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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
73/2000/ND-CP
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Hanoi,
December 06, 2000
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DECREE
PROMULGATING THE REGULATION ON MANAGEMENT OF STATE CAPITAL
IN OTHER ENTERPRISES
THE GOVERNMENT
Pursuant to the September 30, 1992 Law on
Organization of the Government;
Pursuant to the April 20, 1995 Law on State Enterprises;
At the proposal of the Finance Minister,
DECREES:
Article 1.- To
promulgate together with this Decree the "Regulation on management of
State capital in other enterprises".
Article 2.- This Decree
takes effect 15 days after its signing. The stipulations on management of State
capital in other enterprises which are contrary to the stipulations in this
Regulation shall all be annulled.
Article 3.- The
ministers, the heads of the ministerial-level agencies, the heads of the
agencies attached to the Government, the presidents of the People’s Committees
of the provinces and centrally-run cities, the Managing Boards, the General
Directors, the Directors of the State enterprises shall have to implement this
Decree.
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ON BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Tan Dung
REGULATION
ON MANAGEMENT OF STATE CAPITAL IN OTHER ENTERPRISES
(Promulgated together with the Government’s Decree No. 73/2000/ND-CP of
December 6, 2000)
I. GENERAL PROVISIONS
Article 1.- The State
performs the management of State capital in other enterprises via the State
capital representatives and the direct managers of the State capital in other
enterprises.
Article 2.- A number
of terms in this Regulation shall be construed as follows:
1. "Other enterprises" are enterprises
operating under the Enterprise Law, the Law on Foreign Investment in Vietnam or
the Cooperatives Law.
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3. "The representatives of the State
capital in other enterprises" (hereinafter called the representatives for
short) are organizations or individuals defined in Article 6 of this Regulation
that represent the State in exercising the owner’s rights over the State
capital proportion in other enterprises.
4. "The direct managers of the State
capital in other enterprises" (hereinafter called the direct managers for
short) are persons appointed by the representatives to exercise the rights and
perform the obligations of State capital contributors or shareholders. The
direct managers may work on the full-time or part-time basis. Where there are
many direct managers in another enterprise, the representative shall have to nominate
the person responsible for coordination among the direct managers in exercising
the rights and performing the assigned duties.
Article 3.- The State
capital in other enterprises includes:
1. The capital under the State ownership at the
State enterprises includes money, land use right value or land rent, the value
of State-owned assets invested in other enterprises or contributed as capital
to joint ventures with domestic and foreign organizations and/or individuals by
State enterprises.
2. The State budget contributed as capital to
other enterprises.
3. The value of State shares in already
equitized State enterprises, including the value of State shares provided for
laborers in the enterprises to enjoy dividends when the State enterprises
effect the equitization during the period before Decree No.44/1998/ND-CP of
June 29, 1998 of the Government took effect for implementation.
4. The divided profits from the State
investments in other enterprises, which are used for reinvestment in such
enterprises.
Article 4.- Where the
State does not hold the dominant shares in the total share amount of other
enterprises, the appointment of direct managers may not be needed. However the
representative must organize how to ensure the monitoring of the State capital
amount already invested and the profit amount divided from the State capital
investment in such enterprises and assign persons to exercise the shareholders’
rights according to the enterprises’ charters.
Article 5.-
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2. The competent State bodies shall perform the
inspection and supervision according to their function of State management over
the activities of enterprises, without interfering in the business operation of
the enterprises.
II. RIGHTS AND OBLIGATIONS OF
THE REPRESENTATIVES OF THE STATE CAPITAL IN OTHER ENTERPRISES
Article 6.- The
representatives of the State capital in other enterprises shall be determined
as follows:
1. The Finance Ministry for the following cases:
a) The State capital in other enterprises,
contributed by the central budget.
b) The State capital in enterprises set up
through the full equitization of independent State enterprises, which have been
established under decisions of ministries or branches.
c) The State capital in joint-venture
enterprises set up through the contribution of the entire capital to the joint
ventures by independent State enterprises, which have been established under
decisions of ministries or branches and have no longer had the legal person
status of the State enterprise.
2. The People’s Committees of the provinces and
centrally-run cities for the following cases:
a) The State capital in other enterprises,
contributed as capital thereto by the local budgets.
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c) The State capital in joint-venture enterprises
set up through the contribution of entire capital to the joint ventures by
independent State enterprises, which have been established under decisions of
the presidents of the provincial/municipal People’s Committees and have no
longer had the legal person status of the State enterprise.
