|
THE
GOVERNMENT
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
----------
|
|
No.80/2005/ND-CP
|
Hanoi,
June 22, 2005
|
DECREE
ON ASSIGNMENT, SALE, BUSINESS CONTRACTING, LEASE OF STATE
COMPANIES
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government dated December 25, 2001;
Pursuant to State Enterprise Law No. 14/2003/QH11 dated November 26, 2003;
Pursuant to Enterprise Law No. 13/1999/QH10 dated June 12, 1999;
At the proposal of the Minister of Planning and Investment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1. Objectives and
requirements of the assignment, sale, business contracting and lease of state
companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. To create conditions for restructuring state
companies, raising the economic efficiency and competitiveness of the state-run
economic sector.
2. To use more efficiently capital and assets
invested by the State in the companies, tap all potentials among various
economic sectors for investment in production and business development.
3. To ensure jobs for laborers; to change mode
of managing companies, creating motive force for promoting the laborers'
mastery.
4. To reduce expenditures and direct business
responsibilities of the State; ensure the common interests of the State and the
laborers in the state companies.
Article 2. State companies
to be assigned, sold, business-contracted or leased and conditions for
application
State companies to be assigned,
sold, business-contracted or leased and conditions for application
1. This Decree provides the assignment, sale,
business contracting, lease of whole of independent state companies,
independent cost- accounting member companies of corporations; sale of
dependent units of state companies.
2. Regulation scope and application subjects
shall be as follows:
a) Complete assignment of a state company
(called company assignment for short): To apply to independent slate companies,
independent cost-accounting member companies of corporations having the state
capital of under VND 5 billion inscribed in the accounting books, which need
not be further held by the State in terms of their equity and cannot be
equitized:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) Sale of dependent units of state companies
(called partial sale of companies for short): To apply to dependent
cost-accounting units of state corporations; dependent cost-accounting sections
of independent cost-accounting member companies of corporations; dependent
cost-accounting sections of independent state companies;
d) Business contracting, lease of an entire
state company (called company contracting, lease): To apply to independent
state companies, independent cost-accounting member companies of corporations,
regardless of state capital amounts.
3. The sale of dependent units of independent
cost-accounting member companies of corporations or the sale of dependent units
of independent state companies shall be carried out only when:
a) The dependent units do not belong to the
subjects with 100% capital to be held by the State;
b) Dependent units have conditions for
separation into independent cost-accounting units for sale without causing
difficulties or adversely affecting production and business of state
corporations, independent state companies, independent cost-accounting member
companies of corporations or the remaining sections of these enterprises.
4. The business contracting within state
companies, the lease of separate assets, the sale of separate assets of state
corporations, independent state companies, independent cost-accounting member
companies of corporations shall not be governed by this Decree.
Article 3. In this
Decree, the terms and phrases below shall be constructed as follows:
Inthis Decree, the terms and
phrases below shall be constructed as follows:
1. ''Assignment of company to labor
collective" means the conversion of ownership of a state company and the
state assets at such company into the ownership of the labor collective in the
company with clear definition of ownership of each person, each member with
binding conditions.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. ''Company contracting'' is a mode of managing
enterprises thereby the contracted party is given the right to manage the
enterprises, is obliged to achieve a number of targets, satisfy conditions and
enjoy interests under contracts.
4. ''Company lease'' means the transfer to the
lessees the rights to use assets and labor in the companies under the
conditions inscribed in leasing contracts.
5. '' The assignee, the contracted, the lessee,
the buyer of companies or sections of companies'' are representatives of labor
collectives, representatives of legal persons, representatives of groups of
people or individuals, that are assigned, contracted, rent or purchase
companies or sections of companies.
6. ''Assignor, contractor, lessors or sellers of
companies or sections of companies'' are representatives of agencies or
enterprises assigning, selling, contracting or leasing the companies.
7. ''Sale, contracting, lease of companies, sale
of sections of companies by direct mode'' are forms of negotiations, agreement
and signing of contracts directly between sellers of companies, sellers of
sections of companies and buyers of companies or buyers of sections of
companies or between contractors or lessors of companies and the contracted,
the lessees of companies in cases where only one organization or individual
(hereinafter called person for short) registers.
8. "Sale, contracting, lease of companies,
sale of sections of companies by mode of bidding'' are forms of selecting
buyers of companies, buyers of sections of companies, the contracted, the
lessees of companies through bidding when there are two or more persons
register.
9. "Sale of companies, sections of
companies by mode of auction'' is a form of selecting buyers of companies,
sections of companies where there are two or more persons register through
offering competitive prices at public auctions.
10. ''Minimum prices'' mean the lowest prices
determined by sellers, lessors or contractors on the basis of the value of the
state capital portions and the actual value of assets at enterprises and set
prices when deciding on the sale, contracting or lease of companies.
11. "Leasing prices, sale prices of
companies, sale prices of sections of companies'' are prices agreed on by the
lessors and the lessees or the sellers and the buyers by direct mode or
determined by mode of bidding or auction.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
13. ''The practical value of companies"
mean the total value of the actual assets of companies at market prices at the
time of valuating the companies.
14. ''Labor collectives'' mean the total number
of laborers currently on the lists of regular laborers of companies or
collectives of laborers voluntarily implementing the resolutions of the
congresses of employees of the companies, sections of companies on acceptance
of the assignment, purchase, contracting or rent of companies or sections of
companies at the effective time of the decisions approving the schemes on
arrangement of labor, represented by Trade Union Executive Committees of the
companies or the persons elected as representatives by congresses of the
companies' employees for acceptance of the assignment, purchase, contracting or
rent of companies or sections of companies.
15. ''Ministries'' mean the ministries,
ministerial-level agencies, Government-attached agencies.
16. ''The provincial-level People's Committees''
mean the People's Committees of provinces or centrally-run cities.
17. ''The Renewal Boards at companies'' mean the
Boards for Renewal of Enterprises, set up at companies to carry out the
assignment, sale, contracting or lease under decisions of ministries,
provincial-level People's Committees or corporations.
18. ''The Enterprise Renewal and Development
Boards'' mean boards for renewal and development of enterprises of ministries,
provincial-level People's Committees, state corporations.
19. ''State companies where the State needs not
hold equities'' are companies not on the lists of those where the State needs
to hold equities according to the criteria, classification lists promulgated by
the Prime Minister.
20. ''Companies which cannot be equitized'' are
companies which, according to the restructuring master plans already approved
by the Prime Minister, are on the lists of those to be equitized, but, after
the application of all measures provided for by law on equitization, cannot be
equitized, or companies which are on the lists of those to be equitized but
fail to satisfy conditions for equitization or are determined by
equitization-deciding agencies as being unable to be equitized.
Article 4. Subjects entitled
to be assigned, to buy, to be business-contracted, to rent companies or
sections of companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Subjects to be assigned companies shall be
collectives of laborers working at the companies, that satisfy the conditions
specified in Article 10 of this Decree and are represented by the companies'
Trade Union Executive Committees or by the persons elected by the congresses of
the companies' employees.
2. Subjects entitled to buy companies, sections
of companies:
a) Labor collectives or individuals in
companies;
b) Enterprises of all economic sectors,
including foreign-invested enterprises in Vietnam;
c) Vietnamese citizens who have civil act
capacity, excluding persons who are not allowed to establish and manage
enterprises, defined in Clauses 2, 3, 4, 5, 6 and 7, Article 9 of the
Enterprise Law;
d) Economic and financial organizations set up
under foreign laws and conducting business activities overseas or in Vietnam,
foreigners (hereinafter called foreign investors);
Foreign-invested enterprises in Vietnam and
foreign investors may purchase state companies on the lists of branches, trades
or domains where foreign investors are entitled to invest 100% foreign capital
or to contribute joint-venture capital. The sale of companies to
foreign-invested enterprises or foreign investors shall comply with the
Regulation promulgated by the Prime Minister.
3. Subjects entitled to accept business
contracting of or to rent companies:
a) Labor collectives or individuals in the
companies;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) Individuals having business registration.
Article 5. Principles for
assignment, sale, business contracting, lease of companies
Principles for assignment, sale,
business contracting, lease of companies
1. To assign, sell, business contract, lease
companies for continued production and business; the assignees or buyers must
not resell the companies within the duration prescribed in contracts.
2. All assets of the companies shall be
calculated in value upon the assignment, sale, business contracting or lease.
The value of companies, sections of companies subject to sale shall be
calculated at the actual market prices.
3. Priorities and preferences in assignment,
sale, business contracting or lease of companies:
a) To give priority to the buyers, the
business-contracted persons, the lessees, that commit to employ more laborers;
the buyers, the contracted persons or the lessees, that are labor collectives
in the companies; the persons who are performing the contracts on business
contracting or leasing companies and shift to buy the companies;
b) To give preferences by reducing sale prices
to buyers who commit to continue employing more laborers and inherit debts. The
sale price reduction levels depend on the percentages of laborers to be
continually employed as committed by the buyers;
c) In cases where buyers do not inherit debts,
the sale price reduction must ensure sources for payment of debts of the
companies and must not exceed the state capital amounts existing at the time of
sale.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) The assignment, sale, business contracting,
lease of companies must be publicized on the mass media and at the companies
for the relevant subjects to know before the implementation thereof;
b) In cases where only one person registers for
the purchase, rent or business contracting, the results of direct negotiations
between the buyer and the seller, the lessee and the lessor, the
business-contractor and the business-contracted shall be publicized at the
company;
c) In cases where two or more persons register
for the purchase, business contracting, rent of a company, bidding or auction
must be organized.
The auction of companies shall be carried out
only when the companies have already completely settled the questions related
to laborers or have their plans on complete settlement of their laborers
approved by competent authorities under the provisions of law on labor and
policies towards redundant labor due to reorganization of state companies.
5. The duration for business contracting or
lease of a company shall be agreed upon by the two parties, but shall not be
shorter than 3 years.
6. Signing of contracts on assignment, sale,
business contracting or lease of companies:
The assignment, sale, business contracting or
lease of companies must be made in written contracts. The contracts shall serve
as a basis for the parties to fulfill their commitments, ensuring the legality
of the payment and settlement of arising matters.
