Quyết định 35/2013/QD-TTg

DECISION

PROMULGATION OF STATUTE OF OPERATION OF CONTROLLERS OF WHOLLY STATE-OWNED SINGLE-MEMBER LIMITED LIABILITY COMPANIES

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Enterprises dated November 29, 2005;

Pursuant to the Government's Decree No. 99/2012/ND-CP dated November 15, 2012 on rights, responsibilities, and duties of the State to state-owned enterprise and state capital invested in enterprises;

Pursuant to the Government's Decree No. 66/2011/ND-CP dated August 01, 2011 on application the Law of Officials to holders of managerial positions in state-owned single-member limited liability companies and representatives of state capital invested in enterprises;

At the request of the Minister of Planning and Investment;

The Prime Minister promulgates a Decision on promulgation of statute of operation of controllers of wholly state-owned single-member limited liability companies,

Article 1. Statute of operation of controllers of wholly state-owned single-member limited liability companies is promulgated together with this Decision.

Article 2. This decision comes into force form July 25, 2013.

Article 3. Ministries, ministerial agencies, Governmental agencies, People’s Committees of central-affiliated cities and provinces, the Board of members or Presidents, General Directors, Directors, controllers of wholly state-owned single-member limited liability companies are responsible for the implementation of this Decision./

STATUTE

ON OPERATION OF CONTROLLERS OF WHOLLY STATE-OWNED SINGLE-MEMBER LIMITED LIABILITY COMPANIES
(promulgated together with Decision No. 35/2013/QD-TTg dated June 07, 2013)

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. This document specifies standards, requirements, operations, duties, responsibility, power, and obligation of controllers and their relationship with relevant individuals and organizations of wholly state-owned single-member limited liability companies State (hereinafter referred to as single-member limited liability companies).

2. This document regulates controllers, other individuals and organizations relevant to operations of controllers of single-member limited liability companies.

Article 2. Definitions

For the purpose of this Statute, the terms below are construed as follows:

1. "Owner" means an individual or organization that has the power to designate, re-designate, dismiss, commend, and discipline controllers as set out in the Government's Decree No. 99/2012/ND-CP on rights, responsibilities, and duties of the State to state-owned enterprise and state capital invested in enterprises.

2. "Controller" means an individual designated or re-designated by the owner to assist the owner in controlling the execution of the owner's rights, the business management of the single-member limited liability company by the Board of members or the company's President and General Director (Director).

Chapter 2.

STANDARDS, REQUIREMENTS, OPERATIONS, DUTIES, RESPONSIBILITY, POWER, AND OBLIGATION OF CONTROLLERS AND THEIR RELATIONSHIP WITH RELEVANT INDIVIDUALS AND ORGANIZATIONS

Article 3. Standards and requirements for controllers

It is required that every controller:

1. has legal capacity and does not concurrently hold the position of business manager or a relevant person as set out in Point a, c, and dd Clause 17 of the Law on Enterprises.

2. has at least a bachelor's degree, be capable of controlling and has professional experience of finance, accounting, audit, or at least 03 years' experience of administration in the company's fields, and satisfy other standards and conditions specified in relevant legislative documents and the company’s charter.

3. has good health and moral sense; be honest, incorruptible, knowledgeable, and law-abiding.

Article 4. Operations of controllers

1. A controller has a tenure of up to 03 years and might be re-designated by the owner if his/her duties are fulfilled and all conditions and requirements are satisfied. The owner shall, in consideration of capital, scope of operation, and business lines, appoint 1 - 3 controllers of a single-member limited liability company.

2. Each controller might work full-time or part-time. Each controller might be designated as controller of up to 03 single-member limited liability companies. If 02 or more controllers are designated, the owner shall appoint one of them to take charge of planning and coordinating the controllers. The controller in charge shall work full-time.

3. Ministers, Presidents of the People’s Committees of provinces shall designate controllers of single-member limited liability companies under their management. The Minister of Finance shall designate 01 finance controller for the parent company of each state-owned corporation. The Minister shall designate 02 specialist controllers and appoint one of them to take charge of planning and coordinating the controllers. The Controller the parent company of a state-owned corporation shall work full-time.

Article 5. Duties of controllers

1. Inspect the legitimacy, honesty, and discretion of the Board of members or the company's President and General Director (Director) in exercising the owner's rights and management of the single-member limited liability company, including the following tasks:

a) Restructuring, transfer of ownership, dissolution, and petition for bankruptcy of the responsible for; establishment of subsidiaries that are single-member limited liability companies; contribution, holding, increase, decrease of the company's capital in other companies; establishment, restructuring, dissolution of branches, representative offices, and other financially dependent units; acquisition of other enterprises as subsidiaries or associate companies;

b) Implementation of the company’s charter;

c) Achievement of targets, objectives, and business lines; implementation of 5-year and annual development plans, business plans, and strategies;

d) Increase of charter capital; transfer of part or all of the company's charter capital to another organizations and individuals;

dd) Maintenance and development of the company’s capital;

e) Execution of investment projects; sales, loan contracts, and other contracts of the company;

g) Implementation of regulations on finance, distribution of income, development and use of the company's funds as prescribed by law;

h) Implementation of the company's regulations on salaries and bonuses;

i) Other contents specified in the owner.

