Quyết định 152/2005/QD-TTg

DECISION

RATIFYING THE ORGANISATION AND OPERATION CHARTER OF THE STATE CAPITAL INVESTMENT CORPORATION

THE PRIME MINISTER

Pursuant to the Law on Organisation of the Government of December 25, 2001;
Pursuant to the State Enterprise Law of November 26, 2003;
Pursuant to the Government’s Decree No. 86/2002/ND-CP of November 5, 2002 defining the functions, tasks, powers and organisational structures of the ministries and ministerial- level agencies;
Pursuant to the Government’s Resolution No. 151/2005/QD-TTg of June 20, 2005, on the establishment of the State Capital Investment Corporation;
At the proposal of the Minister of Finance,

DECIDES:

Article 1.- To ratify the organisation and operation Charter of the State Capital Investment

Corporation, issued together with this Decision.

Article 2.- This Decision takes effect 15 days after its publication in “CONG BAO”.

Article 3.- The ministers, the head of the ministerial-level agencies, the heads of the Government- attached agencies, the presidents of the People’s Committees of the provinces and centrally-run cities, the Managing Board and general director of the State Capital Investment Corporation shall have to implement this Decision.

ORGANISATION AND OPERATION CHARTER

OF THE STATE CAPITAL INVESTMENT CORPORATION
(Issued together with the Prime Minister’s Decision No. 152/2005/QD-TTg of June 20, 2005)

Chapter I

GENERAL PROVISIONS

Article 1.- The state Capital Investment Corporation is a special economic organisation of the State, which was established under the Prime Minister’s Decision No. 151/2005/QD-TTg of June 20, 2005, to manage, invest and deal in the State capital at enterprises and in the domains provided for by law.

The State Capital Investment Corporation operates under the State Enterprise Law, the relevant laws and provisions of this Charter.

Article 2.- Name and head office

1. Name:

Vietnamese name: Tong Cong Ty Dau Tu va Kinh Doanh Von Nha Nuoc International transaction name: State Capital Investment Corporation. Abbreviation: SCIC

2. The State Capital Investment Corporation (hereinafter called the Corporation for short) is headquartered in Hanoi city; has its member companies, branches and representative offices in a number of regions at home and abroad.

3. The Corporation has the legal person status under Vietnamese law, organises concentrated bookkeeping cost-accounting, has its own seal and is entitled to open accounts at the State treasuries, domestic and foreign commercial banks in accordance with the provisions of law.

Article 3.- Charter capital

1. The Corporation is granted initial capital by the State for its establishment and operation. Its charter capital at the time of establishment is VND 5,000 (five thousand) billion and shall be supplemented gradually in the course of its operation.

2. in case of increase or decrease of its charter capital, the Corporation must make corresponding adjustment in its business registration certificate and make announcement in accordance with the provisions of law.

Article 4.- Organisation structure, management and administration apparatus

The organisational structure, management and administration apparatus of the Corporation consist of the Managing Board, the Control Board, the general director, deputy general directors, the chief accountant and functional assisting divisions based at the Corporation, member companies, branches and representative offices at home and abroad.

Article 5.- The Finance Ministry performs the State management of the Corporation’s finance according to its competence; exercises a number of rights and performs a number of obligations of the owner toward the Corporation under the Prime Minister’s decentralization.

The ministries, branches, provinces and centrally-run cities perform the State management of the Corporation according to their functions and competence.

Chapter II

FUNCTIONS, TASKS, POWERS AND OBLIGATIONS OF THE STATE CAPITAL INVESTMENT CORPORATION

Article 6.- Functions and tasks of the Corporation

1. To receive and exercise the rights to represent the owner of the State capital invested in the State-run one-member limited liability companies, limited liability companies of two or more members and joint-stock companies converted from independent State companies or newly set up ones.

2. To invest and deal in the State capital in economic branches and domains at home and abroad in order to achieve the following objectives:

- Preserving and developing the State capital, efficiently using capital sources.

- Creating a driving force for development, raising operational capacity and competitiveness of enterprises invested with the State capital.

3. To invest and manage investment capital of the Corporation in the national economic branches and domains according to the State-assigned tasks.

4. To organise the mobilisation of domestic and foreign capital sources according to the provisions of law on State companies.