Article 6. Management
and use of proceeds from sale, lease of companies
Management and use of proceeds
from sale, lease of companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) In case of selling independent
cost-accounting member companies, dependent cost-accounting units of state
corporations, dependent cost-accounting sections of independent state
companies, such state corporations, independent cost-accounting member
companies of corporations, independent state companies may use them for
business activities;
b) In case of selling the whole of an
independent state company, the remainder shall be transferred into the
enterprise reorganization support fund at the Ministry of Finance and be
managed and used according to the Prime Minister's regulations.
Where the proceeds from company sale are not
enough for payment of expenses in service of company sale, payment of debts not
inherited by buyers, support for implementation of policies towards laborers
subject to job severance or loss upon company sale, supports shall be provided
from the enterprise reorganization support fund at the Ministry of Finance.
2. Proceeds from company lease:
a) In cases where the leasing term expires while
the lessee buys back the company or the company terminates its operation, after
subtracting expenses in service of company lease, the proceeds from company
lease shall be used as provided for in Clause 1 of this Article;
b) In case of lease with definite terms, the
company that continues operating and registering is a state company, the proceeds
from company lease shall be accounted into the turnover of the leased company.
Article 7. Expenses for
organization of assignment, sale, business contracting, lease of companies
Expenses for organization of assignment,
sale, business contracting, lease of companies
The actual, reasonable and necessary expenses
for organization of the assignment, sale, business contracting, lease of
companies shall comply with the guidance of the Ministry of Finance and be accounted
as follows:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. In case of company sale: They shall be
subtracted from the money amounts collected from company sale; if the state
capital is reduced to none, supports shall be provided from the enterprise
reorganization support fund at the Ministry of Finance (if it is the
independent state company) or from the corporation's capital (if it is the
dependent unit of the corporation, independent cost-accounting member company),
from the company's capital (if it is dependent unit of the independent state
company or independent cost-accounting member company of the corporation).
3. In case of business contracting: They shall
be accounted into expenses for regular operations of the companies.
4. In case of company lease: They shall be
subtracted from money amounts collected from company lease.
Article 8. Change between
forms of business contracting, lease, sale or assignment of companies
Change between forms of business
contracting, lease, sale or assignment of companies
In cases where contracts on business contracting
or lease of companies are being performed and the change to other forms is
desired for, the current contracts must be liquidated and direct negotiations
must be conducted for signing of new contracts according to the provisions of
this Decree.
Article 9. The State's
protection
The State's protection
1. The State protects the ownership rights, the
use rights as well as the legitimate rights and interests of company assignees,
buyers, business- contracted persons or lessees under the provisions of law.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Chapter II
ASSIGNMENT OF COMPANIES
TO LABOR COLLECTIVES
Article 10. Conditions on
assignment of companies to labor collectives
Conditions on assignment of
companies to labor collectives
Labor collectives in companies shall be
considered for company assignment when fully satisfying the following
conditions:
1. They voluntarily register to accept the
company assignment.
2. They pledge to make additional investment in production
and business development, ensuring minimum jobs for three years or more, fully
paying insurance premiums for the laborers within the company according to law
provisions (except for cases of voluntary termination of labor contracts in
accordance with labor legislation and policies towards redundant laborers due
to rearrangement of state companies).
3. They inherit debts and property obligations
of the company after they were handled according to the provisions of Article
11 of this Decree; inherit rights and obligations towards laborers as provided
for in Article 66 of the Labor Code.
4. They must not lease, transfer or dissolve the
companies at their own will within a minimum period of 3 years after the
assignment.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Principles for handling of
property, finance and debts upon assignment of companies
1. The Renewal Boards in the companies shall
conduct inventories, determining the quantity and actual conditions of assets;
the long-term and short-term investments; the rented, borrowed, kept- or
sold-for-others, consigned, appropriated, lease or lent assets; comparison and
classification of debts; making of lists of creditors and payable debt amounts,
lists of debtors and receivable amounts, clearly determining recoverable debts
and irrecoverable debts; classification of assets, handling of assets and
debts.
2. Principles for asset handling:
a) For assets contributed as joint-venture
capital or received as joint-venture capital; assets rented from the outside or
financial leased; assets borrowed, kept for others or other assets not
belonging to the company: the company assignors and assignees and asset owners
shall negotiate on inheritance or liquidation of previously signed contracts or
signing of new contracts;
b) For appropriated assets: The company
assignors shall decide them right after the assignment of company on the
principle of returning them or signing contracts on re-borrowing the assets;
c) For assets in the welfare facilities:
crèches, kindergartens, infirmaries and other welfare assets formed from reward
or welfare funds shall be transferred to the new companies for management and
use in service of labor collectives in the companies. Particularly for
dormitories of employees, including those invested with state budget
allocations, they shall be transferred to local house and land management
bodies for management or sale to current users according to current
regulations;
d) For assets used in production and business,
which are invested with reward or welfare funds of the company, they shall be
transferred to the company for continued use in production and business;
e) The pecuniary balance of the reward
and welfare funds shall be divided to laborers working in the company before
company assignment.
3. Principles for handling of debts:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) For social insurance premium debts falling
under the responsibilities of companies and laborers, which were collected by
the companies, before the company assignment, they shall be subtracted from
value of the state capital in the companies for repayment. In cases where the
state capital is reduced to none, the repayment supports shall be provided from
the enterprise reorganization support fund at the Ministry of Finance for
independent state companies; or from corporations' capital for member
enterprises of corporations;
c) Company assignees shall have to inherit
receivable and payable debts of the companies after they are handled.
4. The remaining assets, after payment of
necessary expenses for company assignment, shall be fully transferred to the
labor collectives in the companies for ownership.
Article 12.
Company-assigning order and procedures
Company-assigning order and
procedures
1. The Trade Union Executive Committees shall
join the company directors in organizing employees' congresses to vote by
majority on voluntary acceptance of company assignment; elaborating and
adopting the schemes on acceptance of company assignment, including schemes on
labor reorganization; realizing the conditions on acceptance of company
assignment, including the commitment to employ all laborers in the companies
(excluding those who voluntarily terminate their labor contracts); nominating
representatives to carry out procedures for company assignment and acceptance.
At places where trade unions do not exist, the Renewal Boards at the companies
shall coordinate with the company directors in nominating representatives of
the labor collectives to participate in organizing the congresses of employees
of the companies.
2. The Renewal Boards at the companies shall
classify the assets; determine and classify debts; make financial reports.
Basing themselves on the data on accounting books, the inventory results, the
classification and handling of assets, finance and debts on the principles for
handling assets, finance and debts mentioned in Article 11 of this Decree, the
company directors and the Renewal Boards at the companies shall draw up schemes
on determination of the value of the companies assigned to the labor
collectives.
3. The Company Trade Union Executive Committees
or the persons elected by the employees' congresses as representatives shall
make the lists of and classify laborers and compile relevant dossiers on
laborers; draw up production-business schemes and commit to receive the
companies.
4. The representatives of labor collectives
shall send dossiers of application for acceptance of the company assignment to
the Enterprise Renewal and Development Board. Such a dossier shall include:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) The production and business scheme;
c) The scheme on employment, retraining of
laborers;
d) The projected form of organization of the new
enterprise;
e) The commitment of the labor collective in the
company.
5. The competent authorities shall approve the
dossiers of application for acceptance of companies and issue decisions to
assign companies to labor collectives; such decisions shall be sent to the
offices of Enterprise Finance, Tax, Business Registration, Planning and
Investment; Labor, War Invalids And Social Affairs, the provincial/municipal
Statistical Departments of the localities where the companies are
headquartered; the Steering Committee for Enterprise Renewal and Development.
6. To organize the signing of contracts for
company assignment and acceptance between representatives of the labor
collectives and the persons authorized by ministers, provincial-level People's
Committee presidents or the general directors of State corporations. A contract
on company assignment and acceptance includes the following contents:
a) The name and address of the company to be
assigned to the labor collective;
b) The full name and address of the representative
of the labor collective;
c) The value of the assigned company, the mode
of assignment and acceptance;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
e) The rights and obligations of the labor
collective accepting the assigned company.
Enclosed with contracts are the lists of assets
converted into value, the lists of laborers in the collectives assigned with
the company.
7. The Enterprise Renewal and Development Boards
shall join the company directors in organizing the company handover under the
approved schemes to the labor collectives represented by Trade Union presidents
or by the persons elected by the employees' congresses as representatives to
receive and manage the companies, to the witness of the representatives of the
authorities having decided on the company assignment and the enterprise finance
offices.
8. The labor collectives' representatives shall
organize shareholders' congresses, members' congresses or cooperative members' congresses,
make the business registration in form of joint-stock company, limited
liability company or cooperative according to the provisions of law on business
registration. The dossier of business registration must cover the decision on
company assignment, the handover and reception contracts and written records on
handover of companies to labor collectives.
9. The enterprises' representatives shall
publicly announce on mass media according to law provisions on company
assignment and change of legal forms of companies within 30 days as from the
date of being granted business registration certificates.
Article 13. Ownership over
enterprises after the assignment
Ownership over enterprises after
the assignment
1. The entire assets of companies, calculated in
value, after the assignment, shall belong to the ownership of the labor
collectives and divided into shares or contributed capital portions to be
assigned to laborers participating in the acceptance of companies, who are on
the payroll and pay social insurance premiums at the companies at the time of
company assignment.
2. Each laborer in the companies participating
in acceptance of companies may be given the right to own a part of the
enterprise value in shares or contributed capital portions corresponding to the
number of years working in the state sector, enjoy dividends, be entitled to
bequeath but must not transfer the assigned shares within three years after the
assignment of companies.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Rights and obligations of
company assignees
1.To make business registration in the legal
form of ''joint-stock company," "limited liability company'' or
''cooperative.''
2. To take initiative in using the entire
assigned assets, to organize production and business, to distribute incomes
according to the organization and operation charter of the companies.
3. To inherit the rights of state companies as
agreed upon in the contracts on company assignment and acceptance; inherit the
contracts on land rent, power and water supply of the former companies
according to law provisions. The companies are entitled to opt for perpetuating
or form of land rent or land assignment of the previous state companies. The
companies' land use rights after the assignment shall comply with the land law.
