:
a) The public company is a credit institution;
b) The public company and its shareholders’
related persons are subsidiaries in the same company or companies operating under
a group of companies including parent companies- subsidiaries, economic groups;
the transaction must be approved by the general assembly of shareholders or the
board of directors in accordance with the company's charter
c) The law specifies otherwise
4. A public company must not make the following
transactions unless they are approved by the general assembly of shareholders:
a) Grant of loans or guarantees to the members
of the board of directors, controllers, directors (general directors), other
enterprise managers and the individuals and organizations related to them
unless the public company and organizations related to its shareholders are
companies in the same group or companies operating in a group of companies
including parent companies-subsidiaries, economic groups, and the relevant law
specifies otherwise.
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- Members of the board of directors,
controllers, directors (general directors), other enterprise managers and their
related persons
- Shareholders, authorized representatives of
shareholders owning more than 10% of the common shares of the company and their
related persons;
- Enterprises related to the subjects specified
in Clause 2 Article 159 of the Law on enterprises
5. The board of directors may approve the
contracts and transactions specified in Point b Clause 4 of this Article which
are valued at less than 35% of the total asset value inscribed in the most
recent financial statement or a smaller percentage in accordance with the
company’s charter;
Article 27. Ensuring the
legitimacy of the persons having the interests related to the company
1. Public companies must take responsibility to
the community and to the persons having the interests related to the company in
compliance with the prevailing laws and the company’s charter.
2. A public company must comply with the laws on
labor, environment and society.
Chapter VI
REPORTING AND
INFORMATION PUBLISHING
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1. A public company must publish regularly,
accurately and promptly the information influencing share price and decisions made
by shareholders and investors. Information and information publishing must be
in compliance with regulations of law and the company’s charter.
2. Shareholders and the public must have equal
access to the published information. Language used to publish information
should be clear, comprehensible and avoid misunderstanding by shareholders and
investors.
Article 29. Information
publishing on the model of company organization and management
1. A public company must report to the State
Securities Commission and the local stock exchange and publish the information
on organizational structure of the management and operation of the company in
compliance with the Article 134 of the Law on enterprises.
2. In the event that the public company changes
its operating model, it must report to the State Securities Commission and the
local stock exchange and publish information in 24 hours after the decision to
change the model is made by the general assembly of shareholders
Article 30. Information
publishing on corporate governance
1. A public company must publish information on
corporate governance at the annual general assembly of shareholders and in the
company's annual report in compliance with the Law securities on publishing
information.
2. A listed company must report every six months
and publish information on corporate governance status in compliance with the
Law on securities on publishing information.
Article 31. Information
publishing on the income of the director (general director)
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Article 32. Responsibility
for reporting and publishing information of members of a board of directors,
controllers and directors (general directors)
Apart from the responsibilities prescribed in
the Article 24 of this Decree, members of the board of directors, controllers,
directors (general directors) must report to the board of directors and the
board of controllers on the following transactions:
1. Transactions between an ordinary company and
a company in which the abovementioned members are founding members or members
of the board of directors or the directors (general directors) over the last
three years by the transaction time;
2. Transactions between an ordinary company and
a company in which related persons of the abovementioned members are members of
the board of directors, directors (general directors) or majority shareholders.
Article 33. Organization of
information publishing
1. A public company must formulate and issue
regulations on publishing information of the company in compliance with the Law
on securities and guiding documents.
2. A public company must have at least one
employee in charge of publishing information. Such employee of a public company
must:
a) Publish the company's information publicly in
compliance with regulations of law and the company’s charter;
b) Publicize his or her names and phone numbers
for shareholders to contact
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SUPERVISION AND HANDLING
OF VIOLATIONS
Article 34. Supervision of
corporate governance
1. The State Securities Commission must
supervise the contents related to corporate governance of public companies in
compliance with provisions of this Decree.
2. Public companies and the related
organizations and individuals must comply with regulations on corporate
governance as specified in this Decree.
3. Public companies and related organizations
and individuals must promptly and accurately supply information, documents and
data related to corporate governance activities of such companies and explain
the related events at the request of the State Securities Commission.
4. If a public company and its related organizations
and individuals fail to comply with the Clause 3 of this Article, it must be
handled in compliance with regulations of law.
Article 35. Handling of
violations against regulations on corporate governance
A public company and its related organizations
and individuals violating the regulations on corporate governance must be
sanctioned in compliance with the government's Decree No. 108/2013 / ND-CP
dated September 23rd, 2013 on sanctioning against administrative
violations of securities and securities market regulating the acts of violating
against regulations on public companies’ corporate governance, Decree No.
145/2016 / ND-CP dated November 1, 2016 of the government amending a number of
articles of the government's Decree No. 108/2013 / ND-CP dated September 23,
2013 on sanctioning against administrative violations of securities and
securities market and current regulations of law.
Chapter VIII
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Article 36. Transition
clause
1. By the effective date of Clause 2, Article 12
of this Decree, the chairman of the board of directors can concurrently hold
the title of director (general director) of the same public company.
2. By the effective date of Clause 3, Article 12
of this Decree, a member of the board of directors of a public company can
concurrently be a member of the board of directors of another company.
Article 37. Effect of the
Decree
1. Except for Clauses 2 and 3 of this Article,
all the other provisions of this Decree shall come into force from August 1st,
2017.
2. The provisions in Clause 2, Article 12 of
this Decree shall come into force after three years from the effective date of
this Decree.
3. The provisions of Clause 3, Article 12 of
this Decree shall come into force after two years from the effective date of
this Decree.
4. The Ministry of Finance's Circular No.
121/2012 / TT-BTC dated July 26th, 2012 on corporate governance of
public companies shall be repealed from the date this Decree comes into force.
Article 38. Implementation
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2. Ministers, heads of the ministerial-level
agencies, heads of the agencies affiliated to the government and presidents of
the people's committees of provinces and central affiliated cities must
implement this Decree.
ON BEHALF OF
THE GOVERNMENT
THE PRIME MINISTER
Nguyen Xuan Phuc