5. To provide such financial services as investment consultancy, financial consultancy, equitization consultancy, consultancy on the ownership conversion of enterprises, reception of entrusted investment capital sources from domestic and foreign organisations and individuals.

6. To perform task of international cooperation in the field of capital investment.

7. To provide services of supporting enterprises in accordance with the provisions of law.

Article 7. – Rights and obligations of the Corporation

1. To act as the representative of the owner of the State capital at the enterprises invested with capital of the Corporation.

2. To possess and use its capital and assets for investment and obtainment of its legitimate interests.

3. To dispose of its capital and assets. To manage and use its assets assigned by the State or lease them according to the provisions of law and this Charter.

4. To select and decide fields of capital investment on the market principles, ensuring future efficiency and profitability. If unfruitfully performing tasks assigned by the Prime Minister, the Corporation may implement appropriate preferential policies and be financially supported by the State.

5. To join domestic and foreign investors in contributing capital and assets to joint ventures and associations in form of buying out part or whole of other companies, investing in the establishment of new enterprises, signing of business cooperation contracts and other forms as provided for by law.

6. To increase or reduce its capital invested in enterprises or domains according to the provisions of law, charters of enterprises and this Charter.

7. To mobilize capital for business in form of issuing bonds or promissory notes; to borrow capital from credit institutions and other financial institutions under law provisions and take responsibility for the efficient use of the mobilized capital.

8. To receive entrusted investment capital sources from domestic or foreign organizations and individuals, and take responsibility for the management of the use of such capital sources.

9. To preserve and develop the State-assigned capital, to take responsibility for the loss of the State capital under the provisions of law.

10. To ensure publicity and transparency in reporting on its business and financial activities to competent authorities according to regulations.

11. To exercise other rights and perform other obligations according to the provisions of the State Enterprise Law and this Charter.

Article 8. – Rights and obligations of the Corporation toward its capital invested in enterprises

1. For one-member limited liability companies:

a. To exercise the right to represent the owner of the State capital and responsible for the debts and other asset-related obligations of the companies within the capital amounts it has invested in such companies;

b. To decide on the contents of, amendments and supplement to, the charter of the companies;

c. To decide on the organizational managerial structure of the companies, appoint , dismiss or demote managerial officials of the companies such as the Managing Board members and directors (general director) of the companies;

d. To decide on investment the adjustment of charter capital of the companies;

e. To supervise, monitor and assess business activities of the companies;

f. To decide on investment projects or sale of assets of a value equal to or larger than 50% of the total asset value recorded in the companies’ accounting books;

g. To decide on the use of after-tax profit;

h. To decide on the re-organization of the companies;

i. To exerciser other rights and performs other obligations according to the provisions of the Enterprise Law and charters of the companies.

2. For joint ventures and limited liability companies of two or more members:

a. To take responsibility for the debts and other asset-related obligations of the companies within its capital amounts already contributed to such companies;

b. To enjoy the divided after-tax profits in the proportion to its capital contributed to the companies;

c. To be entitled to nominate its persons to the Members Councils, join in discussion, making suggestion and voting on issues falling under the competent of the Members Councils;

d. To have a number of votes in proportion to its contributed capital;

e. To examine the member registers, accounting books, annual financial statements and other documents of the companies and receive excerpts or copies of these documents;

f. To enjoy part of the remaining value of assets of the companies, which shall be divided in proportion to its contributed capital upon the dissolution or bankruptcy of such companies;

g. To be given priority to contribute more capital to the companies when such companies increase their charter capital; to be entitled to transfer part or whole of its contributed capital under the provisions of the Enterprise Law;

h. To exercise other rights and perform other obligations for by the Enterprise Law and charters of the companies.

3. For joint-stock companies:

The Corporation shall exercise the rights and perform the obligations of a shareholder in proportion to its capital contributed to the joint-stock companies:

a. To attend and vote on all issues falling under the competence of the shareholders’ congress;

b. To take responsibility for the debts and other asset-related obligations of the companies within its capital amounts already contributed to the companies;

c. To be entitled to transfer its shares under the provisions of the Enterprise Law and charters of the companies;

d. To receive dividends at the levels decided by the shareholders’ congress;

e. To be given priority to purchase new shares offered for sale corresponding to the proportion of common shares of each shareholder in a company;

f. To nominate its persons to the Managing Boards and Control Boards of the companies according to the provisions of the Enterprise Law and charters of the companies;

g. To receive part of the remaining assets in proportion to the number of shares at the companies upon their dissolution or bankruptcy;

h. To exercise other rights and perform other obligations for in the Enterprise Law and charters of the joint-stock companies.

Chapter III

ORGANISATIONAL STRUCTURE AND MANAGERIAL APPARATUS OF THE STATE CAPITAL INVESTMENT CORPORATION

Section 1. MANAGING BOARD OF THE ORPORATION

Article 9- The managing board

The managing board is a body directly representing the State ownership in the Corporation, decides on all matters related to the determination and realization of its targets, tasks and benefits, except for matters falling under the deciding competence of the Prime Minister and the decentralized management agencies.

The Managing Board shall take responsibility before the Prime Minister and law for all operations and development of the Corporation.

Article 10.- Tasks and powers of the Managing Board

1. To receive, manage and efficiently use capital, land, natural resources and other resources assigned by the State to the Corporation.

2. To submit to the Prime Minister for approval and organize the realization of targets, strategies and development orientations of the Corporation.

3. To decide on the long term and medium term plans of the Corporation after they are commented by the Finance Ministry.

4. To approve annual business investment plans at the proposal of the general director of the Corporation.

5. To decide and decentralize its power to the general director to decide on investment and management of the State capital at enterprises invested with capital of the Corporation; to mobilize capital, invest, liquidate and sale assets of the Corporation

It shall take responsibility for all investment activities of the Corporation and may decentralize its power to the general director to decide on investment on a case-by-case basis.

6. To decide on the schemes on payroll, salary and bonus regime, organizational structure and managerial apparatus of the Corporation, training plan and establishment of member companies, branches and representative offices at home and abroad. To decentralize its power to the general director to perform the above-mentioned tasks.

7. To be entitled to use offices, professional divisions and departments of the Corporation; to set up sections advising and assisting it in performing its tasks. The functions and tasks of these sections shall be decided by the Managing Board. To invite a number of domestic and foreign consultants and advisers.

8. To submit to the Prime Minister for decision the addition, replacement, dismissal, commendation or disciplining of its members.

9. To decide on appointment or signing of contracts with, replacement, dismissal or disciplining of the general director of the Corporation after getting the Prime Minister’s consent.

10. To decide on appointment, dismissal, demotion of, and regime of salaries and bonuses for, the deputy general directors and chief accountant at the proposal of the general director.

11. To decentralize its power to the general director to appoint, dismiss or demote, and decide on the regime of salaries and bonuses for, other posts in the Corporation.

12. To approve the annual financial statements of the Corporation; plans on the use of after-tax profits and handling of losses in the course of business at the proposal of the general director; to approve annual and periodical reports on the management and use of the State capital at enterprises invested with capital of the Corporation.

13. To inspect and supervise the Corporation in the performance of its functions and tasks in strict accordance with the provisions of law and this Charter.

14. To submit to the Prime Minister for approval the Charter of the Corporation and amendments thereto.

15. To request the general director to report and take handling measures in case of detecting signs of violating law or this Charter.

16. To elaborate and submit to the Finance Ministry for approval the financial regulation of the Corporation

17. To decide on nomination or replacement of the Corporation’s representatives who are involved in the administration of enterprises invested with capital of the Corporation at the proposal of the general director.

18. To nominate its representatives to attend meetings of the Directorate and meetings of the Corporation when deeming necessary.

19. To exercise other rights and perform other tasks according to the provisions of law and this Charter

Article 11.- Membership, appointment, dismissal and replacement of members of the Managing Board

1. The managing Board consists of a chairman, vice chairman and members. It has full-time and part-time members. The chairman of the Managing Board and the head of Control Board must be full-time members. Other members of the Managing Board may concurrently hold leading positions in the Directorate. The Managing Board consists of 7 members at most. It comprises leaders of the Finance Ministry and a number of ministries and branches who have experience in, and knowledge about, finance, capital investment and enterprise administration.