3. The Managing Boards (for State enterprises
with Managing Boards) or the enterprise directors (for independent State
enterprises without Managing Boards), for the following cases:
a) The State capital in other enterprises,
brought about by the partial equitization of independent State enterprises.
b) The State capital in other enterprises,
brought about by the partial or full equitization of member enterprises of
corporations.
c) The State capital partially invested in other
enterprises or contributed as capital to joint ventures with domestic and/or
foreign organizations and/or individuals by State enterprises.
For State corporations, the Managing Boards may
authorize directors of member enterprises to act as representatives of the
State capital, for case of partial equitization of member enterprises, or
contribution of member enterprises’ partial capital to joint ventures. The
authorization must be stipulated in the corporations’ charters.
Article 7.- The representatives
shall have the following rights:
1. To appoint, dismiss, commend and discipline
the direct managers.
For cases where the representative is the
Finance Ministry as provided for in Clause 1, Article 6 of this Regulation, the
ministers or the heads of branches shall decide after consulting with the
Finance Ministry.
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3. To inspect and supervise activities of the
direct managers, detect in time their shortcomings and weaknesses for
prevention and remedy.
4. To decide or submit to competent persons for decision
the increase of investment capital or retrieval of State capital at other
enterprises in accordance with law and the enterprises’ charters.
5. In case where many State enterprises
contribute State budget capital to another enterprise, the representatives
shall nominate one among them to assume the prime responsibility for
coordination among the representatives in protecting the rights and interests
of the State at such other enterprise.
6. To exercise other rights as provided for by
law.
Article 8.- The
representatives shall have the following duties:
1. To exercise the State’s dominant share rights
in order to orient the activities of the other enterprises according to the
objectives set by the State.
2. Periodically or at the request of the Finance
Ministry, to report on the business operation situation, financial results,
financial management, the management of property and capital of other
enterprises, the recovery of State shares provided to laborers for enjoyment of
dividends, the retrieval of State money lent to laborers for purchase of
shares, the recovery of money from the sale of shares on credit to poor
laborers in the enterprises.
For the representatives defined in Clause 3 of
Article 6, to concurrently send the above reports to agencies which have
decided the establishment of the State enterprises with capital invested in
other enterprises.
The reporting regime and indexes shall comply
with the Finance Ministry’s regulations.
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4. To direct the direct managers in taking
timely measures to protect the State capital amounts in cases where the
enterprises invested with State capital suffer from losses, lose capital, being
subject to consideration of dissolution or falling into the state of
bankruptcy.
5. To supervise the retrieval of State capital
lent to laborers for purchase of shares when the State enterprises were
equitized; the retrieval of shares provided to laborers for enjoyment of
dividends when the laborers die without heirs or voluntarily return (for
enterprises equitized before Decree No.44/1998/ND-CP of June 29, 1998 of the
Government took effect for implementation) shares sold on credit to poor
laborers in the State enterprises which have effected the equitization
according to Decree No.44/1998/ND-CP.
6. To supervise the recovery of profits divided
from the State capital invested in other enterprises.
III. RIGHTS AND DUTIES OF
DIRECT MANAGERS
Article 9.- The direct
managers shall have the following rights:
1. To stand as candidate for posts in the
managerial, executive apparatuses of other enterprises according to the
enterprises’ charters.
2. To exercise the rights of shareholders and
capital contributors according to law provisions and the company charter. To
request other enterprises to transfer divided profits to the addresses provided
for in Article 12 of this Regulation.
3. For the direct managers of dominant shares,
to participate in deciding measures for management and administration of the
enterprises on the basis of using the dominant share rights as prescribed by
law.
4. To request the representatives to create
conditions for fulfillment of the assigned tasks.
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Those direct managers who work on the part-time
basis and do not participate in the management and executive boards of the
enterprises shall be salaried by their principal working units.
Article 10.- The direct
managers shall have the following duties:
1. To study and propose measures for management
and administration of enterprises, the orientation and measures for their
operations and submit them to the representatives for approval. For the
enterprises’ important affairs put up for discussions in the Managing Boards or
the shareholders’ congress such as production orientations and tasks of the
enterprises, the mobilization of more shares, the division of dividends to
shareholders’, the direct managers must ask for the opinions of the
representatives before joining the voting.
