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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
189/2013/ND-CP
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Hanoi,
November 20, 2013
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DECREE
AMENDMENTS AND SUPPLEMENTS
TO SOME ARTICLES OF DECREE NO 59/2011/ND-CP DATED JULY 18, 2011 OF THE
GOVERNMENT ON TRANSFORMATION OF WHOLLY STATE-OWNED ENTERPRISES INTO JOINT-STOCK
COMPANIES
Pursuant to the Law on Organization of the Government dated December
25, 2001;
Pursuant to the Law on Enterprises dated November 29, 2005;
Pursuant to the Securities Law dated June 29, 2006;
At the proposal of the Minister of Finance,
Government issued Decree amending and supplementing some articles of
Decree No. 59/2011/ND-CP on transformation of wholly state-owned enterprises
into joint-stock companies.
Article 1: Amendments to some
articles of Decree No. 59/2011/ND-CP on transformation of wholly
state-owned enterprises into joint-stock companies as follows:
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“7. Equitization of Parent
companies of state economic groups or state corporations, parent companies in a
parent company - subsidiaries relationship with public service providers
(hospitals, schools, institutes) will be handled as follows:
a) In case equitized enterprises
continue taking over, it is needed to carry out valuation included in equitized
enterprise value.
b) In case equitized enterprises
do not takeover, it is needed to send a report to the Prime Minister for
consideration and decision to transfer to the relevant ministries to implement
socialization as prescribed by law. The procedures for transformation must
comply with the law. While pending the transformation, the governing
ministries, People's Committees of provinces continue exercising the right to
represent the state capital in these units.
2. Clause 3 Article 22 is
amended as follows:
3. The agency competent to decide
the equitization plan shall select a valuation consultancy organization to
provide consultancy on the enterprise valuation as follow:
a) For valuation consultancy
contract which is not worth more than 03 billion, the competent authority may
appoint a valuation consultancy organization in the list published by the
Ministry of Finance instead of holding a bidding; in case bidding is necessary,
a bidding shall be organized to select an organization under the provisions of
the bidding law.
b) For valuation consultancy
contracts not specified in Point a Clause 3 of this Article, the agency
competent to decide the equitization plan shall hold a bidding to select an
organization providing consultancy and valuation services under regulations”
3. Point b, Clause 1, Article
26 is amended as follows:
b/ It is unable to sell its shares
within 18 months from the time of enterprise valuation, except for particular
cases decided by the Prime Minister.
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“Article 27. State audit
of equitized enterprises
1. Objects and scope of audit:
Based on the determined enterprise
value for equitization determined by the consultancy organization and opinions
of the agency competent to valuate enterprises (hereinafter referred to as
valuating agency), before valuation, the State Audit shall audit such value and
settle financial matters of:
- Parent companies of state
economic groups.
- Parent companies of State
corporations and single-member limited liability companies when requested by
the Prime Minister.
5. Clause 4 is added to Article
28:
“4. In some cases (the time
of equitization does not coincide with the time of inventory,
finalization of accounting books, financial statement, large-sized
enterprises, entities with large debts), by the time of the valuation business,
some debts (receivable, payable) having full records have not been compared and
certified in accordance with the provisions of Article 15 and Article 16 of
this Decree, the Member Council of the equitized enterprise has to clearly
explain the content of debts, define responsibility of collectives and individuals
for debt comparison before the equitized enterprise is granted business
registration certificates for the first time and send a report to the valuating
agency to consider and decide according to values which are tracking on
accounting books; it is also required to disclose the debts in the decision to
approve the business value as well as the equitization plan as a basis for
shares auction. At the time when the equitized enterprise is granted the first
enterprise registration certificate, upon making a financial statement for
handover from the wholly state-owned enterprises to the joint-stock company, if
these debts are not compared and confirmed, they will be dealt with as follows:
a) The debts payable that have
been compared by the enterprise without identifiable creditors shall be
recorded as a corresponding increase in state capital, and the new joint-stock
company shall keep and monitor the documents to fulfill the obligation to repay
its debts when creditors require. Pursuant to relevant documents, legal
materials and requirements of creditors, the new joint-stock company shall
repay its debts and record them as cost incurred during the period;
b) In case the enterprise has
followed procedures for debt comparison without being able to compare them, it
is required to attribute responsibility of relevant collectives and individuals
for compensation. Value of the remaining debt (after offsetting the
compensation of individuals, groups, provision for bad debts) shall be
aggregated with operating cost of the equitized enterprise. New joint-stock
company shall keep and monitor the records for debt collection.
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Article 31. Value of land use
rights (hereinafter referred to as land value)
1. For all land areas which is
managed and used by an equitized enterprise as grounds for building its working
offices and transaction offices; building production and business
establishments; land for agricultural production, forestry, aquaculture or salt
making (including land allocated by the State with or without collection of
land levy), the equitized enterprise may make a land use plan and submit it to
a competent agency for consideration and decision. Such land use plan must
comply with regulations on rearrangement or handling of houses and land under
the Prime Minister’s decisions and be sent to the People’s Committee of the
province prior to the enterprise valuation.
2. For land areas of equitized
enterprises which have been allocated land and on which land levy has been paid
or lawfully received to be used for building houses for sale and building
infrastructure for transfer or for lease, it is required to re-determine the
land value to be included in the value of the enterprise as follows:
a) Land price used for determining
the land value which is included in the value of the equitized enterprise is
the price which approximates the price for transfer of land with similar
purposes on the market determined by the People's Committee of the province (in
the locality in which the enterprise has the allocated land area) but is not
lower than the land prices imposed and announced by the People's Committees of
provinces and at the time closest to the time of inclusion of the land price in
the equitized enterprise value under the land law.
b) The positive difference between
the re-determined land value specified at Point a Clause 2 of this Article and
that recorded in accounting books (if any) shall be recorded as an increase in
the state capital in the equitized enterprise.