2. Criteria and conditions for members of the Managing Board shall comply with the provisions of Article 31 of the State Enterprise Law

3. The Prime Minister shall decide on appointment, dismissal or replacement, discipline of the chairman, vice chairman and members of the Managing Board.

4. A term of office of members of the Managing Board shall not exceed 5 years. At the end of their term, members of the Managing Board may be reappointed.

5. Members of the Managing Board shall be dismissed in the following cases:

a. Having been convicted under court’s judgments or decisions which have taken legal effect;

b. Having no capacity and/or qualifications to undertake the assigned tasks, having lost their civil act capacity or having restricted civil act capacity;

c. Being dishonest while performing their duties or exercising their powers or abusing their positions or powers to seek profits for themselves or others; untruthfully reporting on the Corporation’s financial situation;

d. Violating the provisions of law and this Charter.

6. Members of the Managing Board shall be replaced in the following cases:

a. They resign;

b. They are subject to decisions on transfer or arrangement to new posts;

c. Their health fails them in taking up the jobs.

Article 12.- Chairman of the Managing Board

1. The chairman of the Managing Board operates on a full-time basis and shall not concurrently be the general director of the Corporation

2. The chairman of the Managing Board has the following power and tasks:

a. To sign on behalf of the Managing Board for reception of capital, land, natural resources and other resources assigned by the State to the Corporation;

b. To organize the performance of tasks of the Managing Board according to the provisions of Article 10 of this Charter

c. To sign on behalf of the Managing Board documents falling under the competence of the Managing Board;

d. To monitor and supervise the implementation of resolutions and decisions of the Managing Board; to have the right to suspend decisions of the general directors, which are contrary to resolutions and decisions of the Managing Board;

e. In case of necessity, to authorize a vice chairman or a member of the Managing Board to perform a number of tasks falling under his/her competence. The authorized person shall be answerable to the chairman of the Managing Board for the authorized tasks;

f. To have other rights as provided for by law and authorized by the Prime Minister.

Article 13.- Working regime of the Managing Board

1. The Managing Board works collectively and meets at least once a quarter. In case of necessity, it may convene extraordinary meetings at the request of its chairman, the general director or more than 50% of the total number of its members.

2. Meeting of the Managing Board shall be conducted when they are attended by at least twp- thirds of its members directly or via telecommunication system. In cases where a member is absent. He/she may authorize in writing his/her representative to attend a meetings and vote on the authorized issues on his/her behalf. Resolution and decisions of the Managing Board shall be adopted when they are voted for by more than 50% of the total number of the Managing Board members; in cases where the votes for and against are equal, the voting side with the chairman’s opinions shall prevail.

3. Procedures for convening and organizing meetings of the Managing Board shall comply with the provisions of the State Enterprise Law and working regulation of the Managing Board. Resolutions and decisions of the Managing Board shall be binding on the entire Corporation.

4. Members of the Managing Board have the right to request the general director, the chief accountant and/or managerial offices of the Corporation to supply information and documents on financial and operation situation of the Corporation and its dependent units.

5. Expenses for the operation of the Managing Board, the Control Board, experts, advisers and assisting sections of the Managing Board shall be accounted in the Corporation’s management costs. The general director of the Corporation shall ensure necessary conditions and means for operation of the Managing Board and its assisting sections.

Article 14.- Salaries, allowances and bonuses for members of the Managing Board

1. Full-time members of the Managing Board shall enjoy salaries, allowances and bonuses corresponding to the business results and efficiency of the Corporation.

2. Part-time members of the Managing Board shall enjoy allowances and bonuses corresponding to the business results and efficiency of the Corporation

Article 15.- Individuals related directly to members of the Managing Board, including their fathers, mothers, spouses, offsprings and siblings, must not hold the positions of chief accountant and cashier of the Corporation.

Section 2. CONTROL BOARD OF THE CORPORATION

Article 16.- the Control Board

1. The Control Board is set up by the Managing Board to assist the Managing Board in supervising operations of the Corporation.

The Control Board consists of between 3 and 5 members operating on a full-time basis. The head of the Control Board is a member of the Managing Board.

2. A term of office of the Control Board members shall not exceed 5 years. At the end of his/her term, each member may be reappointed.