4. To be provided with assistance for
organization of retraining in order to employ laborers from the Enterprise
Reorganization Support Fund at the Ministry of Finance.
5. To have the responsibility to employ all the
laborers as committed in the contracts for company assignment and acceptance,
ensuring jobs for at least three years for laborers, excluding those who
voluntarily terminate their labor contracts. After that duration, if due to the
requirements of reorganization of production and business or technological
changes, which make labors lose their jobs, the policies towards such laborers
shall comply with the current regulations of the Government.
6. To fulfill the commitments in the contracts
on company assignment and acceptance and the obligations towards the State
according to the provisions of law.
Chapter III
SALE OF STATE COMPANIES
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Notices on decisions approving the
sale and registration for purchase of companies, sections of companies
The agencies which decide on sale of companies
or sections of companies must publicize on the mass media and notify the
companies or sections of companies of the selling decisions and organize the
registration of purchasers of companies or sections of companies by mode of
bidding or auction within 45 days. Past the 45 day-time limit, if there is only
one registrant for the purchase, it shall be extended for 15 more days; if
there is still only one registrant for the purchase, the companies or sections
of companies shall be sold by direct mode.
The company directors shall notify them to the
entire laborers in the companies, organize the registration of purchasers of
the companies or sections of companies and send the lists thereof to the
Enterprise Renewal and Development Boards of ministries, provincial-level
People's Committees or State corporations.
Article 16. Organization of
the sale of companies, sections of companies by bidding mode
Organization of the sale of
companies, sections of companies by bidding mode
1. In cases where companies, sections of
companies are sold together with employment of laborers and there are two or
more registrants for purchase, the companies or sections of companies must be
sold by mode of bidding.
2. Persons who decide on sale of companies,
sections of companies shall set up the bidding councils, each comprising a
representative of the agency deciding to sell the company, a representative of
the finance agency of the same level, a representative of the corporation (if
any), a representative of the company to be sold or the company having sections
to be sold.
The bidding councils have the responsibility:
a) To promulgate the regulations on bidding and
mode of marking bids;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) To organize and administer the bidding
session;
d) To report to the agencies which decide to
sell the companies, sections of companies on the bidding situation and results.
3. The purchasers shall file their applications
for purchase of companies, sections of companies, made according to a form set
by the bidding council and pay the deposits.
The bidding councils shall receive the
applications, deposits and make lists of bidding participants and grant
certificates to bidding participants.
4. The bidding participants may go to companies
to study accounting books, asset lists and survey the actual situation of the
companies, sections of companies; may be supplied by the Bidding Council with
information on the bidding regulation, the principles for bid marking.
5. Within the registration time limit provided
in Article 15 of this Decree, the purchase registrants must send their dossiers
of application for bidding participation to the Bidding Council.
Such a dossier shall include:
a) The application for purchase of the company
or section of the company (made according to a set form);
b) The scheme on employment of laborers working
in the company or section of the company;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d) The price offered for purchase of the company
or section of the company.
The bid dossiers must be put in sealed envelops.
6. Within 15 days as from the date of expiry of
the time limit for dossier reception, the Bidding Councils send notices on
bidding time and venue to every bidder. The Bidding Councils shall publicly
post up the lists of bidders at the bidding venue for 5 days before the opening
of bids.
7. Bids shall be opened within one day and as
follows:
a) The Bidding Councils check the seals,
publicly open the envelops of bidders one by one and announce the scheme on
labor employment and the bid price offered by every bidder for recording in the
minutes; announce the scheme on largest employment of laborers and the highest
bid price offered by each bidder;
b) The presidents of the Bidding Councils and
bidders shall sign the minutes on bid opening.
8. Bid consideration
a) The Bidding Councils shall consider, examine,
analyze, evaluate and rank bid dossiers or hire functional counseling
organizations to perform these jobs; base on the highest bid prices in
combination with the labor employment schemes, the purchasing mode of debt
inheritance or non-inheritance to select bid winners;
b) The Bidding Councils shall make records on
bidding and send them to the Enterprise Renewal and Development Boards and the
persons deciding on sale of companies or sections of companies.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Sale of companies, sections of
companies by mode of auction
In cases where companies have completely settled
the number of laborers or have their schemes on full labor employment approved
under the provisions of law on labor and policies towards laborers redundant
due to reorganization of state companies, if there are two purchase registrants
or more, the companies or company sections must be sold by mode of auction
under the Regulation on auction of state companies, promulgated by the Prime
Minister.
Article 18. Sale of
companies, sections of companies by direct mode
Sale of companies, sections of
companies by direct mode
1. The mode of direct sale of companies or
company sections shall apply only when there is only one purchase registrant.
2. Registrants for purchase of companies, sections
of companies shall send their dossiers to directors or the Enterprise Renewal
and Development Boards; the contents of the dossiers shall be the same as those
stipulated for cases of selling companies, sections of companies by mode of
bidding.
3. Registrants for purchase of companies,
sections of companies may go to companies, sections of companies to study the
accounting books, asset inventories and survey the actual situation of the
companies, sections of the companies.
4. The Enterprise Renewal and Development Boards
shall, together with company directors, exchange directly with the purchasers'
representatives their opinions on contents of the trading contracts. The sale
prices of companies with their total asset value of VND 30 billion or more as
inscribed in the accounting books shall be determined in accordance with the
provisions of Clause 5, Article 23 of this Decree and serve as a basis for
negotiation with purchasers.
The Enterprise Renewal and Development Boards
shall send dossiers and minutes to the persons who decide to sell the companies
or sections of the companies.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Responsibilities of the
companies subject to complete sale or sectional sale
1. To inventory, determine the quantity of
assets currently available in the companies or sections of the companies,
including fixed assets and long-term investments, working assets and short-term
investments, rented assets, leased assets, assets kept for others, consigned or
appropriated; evaluate the actual conditions of such assets and recover
receivable debts.
2. To classify assets currently available in the
companies, sections of the companies into the following:
a) Assets, which can be further used;
b) Assets, which cannot be further used;
c) Assets formed from reward funds, welfare
funds.
3. To compare and classify debts; make the lists
of creditors and payable debts as well as receivable debts, to be further
divided into recoverable debts and unrecoverable debts.
4. To make the financial statement of the
quarter next to the time of selling the companies or sections of companies;
draw up schemes on handling of assets, finance, debts on the principles defined
in Articles 20 and 21 of this Decree.
5. To make the lists of, classify, and elaborate
plans on rearrangement of, the existing number of laborers in the companies,
sections of companies at the time of deciding to sell them:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) The number of laborers enjoying the social
insurance regimes on ailment, pregnancy and maternity, labor accidents and
occupational diseases;
c) The number of laborers subject to temporary
postponement of performance of labor contracts;
d) The number of laborers terminating labor
contracts;
e) The number of laborers with labor contracts
being still valid, who shall move to work in the post-sale companies;
f) The number of laborers awaiting jobs due to
unavailability of jobs arranged for them.
6. To handle assets, finance, debts and labor
under the plans approved by competent authorities and the contracts on sale and
purchase of companies or sections of companies.
7. To hand over assets, books and relevant
dossiers to company purchasers under the agreement inscribed in the trading
contracts.
Article 20. Principles for
asset and finance handling upon sale of companies, sections of companies
Principles for asset and finance
handling upon sale of companies, sections of companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Assets contributed as joint-venture capital
or received as joint-venture capital; assets rented from outside, financially
leased; assets borrowed or kept for others and other assets not owned by the companies:
The asset sellers, purchasers and owners shall reach agreement on inheritance
or liquidation of previously signed contracts or sign new contracts;
appropriated assets shall be decided by authorities deciding on sale of
enterprises.
3. For assets belonging to welfare facilities:
crèches, kindergartens, infirmaries and other welfare assets formed from reward
funds or welfare funds, they shall be transferred to new companies for
management and use in service of labor collectives in the companies. Where
purchasers only commit to employ less than 50% of the existing number of
laborers of the companies or sections of the companies, the agencies which
decide on the sale of the companies or sections of the companies may re-sell
them to the company purchasers, or other organizations, individuals for
division to the existing number of laborers in the companies, sections of
companies.
Particularly for dwelling houses of officials
and employees, including those invested with state budget allocations, they
shall be transferred to local house and land management offices for management
or sale to current users under the current regulations.
4. Assets invested with reward funds and/or
welfare funds of the companies and continued to be used by purchasers in
production and business activities shall be calculated into the value of the
companies or sections of companies.
5. The pecuniary credit balance of the reward
funds, welfare funds shall be divided to working laborers according to the
actual number of years working in the pre-sale companies.
6. The expenses for unfinished construction of
works postponed before the time of valuating the companies or sections of
companies shall be settled under the agreement between the purchasers and the
sellers in accordance with the interests of each party.
7. Reserves, undistributed losses or profits:
a) Reserves for: inventory price decrease,
receivable bad debts, security price decrease, exchange rate differences shall
be accounted into business results of the companies;
b) Reserves for job loss allowances: To be used
by the companies to support redundant laborers in the course of selling the
companies or sections of companies; the remainder, if any, shall be accounted
into business results of the companies;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d) The financial reserve fund shall be used to
offset losses (if any), make up for lost assets, unrecoverable debts; the
remainders shall be calculated into the value of the state capital portions at
the companies;
e) The undistributed profits shall be
used to offset the preceding year's losses (if any), to make up for lost
assets, unrecoverable debts; the remainders shall be distributed according to
current regulations before valuating the to be-sold enterprises;
f) The loss amounts by the time the sold
companies shift to other forms of company shall be offset by the companies with
the financial reserve funds and pre-tax profits up to the time of sale. In case
of deficit, the measures of writing off the state budget debts and bank debts
shall be applied under the State's current regulations on handling of
outstanding debts.
If after applying the above-mentioned measures,
the companies still suffer from losses, the losses shall be deducted from state
capital.
Article 21. Principles for
handling of debts of companies, sections of companies
Principles for handling of debts
of companies, sections of companies
1. To be-sold companies or sections shall have
to compare, certify and recover recoverable due debts before the sale; mobilize
sources for payment of due debts or negotiate with creditors on handling
thereof before the sale.