In case the re-determined land
value is lower than the actual cost of land recorded in accounting books, the
land price currently recorded by the enterprise shall be used.
In case an enterprise changes the
use purpose of its allocated land, an additional amount must be paid for the
difference in land value resulting from the change in accordance with land law.
3. Land areas allocated to an
enterprise, including land areas for production and provision of public
services and facilities (parks, greeneries, bus stations, irrigation works,
etc.), which are exempt from land levy under the land law, may be excluded when
determining the land value to be included in the equitized enterprise value.
Land areas used for public works with a safety corridor under the land law may
also be excluded under the competent authority’s decisions. Equitized
enterprises shall manage and use these land areas for the intended purposes and
in line with provisions of the law on land.
The Ministry of Natural Resources
and Environment shall provide instructions on determination of land area not
included in enterprise value mentioned in this Article.
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a) Transfer it to another wholly
state-owned enterprise as a partner if accepted by other inventors in the new
legal entity.
b) Include it in the value of the
equitized enterprise in accordance with Article 33 of this Decree.
5. In other cases of land
allocation decided by the Prime Minister's, it is required to determine the
land value to be included in the enterprise value according to the principles
specified in Clause 2 of this Article.
6. The enterprise equitized shall
rent the remaining land area (after removing land area prescribed in Clauses 2,
3, 4 and 5 of this Article) for a certain period under provisions of the land
law and is not required to include the value of the geographical advantage in
the enterprise value under the following specific provisions:
a/ For leased land area of which
the land rent is paid annually, the enterprise is allowed to continue paying
land rent under the current laws and shall not include land rent in its value.
b/ Enterprises that had paid land
rent in lump sum for the whole land lease term before the effective date of the
Land Law 2003 shall re-determine the leased land value at the land rent rate at
the time of equitization for the remaining land rent term to be included in the
enterprise value. The positive difference arising due to the re-determination
of the value of leased land shall be recorded as an increase in the state
capital in the equitized enterprise.
c/ In case an enterprise that have
been allocated land or lawfully received land to conduct its production and
business operations is now leasing land, such enterprise must complete
procedure for switching to land lease under the provisions of the law on land
and submit it to equitization-deciding agencies, and local land management
agencies. The value of the remaining allocated land at the time of determining
the enterprise value is the land rent paid in advance for a certain period of
time according to the market leasing rates at the time the enterprise completes
procedure for leasing land at the local regulatory body.
7. The People’s Committees of
provinces and centrally run cities (hereinafter referred to as provinces)
shall:
a) Within 30 working days from the
receipt of complete dossiers, the People’s Committees of provinces have to give
official opinions on land plots which the enterprise will further use after the
equitization and the land price which serves as a basis for valuation
prescribed in point a Clause 2 this Article.
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c/ After 30 working days from the
receipt of complete dossiers if the People’s Committee of the province gives no
official opinions on the land price under Point a, Clause 2 of this Article,
the agency competent to decide the equitized enterprise value shall apply the
latest land price announced by the People’s Committee of the province under the
land law for calculating and determining the equitized enterprise value; and
concurrently publicize the temporary calculation of this land value in the
equitization plan.
When allocating land, the People’s
Committees of provinces shall review and officially determine the obligation to
pay land levy on the allocated land at the price which approximates the price
for transfer of land with similar purposes on the market at the time of land
allocation. Equitized enterprises shall remit this levy amount to the state
budget this (including also the difference between the officially determined
amount and the temporarily calculated one, if any) in order to be granted land
use right certificates or to sign land lease contracts under the current land
law.
d/ The People’s Committees of
provinces shall request functional agencies to instruct equitized enterprises
to complete the procedures for signing land lease contracts and applying for
certificates of land use right, ownership of houses and other property on land
under the provisions of current law of the land.
7. Point a Clause 4 Article 49
as follows is amended as follows:
“- To direct equitized
enterprises according to equitization plan which has been approved be the Prime
Minister:
+ To proactively prepare materials
and legal documents about the business assets (including houses, land); land
use plan after equitization; inventory of assets, debt comparison at the time
the financial statements are created under the provisions of law.
+ To plan for equitization
progress (including timelines for each step) and submit it to the agency
competent to decide equitization for approval. In case the equitization
progress is not carried out, the enterprise’s executive board is considered to
fail to discharge their duties.”
Article 2: Implementation
1. The enterprises having
completed the equitization or proceeding equitization (enterprise value has
been determined and announced by competent authorities) before the effective
date of this Decree shall continue receiving allocated land, leasing land, and
calculating land value under approved plans, and are not regulated by Clauses
2, 3, 4, 5 and 6 of Article 31, which is amended in clause 6 of Article 1 of
this Decree
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Article 3. Effect and
responsibility for implementation:
1. This Decree takes effect on
January 15, 2014.
2. The Ministry of Finance,
Ministry of Natural Resources and Environment; the State Audit and heads of
other related agencies, within the ambit of their respective functions and
tasks, are responsible for providing guidance on the implementation of this
Decree.
3. Ministers, heads of
ministerial-level agencies or government-attached agencies, chairpersons of
People’s Committees of provinces, members’ councils of state economic groups
and corporations established under decisions of the Prime Minister are
responsible for implementing this Decree.-
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung