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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence- Freedom- Happiness
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No.103/1999/ND-CP
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Hanoi,
September 10, 1999
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DECREE
ON ASSIGNING, SELLING, BUSINESS CONTRACTING OR LEASING STATE
ENTERPRISES
THE GOVERNMENT
Pursuant to the September 30, 1992 Law on
Organization of the Government;
Pursuant to the April 20, 1995 Law on State Enterprises;
At the proposal of the Minister of Planning and Investment,
DECREES
Chapter I
GENERAL PROVISIONS
Article 1.- The
objectives of the assignment, sale, business contracting or lease of an entire
State enterprise
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1. Creating conditions for restructuring State
enterprises and raising the economic efficiency and competitiveness of the
State-run economic sector;
2. Creating jobs for laborers; changing the
enterprise-managing modes, creating a driving force for the promotion of the
laborers’ right to mastery; using
with higher efficiency the invested property and tapping all potentials in
various economic sectors for investment in production and business development;
3. Reducing the State’s
expenses and responsibilities for business management; ensuring the
common interests of the State and the laborers.
Article 2.- Scope of
application
1. This Decree prescribes the assignment, sale,
business contracting and lease of an entire enterprise, applicable to the
following State enterprises:
a) Independent State enterprises and member
enterprises of corporations, which have possessed on their accounting books the
State capital of less than VND1 billion and have suffered from chronic losses
or where the State needs not to hold shares, except for enterprises being
State-run agricultural farms, forestry farms and State enterprises operating in
the field of consultancy, designing and expertise;
b) Independent State enterprises and member
enterprises of corporations other than those specified in Point a of this
Article, which have possessed on their accounting books the State capital of
from VND1 bilion to under VND5 billion and have suffered from chronic losses,
but not yet fallen into the state of bankruptcy, have been unable to overcome
the situation though necessary measures were applied. For such enterprises, the
Prime Minister shall decide on the case-by-case basis.
2. The business contracting within the State
enterprise, the lease, sale or assignment of part of the State enterprise and
the leasing, sale or assignment of single assets of the State enterprises shall
not be subject to the regulation by this Decree.
Article 3.- Terms and
expressions used in this Decree shall be construed as follows:
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2. " The sale of a State enterprise
(referred to as enterprise sale for short)" means the change of ownership
with money collected for the entire property of the State enterprise into the
ownership by a collective, individual or other legal person.
3. " Contracting a State enterprise for
business (referred to as business contracting)" is a mode of State
enterprise management whereby the party undertaking the business contract shall
be empowered to manage the enterprise, obliged to fulfill a number of norms and
meet the prescribed conditions and enjoy benefits under the contract.
4. " Leasing a State enterprise (referred
to as enterprise lease for short)" is a form of transfer of the right to
use the assets and labor in the enterprise to the lessee according to terms
stated in the contract.
5. " The enterprise assignee, buyer,
contractor or lessee" is the representative of the legal person,
collective, a group of persons or individuals, that receives, buys, undertakes
the business contract of or rents the enterprise.
6. " The enterprise assignor, seller,
contracting party or lessor" is the representative of the agency or the
enterprise, who effects the transfer, sale, business contracting or lease of
the enterprise.
7. " Selling, business contracting or
leasing enterprises by direct mode" means the form of negotiating,
concluding and signing the contract directly between the enterprise seller,
contracting party or lessor and the enterprise buyer, contractor or lessee in
cases where there is only one person making the registration therefor.
8. " Selling, business contracting or
leasing enterprises by mode of bidding" means the form of selecting the
buyer, contractor or lessee through bidding in cases where there are two or
more persons making the registration therefor.
9. " The minimum price" is the lowest
price which the seller, lessor or contracting party can accept and offer when
deciding the sale, business contracting or leasing of the enterprise.
10. " The enterprise leasing/selling
prices" are the prices agreed upon by the lessor and the lessee or the
seller and the buyer by direct mode or determined through mode of bidding.
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12. " The actual value of enterprise" is
the total value of the enterprise’s actual
assets at the market prices by the time of determining the enterprise value.
13. " The labor collective" means the
entire existing labor of the enterprise or the collective of laborers who
voluntarily implement the resolution of the congress of the enterprise’s workers and employees on the reception,
purchase, business contracting or renting of the enterprise, which is
represented by the Executive Committee of the enterprise's Trade Union or the
person elected by the congress of the enterprise’s
workers and employees in undertaking the reception, purchase, business
contracting or renting of the enterprise.
14. " The ministry" shall include
ministries ministerial-level agencies and agencies attached to the Government.
15. " The People’s
Committees" means the People’s
Committees of the provinces or centrally-run cities.
16. "Corporations 90, Corporations 91"
are the State corporations established after the models mentioned in Decisions
No.90/TTg and No.91/TTg of March 7, 1994 of the Prime Minister.
17. "The Renewal Boards at
enterprises" are the Boards for Management Renewal at enterprises set up
by decisions of ministries, provinces, cities or Corporations 91.
18. "The Boards for Renewal of Enterprise
Management" mean the Boards for Renewal of Enterprise Management under the
ministries, provinces, cities or Corporations 91.
Article 4.- Subjects
entitled to the assignment, purchase, business contracting or renting of State
enterprises
1. Subjects entitled to be assigned enterprises
shall be the collective of laborers working at the enterprise, represented by
the Trade Union Executive Committee or the person elected by the congress of
the enterprise’s workers and employees.
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a) Labor collective or individuals working in
the enterprise;
b) Enterprises of all economic sectors, except
for foreign-invested enterprises;
c) Vietnamese citizens with full civil act
capacity, except for persons who are not allowed to set up and manage
enterprises as stipulated in Clauses 2, 3, 4, 5, 6, 7 and 8, Article 9 of the
Law on Enterprises.
3. Subjects entitled to business contract or
rent State enterprises:
a) Labor collectives or individuals in the
enterprise;
b) Enterprises of all economic sectors, except
for foreign-invested enterprises;
c) Individuals having their business registered.
Article 5.- The
principles for enterprise assignment, sale, business contracting or lease.
1. The enterprise assignment, sale, business
contracting or lease aims to maintain production and business; the assignees
and purchasers must not resell the enterprise during the period prescribed in
the contract.
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3. Priority in the enterprise assignment, sale,
business contracting or leasing:
a) The enterprise assignment shall only apply to
collectives of laborers in the enterprises;
b) Priority in the enterprise sale, business contracting
or lease shall be given in those who commit to employ the largest number of
laborers in the enterprise to continue the business.
4. Openness in the enterprise assignment, sale,
business contracting or lease:
a) The assignment, sale, business contracting
and lease of enterprises must be made public at the enterprises and on the mass
media to all subjects concerned 30 days before the implementation thereof;
b) Where there is only one person registering to
buy, rent or contract the enterprise for business, the results of the direct
agreement between the buyer and the seller, the lessee and the lessor or the
contracting party and the contractor shall be publicly announced at the
enterprise;
c) Where there are two or more persons
registering to purchase, business contract or rent the enterprise, the bidding
must be organized.
5. The enterprise business contracting or
leasing term shall be agreed upon by the two parties, but shall not be under 5
years.
6. Signing the contract for enterprise
assignment, sale, business contracting or lease:
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Article 6.- The use of
proceeds from the enterprise sale or lease
1. The proceeds from the sale of enterprise,
after subtracting the expenses in service of the enterprise sale, paying the secured
and due debts, shall be used in accordance with the provisions in Decision
No.177/1999/QD-TTg of August 30, 1999 "on the organization and operation
of the Funds for Support of Restructure and Equitization of State
Enterprises"
2. The proceeds from the enterprise lease:
a) Where the lease term expires and the lessee
buys the enterprise or the enterprise terminates its operation, the proceeds
from the enterprise lease, after subtracting the expenses for the enterprise
leasing activities, shall be used in accordance with the provision in Clause 1
of this Article:
b) Where the enterprise is leased for a definite
term and the enterprise continues its operations and registration as a State
enterprise, the proceeds from the enterprise lease shall be accounted into the
revenue of the leased enterprise.
Article 7.- Expenses for
the organization of enterprise assignment, sale, business contracting or lease
The actual, reasonable and necessary expenses
for the organization of the enterprise assignment, sale, business contracting
or lease shall comply with the spending levels prescribed for the equitization
of State enterprises and be accounted as follows:
1. In case of enterprise assignment: They shall
be deducted from the value of the assigned enterprise.
2. In case of enterprise sale or lease. They
shall be deducted from the proceeds from the sale or lease of the State
enterprise.
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Article 8.- Interchange
between forms of assignment, business contracting, lease and sale of State
enterprises
Where there is a need to change from the form of
enterprise business contracting or lease being implemented to other forms, the
current contract must be liquidated and direct negotiations must be conducted
in order to sign a new contract under the provisions of this Decree.
Article 9.- Protection
by the State
1. The State shall protect the ownership right
and lawful interests of the enterprise assignee, purchasers, business
contractors or lessees under the provisions of law;
2. The State shall guarantee the interests of
laborers in the to be-assigned, sold, business contracted or leased enterprises
according to the provisions of the labor legislation.
Chapter II
ASSIGNMENT OF STATE
ENTERPRISES TO LABOR COLLECTIVES
Article 10.- Conditions
for assignment of enterprises to labor collectives
The labor collective in an enterprise shall be
assigned the enterprise under the following conditions.
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2. It commits to further invest in production
and business development, ensure jobs for at least 3 years or more and fully
pay insurance premium for the laborers in the enterprise (except for people who
voluntarily terminate their labor contracts);
3. It inherit the enterprise’s debts (excluding bad debts) under the
agreement between the enterprise assignor and assignee;
4. It commits not to lease, assign or dissolve
the enterprise without permission within at least 3 years after the assignment;
5. When the conditions permit the sale, the
State must be paid back 30% of the share value at the time of enterprise
assignment.
Article 11. - The
principles for dealing with assets, financial matters and debts upon the
enterprise assignment
The Renewal Boards at enterprises shall conduct
the inventory, determining the quantity and real status of the entire assets;
the long-term and short-term investments; the assets rented, borrowed, kept or
sold for others, entrusted for sale, appropriated, leased, lent; comparing and
classifying types of debts; making list of creditors and debt amounts to be
paid, list of debtors and debt amounts to be recovered, with clear
determination of debts which can be recovered and debts which can not be
recovered, classifying assets and dealing therewith:
1. Assets rented, borrowed, kept for others,
entrusted for sale: The enterprises shall return them to their owners,
liquidate the contracts therefor or continue the rent, borrowing, keeping in
custody or entrustment according to the agreement between the enterprise and
the owners of the rented, borrowed or kept assets.
2. Appropriated assets: The enterprise assignor
shall decide immediately after the assignment of enterprise.
3. Debts shall be dealt with according to the
principles:
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b) Debts to be recovered or to be paid shall be
inherited and handled by the assignee, where the payable amounts are larger
than the value of the enterprise’s assets,
the budget debts shall be forgiven; the bank debts shall be handled with
the support from the Funds for Support of Restructure and Equitization of State
Enterprises;
c) Social insurance debts owed to the social
insurance agencies before the assignment of enterprise shall be deducted from
the value of the enterprise for payment thereof or from the Funds for Support
of Restructure and Equitization of State Enterprises.
4. The remaining assets, after paying all
necessary expenses for the enterprise assignment, shall be transferred to the
ownership of the labor collective in the enterprise.
Article 12.- Order and
procedures for enterprise assignment
1. The Trade Union Executive Committee shall,
together with the enterprise director, organize a plenary meeting of the
workers and employees to decide by the majority of vote on the voluntary
acceptance of the enterprise; draw up and adopt the plan for the enterprise
assignment; satisfy the conditions on enterprise assignment with the commitment
to fully use the labor in the enterprise (except for those who voluntarily
terminate their labor contracts); nominate representative to carry out the
procedures for the enterprise assignment.
2. Classifying assets: determining and
classifying debts; making the financial statements; handling asset, financial
and debt matters according to the principles for dealing with assets, financial
matters and debts mentioned in Article 11 of this Decree.
3. The enterprise’s
trade union executive committee or the person elected as representative
by the congress of workers and employees shall make the list and classification
of laborers, then compile dossiers thereon; draw up production-business plans
and commit to take the enterprise.
4. The representative of the labor collective
shall send the dossiers of application for acceptance of the enterprise to the
Board for Renewal of Enterprise Management. Such a dossier shall comprise:
a) The application for the acceptance of the
enterprise;
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c) The projected form of new enterprise;
d) Commitments of the labor collective in the
enterprise.
5. The competent level shall ratify the dossiers
of application for acceptance of enterprise and issue decision to assign the
enterprise to the labor collective. This decision shall be addressed to such
agencies as the enterprise finance section, the enterprise tax collection
agency, the Planning and Investment body, the Statistics Department of the
locality where the enterprise is headquartered; the Central Board for Renewal
of Enterprise Management.
6. To organize the signing of the enterprise
assignment contract between the representative of the labor collective and the
person authorized by the minister or the president of the provincial People’s Committee, or the Corporation 91
general director. A contract on the State enterprise assignment shall contain
the following major details:
a) The name and address of the enterprise to be
assigned to the labor collective;
b) Full name and address of the representative
of the labor collective;
c) The value of the to be-assigned enterprise,
mode of assignment and acceptance;
d) Commitments by the labor collective at the
enterprise;
e) The rights and obligations of the labor
collective accepting the enterprise;
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7. The Board for Renewal of Enterprise
Management shall, together with the director of the enterprise, organize the
hand-over of the enterprise according to the approved plan to the labor
collective represented by the enterprise’s
Trade Union chairman or the person elected by the congress of the
workers and employees to accept and manage the enterprise to the witness of the
representative of the authority, having decided the enterprise assignment and
the enterprise finance body.
8. The Board for Renewal of Enterprise
Management shall publicly announce the enterprise assignment and the
termination of the State enterprise�s operation on the
mass media within 15 days after the issuance of the decision on the enterprise
assignment.
9. The representative of the labor collective
shall organize the business registration in the form of cooperative or a
joint-stock company.
Article 13.- The ownership
over the assigned enterprise
1. The entire assets of the assigned enterprise,
which are calculated in value, shall belong to the ownership of the labor
collective and be divided into shares for assignment to the laborers on the
payroll who have paid the social insurance premium at the enterprise by the
time of the enterprise assignment.
2. Each laborer in the enterprise shall be
entitled to own part of the enterprise’s
value in shares commensurate to the number of years he/she has worked
for the State. For the number of shares assigned to him/her, a laborer is
entitled to enjoy the dividends thereon, to bequeath them, but not to assign
them within at least 3 years after the assignment of the enterprise; when
assigning such shares, he/she shall have to return to the enterprise an amount
equal to 30% of the share value at the time of the enterprise assignment.
Article 14.- The rights
and obligations of the enterprise assignee
1. The enterprise assigned to the labor
collective shall register its business in the form of either cooperative or
joint-stock company.
The business registration dossier shall include:
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b) The contract on the enterprise assignment and
acceptance and the minutes on the hand-over of enterprise to the labor
collective in the enterprise.
c) The enterprise’s
organization and operation charter;
d) The minutes on the election of the enterprise’s leadership;
e) The business registration paper of the
enterprise before it is assigned (if any).
2. To take initiative in using the entire
assigned assets, organizing production and business and distributing incomes
according to the enterprise’s organization
and operation charter.
3. To inherit the interests of the State
enterprise according to the agreement in the enterprise assignment contract;
inherit the former enterprise’s contracts
on land lease, power and water supply according to the provisions of
law. The assigned enterprise’s land use
right shall comply with the land legislation.
4. To be given conditions for organizing the
re-training financed by the Funds for Support of Restructure and Equitization
of State Enterprises so as to create jobs for the laborers.
5. The enterprise shall have to employ all the
existing labor, ensuring jobs for at least 3 years for the laborers, except for
those who voluntarily terminate their labor contracts. After that period, if
due to the reorganization of the enterprise’s
business activities or to the technological renewal, the laborers lose
their jobs, such laborers shall be entitled to the policies currently
prescribed by the Government.
6. To fulfill the commitments in the enterprise
assignment and acceptance contract as well as the obligations towards the State
as prescribed by law.
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SALE OF STATE ENTERPRISES
Article 15.- Announcing
the decisions approving the sale and the registration for the purchase of
enterprises
Basing him/herself on the competent level’s decision approving the sale of an
enterprise, the director of the enterprise shall announce this to the entire
laborers in the enterprise and on the mass media; organize the registration of
the enterprise purchasers within 30 days.
Article 16.- Organizing
the sale of enterprise by mode of bidding
1. Where there are two or more registrants for
the purchase of the enterprise, the sale of enterprise must be conducted by
mode of bidding.
2. The person deciding the sale of enterprise
shall set up the Bidding Council. The Bidding Council shall notify the purchase
registrants of the submission of the application for participation in the
bidding, the minimum price level, the deposit level, the time-limit for dossier
submission, and publicly announce on the mass media and post up at the
enterprise’s office the bidding for sale
of the enterprise.
3. The purchasers shall submit applications for
the bidding for the purchase of the enterprise according to the form set by the
Bidding Council and pay the deposit.
The Bidding Council shall receive the
applications and deposit money, make the list of bidders and issue certificates
to them.
4. The bidders may go to the enterprise to study
the accounting books, the assets inventory and survey the real situation of the
enterprise.
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Such a bid shall include:
a) The application for the purchase of the
enterprise (according to set form);
b) The plan on the employment of the laborers
working at the enterprise;
c) The projected type of new enterprise;
d) The price over for the purchase of the
enterprise.
The bids shall be pay into sealed envelops
6. Five days after the dossier-receiving deadline,
the Bidding Council shall send notice on the time and location of the bidding
to each bidder. The Bidding Council shall publicly post up the list of bidders
at the place of bidding for 2 days before the bids are opened.
7. The bids opening shall be conducted for not
more than 01 day as follows:
a) The Bidding Council shall check the seals,
publicly open the envelop of each bidder and announce the labor-using plan and
the price offer of each bidder for recording them in the minutes; announce the
plan on the employment of laborers with the largest number and the highest
price offer of each bidder.
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8. Bid evaluation:
a) The Bidding Council shall discuss the labor-using
plans and price offers in order to select by voting the bid winner;
b) The Bidding Council shall make a report on
the bid evaluation and send it to the Board for Renewal of Enterprise
Management and the person who has decided the sale of enterprise.
Article 17.- Organizing
the enterprise sale by direct mode
1. The enterprise sale by the direct mode shall
apply when there is only one purchase registrant.
2. The purchase registrant shall submit his/her
dossiers to the enterprise director or the Board for Renewal of Enterprise
Management; the dossier
contents shall comply with the provisions on the
cases of enterprise sale by mode of bidding.
3. The enterprise purchase registrant may go to
the enterprise to study the accounting books, the assets inventory and survey
the real situation of the enterprise.
4. The enterprise director shall report to the
Board for Renewal of Enterprise Management so as to discuss directly with the
purchaser’s representative about
the labor-using plan, the price offer and reach agreements on details in the
sale/purchase contract.
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Article 18.-
Responsibilities of the to be-sold enterprise
1. To inventory and determine the quantity of
assets available at the enterprise, including fixed assets and long-term
investment, moveable assets and short- term investment, rented assets, leased
assets, assets kept in custody for other, assets entrusted for sale; to
evaluate the real status of such assets and to collect the recoverable debts.
2. To classify the assets available at the
enterprise into the following types:
a) Assets that may be further used;
b) Assets that cannot be used any more;
c) Assets created from the reward fund, the
welfare fund.
3. To collate and classify debts; make the list
of creditors and the payable debt amounts and the list of debtors and the debt
amounts to be recovered, with the separation of debts that can be recovered
from the debts that cannot be recovered.
4. Make the financial statement up to the time
of the enterprise sale.
5. To make the list and classification of the
laborers working in the enterprise by the time of deciding the sale of
enterprise :
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b) The number of laborers who are enjoying the
social insurance policy on illness, maternity, labor accidents and occupational
diseases;
c) The number of laborers subject to the
temporary postponement of the labor contract performance;
d) The number of laborers terminating labor
contracts.
e) The number of laborers being still under the
labor contracts.
6. To hand over the assets, books and relevant dossiers
to the enterprise purchaser under the agreement inscribed in the sale/purchase
contract.
Article 19.- The
principle for dealing with the assets and finance of the enterprise before its
sale
1. Assets not calculated into the enterprise’s value shall be dealt with as follows:
a) Assets which can not be used any longer shall
be settled by the level that has decided the sale of enterprise by may of:
transfer, cession, liquidation or putting into the purchaser’s custody for not more than 90 days;
b) Assets which are rented, borrowed or kept for
others. The enterprise shall have to return them to their owners and liquidate
the contracts, or they shall be further rented or kept in custody upon the
agreement reached between the enterprise purchaser and the assets owners; the
appropriated assets shall be decided by the level that has decided the sale of
enterprise;
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d) Expenses for the unfinished construction of
projects which had been suspended before the time of determining the enterprise’s value shall be settled jointly by the
purchaser and the seller in conformity with the interests of each party;
e) Bad debts to be recovered: The level that has
decided the sale of enterprise shall freeze the debts, determine the liability
therefor and settle them according to the current regimes.
2. The reserves for: the reduction of prices of
goods in stock, bad debts, the securities price fall, the exchange rate
difference and the undivided profit amounts must be dealt with before
determining the sale price of the enterprise.
3. The credit balances in cash of the reward
fund and the welfare fund shall be divided for the laborers working at the
enterprise before it is sold.
Article 20.- The
principles for dealing with the enterprise’s
debts
1. The debts to be recovered and to be paid
shall be settled by the enterprise. Where the purchaser commits to inherit the
recoverable and payable debts, such must be inscribed in the enterprise
sale/purchase contract and notify it to the concerned parties.
2. Where the proceeds from the sale of the
enterprise is not enough for the payment of the enterprise’s debts, it shall be settled as follows:
a) Writing off all tax debts and State budget
debts;
b) The debts owed to the social insurance,
banks, enterprises and individuals shall be dealt with according to the
specific guidance of the Ministry of Finance.
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1. The enterprise purchaser shall have to take
in the laborers according to the labor-using plan committed when buying the
enterprise. For the laborers who have voluntarily terminated their labor
contracts, the current regimes shall apply.
2. Entitlements regime for laborers shall be as
follows:
a) For the laborers eligible for the social
insurance regime, the enterprise director and the social insurance agency where
the enterprise pays its social insurance premium shall settle the benefits for
the laborers according to the current regimes;
b) For cases of labor contract termination, the
laborers shall be paid the severance allowances according to the provisions of
Article 42 of the Labor Code and the Government’s
Decree No.198/CP of December 31, 1994 regarding the time the laborers
had previously worked in the State sector but not yet received the severance
allowances;
c) For the laborers who continue working at the
new enterprise, the enterprise director shall have to proceed with the
procedures so that the social insurance agency may issue the insurance books as
prescribed and transfer the list and files of the laborers being still under
the enterprise’s management to the new
enterprise.
3. The enterprise director shall have to pay all
social insurance debts (including the amounts to be paid by the laborers) to
the social insurance agency where the enterprise pays the social insurance
premium as prescribed by law.
Where the proceeds from the sale of the
enterprise is not enough for payment of the social insurance debts and the
severance allowances to laborers, the deficit amount shall be deducted from the
Funds for Support of Restructure and Equitization of State Enterprises for the
payment thereof.
4. The director, deputy-directors and chief
accountant of the enterprise shall be considered by the level that has decided
the sale of enterprise on the case-by-case basis for new postings or for
settlement according to the job severance regime.
Managers who have lacked responsibility, thus
leading to business losses and the loss of State capital must not hold
managerial positions in other State enterprises or State bodies.
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a) The new enterprise shall pay the job
severance or loss allowances for the period he/she has worked at the new
enterprise;
b) For the duration the laborer had previously
worked for the State sector but not yet received the allowances for job
severance or loss, he/she shall be entitled to enjoy such allowance according
to the provisions of law. The source for payment of job severance or loss
allowances shall be deducted from the Funds in Support of Restructure and
Equitization of State Enterprises or from the State budget.
Article 22.- Principles
for determining the sale price of enterprise
1. The sale price of enterprise shall be
determined on the basis of:
a) The actual value of the enterprise, accepted
by both the purchaser and the seller;
b) The level of price discount for the purchaser
when the purchaser commits to make investment so as to maintain the production
and business, to provide jobs for the laborers and other conditions a greed
upon by the seller.
2. Bases for determining the sale price of the
enterprise.
a) For cases of the enterprise purchase with its
rights and obligations being inherited:
- The data in the accounting books of the
enterprise at the time of sale;
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b) In cases where the enterprise purchaser does
not inherit its rights and obligations, the enterprise sale price shall be the
actual sale price of all its existing assets, determined on the basis of their
current quality state, technical properties, the use requirements of the
purchaser and the market price at the time of sale.
3. When determining the actual value of the
enterprise, the hiring of audit is not required. For enterprises which have
failed to comply with the Ordinance on Accountancy and Statistics, the agency
which decide the enterprise sale price shall consider the hiring of the
independent auditing organizations to determine the value thereof. The money
paid for such audit hiring shall be accounted into the enterprise sale cost.
Article 23.- Approving
the sale plans, sale prices, signing the contracts and issuing decisions on
sale of State enterprises
Basing themselves on the proposals of the Boards
for Renewal of Enterprise Management, the ministers, presidents of the
provincial/municipal People’s Committees,
Managing Boards of Corporations 91 shall have to do the following:
1. Approving the enterprise sale plans and
issuing decisions on the sale of enterprises. Such a decision shall include the
following contents:
a) Name and address of the to be-sold
enterprise;
b) Name and address of the purchaser;
c) The sale price, mode of selling; the payment
mode and time-limit;
d) The time-limit for conclusion of the contract
and the sale and hand-over of the enterprise;
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2. Organizing the signing of contract with the
enterprise purchaser. The contract on the purchase of enterprise shall include
the following major or contents.
a) Name and address of the to be-sold
enterprise, its account number;
b) Name and address of the enterprise purchaser,
his/her/its account number (if any);
c) The enterprise sale price;
d) Commitments made buy the purchaser and the
seller of the enterprise;
e) Mode of assets transfer, mode of payment for
the purchase of enterprise, the time-limit for hand-over of the enterprise;
f) Dealing with arising problems and contractual
disputes.
Enclosed with the contract shall be the assets
inventory and the evaluation of the as sets status agreed upon by the purchaser
and the seller.
Article 24.- Announcing
the sale decisions and the termination of operations of State enterprises
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1. Announcing the termination of the State
enterprise’s operations on the mass media
according to the provisions of law.
2. Sending the enterprise sale decision to:
a) The Central Board for Renewal of Enterprise
Management;
b) The enterprise’s
finance body;
c) The tax authority;
d) The business registry;
e) The Statistics Department of the locality
where the enterprise is headquartered.
3. Paying deposits to bidders (if any).
Article 25.- Hand-over
of enterprise
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If the quantity and real status of the enterprise’s handed-over assets are not in line
with the assets quantity and real status inscribed in the purchase/sale contract,
the purchaser may request the readjustment of the signed contract.
Article 26.- Payment of
money for the purchase of enterprise
The enterprise purchaser shall pay within the
time limit prescribed in the purchase/sale contract, which, however, must not exceed
3 years after the issuance of the decision on the sale of enterprise.
Article 27. -
After-sale business registration for the enterprise
The enterprise purchaser shall have to make the
business registration at the business registry of the locality where the
enterprise is headquartered (if the purchaser has not yet got the business
license) in one of the forms prescribed by the Law on Enterprises or make the
additional registration (if the enterprise purchaser has got the business
license).
Article 28.- Rights and
obligations of the enterprise purchasers
1. They may take initiative in using the
purchased assets, selecting the business lines, reorganizing the production,
making new investment, replacing the managerial apparatus, deciding the type of
enterprise and continuing the land rent according to the provisions of law.
2. In case of continuing to maintain investment
in development of the enterprise’s
production and business, the purchaser may inherit the enterprise’s interests according to agreement in the
enterprise purchase and sale contract as well as the signed economic
contracts.
3. They are obliged to make the payment for the
enterprise purchase according to the time-limits and conditions inscribed in
the enterprise purchase and sale contract; to comply with all conditions and
commitments made to the enterprise seller; inherit the enterprise’s obligations according to the contract
and the provisions of law.
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The person deciding the sale of enterprise shall
have to organize the supervision and inspection of the fulfillment of
commitments in the enterprise purchase and sale contract; deal with or propose
the competent State bodies to deal with the violations of contractual
commitments by the purchaser according to the provisions of law.
Chapter IV
BUSINESS CONTRACTING AND
LEASING STATE ENTERPRISES
Section I. BUSINESS
CONTRACTING
Article 30. - Business
contracting contents, norms and conditions
Based on the characteristics of each branch and
the business results of the enterprise, the person deciding the business
contracting shall prescribed the contents, norms and conditions therefor but
have to take into consideration the following requirements:
1. Preserving the State capital;
2. Creating jobs and paying insurance premium
for the laborers;
3. Increasing profits or reducing loss for the
enterprise;
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Article 31.- Discussing
and agreeing on business contracting contents, norms and conditions
The business contracting contents and conditions
as well as the specific rights and responsibilities of the parties to the
contract and the contents of the contract must be discussed and agreed upon
between the business contracting party and the contractor.
Article 32.- Business
contract
The contract for business contracting shall
include the following major contents:
1. Names and address of the State enterprise of
the business contracting party and contractor;
2. The business contracting contents, mode,
norms, conditions and term;
3.The rights and responsibilities of the parties
in the course of implementing the contract; the contracting term shall be
agreed upon by the two parties to the contract but shall not be less than 5
years;
4. The handling of violations, commendations and
rewards, penalties in the process of contract performance;
5. Other contents relating to the business
contracting.
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1. To manage and use the capital and assets and
receive the labor of the enterprise in accordance with the provisions of the
business contract but not in contravention of the provisions of law; to inherit
the rights and obligations of the enterprise.
2. To decide the organization of business, mode
of payment of wages and bonuses in the enterprise.
3. To enjoy and decide the distribution of the
income earned through the overfulfillment of contracting norms, after being
subtracted for payment of the enterprise income tax and for the establishment
of the reserve fund, shall be used by the business contractor at his/her own
will.
4. To be subject to income reduction if failing
to meet the norms and requirements inscribed in the contract.
Article 34.- The rights
and responsibilities of the business contracting decider
1. To inspect and supervise the fulfillment of
commitments in business contract, and handle violations of the commitments
inscribed therein.
2. Not to intervene in the management activities
of the business contractor; create favorable conditions for the business
contractor to fulfill the commitments stated in the business contract.
Section II. LEASING OF STATE
ENTERPRISES
Article 35.- Forms of
enterprise lease
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1. Leasing the enterprise’s
assets: The lessee rents the entire assets which have constituted the
production/business establishment of the enterprise together with the hiring of
its labor, but shall not inherit the rights and obligations of the leased
enterprise;
2. Leasing the operating enterprise: The lessee
rents the assets which have constituted the production/business establishment
of the enterprise together with the hiring of the enterprise�s
labor and at the same time inherit the amounts of borrowings and debts,
economic contracts, as well as other rights and obligations of the enterprise
as agreed upon by involved parties.
Article 36.- Organizing
the enterprise lease by mode of bidding
1. Where there are two or more persons
registering their lease, the bidding must be organized.
2. The person deciding the lease of enterprise
shall set up the Bidding Council. The Bidding Council shall announce to the
lease registrants the time-limit for submitting their bids, the minimum price,
the deposit level; announce the lease of enterprise on the mass media and post
it up at the enterprise’s head-office.
3. The lease registrants shall submit their bids
for enterprise lease and the deposit money to the Bidding Council;
The Bidding Council shall receive the dossiers
and the deposit money, make the list of bidders and issue to them the written
certification forbid participation.
4. Bidders may go to the enterprise to study the
accounting books, the asset inventory and survey the real situation of the
enterprise.
5. Thirty days after the announcement on the
bidding, the enterprise lease registrants shall have to send their bids to the
Bidding Council.
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a) The application for the lease, clearly stating
the full name, address, the identity card number, the account number (if any)
and the business registration certificate of the lessee;
b) The leasing form and term;
c) The plan on employment of the laborers
working at the enterprise;
d) The price offer for the lease of the
enterprise;
e) The report on the financial capability of the
lessee.
Bids shall be put in sealed envelops.
6. Within 5 days after the bid-receiving
deadline, the Bidding Council shall send a notice on the bidding time and
location to each bidder and publicly post up the list of bidders at the place
of bidding for two days before the bids opening.
7. The bids opening shall be conducted for not
more than 1 day and as follows:
a) The Bidding Council shall check the seals,
publicly open bids of every bidder and announce the labor-using plan and the
price offer of each bidder for recording them in the minutes; announce the
largest labor-using plan and the highest price offer of each bidder;
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8. Bids consideration:
a) The Bidding Council shall discuss the
labor-using plans together with the price offers so its to select the bid
winner by voting.
b) The Bidding Council shall make the report on
the bids consideration and send it to the Board for Renewal of Enterprise
Management as well as the person having decided the lease of enterprise.
Article 37.- Organizing
the enterprise lease by direct mode
1. The enterprise lease by direct mode shall
apply when there is only one registrant for the lease.
2. The lease registrant may go to the enterprise
to study the accounting books, the assets inventory and survey the real
situation of the enterprise.
3. The lease registrant shall submit the
dossiers of application for the lease to the Board for Renewal of Enterprise
Management. The contents of such a dossier shall comply with the provisions on
the enterprise by mode of bidding.
4. The Board for Renewal of Enterprise
Management and the enterprise director shall be tasked to:
a) Draw up the plan for enterprise lease;
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c) To discuss directly with the lessee about the
labor-using plan, the leasing price, the leasing term and conditions of the
enterprise-leasing contract;
d) To reach agreement with the lessee on the
leasing price and the enterprise-leasing contract;
e) To submit dossiers, minutes and draft
contract to the lease decider.
Article 38.-
Responsibilities of the leased enterprise
1. To conduct the assets inventory, classify the
entire assets available in the enterprise: the rented assets, the leased
assets, the borrowed assets, the assets kept for others, the appropriated
assets; evaluate the real status of such assets
2. To make the list of creditors and the payable
debt amounts, the list of debtors and the amounts of debts to be recovered with
the separation of debts which can be recovered from the debts which cannot be
recovered; the enterprise shall have to settle the recoverable and payable
debts before deciding the lease of enterprise.
3. To make the financial statement up to the
time of deciding the lease of enterprise.
4. To make the list of laborers of the
enterprise and files related to the laborers.
5. To hand over the assets, labor, files and
relevant books to the lessee according to the agreement inscribed in the
enterprise-leasing contract.
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7. To fulfill obligations towards the State as
well as policies and regimes towards the laborers according to the provisions
of law and the enterprise-leasing contract.
8. To be entitled to request the lease decider
to terminate the leasing contract ahead of time (if the lessee violates the
contract).
Article 39. -
Principles for dealing with the assets and finance of the enterprise when it is
leased
The assets and finance of the to be-leased enterprise
shall be handled as follows:
1. The assets currently available at the
enterprise shall be inventoried to determine their quantity and real status,
which include: the fixed assets and long-term investment; the mobile assets and
short-term investment; the rented assets, borrowed assets, leased assets,
assets kept or sold for others, entrusted for sale or appropriated;
The assets which are rented, borrowed, kept for
others, processed on order, entrusted for sale or appropriated shall be
classified and inventoried separately.
2. The assets being available at the enterprise
shall be classified and dealt with as follows:
a) The leased assets shall be classified and
valued in terms of their real status, quality, technical properties and shall
have their actual value determined;
The actual value of leased assets is determined
on the basis of the enterprise's accounting books at the time of lease, the use
demand of the lessee and the market price at the time of lease;
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b) Assets not on the list of leased assets must
be handled before the lease in the forms of: internal transfer, liquidation,
cession or entrusted maintenance pending the handling;
c) The mobile assets shall be agreed upon by the
lessor and the lessee;
d) Assets formulated from the reward fund and/or
the welfare fund shall be transferred to the labor collective under the
management of the enterprise’s Trade Union
or shall be agreed upon by the lessor and the lessee.
3. The enterprise shall collate and determine
debts of various types, making the list of creditors and the payable debt
amounts and the list of debtors and the recoverable debt amounts with
classification of the debts that can be recovered and the bad debts that cannot
be recovered.
If the lessee does not inherit the recoverable
and payable debts, the remaining managerial staff of the enterprise shall be
assigned by the enterprise lease decider to monitor the lease contract and have
to continue to recover the recoverable debts and pay the payable debts amounts.