2. The direct managers of the State’s dominant
shares in other enterprises must propose to the representatives for approval
the orientations, objectives and measures for using the rights of the dominant-
share holders to direct the operation of enterprises in service of the State’s
objectives.
If detecting that enterprises have deviated from
the State’s oriented objectives, they must promptly report such and propose
handling opinions to the representatives. To study and propose to the
representatives of the State’s dominant shares at enterprises for decision
important matters of the enterprises according to the provisions of law.
3. To organize the performance of tasks assigned
by the representatives, to regularly analyze and assess the situation on
business and financial activities of other enterprises with the State’s
investment capital, detect the possibility of business losses or capital losses
incurred by the enterprises in order to report such in time and in full to the
representatives.
4. To monitor and effect the recovery of the
amounts of capital allocated by the State to laborers for enjoyment of
dividends, lent to laborers for the purchase of shares when the State
enterprises were equitized (for enterprises equitized before the Government’s
Decree No.44/1998/ND-CP of June 29, 1998 took effect for implementation),
retrieve the amount of money from the share sale on credit to poor laborers in
the State enterprises equitized under Decree No.44/ 1998/ND-CP.
5. To monitor the collection of profits divided
from the investment of State capital in other enterprises.
6. To report periodically or at the
representatives’ request fully and accurately on the situation of business
activities, the financial management, the management of capital and assets of
other enterprises with investment capital of the State, the financial results
and the division of profits of the enterprises, the retrieval of capital
allocated to laborers for enjoyment of dividends or capital lent to them for
the purchase of shares.
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7. To take responsibility before the
representatives for the exercise of rights and the performance of assigned
tasks regarding the management of State capital invested in other enterprises.
8. To compile dossiers on enterprises with
investment capital of the State according to regulations of the enterprises’
finance management bodies.
The direct managers who work on the part-time
basis shall perform the duties defined in Clauses 3, 4, 5, 6, 7 and 8 of this
Article.
Article 11.- Criteria
of the direct managers
The direct managers must fully meet the
following criteria:
1. Being Vietnamese citizens permanently
residing in Vietnam. For those appointed by the Managing Boards or the
directors of State enterprises (for State enterprises without Managing Boards),
they must be personnel of such State enterprises.
2. Having good moral qualifications and good
health for task performance.
3. Having legal knowledge and the sense of law
observance.
4. Having the professional qualifications for
enterprise finance or the business fields of other enterprises with investment
capital of the State, having capability for business and organization of
enterprise management. For direct managers of State capital in joint ventures
with foreign countries, they must have good command of foreign languages enough
for direct working with foreigners in the joint ventures without requiring
interpreters.
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IV. PRINCIPLES FOR HANDLING
OF PROFITS DIVIDED AND CAPITAL RETRIEVED FROM OTHER ENTERPRISES
Article 12.- For the
amount of profits divided from other enterprises, the direct managers shall
have to request the enterprises to:
1. Channel it into the State enterprise
restructure and equitization support funds, for cases where the Finance
Ministry or the People’s Committees of the provinces or centrally-run cities
are the representatives as provided for in Clause 1 or Clause 2, Article 6 of
this Regulation.
2. Transfer to the State enterprises with
capital contributed to other enterprises, for cases where the Managing Boards
or the directors of the State enterprises are the representatives as provided
for in Clause 3, Article 6 of this Regulation.
Article 13.- The use of
divided profits to increase the State capital at other enterprises or the
reduction of the State capital at other enterprises are prescribed as follows:
1. For cases where the Finance Ministry is the
representative as provided for in Clause 1, Article 6 of this Regulation, the
Finance Minister shall consider and decide them after obtaining the opinions of
the heads of the branch- or field- managing agencies.
2. For cases where the provincial-level People’s
Committees are the representatives as provided for in Clause 2, Article 6 of
this Regulation, the presidents of the provincial/municipal People’s Committees
shall consider and decide them.
3. For cases where the Managing Boards or
directors of the State enterprises are the representatives as provided for in
Clause 3, Article 6 of this Regulation.
a) For State enterprises with Managing Boards,
the Managing Board shall decide.
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4. The mode of increasing or reducing the State
capital at other enterprises shall comply with law provisions and charters of
the enterprises.
Article 14.- The State
capital amount retrieved upon the decisions to reduce the State capital at
other enterprises or upon the dissolution and bankruptcy of other enterprises,
the retrieved money amounts lent to laborers for the purchase of shares when
the State enterprises were equitized, the value of shares divided to the
laborers for enjoyment of dividends, shares sold on credit to poor laborers in
the enterprises (for State enterprises equitized after Decree No.44/1998/ND-CP
took effect) shall be handled as follows:
1. Being remitted into the State enterprise
restructure and equitization support funds, for cases prescribed in Clauses 1
and 2, Article 6 of this Regulation.