2. By the time of deciding to announce the
enterprises' value, the selling companies shall have to hand over unrecoverable
debts already excluded from their value (together with relevant dossiers and
documents) to the company which trade in outstanding debts and assets of
enterprises for handling according to law. For amounts pre-paid to goods and/or
service providers such as house rents, land rents, goods purchase money,
remunerations, they shall compare and calculate them into the companies' value.
3. For the remaining receivable debts and
payable debts, depending on the conditions of trading with inheritance or
non-inheritance of debts, they shall be handled according to the following
principles:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) Where the purchasers do not commit to inherit
the debts, the to be-sold companies shall have to handle those debts according
to the State's current regulations on handling of outstanding debts.
Article 22. Principles for
handling laborers and managerial officials
Principles for handling laborers
and managerial officials
1. Purchasers of companies or sections of
companies shall have to receive laborers according to the labor employment
schemes as committed upon the purchase of the companies. For laborers who
voluntarily terminate their labor contracts, the current regimes shall apply.
2. The regimes towards laborers shall be as
follows:
a) For laborers entitled to social insurance
regimes, the directors of the companies or sections of companies and the social
insurance agencies where the companies pay the social insurance premiums shall
settle the interests for the laborers according to the current regimes;
b) For cases of terminating labor contracts, the
laborers shall enjoy the regimes and policies under the legislation on labor
and the policies toward redundant labor due to reorganization of state
companies;
c) For laborers continuing to work in the new
companies or new company sections, the directors shall have to carry out the
procedures so that the social insurance agencies shall grant insurance books
according to regulations and transfer the lists and dossiers of the laborers
currently managed by the companies or company sections to the new enterprises.
3. For debts of social insurance premiums owed
by companies and laborers, which were already collected by the companies,
before the sale of companies, they shall be subtracted from the value of the
state capital at the companies for payment of such debts. Where the state
capital is reduced to none, the debt repayment shall be supported by the
Enterprise Reorganization Support Fund at the Ministry of Finance.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Managers showing irresponsibility which leads to
business losses or state capital losses must not hold managerial positions at
other state companies or state agencies.
5. After the issuance of decisions on sale of
companies, sections of companies, if due to business reorganization or
technological renewal, laborers in the sold companies or sections of companies
lose their jobs or are subject to job severance, including voluntary severance,
the cases shall be settled as follows:
Where the laborers lose or severe their jobs
within 5 years as from the time of granting the business registration
certificates, the new companies shall have to pay 50% of the total allowance
level under the provisions of the Labor Code; the rest shall be covered by the
State's proceeds from the sale of companies under the principles provided in
Article 6 of this Decree. Beyond that time limit, the new companies shall have
to fully pay the allowances to the laborers.
Article 23. Principles for
determination of sale prices of companies, sections of companies
Principles for determination of
sale prices of companies, sections of companies
1. General bases for determination of the
minimum sale prices of companies, sections of companies:
a) Figures in the accounting books of the
companies at the time of sale;
b) The current quality, technical properties,
debt situation, business efficiency of the companies and the market prices of
assets at the time of sale;
c) The use right value of the land being managed
by the companies or sections of companies;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Principles for determination of land use
right value upon sale of companies, sections of companies:
a) For land areas being used by companies or
sections of companies as grounds for construction of working offices,
transaction offices; construction of production and business establishments;
land used for agricultural production, forestry, aquaculture, salt making
(including land assigned by the State with or without the collection of land
use levies), the companies may select the form of land rent or land assignment
under the provisions of the Land Law:
- Where purchasers select the form of land rent,
the land use right value shall not be accounted into the value of companies or
sections of companies.
- Where purchasers select the form of land
assignment, the land use right value must be accounted into the value of
companies or sections of companies. The land use right value calculated into
the value of companies or sections of companies shall be determined at the
prices set by provincial/municipal People's Committees, which are close to the
actual market prices of land use right transfer and announced on January 1
every year under the Prime Minister's regulations. The order and procedures for
land assignment, land use levy payment and land use right certificate granting
shall comply with the provisions of the current land law.
b) For land areas assigned by the State to
companies, sections of companies for construction of houses for sale or lease;
construction of infrastructure for transfer or lease, the land use right value
must be calculated into the value of companies or sections of companies. The
calculation of the land use right value into the value of companies, sections
of companies shall comply with the provisions of Point a, Clause 2 of this
Article.
3. The sale prices of companies, sections of
companies, which are determined on the basis of the actual value of companies
or sections of companies at the time of sale and acceptable to purchasers and
sellers, shall depend on:
a) The conditions of trading with or without
inheritance of debts; with or without calculation of land use right value;
b) The selling mode: auction, bidding or direct
sale;
c) The mode of payment: in lump sum or
installments;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
For purchasers inheriting rights and obligations
of companies, sections of companies, the actual sale prices of companies shall
be the actual value of the state capital portions at the companies at the time
of sale, including the land use right value mentioned in Clause 2 of this
Article and acceptable to purchasers and sellers.
For enterprise purchasers not inheriting the
rights and obligations of companies, sections of companies, the actual sale
prices of companies shall be the actual value of the entire assets currently
available in the companies at the time of sale, including the land use right
value mentioned in Clause 2 of this Article, which the purchasers wish to use,
acceptable to the purchasers and the sellers.
4. When determining the actual value of
companies, sections of companies with the total asset value of under VND 30
billion as inscribed in the accounting books, it is not necessary to hire the
valuating organizations; the companies shall themselves determine their value
and report it to the competent agencies for decision. For those companies,
which fail to strictly observe the legal provisions on accounting and
statistics, the agencies deciding on the sale prices of companies shall
consider and hire independent auditing organizations for determination thereof.
The audit hiring expenses shall be calculated into expenses for sale of
companies, sections of companies.
5. For companies with the total asset value of
VND 30 billion or more according to the accounting books, the valuation of
company shall be conducted by organizations with function to valuate equitized
enterprises, to be selected by the agencies deciding on the sale of companies
or sections of companies from the list of valuating organizations, announced by
the Ministry of Finance. In cases of selecting foreign valuating organizations,
which have not yet operated in Vietnam, the agreement of the Ministry of
Finance is required. For companies, which cannot be equitized and shall be
sold, they may inherit the valuation results in the course of equitization.
The valuating organizations, when valuating the
companies, must comply with the current legal provisions and complete the jobs
on schedule under the signed contracts; must bear responsibility for the
accuracy and legality of the valuation results.
The agencies competent to decide on the company
value shall have to make verification before deciding on and announcing the
sale prices of companies.
Article 24. Approving
schemes on sale, sale prices, conclusion of contracts and issuing decisions on
sale of companies, sections of companies
Approving schemes on sale, sale
prices, conclusion of contracts and issuing decisions on sale of companies,
sections of companies
At the proposal of the Enterprise Renewal and
Development Boards, ministers, provincial-level People's Committee presidents
and Managing Boards of state corporations shall perform the following jobs:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) The name and address of the to be-sold
company or company section;
b) The name and address of the purchaser;
c) The sale price, selling mode; the payment
mode and deadline;
d) The time limit for conclusion of contract and
hand over of company or company section;
e) Responsibilities of the company, the
Enterprise Renewal and Development Board and relevant agencies in handling the
existing and arising problems.
The decisions on sale and termination of
operation of state companies, company sections shall be addressed to the
offices of Enterprise Finance, Tax, Business Registration, Planning and
Investment, and the Steering Committee for Enterprise Renewal and Development.
2. Organizing the signing of contracts with
purchasers of companies or sections of companies. Such a contract shall cover
the following principal contents:
a) The name and address of the to be-sold
company or company section; its account number;
b) The name and address of the purchaser of the
company, company section; account number (if any);
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d) Commitments of the purchaser and the seller
of the company or company section;
e) The mode of transferring assets, mode of
payment for purchase of enterprise, the time limit for hand over of the company
or company section;
f) The handling of arising problems or
contractual disputes.
Enclosed with contracts are asset inventories,
assessment of the asset conditions agreed upon by the purchasers and the
sellers.
Article 25. Payment
of deposits and handover of companies, company sections
Payment of deposits and handover
of companies, company sections
1. In case of selling companies or company
sections by mode of bidding or auction, within 10 days as from the date of
signing the sale decisions, the Bidding Council or the Auction Council must pay
the deposits to the bidding or auction participants who fail. The bidding or
auction participants are not entitled to receive back their deposits in the
following cases: winning but refusing to perform the contracts; withdrawing
their bids after bidding closure. The bid winners' deposits shall be subtracted
from their payments for purchase of companies, company sections.
2. Within the time limits agreed upon in the
contracts, the Enterprise Renewal and Development Boards must organize the
handover of enterprises to purchasers.
In case of handing over the assets of the
companies or company sections with the actual quantity and conditions varying
with those inscribed in the trading contracts, the purchasers may request the
adjustment of the signed contracts in compatibility with the actual quantity
and conditions of assets of the companies or company sections.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Payment for purchase of
companies, company sections
Company or company section purchasers shall make
payments within the time limits provided in the trading contracts, which,
however, must not exceed two years as from the time of deciding on the sale of
companies or company sections, of which the first payment must not be lower
than 70% of the sale price.
Article 27. Business
registration for companies, company sections after the sale
Business registration for
companies, company sections after the sale
Where companies, company sections, after the
sale, are transformed into new enterprises or dependent units, branches or
representative offices of other enterprises, the purchasers must make business
registration for the new enterprises at the business registries of the
localities where the companies or company sections are headquartered or
register to be dependent units, branches or representative offices of other
enterprises according to the provisions of law.
The business registration dossiers must be
enclosed with decisions on the sale of companies or company sections.
Article 28. Rights and
obligations of company or company section purchasers
Rights and obligations of
company or company section purchasers
1. To take initiative in using the purchased
assets, select production and business lines, reorganize production, make new
investments, change managerial apparatuses, decide on types of enterprises and
continue renting the land according to the provisions of law.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. To make payments for company, company section
purchase according to the time limits and conditions inscribed in the contracts
for sale and purchase of companies, company sections; to strictly comply with
the conditions and commitments to sellers of companies, company sections and
provisions of law.