2. Verify financial statements, business reports, management assessment reports, and other reports before submitting them to the company' owner or relevant state agencies; submit the verification report to the company's owner.

Finance controllers of the parent company of a state-owned corporation shall take charge and cooperate with specialist controllers in verifying its financial statements and perform the tasks specified in Point d, dd, and g Clause 1 of this Article.

3. Propose solutions for improving the company's organizational structure to the owner.

4. Perform other tasks specified in the company’s charter or requested by the company's owner.

Article 6. Entitlements of controllers

1. Controllers are entitled to request any document of the single-member limited liability company at the headquarters or its branches, representative office, or business location to serve the performance of their duties. If documents of a subsidiary or associate company has to be examined, controllers shall cooperate with the representative of the parent company's capital in the subsidiary or associate company after the owner grants an approval.

2. Controllers are entitled to be provided with adequate information, documents, and reports about the contents within the competence of the Board of members or the company's President and General Director (Director) related to the management of company's business operation and performance of other duties given by the owner.

3. Controllers are entitled to attend periodic meetings, meetings of the Board of members, meetings of the Board of Directors, thematic meetings related to the performance of controllers' duties in the single-member limited liability company. Controllers who attend the meetings are entitled to offer their opinions but are not entitled to vote, except for the case in Clause 1 Article 75 of the Law on Enterprises.

4. Controllers are entitled to use the seal of the single-member limited liability company on the documents within the scope of duties and entitlements of controllers. The single-member limited liability company shall cooperate with controllers in developing a statute on the lawful use of the seal.

5. Controllers shall be given training in controller's techniques. Where necessary, controllers may seek opinions of experts and specialized organizations to serve their tasks after the owner grants a written approval. The cost of hiring experts or specialized organizations and other operating costs of controllers shall comply with the expense brackets specified in the owner in the Statute on operation of controllers in the single-member limited liability company and be included in the enterprise's operating costs as prescribed by law.

Article 7. Obligations of controllers

Controllers of a single-member limited liability company have the obligations to:

1. Comply with law, the company’s charter, and the owner's regulations in performance of controller's rights and duties. Controllers are responsible before the law and the owner for the performance of their rights and duties.

2. Perform given rights and duties in an honest and discreet manners in the best interests of the single-member limited liability company and its owner.

3. Be loyal to the interests of the company and its owner. Manage and protect the confidentiality of information in accordance with regulations of the company and its owner. Do not abuse the given power to obstruct the company's business operation. Do not use the company's information, secrets, or business opportunities; do not abuse the controller's position and the company's property for personal gain or serving another organization or individual.

4. Collect information and promptly notify the owner of the enterprises owned by or in which controlling shares or stakes are held by controllers of their relevant persons. Such notification shall be posted at the company's headquarters and branches.

5. Submit periodic or irregular reports to the owner on the business outcomes, finance of the company, and performance of given tasks.

6. Report activities that are unusual, illegal, or unconformable with the owner's regulations to the owner; take responsibility before the owner and the law for deliberate or involuntary omission of violations.

7. Perform other duties prescribed by this Statute, relevant regulations of law, and the company’s charter.

Article 8. Salaries, remunerations, and other benefits of controllers

1. Controllers shall receive salaries, remunerations, and other benefits depending on their effectiveness and the company's business outcomes.

2. The owner shall decide the salaries, remunerations, and other benefits of controllers and the controller in charge depending on their performance and regulations of law.

In a parent company of a state-owned corporation, after reaching an agreement with the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance shall decide the salaries, remunerations, and other benefits of finance controllers; other controllers shall decide salaries, remunerations, and other benefits of specialist controllers.

3. The payment of salaries, bonuses, and other benefits of controllers shall comply with effective regulations of law.

4. Full-time controllers shall receive incentives, benefits, and may participate in activities of the single-member limited liability company as other employees of the company.