4. In case of leasing the operating enterprise :
The lessor and the lessee shall discuss with concerned parties to reach
agreement on the inheritance of the rights and obligations of the legal person
of the leased enterprise.
Article 40.- Settlement
labor upon the lease of enterprise
1. The to be-leased enterprise shall have to
make the list of laborers available at the time of deciding the lease, classify
them and make files on the laborers;
a) The number of laborers eligible for the
social insurance policy;
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c) The number of laborers subject to temporary
postponement of the labor contract performance.
d) The number of laborers having terminated
their labor contracts;
e) The number of laborers with the labor
contracts being still valid, who shall be transferred to work at the leased
enterprise;
2. If the enterprise lease is accompanied with
the labor hiring, the enterprise lessee shall have to take in and arrange work
for the laborers and ensure their interests in accordance with the lease
contract and not in contravention of the provisions of the labor legislation.
The enterprise director shall have to carry out
procedures so that the social insurance agency shall grant insurance books as
prescribed, and shall transfer the list and records of the laboreres being
under the enterprise’s management to the
new enterprise.
3. For laborers eligible for the social
insurance regimes, the enterprise director and the social insurance agency
where the enterprise pays the insurance premium settle the interests for the
laborers according to the social insurance statute.
4. For cases of job severance:
a) The enterprise director shall proceed with
the procedures so that the social insurance agency where the enterprise pays
the insurance premium shall settle the social insurance interests and grant the
social insurance books according to the social insurance statute;
b) The enterprise director shall settle the job
severance allowances according to the provisions in Article 42 of the Labor
Code and the current regulations of the Government.
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Article 41.- The
principles for determining the enterprise-leasing price
1. The enterprise-leasing price shall be
determined on the basis of: the leasing form, the minimum leasing price set by
the lease decider, the actual value of the enterprise, the direct agreement on
leasing price between the lessor and the lessee (in case of direct leasing) or
the bid winning price (in case of bidding) which, however, must not be lower
than the minimum leasing price set by the lease decider.
2. The minimum leasing price shall be determined
on the following principles.
a) Ensuring to offset the expenses for tear and
wear of the leased fixed assets;
b) Covering the reasonable expenses of the
lessor in the coarse of organization, management and supervision of the leased
assets;
c) Accounting profits in the enterprise-leasing
price, depending on the assets status and business efficiency of the enterprise
before it is leased:
- For enterprises conducting business with
profits: The enterprise-leasing price shall not be lower than the minimum
profit level set by the lessor.
- For enterprises suffering from losses or
having not yet earned profits: When being leased, profits shall be accounted
into the minimum leasing price.
Article 42.- Decisions
to lease State enterprises
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Such a decision shall include the following
major contents:
a) Names, addresses and the account numbers of
the leased State enterprise and the lessee;
b) The leasing contents, form and term;
c) The leasing price and mode of payment;
d) The tasks of the Board for Renewal of
Enterprise Management and the enterprise-leasing organization�s
person authorized to sign the lease contract;
c) Responsibilities of the leased enterprise and
concerned bodies in dealing with the labor as well as other existing and
arising problems.
Article 43.-
Enterprise-leasing contracts
An enterprise-leasing contract signed by the
lessee and the person authorized by the lease decider shall include the
following major contents:
1. Names, addresses and account numbers of the
leased enterprise and the lessee;
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3. The leasing term shall be agreed upon by the
contractual parties but shall not be less than 3 years;
4. The rights and responsibilities of the
enterprise lessor and lessee;
5. The handling of the labor, assets, finance as
well as rights and obligations of the enterprise, which are inherited in cases
where the operating enterprise is leased;
6. Return of or dealing with the enterprise upon
the expiry of the contract;
7. Commitments of the contractual parties;
8. The principles for handling arising matters
and contractual disputes.
Enclosed with the lease contract shall be the inventory
of assets under the enterprise’s
management, determining the remaining value of such assets, and the list
of laborers (if leasing the operating enterprise).
Article 44.- Announcing
decisions on lease of State enterprises
Within 15 days after the signing of a decision
on the lease of an enterprise, the Board for Renewal of Enterprise Management
shall do the following:
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2. Sending the decision on the lease of the
enterprise to the following agencies;
a) The Central Board for Renewal of Enterprise
Management;
b) The enterprise’s
finance body;
c) The tax office;
d) The business registry;
e) The Statistics Department of the locality
where the enterprise is headquartered.
3. Payment of deposit money to bidders (if any).
Article 45.- Hand-over
of enterprise
The lessor shall have to hand over the assets,
books and vouchers, labor and relevant dossiers to the lessee within the
time-limit agreed upon in the enterprise leasing contract.
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Upon the hand-over, if the quantity and value of
the enterprise’s assets are not
compatible with the asset quantity and value inscribed in the contract, the
lessee may postpone the hand-over and request the adjustment of the signed
contract.
Article 46.- Rights and
obligations of the enterprise lessee
Apart from the rights and obligations of the
asset lessee prescribed in Section 5, Chapter II, Part III of the Civil Code,
the enterprise lessee still have the following rights and obligations:
1. The rights of the enterprise lessee:
a) To take initiative in managing and using the
hired assets and labor of the enterprise in service of business activities not
contrary to the agreements in the contract and the provisions of law;
b) To be entitled to change or reorganize the
production, make new investment as well as technological and technical renewal,
to renovate, maintain, replace or repair assets damaged in the course of
production and business operation. If the assets are subleased, the consent of
the person who decides the enterprise lease is required;
c) To decide on its own the organization of the
management and business apparatus, mode of payment of wages and bonuses in the
enterprise;
d) To be entitled to enjoy profits brought about
by the rent of enterprise after fulfilling the obligations towards the State
and the lessor;
e) To inherit all the leased enterprise’s contracts on land and/or water surface
rent, as well as on water and power supply (if having the demand therefor).
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a) To pay rent as agreed upon in the contract;
b) To use the assets for the right purposes
agreed upon in the leasing contract; not to use the leased assets (except for
those newly invested with own capital) for pledge or mortgage; not to sublease
the land use right;
c) To preserve the value of the leased enterprise’s assets upon the liquidation of contract;
d) To settle together with the lessor arising
matters related to the rights and obligations under the contracts for land
lease, power, water or raw material supply, the sale of products, labor
contracts; to improve the working conditions for the laborers and the
environmental hygiene;
e) Be subject to the lessor's inspection and
supervision of the use of leased assets;
f) To fulfill other obligations prescribed in
the enterprise-leasing contract.
3. In addition to the common rights and obligations
prescribed in Clauses 1 and 2 of this Article, the lessee shall also have the
following rights and
obligations:
a) Where the enterprise is leased by another
State enterprise, besides the contractual rights and obligations as stipulated
in Clauses 1 and 2 of this Article and other provisions of law, the lessee
State enterprise, after paying taxes of various kinds, shall have full power to
use the profits earned from the operation of the enterprise it has rented:
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c) Where the labor collective or individual
laborer(s) in an enterprise rents the enterprise, it/he/she must have
its/his/her own source of capital register the establishment of an enterprise
of the labor collective or individual(s), and shall have the right to use the
leased State enterprise according to the mechanism prescribed for the
registered type of enterprise.
4. If the enterprise lessee violates the
contractual commitments, causing damage to the leased enterprise, apart from
the liabilities agreed upon in the contract, the lease decider may terminate
the contract and compel the lessee to compensate for the damage he/she/it has
caused.
Article 47.- Rights and
responsibilities of the persons who decide the lease of enterprises and the
persons who sign the enterprise-leasing contracts
1. The person deciding the enterprise lease may
direct the performance of the enterprise-leasing contract; settle proposals of
the Board for Renewal of Enterprise Management and the contract signatories;
decide the enterprise-leasing price; decide the recovery of the leased
enterprise at the proposal of the signatory to the enterprise-leasing contract.
2. The persons who sign the enterprise-leasing
contracts shall have the rights and responsibilities:
a) To organize the implementation of the
contents and commitments in the enterprise-leasing contract;
b) To monitor, supervise and inspect the
performance of the contract; not to intervene in the production and business
activities of the enterprise; to create favorable conditions for the lessee to
fulfill his/her/its commitments in the enterprise-leasing contract;
c) To handle according to competence arising
problems; to propose the handling according to the provisions of law of the
lessee who fails to fulfill his/her/its contractual commitments.
Article 48.-
Termination of the enterprise-leasing contract
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2. Where the lease contract is still valid or
upon the expiry of the lease contract and the lessee has the demand to purchase
the enterprise, the two sides shall liquidate the lease contract and proceed
with the procedures for the purchase by the direct mode prescribed in this
Decree.
Chapter V
PREFERENCES FOR
ENTERPRISES, ASSIGNEES, PURCHASERS AND LESSEES OF ENTERPRISES AND THE LABORERS
Article 49.-
Preferences for the assigned, sold or leased enterprises
1. Enterprises assigned to labor collectives and
enterprises sold to collectives, individuals or legal persons shall be entitled
to:
a) Enjoy preferences like newly set up
enterprises and according to the provisions of the Domestic Investment
Promotion Law (amended). In case of lack of conditions for enjoying preferences
under the Domestic Investment Promotion Law, to enjoy a 50% reduction of the
enterprise income tax for the first two years of operation;
b) Be exempt from fees for registration of
business as well as of assets under the State enterprises’ right to own and to use such assets which are
now under the ownership of new enterprises;
c) Continue to maintain the contracts for rent
of houses, workshops and/or land of old enterprises in accordance with the
provisions of the Land Law as well as other current law provisions;
d) Continue to borrow capital of the commercial
banks, financial companies and other credit institutions of the State at the
interest rates applicable to the State enterprises;
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f) Before being assigned, sold or leased, the
enterprises may take initiative in using the credit balances of the reward fund
and the welfare fund (in cash) to distribute to the laborers working at the
enterprises (without having to pay income tax);
g) Maintain and develop the welfare fund in
forms of kind, cultural works, clubs, clinics, sanatorium in order to ensure
welfare for the laborers who continue to work at the assigned or sold
enterprises. These assets belong to the ownership of the labor collective and
are managed by the Trade Union organizations at the enterprises.
2. The leased enterprises are entitled to enjoy
the preferences prescribed at Points c, d, e, f and g of Clause 1, this
Article.
Article 50. -
Preferences for purchasers being the labor collectives in enterprises
Labor collectives which satisfy the conditions
prescribed in Clause 13, Article 3 of this Decree, when purchasing enterprises,
shall be represented by the Trade Union presidents or the persons elected by
the congress of the entire workers and employees in the enterprises in carrying
out procedures for the purchase of enterprises, and shall be entitled to enjoy
the following preferences:
1. For the labor collectives which purchase the
enterprises to maintain production and business, ensure jobs for themselves and
commit to accept all the laborers available at the enterprises (except for
those who voluntarily terminate their labor contracts) while the to be
purchased enterprises have suffered from loss to the extent of losing their
capability to pay all debts and the proceeds from the sale of enterprises are
expected not to be enough for payment of debts:
a) If such labor collectives ensure that from
50% to 100% of the enterprises’
existing laborers shall move to work at the new enterprises and commit to
provide jobs for these laborers for 1 consecutive year or more, they shall be
entitled to the 70% reduction of the sale prices;
b) If such labor collectives only ensure that
less than 50% of the enterprises’ existing
laborers shall move to work at the new enterprises and commit to provide
them with jobs for 1 consecutive year or more, they shall be entitled to the
50% reduction of the sale prices.
2. For labor collectives which purchase
enterprises to maintain production and business, ensure jobs for themselves and
commit to accept all the laborers available at the enterprises (except for
those who voluntarily terminate their labor contracts), and the to be purchased
enterprises are earning profits of not suffering from losses and the proceeds
from the sale of enterprises may be enough for payment of debts:
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b) If the labor collectives only ensure that
less than 50% of the existing laborers of the enterprises shall move to work at
the new enterprises and commit to provide jobs for them for 1 consecutive year
or more, they shall be entitled to the 40% reduction of the sale prices.
3. Purchasers being individuals or a group of
laborers in an enterprise, which are not recognized as representatives of the
labor collective in the enterprise, shall not be entitled to enjoy preferences
like the labor collective which purchases the enterprise.
4. Each laborer in the enterprise-purchasing
collective is entitled to own a part of the enterprise’s
value, corresponding to his/her contributed capital amount, has the
rights and obligations of the capital contributors but must not assign his/her
shares to persons outside the enterprise within 1 year after the purchase of
the enterprise.
Article 51.-
Preferences for purchasers not being labor collectives
1. If employing all the laborers of the
enterprises (except for those who voluntarily terminate their labor contracts)
and providing jobs for them for 1 consecutive year or more, they shall be
entitled to the 50% reduction of the sale prices.
2. If employing from 50% to under 100% of the
enterprises’ laborers to work at
the new enterprises and providing jobs for them for 1 consecutive year or more,
they shall be entitled to the 30% reduction of the sale prices.
3. If only employing from 20% to under 50% of
the enterprises’ laborers to work
at the new enterprises and provide jobs for them for 1 consecutive year or
more, they shall be entitled to the 20% reduction of the sale prices.
Article 52. -
Preferences for purchasers who make the immediate payment
If the enterprise purchasers make the immediate
payment in lump sum after the purchase, they shall be entitled to enjoy a
maximum of 20% reduction of the sale prices; if the payment is made in many
installments within a year after the purchase of the enterprises, they shall be
entitled to the maximum of 10% reduction of the sale prices.
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The laborers who are not employed by the
purchasers or automatically terminate their contracts:
1. Before the sale of enterprises, they shall be
distributed with the credit balances of the reward fund and the welfare find
(in cash) by the enterprises;
2. They are entitled to enjoy other regimes
prescribed by the labor legislation.
Chapter VI
ORGANIZING THE
ASSIGNMENT, SALE, BUSINESS CONTRACTING AND LEASE OF STATE ENTERPRISES
Article 54.- Competence
to select and decide the application of assignment, sale, business contracting
or lease of enterprises
Based on the overall plan for restructure of the
State enterprises, already approved by the competent level:
1. Ministers of the branch-managing ministries
and presidents of the provincial People’s
Committees shall decide the assignment, sale, business contracting or lease of
the enterprises under their respective management, including member enterprises
of Corporations 90.
2. The Managing Boards of Corporations 91 shall
decide the assignment, sale, business contracting or lease of their member
enterprises.
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1. The Enterprise Management Renewal Boards of
the ministries, provinces, centrally-run cities and Corporations 91 shall be
the bodies assisting the ministers, the provincial People’s Committee presidents, or chairmen of the
Managing Boards of Corporations 91 to organize the assignment, sale, business
contracting and lease of State enterprises.
Depending on the characteristics of the production
and business lines, the form of assignment, sale, business contracting or lease
of enterprises and on the financial situation of the enterprises, the
Enterprise Management Renewal Boards may invite representatives of banks,
enterprises, laborers in the enterprises and of other relevant agencies to
join.
2. The ministries, provincial People’s Committees and Corporations 91 shall have to
decide the establishment of the Renewal Boards at the enterprises to be
assigned, sold, business contracted or leased, which shall make preparation,
draft plans, inventory assets, capital and debts, make lists of laborers of the
enterprises and proceed with other necessary procedures under the guidance of
the superior Enterprise Management Renewal Boards.
Article 56.- Tasks of
the Enterprise Management Renewal Boards of the ministries, provinces,
centrally-run cities and Corporations 91 in organizing the assignment, sale,
business contracting and lease of enterprises.
1. In case of enterprise assignment:
a) To draw up the enterprise assignment plan;
announce to the entire laborers in the enterprise and on mass media the
assignment of enterprise;
b) To appraise the enterprise’s value; determine the current state of assets
as well as their quality, technical properties and the market prices;
c) To compare debts; make the list of creditors
and debtors and the amounts of recoverable debts and payable debts; to draw up
plans for dealing with existing problems regarding the enterprise’s finance and labor;
d) To make the contract for assignment of
enterprise and report it to the minister, the provincial People’s Committee president or the Managing Board of
the Corporation 91 for decision;
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f) To handle according to competence matters
arising from the assignment of enterprise.
2. In case of enterprise sale:
a) To draw up the plan for sale of enterprise;
announce to the entire laborers in the enterprise and on the mass media the
sale of enterprise;
b) To appraise the enterprise’s value, determine the projected price for the
sale of enterprise, based on the value on books, the current state of
assets, their quality and technical properties at the market price;
c) To compare debts; make the lists of creditors
and debtors as well as the amounts of recoverable debts and payable debts; draw
up plans for dealing with existing problems regarding the enterprise's finance
and labor;
d) To organize the direct sale or sale through
bidding of the State enterprise; analyze and evaluate bids, propose the sale
price (in case of direct sale) or select the bid winner (in case of bidding)
for the enterprise seller to decide;
e) To make the contract for the sale of
enterprise and report it to the minister, the provincial People’s Committee president or the Managing Board of
the Corporation 91 for decision;
f) To guide, inspect and supervise the Renewal
Board at the enterprise in recovery of the enterprise’s
assets, return of the assets the enterprise has rented, borrowed, kept
in custody for others; recovery and payment of the enterprise’s debts; hand over the assets, books and
relevant dossiers to the enterprise purchaser as agreed upon in the
enterprise-selling contract;
g) To handle according to competence matters
arising from the sale of enterprise.
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a) To draw up the plan for enterprise leasing;
determine criteria and conditions for lease of enterprise; announce at the
enterprise and on mass media the lease of enterprise;
b) To guide the Renewal Board at the enterprise
in the inventory of the entire assets owned by the enterprise, determine the
financial real situation and assets of the enterprise, which shall be converted
into value before the lease;
c) To determine the minimum leasing price and
propose the enterprise leasing price;
d) To analyze and evaluate the lease plan;
discuss and negotiate directly with the lessee on the leasing contract or
organize bidding for the enterprise lease. To propose the direct lessee (in
case of direct lease) or the bid winner (in case of bidding) to the person who
has decided the leasing of enterprise for decision;
e) To make the contract for enterprise leasing
and report it to the minister, the provincial People's Committee president or
the Managing Board of the Corporation 91 for decision;
f) To handle according to competence matters
arising from the lease of enterprise.
4. In case of business contracting of
enterprise.
a) To determine the criteria and conditions for
business contracting; to organize the elaboration of plan for business
contracting of the enterprise;
b) To directly discuss with the business
contractor or organize a bidding to select the business contract performer;
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Article 57.-
Responsibilities of the Enterprise Management Renewal Boards of the ministries,
provinces, centrally-run cities and Corporations 91
The Enterprise Management Renewal Boards of the
ministries, provinces, centrally-run cities and Corporations 91 shall take
responsibility for the contents and results of their assigned work before the
persons who have decided the assignment, sale, business contracting and lease
of enterprises and before law.
Article 58.- Competence
to approve plans for assignment, sale, business contracting or lease of
enterprises
1. At the proposals of the Enterprise Management
Renewal Boards, the ministers, the provincial People’s
Committee presidents and the Managing Boards of Corporations 91 shall
decide the criteria and conditions for business contracting, the leasing
prices, the sellingprices and approve the plans for assignment, sale, business
contracting or lease of enterprises which possess on their accounting books the
State capital of under VND1 billion.
2. Enterprise which possess on their accounting
books the State capital of from 1 to under VND5 billion shall be considered on
the case be case basis by the Prime Minister upon the submission by the
ministers, the provincial People’s
Committee presidents or the Managing Boards of the Corporations 91.
Article 59.- Competence
to sign contracts for the assignment, sale, business contracting or lease of
enterprises
1. The contracts for assignment, sale, business
contracting or lease of the State enterprises under the management of the
ministries shall be signed by the ministers or the persons authorized by the
ministers.
2. The contract for assignment, sale, business
contracting or lease of the State enterprises under the local management shall
be signed by the provincial People’s
Committee presidents of the persons authorized thereby.
3. The general directors of the Corporations 91
shall sign contracts for assignment, sale, business contracting or lease of
their member enterprises.
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1. Organize the performance of contracts for
assignment, sale, business contracting or lease of enterprises;
2. Monitor, supervise and inspect the
performance of contracts and handle arising matters.
3. All problems arising in the course of
performing contracts for assignment, sale, business contracting or lease of
enterprises shall be jointly settled by the contracting parties; if disputes
still exist, they may request the provincial Economic Court to decide.
Article 61.- Announcing
and registering for the assignment, purchase, business contracting or renting
of enterprises
The Enterprise Management Renewal Boards of the
ministries, provinces, centrally-run cities and Corporations 91 shall announce
before the entireenterprises and on the mass media the application of the form
of assignment, sale, business contracting or lease of enterprises and make the
lists of registrants for the assignment, purchase, business contracting or
renting of enterprises within 30 days after the competent levels approve the
plans on the transformation of enterprises.
Past such time limit, if no one registers for
any of such forms, the Enterprise Management Renewal Boards shall request the
competent level to proceed with the procedures for the dissolution of
enterprises. Where an enterprise has fallen into the state of bankruptcy, the
enterprise director shall have to file an application requesting the provincial
Economic Courtto carry out procedures for the bankruptcy of the enterprise.
Chapter VII
IMPLEMENTATION PROVISIONS
Article 62.- Effect and
responsibilities for guiding the implementation of the Decree.
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Within 30 days after this Decree takes effect,
the ministries of Finance; Labor, War Invalids and Social Affairs; Planning and
Investment; the State Bank of Vietnam, the Government Pricing Committee, the
General Land Administration and concerned ministries shall have to guide the
implementation of this Decree.
Article 63.- Responsibilities for organizing the
implementation
The
ministers, the heads of the ministerial-level agencies, the heads of the
agencies attached to the Government, the presidents of the People’s Committees
of the provinces and centrally-run cities, and the Managing Boards of
Corporations 91 shall have to implement this Decree, periodically once every
three months report to the Prime Minister on theimplementation thereof and make
proposals for well implementing this Decree.
ON BEHALF OF
THE GOVERNMENT
PRIME MINISTER
Phan Van Khai