Article 29. Rights and
obligations of foreign investors purchasing state companies
Rights and obligations of
foreign investors purchasing state companies
The rights and obligations of foreign investors,
foreign-invested enterprises, that purchase state companies, shall depend on
the forms of enterprises transformed after the purchase under legal provisions
of Vietnam and the Prime Minister's decision.
Article 30. Inspection and
monitoring of realization of contractual commitments
Inspection and monitoring of
realization of contractual commitments
The company, company section sale deciders shall
have to monitor and inspect the realization of commitments made in the
contracts for purchase and sale of companies, company sections; handle or
propose competent state agencies to handle according to provisions of law cases
of breaching the contractual commitments by purchasers.
Chapter IV
BUSINESS CONTRACTING AND
LEASE OF COMPANIES
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 31. Business
contracting contents, targets and conditions
Business contracting contents,
targets and conditions
Based on the characteristics of each branch and
business results of companies, the business contracting deciders shall specify
business-contracting contents, targets and conditions but must take into
account the following requirements:
1. Preserving the state capital.
2. Ensuring jobs and fully paying insurance
premiums for laborers. 3. Increasing profits or reducing losses of the
companies.
4. Implementing the State's policies and the
signed contracts.
Article 32. Bidding for or
organizing the acceptance of business contracting by mode of direct negotiations
Bidding for or organizing the acceptance
of business contracting by mode of direct negotiations
1. The agencies that decide to contract
companies must publicly announce on the mass media and notify the companies of
the decisions to permit the contracting and organize the registration of
applicants for contracting within 45 days. If past the 45-day time limit there
is only one registrant, the registration time limit must be prolonged for 15
days.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. In cases where there is only one registrant
for company contracting, direct negotiations on contracting contents, targets
and conditions shall be organized. The business-contracting contents and
conditions, the specific rights and obligations of the contracting parties; the
contractual contents must be negotiated and agreed upon between the business
contracted persons and the business contractors.
3. In cases where there are two or more
registrants, bidding must be organized. The company contracting deciders shall
set up the Bidding Councils which shall notify the registrants for business
contracting the time limit for submission of bid dossiers, the minimum price
level, the deposit amount and announce on the mass media and post up at the
companies' headquarters the bidding for company contracting.
4. The contracting registrants file their
dossiers of tender for company contracting and pay deposits to the Bidding
Councils.
The Bidding Councils receive the dossiers and
deposits, make lists of bidders and issue certification of participation in
bidding.
Bidders may go to the companies to study the
accounting books, lists of assets and survey the actual situation of the
companies; shall be supplied by the Bidding Councils with information on
bidding regulations and bid-marking principles.
5. Within the time limits defined in Clause 1 of
this Article, the company contracting registrants must send the dossiers of
application for participation in the bidding to the Bidding Councils.
Such a dossier shall include:
a) The application for business contracting,
clearly stating the full name, address, the number of people's identity card,
the serial number of bank account (if any), the business registration
certificate of the business-contracted person;
b) The business contracting contents, mode,
targets, conditions and time limit;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d) The proposed contracting level;
e) The report on financial capability of the
business-contracted person.
6. Within 15 days after the expiry of the time
limit for reception of dossiers, the Bidding Councils shall send the notices on
the bidding time and venue to every bidder and publicly post up the list of
bidders at the bidding venue for 5 days before bid opening.
7. Bids shall be opened within one day as
follows:
a) The Bidding Councils shall check the seals
and publicly open the envelops of each bidder and publicize the scheme on labor
employment, bid price offered by each bidder for inscription in the records;
publicize the scheme on the most labor employment and the highest bid price of
each bidder;
b) The presidents of the Bidding Councils and
bidders shall sign the records on bid opening.
8. Bid consideration:
a) The Bidding Councils shall examine, analyze,
assess and rank bid dossiers or hire counseling organizations with such
function to perform the job; base themselves on the highest bid price in
combination with the labor employment scheme to select bid winners;
b) The Bidding Councils shall make records on
bid consideration and send them to the Enterprise Renewal and Development
Boards and the company contracting deciders.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Business contracting contracts
A business contracting contract shall cover the
following principal contents:
1. Names and addresses of the state company
subject to business contracting and the business-contracted person.
2. The contracting contents, mode, targets,
conditions and duration.
3. The rights and responsibilities of the
parties in the course of contracting; the contracting duration shall be agreed
upon by the two parties but must not be less than 3 years; the termination of
contracts ahead of time.
4. The handling of contractual breaches, changes
affecting the interests and obligations of the contracting and contracted
parties; commendation, reward and penalties in the course of contracting.
5. Other contents related to business
contracting.
Article 34. Rights and
obligations of business-contracted persons
Rights and obligations of
business-contracted persons
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. To decide on business organization, mode of
salary and bonus payment in the companies.
3. To enjoy and decide by themselves the
distribution of incomes in excess of the contracting level. For profits in
excess of the contracting levels, after offsetting the previous years' losses
under the provisions of the Enterprise Income Tax Law, paying the enterprise
income tax, making up for the profits in deficit of the business contracting
targets of the previous years and deducting for reserve funds, the
business-contracted persons may take initiative in using the remainder.
4. To have their incomes reduced if failing to
achieve the contracting targets and requirements inscribed in the contracting
contracts; in case of business losses entailing the loss of state capital or
contractual breaches leading to losses, to pay compensations therefor.
5. To have assets mortgaged, pledged, deposited
as security collateral, escrow account or to be guaranteed for performance of
contracts.
Article 35. Rights and
obligations of business contracting deciders
Rights and obligations of
business contracting deciders
1. To inspect and monitor the realization of
commitments in the contracts for business contracting, handle cases of
breaching the commitments inscribed in the contracts.
2. Not to intervene in the administration by the
business-contracted persons; to create favorable conditions for them to fulfill
their commitments inscribed in the contracts for business contracting.
SECTION II. LEASE OF
COMPANIES
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Forms of leasing companies,
notifying decisions on lease of companies and registration for lease of
companies
1. The lessees may opt to lease companies in the
following forms:
a) Lease of assets of companies: Leasing assets
constituting the production and business establishments of the companies, which
is accompanied with the hiring of laborers of the companies, but not inheriting
the rights and obligations of the leased companies;
b) Lease of operational companies: Leasing
assets constituting the production and business establishments of the
companies, which is accompanied with the hiring of laborers of the companies
while inheriting debts, economic contracts and other rights and obligations of
the companies under the agreements of the concerned parties.
2. The agencies deciding on the lease of
companies must publicly announce on the mass media and notify the companies of
the decisions on lease and organize the registration of lease applicants within
45 days. If past the 45-day time limit, there is only one registrant, such time
limit must be prolonged for 15 days; if there is still only one registrant
after the prolongation, the companies shall be leased by mode of direct lease.
The company directors shall notify such to the
laborers in the companies, organize the registration for lease of companies and
send the lists of registrants to the Enterprise Renewal and Development Boards
of ministries, provincial-level People's Committees or state corporations.
Article 37. Leasing
companies by mode of bidding
Leasing companies by mode of
bidding
1. In cases where there are two or more
registrants for lease, a bidding must be held.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. The lease registrants shall submit their bids
for company lease and deposit money to the Bidding Councils.
The Bidding Councils shall receive bid dossiers,
deposit money, make lists of bidders and issue certification of participation
in the bidding.
4. The bidders may go to the companies to study the
accounting books, lists of assets and survey the actual situation of the
companies; be supplied by the Bidding Councils with information on bidding
regulations and bid-marking principles.
5. Within the registration time limit specified
in Clause 2, Article 36 of this Decree, as from the date of notifying the
registration for participation in bidding, the company lease registrants must
send bid dossiers to the Bidding Councils.
Such a dossier comprises:
a) The lease application clearly stating the
full name, address, serial number of people's identity card, the number of bank
account (if any) and the business registration certificate of the lessee;
b) The leasing form and duration;
c) The scheme on employment of laborers working
in the company;
d) The proposed company leasing price;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
6. Within 15 days after the expiry of the time
limit for reception of dossiers, the Bidding Councils shall send notices on the
bidding time and venue to every bidder and publicly post up lists of
bidders at the bidding venue for 5 days before bid opening.
7. The bid opening shall be conducted within one
day as follows:
a) The Bidding Councils shall check the seals
and publicly open the envelope of each bidder and announce the labor employment
scheme, bid offer of each person for inscription in the records; announce the
highest labor employment scheme and the highest bid price of each bidder;
b) The presidents of the Bidding Councils and
bidders sign the records on bid opening.
8. Bid consideration:
a) The Bidding Councils shall consider, analyze,
assess and rank bid dossiers or hire counseling organizations with such
function to perform the job; base themselves on the highest bid prices and the labor
employment schemes to select bid winners;
b) The Bidding Councils shall make records on
bid consideration and send them to the Enterprise Renewal and Development Board
and the company lease deciders.
Article 38. Leasing
companies by direct mode
Leasing companies by direct mode
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The lease registrants may go to the companies
to study the accounting books, asset inventories and survey the actual conditions
of the companies' assets.
3. The lease registrants shall file their
dossiers of application for company lease to the Enterprise Renewal and
Development Board. The dossier contents shall be the same as for the case of
leasing companies by mode of bidding.
4. The Enterprise Renewal and Development Board
shall, together with the company directors, have the tasks:
a) To draw up schemes on company lease,
including scheme on rearrangement of laborers of the companies;
b) To set the starting, leasing price for use as
basis for negotiation and agreement with the lessees;
c) To directly discuss with the lessees on labor
employment schemes, leasing prices, leasing duration and terms of the company
lease contracts;
d) To negotiate with the lessees on the leasing
prices and the company lease contracts;
e) To submit dossiers, records and draft
contracts to lease deciders.
Article 39.
Responsibilities of leased state companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. To inventory and classify all the assets
existing in the companies, the rented assets, the leased assets, the borrowed
assets, the kept-for-other or appropriated assets; to assess their actual
conditions.
2. To compare and determine assorted debts, make
lists of creditors and payable debts, lists of debtors and receivable debts,
dividing them into recoverable debts and irrecoverable debts; the companies are
obliged to handle the finance according to the financial regulation promulgated
by the Government before deciding to lease the companies.
3. To make financial statement of the quarter
next to the time of deciding on company lease.
4. To make lists of laborers of the companies
and relevant dossiers of the laborers.
5. To hand over the assets, laborers, dossiers,
and relevant books to the lessees under the agreement inscribed in the company
lease contracts.
6. To manage books, documents and dossiers on
assets and laborers of the companies in the leasing duration.
7. To fulfill obligations towards the State, to
observe policies and regimes towards laborers according to legal provisions and
company lease contracts.
8. To propose the lease deciders to terminate
the leasing contracts ahead of time (if the lessees breach the contracts).
Article 40. Principles for
handling of assets, finance of the companies upon the lease thereof
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The assets, finance and debts shall be handled
upon the lease of companies as follows:
1. The existing assets of the companies shall be
inventoried to determine their quantity and actual conditions, including fixed
assets and long-term investments; working assets and short-term investments;
ass8ets rented, borrowed, leased, kept for others, sold for others, consigned
for sale, appropriated.
Assets rented, borrowed, kept for others,
accepted for processing, consigned, appropriated shall be inventoried and
classified separately.
2. The assets existing in the companies shall be
classified and handled as follows:
a) The leased assets shall be classified and
assessed in terms of their actual value, quality, technical properties and
determined in term of practical value.
The practical value of leased assets shall be
determined on the basis of accounting books of the companies at the time of
lease, the lessees' use demands and the market prices at the time of lease.
The practical value of assets at the time of
lease shall be used as basis for determining the company rentals;
b) The assets not on the list of leased assets
must be handled before the lease in form of transfer, liquidation, sale or
hired preservation pending the handling;
c) The working assets shall be agreed upon by
the lessors and the lessees;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. The companies shall have to settle the
receivable and payable debts. If the lessees do not inherit the receivable and
payable debts, the companies' remaining management sections tasked by the lease
deciders to monitor the leasing contracts shall have to continue recovering the
receivable debts and paying the payable debts.
4. In case of renting operational of companies:
The lessors shall join the lessees in discussing with the relevant parties to
reach agreement on inheritance of interests and obligations of the legal
persons being the leased companies.
Article 41. Labor
settlement upon company lease
Labor settlement upon company
lease
1. The leased companies shall make lists of the
existing number of laborers at the time of deciding on the lease, classify
laborers and compile dossiers related to laborers:
a) The number of laborers subject to the
implementation of social insurance policy;
b) The number of laborers enjoying social
insurance for illness, pregnancy and maternity, labor accidents and
occupational diseases;
c) The number of laborers for whom the
performance of labor contracts is postponed;
d) The number of laborers for whom the labor
contracts are terminated;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
f) The number of laborers awaiting jobs due to
unavailability of jobs arranged for them.
2. If the company lease is accompanied with the
hiring of labor, the company lessees shall have to admit, arrange jobs for, and
ensure interests of, laborers under leasing contracts not contrary to the
provisions of labor law.
The company directors shall have to carry out
procedures so that the social insurance agencies shall grant insurance books
according to regulations and transfer the lists and dossiers of laborers being
managed by the companies to the new enterprises.
3. For laborers entitled to social insurance
regimes, the company directors and the social insurance agencies where the
companies pay the insurance premiums shall settle interests for laborers
according to the provisions of the Social Insurance Regulation.
4. For cases of terminating labor contracts, the
company directors shall settle regimes and policies for laborers according to
provisions of labor law and the policies towards laborers redundant due to
reorganization of state enterprises.
5. In cases where companies are leased but the
lessees refuse to employ all the existing laborers, the lease deciders and the
leased companies shall have to arrange jobs for them or apply policies towards
the remaining laborers.
Article 42. Principle for
determining the company-leasing prices
Principle for determining the
company-leasing prices
1. Company-leasing prices shall be determined on
the basis of: leasing form, minimum leasing prices set by lease deciders, the
real value of the company, the direct negotiation on rentals between the
lessors and the lessees (in case of direct lease) or bid-winning prices (in
case of bidding), but must not be lower than the minimum leasing prices set by
the lease deciders.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) Ensuring the compensation for expenses for
wear of leased assets;
b) Offsetting reasonable expenditures of the
lessors in the course of organizing, managing and supervising the leased
assets;
c) Calculating interests in the company-leasing prices,
depending on the value and conditions of financial assets, technology, product
quality, product salability; business situation and results of the companies
before the lease:
- For companies doing business with profits: The
interest portion in the company-leasing prices shall not be lower than the
minimum profit level already attained before the lease.
- For companies doing business at a loss or
without profits: when being leased, the profits shall not be calculated into
the starting leasing price level.
Article 43. Decisions on
lease of companies
Decisions on lease of companies
1. At the proposal of the Enterprise Renewal and
Development Board, competent authorities shall issue company-leasing decisions.
2. A company-leasing decision shall comprise the
following principal contents:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) The leasing contents, form, duration;
c) The leasing price and payment mode;
d) The tasks of the Enterprise Renewal and
Development Board and the person authorized to sign the contract in the
company-leasing organization;
e) Responsibilities of the leased company, the
Enterprise Renewal and Development Board and relevant agencies in handling
other existing and arising problems.
3. Company-leasing decisions shall be addressed
to the offices of: Enterprise Finance; Tax, Business Registration, Labor, War
Invalids and Social Affairs, the Statistical Departments of the localities
where the companies are headquartered; and the Steering Committee for Enterprise
Renewal and Development.
Article 44. Company-leasing
contracts
Company-leasing contracts
The company-leasing contracts shall be signed by
the lessees and the persons authorized by the lease deciders, comprising the
following principal contents:
1. Names, addresses and account numbers of the
leased companies and the lessees.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. The company-leasing duration agreed upon the
contractual parties but must not be less than 3 years; termination of leasing
contracts ahead of time.
4. The rights and responsibilities of company
lessors and lessees.
5. The handling of labor, assets, finance, the
companies' rights and obligations to be inherited in case of teasing operation
of companies.
6. The return or handling of companies upon the
expiry of contracts.
7. Commitments of the contractual parties.
8. Principles for handling of arising problems,
contractual disputes; handling of contractual breaches, changes affecting the
interests and obligations of the lessees and the lessors; rewards and penalties
in the leasing course.
Enclosed with leasing contracts are lists of
assets owned by the companies, assessing the remaining values of such assets
and the lists of laborers (in case of leasing operational companies).
Article 45. Payment of
deposits and handover of companies
Payment of deposits and handover
of companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Within the time limit agreed in the
contracts, the Enterprise Renewal and Development Board shall join the company
leasing-contract signing persons and the company directors in organizing the
handover of companies to the lessees.
Upon the handover, if the quantity and value of
the companies' assets are at variance with the asset quantity and value
inscribed in the contracts, the lessees may postpone the acceptance of the handover
and request the adjustment of the signed contracts.
Article 46. Rights and
obligations of company lessees
Rights and obligations of
company lessees
Apart from the rights and obligations of the
asset lessees, provided for in Section 5, Chapter II, Part Three of the Civil
Code, the company lessees shall also have the following rights and obligations:
1. Rights of the company lessees:
a) To take initiative in managing and using the
leased assets and laborers of the companies in service of business activities
not contrary to the agreements in the contracts and legal provisions;
b) To change, reorganize production, make new
investments, renew technologies, improve techniques, maintain, replace and
repair assets damaged in the course of production and business activities. The
replacement or sublease of assets must be consented by the lease deciders;
c) To decide by themselves the organization of
the managerial apparatus, business, mode of payment of salaries and bonuses in
the companies;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
e) To inherit all contracts on lease of
land, ground, power and water supply of the leased state companies (if they
have demands therefor).
2. Obligations of the company lessees:
a) To pay company rentals as agreed upon in the
contracts;
b) To use assets for the right purposes agreed
upon in the leasing contracts; not to use leased assets (excluding new
investments of their own capital) for pledge or mortgage; not to sublease the
land use rights;
c) To ensure that assets operate normally and in
suitability with the degree of asset depreciation as agreed upon in the
contracts;
d) To join the lessors in settling arising
problems related to the rights and obligations under the contracts on land
lease, power, water, materials and raw materials supply, product sale, labor
contracts; to improve the working conditions for laborers and environmental
hygiene;
e) To submit to the inspection and
supervision of the use of leased assets by the lessors;
f) To perform other obligations defined in the
company-leasing contracts.
3. Apart from the common rights and obligations
specified in Clauses 1 and 2 of this Article, the lessees shall also have the
following rights and obligations:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b) Where the company lessees register their
business under the Enterprise Law or the Cooperative Law, they may use the
leased assets and labor for the business purposes under the mechanism defined
for the registered types of enterprise while observing the provisions of the
leasing contracts and the provisions in Clauses 1 and 2 of this Article;
c) Where the company lessees are labor
collectives or individuals in the companies, they must have their own sources
of capital, register the establishment of enterprises of the labor collectives
or individuals and have the rights to use the leased state companies under the
mechanism defined for the registered types of enterprise.
4. For company lessees who breach the
contractual commitments thus causing losses to the leased companies, apart from
the liabilities agreed upon in the leasing contracts, the lease deciders are
entitled to terminate the contracts and compel the lessees to pay compensations
for damage they have caused.
Article 47. Rights and
obligations of company lease deciders and company-leasing contract signing
persons
Rights and obligations of
company lease deciders and company-leasing contract signing persons
1. The company lease deciders are entitled to
direct the performance of company-leasing contracts; to settle proposals of the
Enterprise Renewal and Development Board or the contract signing persons; to
decide on company-leasing prices; to decide on recovery of leased companies at
the proposals of the company-leasing contract signing persons.
2. The company-leasing contract signing persons
have the following rights and obligations:
a) To organize the realization of contents and commitments
in company-leasing contracts;
b) To organize the monitoring, supervision and
inspection of contract performance; not to intervene in production and business
activities of the companies; to create favorable conditions for the lessees to
strictly comply with the commitments in company-leasing contracts;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 48. Termination of
company-leasing contracts
Termination of company-leasing
contracts
1. Upon the expiry of the company-leasing terms
inscribed in contracts, the company lessors and lessees must inventory and
determine the quantity, actual conditions and value of the remaining assets,
newly and additionally invested assets, the payments between the lessors and
the lessees against the contracts, determine the responsibility of each party
and reach agreement on handling of the value of newly invested assets and proceed
to liquidate contracts.
2. Where lessees have the demand to buy the
companies which they are leasing or for which the leasing terms have expired,
the two parties shall liquidate the leasing contracts and shift to mode of
selling state companies; if after the expiry of the duration of the
notification on sale of the companies, no other organizations or individuals
register for the purchase, the current lessees shall carry out the procedures
for the purchase by direct mode; if there are two or more registrants
(including the current lessee) for the purchase, auction or bidding must be
held under the provisions of this Decree; if the registrants get equal marks in
bid evaluation, the current lessees shall be given priority to purchase the
companies.
3. If upon the expiry of the leasing contracts
the leased companies continue operating, they shall be obliged to receive back
the former laborers. In case of operation termination due to division,
separation, merger, consolidation, dissolution or bankruptcy of companies, the
regimes and policies shall comply with the provisions of law.
Chapter V
PREFERENCES FOR
COMPANIES AND THE COMPANY ASSIGNEES, PURCHASERS AND LESSES AS WELL AS LABORERS
Article 49. Preferences for
the assigned, sold or leased companies
Preferences for the assigned,
sold or leased companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) To enjoy preferences like newly established
enterprises and under the provisions of law on investment promotion, without
having to carry out procedures for being granted investment preference
certificates;
b) To be exempt from the business registration
fee, registration fee for assets managed and used by state companies, then
transferred to new enterprises for ownership;
c) To continue maintaining the former companies'
contracts for house, workshop and land lease under the provisions of the Land
Law and current legislation;
d) To continue borrowing capital of commercial
banks, financial companies and other state-run, credit institutions at the
interest rates applicable to state companies;
e) To continue with goods export and import
according to the current regulations applicable to state companies;
f) Before being assigned, sold or leased,
companies may take initiative in dividing the balances (in cash) of the reward
and welfare funds to laborers currently working in the companies (without
having to pay income tax);
g) To maintain and develop the welfare funds in
form of kind, cultural works, clubs, infirmaries, sanatoriums to ensure welfare
for the laborers who continue to work at the assigned or sold companies. These
assets are owned by the labor collectives and managed jointly by the companies'
Trade Unions and employers.
2. The leased enterprises shall enjoy the
preferences provided for at Points c, d, e, f and g, Clause 1 of this Article.
Article 50. Preferences for
purchasers being labor collectives in the companies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
For labor collectives satisfying the conditions
defined in Clause 14, Article 3 of this Decree for company purchase, the Trade
Union presidents or the labor collectives' representatives elected by the
company employees' congress shall, on behalf of the labor collectives, carry
out procedures for company purchase and enjoy the following preferences:
1. The labor collectives purchasing companies
which have the state capital of under VND 5 billion each on the accounting
books and suffer from so heavy losses that they are incapable of paying debts
while the estimated proceeds from sale of enterprises are not enough to pay all
debts:
a) If the labor collectives ensure that between
50% and 100% of the existing number of laborers of the companies shift to work
at the new enterprises, guarantee jobs for those laborers for one year or more
constantly, they shall enjoy the 70% reduction of the sale prices, excluding
the land use right value; the maximum reduction level shall equal the state
capital portions at the companies;
b) If the labor collectives can only ensure that
less that 50% of the existing number of laborers of the companies shift to work
at the new enterprises and guarantee jobs for those laborers for one year or
more constantly, they shall enjoy the 50% reduction of the sale prices,
excluding the land use right value; the maximum reduction level shall equal the
state capital portions at the companies.
2. The labor collectives purchasing companies,
which have the state capital of under VND 5 billion each on the accounting books,
do business with profits or not at a loss, and the estimated proceeds from the
sale of enterprises may be enough for payment of debts:
a) If the labor collectives ensure that 50% to 100%
of the existing number of laborers of the companies shift to work at new
enterprises, guarantee jobs for those laborers for one year or more constantly,
they shall enjoy the 50% reduction of the sale price, excluding the land use
right value; the maximum reduction level shall equal the state capital portion
at the companies;
b) If the labor collectives can only ensure that
less than 50% of the existing number of the laborers of the companies shift to
work at the new enterprises and guarantee jobs for those laborers for one year
or more constantly, they shall enjoy the 40% reduction of the sale prices,
excluding the land use right value; the maximum reduction level shall equal the
state capital portions at the companies.
3. For labor collectives purchasing companies,
which have the state capital of VND 5 billion or more each on the accounting
books, by mode of inheritance of debts, continuing to maintain production and
business, ensuring jobs for them and committing to admit the existing number of
laborers of the companies (excluding those who voluntarily terminate their
labor contracts):
a) If they can arrange between 70% and 100% of
the existing number of laborers of the companies to work in the new
enterprises, ensure jobs for those laborers for one year or more constantly,
they shall enjoy the 50% reduction of the sale prices, excluding the land use
right value; the maximum reduction level shall equal the state capital portions
at the companies;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. For labor collectives purchasing companies,
which have the state capital of VND 5 billion or more each on the accounting
books, by mode of non-inheritance of debts, continuing to maintain
production and business, ensuring jobs for
themselves and committing to admit the existing number of laborers of the
companies (excluding those who voluntarily terminate their labor contracts):
a) If they guarantee to arrange between 70% and
100% of the existing number of laborers of the companies to work at the new enterprises
and ensure jobs for those laborers for one year or more constantly, they shall
enjoy the 40% reduction of the sale prices, excluding the land use right value;
the maximum reduction level shall equal the state capital portions at the
companies;
b) If they guarantee to arrange between 50% and
under 70% of the existing number of laborers of the companies to work at the
new enterprises and ensure jobs for these laborers for one year or more
constantly, they shall enjoy the 35% reduction of the sale price, excluding the
land use right value; the maximum reduction level shall equal the state capital
portions at the companies.
The price reduction levels specified at Points a
and b, Clause 2 of this Article must conform to the principles defined in
Clause 3, Article 5 of this Decree.
5. Purchasers being individuals or groups of
laborers in the companies, that are not recognized as representatives of the
labor collectives in the companies, shall not be entitled to enjoy the
preferences applicable to the labor collectives purchasing the companies.
6. Each laborer in the labor collectives which
buy the companies is entitled to own a part of the company value corresponding
to his/her contributed capital portion, has the rights and obligations of a
capital contributor but must not transfer his/her shares to persons outside the
company within one year after purchasing the company.
Article 51. Preferences for
purchasers other than labor collectives
Preferences for purchasers other
than labor collectives
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a) If the purchasers employ all the existing
number of laborers of the companies (excluding those who voluntarily terminate
their labor contracts) and ensure jobs for them for one year or more
constantly, they shall enjoy the 50% reduction of the sale prices, excluding
the land use right value; the maximum reduction level shall equal the state
capital portions at the companies;
b) If the purchasers employ only between 50% and
under 100% of the existing number of laborers of the companies to work at the
new enterprises and ensure jobs for them for one year or more constantly, they
shall enjoy the 30% reduction of the sale prices, excluding the land use right
value; the maximum reduction level shall equal the state capital portions at
the companies;
c) If the purchasers employ only between 20% and
under 50% of the existing number of laborers of the companies to work at the
new enterprises and ensure jobs for them for one year or more constantly, they
shall enjoy the 20% reduction of the sale prices, excluding the land use right
value; the maximum reduction level shall equal the state capital portions at
the companies.
2. In case of purchasing companies with the
state capital of VND 5 billion or more each on the accounting books by mode of
debt inheritance, committing to admit the number of regular laborers on the
list at the time of selling the companies (excluding those who voluntarily
terminate their labor contracts):
a) If they guarantee to employ between 70% and
100% of the existing number of laborers of the companies (excluding those who
voluntarily terminate their labor contracts) and ensure jobs for them for one
year or more constantly, they shall enjoy the 40% reduction of the sale
prices, excluding the land use right value; the maximum reduction level shall
equal the state capital portions at the companies;
b) If they guarantee to employ only between 50%
and under 70% of the existing number of laborers of the companies (excluding
those who voluntarily terminate their labor contracts) and ensure jobs for them
for one year or more constantly, they shall enjoy the 30% reduction of the sale
prices, excluding the land use right value; the maximum reduction level shall
equal the state capital portions in the companies.
3. In case of purchasing companies with the
state capital of VND 5 billion or more each on the accounting books, by mode of
non-inheritance of debts, committing to admit the number of regular laborers on
the lists at the time of selling the companies (excluding those who voluntarily
terminate their labor contracts):
a) If they guarantee to employ between 70% and
100% of the existing number of laborers of the companies (excluding those who
voluntarily terminate their labor contracts) and ensure jobs for them for one
year or more constantly, they shall enjoy the 35% reduction of the sale prices,
excluding the land use right value; the maximum reduction level shall equal the
slate capital portions at the companies;
b) If they guarantee to employ between 50% and
under 70% of the existing number of laborer of the companies (excluding those
who voluntarily terminate their labor contracts) and ensure jobs for them for
one year or more constantly, they shall enjoy the 25% reduction of the sale
prices, excluding the land use right value; the maximum reduction level shall
equal the existing state capital portions at the companies.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 52. Preferences for
purchasers making immediate payments in cash
Preferences for purchasers
making immediate payments in cash
If the company purchasers immediately cash down
in lump sum upon their purchase, they shall enjoy the maximum reduction level
of 10% of the sale prices, excluding the land use right value. The maximum sale
price reduction level covering the preference for immediate cash payment shall
equal the state capital portions at the companies.
Article 53. Policies
towards laborers who leave the companies
Policies towards laborers who
leave the companies
Laborers who are not further employed by purchasers
or automatically terminate their labor contracts:
1. Before the company sale, they shall be
divided with balances of the reward and welfare funds (in cash).
2. They are entitled to enjoy other regimes as
provided for by labor law.
Chapter VI
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 54. Competence to
decide on assignment, sale, business contracting, lease of companies
Competence to decide on
assignment, sale, business contracting, lease of companies
Based on the master plan on reorganization of
state companies, which has been approved by competent authority:
1. The ministers of branch-managing ministries,
the heads of the ministerial-level agencies, the heads of the
Government-attached agencies, the presidents of the provincial-level People's
Committees shall:
a) Decide on assignment, sale, business
contracting or lease of the companies they have decided to establish, including
dependent cost-accounting member companies, dependent cost-accounting units of
the corporations they have decided to set up;
b) Decide on the sale of sections of the
companies, where the remaining asset values of those sections exceed 30% of the
total remaining asset values of such companies (for companies without Managing
Boards) or exceed 50% of the total remaining asset values reflected on the
companies' financial statements announced in the latest quarter (for companies
with Managing Boards); where such company sections have completely settled the
number of laborers or have their schemes on the complete settlement of the
number of laborers approved by competent authorities in accordance with
provisions of labor law and policies towards laborers redundant due to
reorganization of state companies;
c) Decide on the sale of company sections where
laborers still work.
2. The Managing Boards of state corporations
shall decide or assign or authorize the general directors to decide on the sale
of sections of companies, where the remaining asset values of such sections do
not exceed 50% of the total remaining asset values reflected on the companies'
financial statements in the latest quarter, such company sections have
completely settled the number of laborers or have their schemes on complete
settlement of the number of laborers approved by competent authorities in
accordance with the provisions of labor law and the policies towards laborers
redundant due to reorganization of state companies.
3. Directors of the companies without Managing
Boards shall decide on the sale of company sections whose remaining asset
values do not exceed 30% of such companies' total remaining asset values
reflected on their financial statements announced in the latest quarter, where
such company sections have completely settled the number of laborers or have their
schemes on complete settlement of the number of laborers approved by competent
authorities in accordance with the provisions of labor law and the policies
towards laborers redundant due to reorganization of state companies.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Responsibility to organize the
assignment, sale, business contracting, lease of state companies
1. The Enterprise Renewal and Development Boards
are agencies assisting the ministers, the provincial-level People's Committee
presidents, the Managing Boards of the state corporations in carrying out the
assignment, sale, business contracting, lease of state companies.
Depending on natures of branches or occupations,
forms of assignment, sale, business contracting or lease of companies and the
financial situation of the companies, the Enterprise Renewal and Development
Boards shall invite representatives of banks, companies, laborers in the
companies and relevant agencies to join.
2. The ministries, the provincial-level People's
Committees, the state corporations shall set up the Enterprise Renewal Boards
in the companies to carry out the preparatory work, draft the schemes, organize
the inventories of assets, capital money and debts; the Enterprise Renewal
Boards in the companies make the lists of laborers of the companies and carry
out other necessary procedures under the guidance of the superior Enterprise
Renewal and Development Boards.
3. Where companies do not realize the schemes on
assignment, sale, business contracting or lease of companies, which were
approved by competent authorities, in accordance with the provisions of this
Decree, the company directors must be subject to various forms of discipline
and the heads of the agencies managing such companies shall jointly bear the
responsibility as provided for by the State Enterprise Law.
Article 56. Tasks of the
Enterprise Renewal and Development Boards in organizing the assignment, sale,
business contracting, lease of companies
Tasks of the Enterprise Renewal
and Development Boards in organizing the assignment, sale, business
contracting, lease of companies
1. In case of company assignment:
a) To elaborate schemes on company assignment;
announce the company assignment to the entire laborers in the companies and on
the mass media;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) To make contracts on company assignment and
report thereon to the ministers, provincial-level People's Committee presidents,
the Managing Boards of state corporations;
d) To guide, inspect and supervise the Renewal
Boards in the companies to recover the assets of the companies, return the
assets rented, borrowed, kept for other by the companies; recover receivable debts
and pay payable debts of the companies; hand over the assets, books and
relevant dossiers to the company assignees under the agreement in the company
assignment contracts;
e) To handle within the scope of their
competence problems arising from the assignment of companies.
2. In case of company sale:
a) To elaborate the schemes on company sale; to
announce to the entire laborers of the company and on the mass media the sale
of companies;
b) To appraise the company value, determine the
projected sale prices of the companies on the basis of values in books, current
conditions, quality and technical properties of assets and at market prices;
cross-check debts, make lists of creditors and debtors of the companies, debts
payable to creditors; formulate schemes on handling of existing problems on
finance and labor of the companies;
c) To organize the direct sale, bidding or
auction of state companies; analyze, evaluate bid dossiers, propose sale prices
(in case of direct sale) and select bid winners (in case of bidding), highest
price offerers (in case of auction) for the company sellers to decide;
d) To make company sale contracts and report
thereon to ministers, provincial-level People's Committee presidents, Managing
Boards of state corporations for decision;
e) To guide, inspect, supervise the Renewal
Boards at the companies in recovering assets of the companies, returning assets
rented, borrowed, kept for other by the companies; recovering and paying debts
of the companies; handing over assets, books and relevant dossiers to
purchasers under the agreement in the company sale contracts;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. In case of company lease:
a) To elaborate schemes on company lease; to
determine the targets and conditions of company lease; to announce at the
companies and on the mass media the company lease;
b) To guide the Renewal Boards in the companies
to inventory the entire assets of the companies, determine the financial and
asset situation of the companies and convert them into value before the lease;
c) To determine the minimum leasing prices and
propose the company leasing prices;
d) To analyze, evaluate the leasing schemes;
exchange and negotiate directly with the lessees on the leasing contracts or
organize bidding for company lease. To recommend direct lessees (in case of
direct lease) or bid winners (in case of bidding) to company lease deciders for
decision;
e) To make contracts on company lease and report
them to ministers, provincial-level People's Committee presidents, Managing
Boards of state corporations for decision;
f) To handle according to competence problems
arising from the lease of companies.
4. In case of business contracting of companies:
a) To determine the targets and conditions of
business contracting; organize the elaboration of schemes on business
contracting of companies;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c) To make contracts on business contracting,
report them to ministers, provincial-level People's Committee presidents,
Managing Boards of state corporations for decision.
Article 57.
Responsibilities of Enterprise Renewal and Development Boards
Responsibilities of Enterprise
Renewal and Development Boards
The Enterprise Renewal and Development Boards
take responsibility for the contents and results of their assigned work before
the persons who decide on the assignment, sale, business contracting, lease of
companies and before law.
Article 58. Competence to
approve schemes on assignment, sale, business contracting, lease of enterprises
Competence to approve schemes on
assignment, sale, business contracting, lease of enterprises
1. Based on the proposals of the Enterprise
Renewal and Development Boards, ministers, provincial-level People's Committee
presidents, Managing Boards of state corporations shall decide on:
a) The business contracting targets and
conditions, leasing prices and the approval of schemes on company assignment,
business contracting or lease, provided for at Point c, Clause 2, Article 2 of
this Decree;
b) The sale prices of companies, company
sections and approval of the schemes on sale of companies, company sections,
provided for at Points b and d, Clause 2, Article 2 of this Decree.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 59. Competence to
sign contracts on assignment, sale, business contracting or lease of enterprises
Competence to sign contracts on
assignment, sale, business contracting or lease of enterprises
1. The contracts on assignment, sale, business
contracting or lease of companies managed by ministries shall be signed by
ministers or persons authorized by ministers.
2. The contracts on assignment, sale, business
contracting or lease of companies managed by localities shall be signed by
provincial-level People's Committee presidents or persons authorized by
provincial-level People's Committee presidents.
3. The general directors of the state
corporations shall sign contracts on assignment, sale, business contracting or
lease of member companies of the state corporations.
Article 60. Responsibility
to perform and monitor the performance of contracts on assignment, sale,
business contracting or lease of companies
Responsibility to perform and
monitor the performance of contracts on assignment, sale, business contracting
or lease of companies
The persons who sign the contracts on
assignment, sale, business contracting or lease of companies have the
responsibility:
1. To organize the performance of contracts on
assignment, sale, business contracting or lease of companies.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. All problems arising in the course of
performing the contracts on assignment, sale, business contracting, lease of
companies shall be settled by the two signing parties; if there still remain
disputes, they shall bring the cases to the provincial-level People's Courts
according to provisions of law.
Article 61. Announcement
and registration for purchase, business contracting or lease of companies
Announcement and registration
for purchase, business contracting or lease of companies
The Enterprise Renewal and Development Boards of
ministries, provinces or centrally run cities, state corporations shall notify
the companies of, and announce on the mass media, the undertaking to apply form
of assignment, sale, business contracting or lease of companies, and register
the lists of assignees, purchasers, business-contracted persons or lessees
within 45 days as from the date the competent authorities decide on the form of
company transformation.
Past the above time limit, if there is no
registrant for any of the above forms, the Enterprise Renewal and Development
Boards shall prolong such time limit for 15 days; if there is still no
registrant, they shall propose the competent authorities to carry out the
procedures for dissolution of the companies subject to assignment or sale; in
cases where the companies fall into the state of bankruptcy, the company
directors must file their written applications to the provincial-level Economic
Tribunals for opening of procedures for settlement of bankruptcy for the
companies.
Chapter VII
IMPLEMENTATION PROVISIONS
Article 62. Implementation
effect
1. This Decree takes effect 15 days after its
publication in "CONG BAO".
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. Enterprises which have carried out the company
assignment before the effective date of this Decree but have not yet paid back
to the State 30% of the equity value as provided for in Clause 5, Article 10 of
Decree No. 103/1999/ND-CP shall not have to pay back to the State this 30% of
the equity value.
Article 63. Responsibility
for enforcement and organization of implementation
Responsibility for enforcement
and organization of implementation
1. The Ministries of Planning and Investment;
Finance; Labor, War Invalids and Social Affairs; and Natural Resources and
Environment, and the State Bank of Vietnam shall have to coordinate with the
relevant agencies in guiding the implementation of this Decree.
2. The ministers, the heads of the
ministerial-level agencies, the heads of the Government-attached agencies, the
presidents of the provincial/municipal People's Committees, and the Managing
Boards of the state corporations shall have to implement this Decree.
The Minister of Planning and Investment shall
have to monitor the implementation of this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.