Article 9. Relationship between controllers and the owner

1. The owner has the responsibility to:

a) Promulgate a Statute on operation of controllers in the single-member limited liability company, including activities, duties, responsibility, entitlements, and obligations of controllers, procedures for verification of financial statements, business reports, management assessment reports, and other reports of the company by controllers, cooperation and other contents suitable for the company. Other Ministers shall cooperate with the Minister of Finance in promulgating the Statute of controllers of parent companies of state-owned corporations;

b) Monitor and assess the performance of controllers designated by the owner;

c) Notify controllers of the owner's decision regarding the contents specified in Clause 1 Article 5 of this Statute and other decisions related to controllers' inspection and supervision tasks in the single-member limited liability company;

d) Within 15 working days from the receipt of reports from the controllers, the owner must respond to the controllers' proposals in writing. If a controller's proposal is urgent, the owner shall respond in writing within 07 working days;

dd) After a controller is designated, the owner shall appoint a unit or individual to monitor, respond to reports, and process information about the controller's activities; notify the single-member limited liability company and relevant agencies of the designation of the controller and its effect; request the single-member limited liability company to prepare workplace and equipment serving the controller's activities within 30 working days from the receipt of the owner's notification);

e) According to the controllers' proposals and consensus of the Board of members or the company's President, the owner shall approve the standards, norms for working equipment and other expenses serving the controllers' activities in the company.

2. Controllers have the responsibility to:

a) Develop the Statute of operation of controllers in the single-member limited liability company as prescribed in Point a Clause 1 Article 9 hereof, and submit it to a competent entity of approval;

b) Develop the annual working program and submit it to the owner for approval within the first quarter of the year. Controllers shall work under the annual working program approved. Where surprise inspection or supervision is necessary to find errors early and avoid damage to the enterprise, controllers may act without prior notice and report to the owner as soon as possible.

c) Within 15 working days from the end of the quarter and within 30 working days from the end of the year, controllers shall submit a written report on their performance in the single-member limited liability company as prescribed in Clause 1 Article 5 hereof and a plan for the next quarter or next year;

d) Regarding documents of the single-member limited liability company that need opinions of controllers, within 15 working days from the receipt of such documents, controllers' shall send a written report to the owner;

dd) Controller must find errors as soon as possible and signs of violations of law, record the events, give recommendations, and promptly notify the owner and the Board of members or the company's President to find a solution.

Article 10. Relationship between controllers and the Board of members or the company's President, General Director (Director)

1. The single-member limited liability company, the Board of members, or the company's President, General Director (Director) are entitled to be provided with adequate and timely information by the owner about the designation of controllers and their duties in the single-member limited liability company.

2. If the controller is suspected of abusing the controller's power to obstruct the business operation of the single-member limited liability company or violate regulations of law or fails to perform given duties, the single-member limited liability company is entitled to notify the owner and the controller. After receiving the notification from the company, the owner must promptly provide a measure.

3. The single-member limited liability company must send information to controllers at the same time and in the same manner as members of the Board of members or the company's President and General Director (Director) regarding the performance of controllers' duties.

4. The company's President and the Board of members, or the company's President, General Director (Director) and other managers of the single-member limited liability company shall provide adequate and timely information about implementation of Article 5 hereof; take responsibility for the truthfulness and accuracy of information, documents, and reports provided for controllers; enable controllers to participate in meetings and access documents of the company to perform their duties.

5. Controllers must send reports to both the owner and single-member limited liability company unless otherwise required by the owner. If the limited liability company does not concur with controllers' opinions, within 15 working days from the day on which the report is received, the company is entitled to request the owner to give a response regarding the dissenting opinions.

Article 11. Relationship between controllers

1. Each controllers is personally responsible for performance of the duties given by the owner and all controllers are jointly responsible for their overall performance in the single-member limited liability company.

2. The controller in charge appointed by the owner shall record opinions of other controllers in reports and working programs to be submitted to the owner.

Chapter 3.

IMPLEMENTATION

Article 12. Organization of implementation

1. The Ministry of Planning and Investment, the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance, and the Ministry of Home Affairs, within the scope of their functions and duties, shall provide guidelines for implementation of this Statute.

a) the Ministry of Planning and Investment shall provide instructions and advanced training in controller's techniques;

b) The Ministry of Labor, War Invalids and Social Affairs shall provide guidance on payment of salaries for controllers from the salary budget under the management of owners, ensuring that the salaries are suitable for their workload and there is not unreasonable difference between controllers of Ministries and other controllers in the same single-member limited liability company.

2. Pursuant to this Statute, the Ministry of Finance, other Ministries, the People’s Committees of provinces, other entities that are owners shall promulgate Statute on operation of controllers of each of their single-member limited liability companies; Boards of members or Presidents of parent companies that are single-member limited liability companies shall promulgate Statute on operation of controllers of each subsidiaries that are single-member limited liability companies wholly owned by such parent companies.

3. The designation, re-designation, dismissal, commendation, discipline, and assessment of controllers shall comply with effective regulations of law.

4. Political organizations and socio-political organizations may apply this Statute to designate controllers and promulgate Statute on operation of controllers in single-member limited liability companies they own./.