Nghị định 132/2005/ND-CP

DECREE

ON EXERCISING RIGHTS AND OBLIGATIONS OF THE STATE OWNER AT STATE OWNED ENTERPRISES

GOVERNMENT

Pursuant to the Law of the Organisation of Government, 25 December 2001;
Pursuant to the Law of State Owned Enterprises, 26 November 2003;
At the request of the Minister of Planning and Investment,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of Application

This Decree stipulates the exercising of rights and obligations of the State Owner at State Owned Enterprises, including Autonomous Enterprises and General Corporations as provided for at Law of State Owned Enterprises.

Article 2. Practicing rights and obligations of the State Owner at State Owned General Corporations

1. The State is the Owner of the State Owned Enterprises. The Government uniformedly manage and organize the practicing of the State Owner at the State Owned Enterprises. The Government shall directly exercise the rights and obligations or authorize the Ministries, Ministry-equivalent agencies (hereinafter called “Ministries”), or delegate such rights and obligations to the People’s Committees of the provinces, centrally administered cities (hereinafter called Provincial People’s Committees); or assign the Board of Directors of the General Corporations, Autonomous Companies that have Board of Directors in their structure (hereinafter referred to as Board of Directors) to exercise the rights and obligations of the Owner.

2. The Prime Minister directly exercises or delegate his power to the relevant ministries to exercise a number of the rights and obligations of the Owner at the State Owned General Corporations or State Owned Autonomous Companies of extreme importance whose establishment was by his decisions.

3. Ministries, Provincial People’s Committees are the representative Owner of the State Owned Enterprises established by their decisions; under the authorization of the Prime Minister, exercise a number of rights and obligations of the Owner at State Owned General Corporations or State Owned Autonomous Companies of extreme importance, established by the Prime Minister.

4. Ministry of Finance and other Line Ministries shall exercise a number of rights and obligations of the Owner at State Owned Companies on the areas of their assignments.

5. The Board of Directors is the direct representative of the State Owner at State Owned Enterprise that has Board of Directors and the representative owner at affiliate companies in which they invest their whole charter-capital.

Chapter II

RIGHTS AND OBLIGATIONS OF THE STATE OWNER AT STATE OWNED COMPANIES

Article 3. Rights of the State Owner at State Owned Companies

1. To decide the establishment, structure and organization, managerial mechanism, restructuring, dissolving and ownership changing of the State Owned Enterprise. 

2. To decide the goals, strategies, long term plans and scope of business of the State Owned Enterprise.

3. To approve the Charter of the State Owned Enterprise and its amendments.

4. To decide the investment made to form up the charter capita and changes in the charter capital of the State Owned Enterprise.

5. To make decision on investment, joint-investment, join-venture, cooperation, borrowing and lending and lease policies of the State Owned Enterprise.

6. To provide the financial policies, income distribution, establishing and using funds of the State Owned Enterprise. 

7. To decide the nomination, dismissal, removal, reward and punishment of the Chairman of the Board of Directors, Member of the Board of Directors, General Director or Director of the State Owned Enterprise.

8. To provide the policies on wages, allowance and bonus in the State Owned Enterprise; wage and allowance scales for the Chairman of the Board of Directors, Members of the Board of Directors, General Director or Directors of the State Owned Enterprise.

9. To provide the regulations on placement of supply order, tender or assignments, selling price and price gap subsidy to run the production and supplying of public goods and services.

10. To organize the check, supervision of the achievement of objectives, and implementation of decisions of the Owner and appraisal of the performance of the State Owned Enterprise.

Article 4. Obligations of the State Owner at State Owned Enterprise

1. To make full charter capital available for the State Owned Enterprise.

2. To fully implement all provisions of the Charter of the State Owned Enterprise in connection to the rights and obligations of the State Owner.

3. To be liable for the debts and other obligations I connection to the assets of the State Owned Enterprise within the scope of the Charter Capital of the Enterprise.

4. To be legally responsible for investment decision, approval of procurements, sales, borrowing and lending and leasing under its authority.

5. To ensure the business autonomy and self-responsible before laws of the State Owned Enterprise; not to illegally intervene into the operation of the Enterprise.

6. To conduct other obligations as per provisions of the laws.

Chapter III

DIVISION OF RESPONSIBILITIES TO EXERCISE THE RIGHTS AND OBLIGATIOS OF THE STATE OWNER AT STATE OWNED ENTERPRISES

SECTION 1. RIGHTS OF THE STATE OWNER AT STATE OWNED ENTERPRISE

Article 5. To decide the establishment, restructuring, dissolving, changing of ownership of the State Owned Enterprise.

1. The Government promulgates the regulations on the establishment, restructuring, dissolving and changing of the ownership of the State Owned Enterprise.

2. The Prime Minister:

a) Approves the establishment plan of the State Owned Enterprise as per provisions of the Decree 180/2004/NĐ-CP 28 October 2004 of the Government on new establishment, restructuring, dissolving of the State Owned Enterprise.

 b) At the request of the relevant line Ministries or Provincial People’s Committees Approves the plans of restructuring, dissolving and changing of ownership of the State Owned Enterprises in the national economy for those State Owned Independent Companies and State Owned General Corporations established by the Decisions of these Ministries or People’s Committees, and State Owned Independent Companies established by the Decisions of the Prime Minister; at the request of the Board of Directors of the State Owned General Corporations established by the Decisions of the Prime Minister after consultation of the Ministries of Planning and Investment, Finance and the relevant Line Ministry.

c) Decides to establish new State Owned General Corporations of special importance at the request of the Line Ministry.

d) Decides the restructuring, dissolving and changing of ownership at the request of the relevant Board of Directors.

đ) Decides the restructuring, dissolving important State Owned Companies that directly serve the national defense and security.

3. Minister, Chairman of the Provincial People’s Committee:

a) Decides to establish new State Owned Companies (other than those established by the Decisions of the Prime Minister) upon the approval of the establishment plan by the Prime Minister.

b) At the request of the Board of Directors of the State Owned General Corporation, appraises and submit to the Prime Minister the plans of restructuring, dissolving or changing of ownership at the State Owned General Corporations which were established by his/its Decisions.

c) Builds the plans of restructuring dissolving changing of ownership of State Owned Independent Companies established by his/its Decisions or State Owned Autonomous Companies established by the Decisions of the Prime Minister, to submit to the Prime Minister for his approval.

d) Decides the restructuring, dissolving and changing of ownership of State Owned Companies (other than those provided for in d and đ of 2 paragraph 2 of this Article) as per the plan approved by the Prime Minister, then organizes the implementation of such plans.

4. Board of Directors of the State Owned General Corporations:

a) Builds the plans for new establishment, restructuring, dissolving and changing of ownership in the General Corporation to submit to the relevant body by whose Decision the General Corporation was established; implement the approved plans.

b) Incorporates new voluntary member company into the General Corporation upon the approval of the relevant body by whose Decision the General Corporation was established.

Article 6. To decide the goals, strategies, long term plans and scope of business of State Owned Enterprises

1. The Prime Minister approves the goals, strategies, long term plans and scope of business of State Owned Enterprises that have Board of Directors established by the Decision of the Prime Minister at the request of their relevant Boards of Directors and a number of State Owned Enterprises of special importance at the request of the Line Ministry after consultation with the Line Ministry (for those cases requested by the relevant Boards of Directors) and Ministry of Planning and Investment.

The Prime Minister will decide the list of such enterprises.

2. Ministry, Provincial People’s Committee:

a) Approves the goals, strategies, long term plans and scope of business of the State Owned Enterprises having Board of Directors established by the his/its Decision, at the request of the Board of Directors.

b) Decides the goals, strategies, long term plans and scope of business of State Owned Autonomous Company without Board of Director, established by the Decision of the Prime Minister, after the approval of the Prime Minister and of the State Owned Autonomous Company without Board of Directors, established by his/its Decision.

3. The Board of Directors decides the goals, strategies, long term plans and scope of business of the affiliates whose charter capital is solely from the mother company.

Article 7.  To approve the Charter, changes and amendment of the Charter of the State Owned Enterprise

1. The Prime Minister shall approve the Charter, changes and amendment of the Charter of the State Owned Enterprise established by the Prime Minister at the request of the Board of Director and consultation of the Line Ministry, Ministries of Finance, Planning and Investment.