2. Being transferred to the State enterprises
which have contributed capital, for cases prescribed in Clause 3, Article 6 of
this Regulation.
V. STATE MANAGEMENT BODIES’
RESPONSIBILITIES FOR THE MANAGEMENT OF THE STATE CAPITAL IN OTHER ENTERPRISES
Article 15.- The
Finance Ministry:
1. To monitor and supervise the activities of
the direct managers for cases prescribed in Clause 1, Article 6 of this
Regulation; to monitor and supervise the performance of tasks by the representatives
prescribed in Clause 3, Article 6 of this Regulation.
2. To sum up the analysis and evaluation of the
efficiency of the contribution of State capital to other enterprises. To sum up
the situation on investment and retrieval of State capital, the situation on
collection of profits from other enterprises with investment capital of the
State, the situation on retrieval of capital lent to laborers for the purchase
of shares at the equitized State enterprises, the recovery of shares given to
laborers for enjoyment of dividends and capital lent to poor laborers in the
enterprises for purchase of shares according to the representatives’ rights and
obligations prescribed in Clauses 1 and 2, Article 6 of this Regulation.
3. To request the representatives prescribed in
Clauses 2 and 3, Article 6 of this Regulation to make irregular reports on the
business situation, capital and property management, financial management and
the financial results of other enterprises as well as task performance by the
representatives, the direct managers.
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Article 16.- The
ministries and agencies that manage the economic and technical branches, the
People’s Committees of the provinces and centrally-run cities:
1. To approve plans on the use of profits to
supplement the charter capital or the reduction of the State capital invested
in other enterprises, for the State enterprises without Managing Boards
prescribed at Point b, Clause 3, Article 13 of this Regulation.
2. To coordinate with the enterprise finance
managing bodies in monitoring and supervising the task performance by the
representatives prescribed in Clause 3, Article 6 of this Regulation.
3. To analyze and evaluate the efficiency of the
capital contribution to other enterprises and its impacts on the operations of
the capital-contributing State enterprises in cases prescribed in Clauses 1 and
2, Article 6 of this Regulation.
4. To be entitled to request the representatives
prescribed in Clause 3, Article 6 of this Regulation to make irregular reports
on the situation of business activities, financial management, division of
profits of other enterprises, the task performance by the representatives and
the direct managers.
VI. HANDLING OF VIOLATIONS
Article 17.- Those
representatives who fail to fully exercise or abuse their rights and fail to
fulfill their duties, causing damage to the State capital at other enterprises
shall, depending on the seriousness of their violations, be administratively
disciplined or examined for penal liability if criminal elements are
constituted. If they fail to discover in time the state of business losses,
capital losses, the losing of capacity to repay due debts of other enterprises,
or have discovered but failed to handle them in time, thus causing the loss of
the State capital in these enterprises, they shall, apart from the
administrative disciplines, be subject to the subtraction of 10% of their
salaries of the year when the incidents occurred. If their acts have directly
caused material losses, the compensation must be made according to law. For
cases where the representative is the organization, the individuals’ responsibility
for the violation must be clearly determined and the violating individuals must
be handled according to the above regulations.
Article 18.- Those
direct managers who fail to fully exercise or abuse their rights or fail to
fulfill their duties, causing damage to the State capital in other enterprises,
shall, depending on the seriousness of their violations, be administratively
disciplined or examined for penal liabilities if criminal elements are
constituted; if they fail to urge in time the divided profits and let other
enterprises hold and use them they shall have to make the compensation therefor
according to the banks interest rates on short-term loans. The time for
determination of compensation liability is counted from the 31st day after the
enterprises adopted the plans on profit division till the enterprises transfer
the divided profits to places prescribed in Article 12 of this Regulation. If
they commit acts of directly causing material damage, they must make the
compensation therefor as prescribed by law.
Article 19.- Those
State management bodies that fail to fulfill the tasks of inspection and
supervision and fail to discover wrongdoings by the representatives or have
discovered but failed to report them, failed to take preventive measures, thus
causing damage to the State capital in other enterprises shall have to share
the joint liability therefor with the representatives and the direct managers.
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ON BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Tan Dung