3. Criteria and conditions for members of the Control Board shall comply with the provisions of Clause 4, Article 37 of the State Enterprise Law.

4. The Control Board operates according the Regulation approved by the Managing Board and has the following responsibilities and powers:

a. To supervise the management and administration of business activities, execution of the Charter of the Corporation as well as resolutions and decisions of the Managing Board;

b. To evaluate periodical and annual financial reports of the Corporation;

c. To perform other tasks at the request of the Managing Board.

5. The expenses for the operation (including salaries and bonuses) of the Control Board are decided by the Managing Board and accounted on the Corporation’s business costs. The general director shall have to create working conditions for the Control Board.

Section 3. GENERAL DIRECTOR, DEPUTY GENERAL DIRECTORS, CHIEF ACCOUNTANT, ASSISTING APPARATUS, MEMBER COMPANIES, BRANCHES AND REPRESENTATIVE OFFICES OF THE CORPORATION.

Article 17.- The general director, deputy general directors, chief accountant and assisting apparatus

1. The general director is the Corporation’s representative at law who administer the Corporation’s activities under its Charter as well as resolutions and decisions of the Managing Board; and take responsibility before law for the exercise of given rights and performance of assigned tasks,

2. The deputy general directors assist the general director in administering the Corporation under the latter’s assignment or authorization; and take responsibility before the general director for the assigned or authorized tasks.

3. The chief accountant has the task of assisting the general director in organizing the financial and accounting work of the Corporation; and takes responsibility before the general director for the assigned or authorized tasks.

4. Professional divisions of the Corporation have the functions of the advising and assisting the Managing Board and the general director in performing tasks of the Corporation.

Article 18.- Selection, appointment, dismissal of, signing and termination of contracts with, the general director, deputy general directors and chief accountant

1. The general director is appointed by, or signs contract with, the Managing Board after being approved by the Prime Minister. The general director may be a member of the Managing Board.

2. The deputy general directors and chief accountant are appointed by, or sign contracts with, the Managing Board, which may also terminate such contracts at the proposal of the general director.

3. The general director shall be dismissed or have his/her working contract terminated ahead of time in the following cases:

a. Having been convicted under a court’s judgment or decisions which has taken legal effect;

b. Being dishonest while performing his/her duties or exercising his/her powers or abusing his/her positions or power to seek profits for him/herself or for others; untruthfully reporting on the financial situation of the Corporation;

c. Failing to fulfill his/her tasks or achieve the targets assigned by his/her appointer or hirer;

d. Having list civil act capacity or restricted civil act capacity;

e. Violating the provisions of law and this Charter.

4. The general director shall be replaced in the following cases:

a. He/she resigns;

b. There is a decision on his/her transfer or arrangement to new post;

c. His/her health fails him/her to take up the job.

Article 19.- Tasks and powers of the general director

1. To elaborate strategies, medium-, long-term and annual plans of the Corporation to be reported to the Managing Board; to organize the implementation of such plans after they are approved by competent authorities.

2. To submit to the Managing Board foe promulgating or to promulgate legal documents guiding the assigned tasks according to decentralization.

3. To take responsibility before the Managing Board for the management and efficient use of the Corporation’s capital, assets and other resources within the ambit of his/her vested powers.

4. To decide on investment projects, assets purchase or sale contracts, borrowing contracts and other economic contracts according to the decentralization and authorization by the Managing Board.

5. To report to the Managing Board regularly or irregularly on the business results of the Corporation; to publicize financial statements according to the provisions of the financial regime and this Charter.

6. To request the Managing Board to appoint, dismiss, demote, sign or terminate contracts with, commend or reward, discipline, or decide on the levels of salary, bonus and allowance of, the deputy general directors and chief accountant of the Corporation, nominate representatives of the Corporation’s capital portion at enterprises.

7. To decide on selection of, signing or termination of contracts with, or appointment, dismissal, commendation or rewarding, disciplining of, as well as salary, bonus and allowance levels for, other positions under the Managing Board’s decentralization.

8. To elaborate the Corporation’s plans on salaries and bonuses and report them to the Managing Board for approval and implementation organization.

9. To exercise the rights and responsibilities related to business, financial and personnel management toward attached units according to the Managing Board’s decentralization, the financial mechanism and provisions of this Charter.