Case by case, the Prime Minister may authorize the Line Ministry or relevant Provincial People’s Committee to approve the changes or amendment of the Charter of the State Owned Enterprises established by the Decision of the Prime Minister.

2. Line Ministry, Provincial People’s Committee shall approve the Charter, changes and amendment of the Charter of the State Owned Enterprises that has no Board of Directors, established by the Decision of the Prime Minister.

3. The Board of Directors shall approve the Charter, changes and amendment of the Charter of the affiliate company whose charter capital is solely from the mother company.

Article 8. To decide investment to make up the charter capital and changes of the charter capital of the State Owned Enterprise

1. The Prime Minister shall decide to form up  the charter capital and the changes of the charter capital in the operation of the State Owned Enterprise established by the Prime Minister at the request of the Board of Directors, Line Ministry or Provincial People’s Committee after consultation of the Line Ministry (if its establishment is proposed by the Board of Directors or the Provincial People’s Committee), Ministries of Finance, Planning and Investment.

Ministry of Finance shall arrange sufficient fund for the Charter capital of the enterprise as per the Decision of the Prime Minister.

2. Line Ministry, Provincial People’s Committee shall, in cooperation with Ministry of Finance, define the level of the charter capital of the State Owned Enterprise established by its Decision.

Ministry of Finance shall arrange sufficient fund for the Charter capital of the enterprise as requested by the Line Ministry.

Provincial People’s Committee shall arrange sufficient fund for the Charter capital of the enterprise established by its own Decision.

3. Board of Directors shall decide the use and changes of the capital and other resources it invests into the affiliate companies, on the condition that sufficient fund must be made available for the charter capital or legal capital as required by laws for each sector of the economy

Article 9. To decide the investment, capital contribution, joint-venture, partnership by authority; approve borrowing and lending, lease and leasing policies

1. The Prime Minister shall decide the investment project of State Owned Enterprises, investment project into other businesses than the State Owned Enterprises that are under the authority of the Prime Minister as per provisions of the Law on Investment.

2. Line Ministry, Provincial People’s Committee:

a) Shall decide investment projects of the State Owned Enterprise as per provision of section 4 Article 66 of the Law on State Owned Enterprise and those of the Law on Investment.

b) Shall approve the project on capital contribution by the State Owned Enterprise established by its Decision to establish new State Owned holding companies, State Owned one-membered liability limited company, State Owned two or more - membered liability limited company that operates outside the areas or sectors as provided for at Article 6 of the Law on State Owned Enterprise.

c) Shall decide the projects of the State Owned Enterprises on capital contribution, buying shares of other businesses, joint-venture with foreign partner or investment into foreign country as per provision at Section 5 of Article 66 of the Law on State Owned Enterprise.

d) Shall decide the plan of selling assets, borrowing, lending, lease and leasing of the State Owned Enterprise as per provisions of Section 6, Article 66 of the Law on State Owned Enterprise.

đ) Shall approve the plan of the State Owned Enterprise to buy up business in other sectors of the economy.

3. Board of Directors:

a) Shall decide or authorize the General Director to decide the investment project, capital contribution, buying shares of other businesses, selling assets, borrowing or lending contracts, lease and leasing agreements as well as other economic arrangements as per provisions at b, Section 2, Article 30 of the Law on State Owned Enterprise and those of the Law on Investment.

b) Shall decide the use of capital of the General Corporation for investment to establish member company whose charter capital is wholly owned by the General Corporation and not exceeding the amount under the authority of the Board of Directors after the approval of the relevant body who decided the establishment of the General Corporation.

c) Shall approve the plan of capital contribution of the member company whose charter capital is wholly owned by the General Corporation to establish new State Owned Joint-Stock Company, State Owned one-membered Liability Limited Company, two or more membered Liability Limited Company that operates outside the areas or sectors provided for at Article 6 of the Law on State Owned Enterprise.

d) Shall decide or authorize the General Director to decide projects of joint-ventures with foreign investors, investment into foreign countries of the member company whose charter capital is wholly owned by the mother business.

Article 10. To stipulate the financial arrangements for the State Owned Enterprises, income distribution and use of funds in State Owned Enterprise

1. The Government shall stipulate the financial arrangements for the State Owned Enterprise, its income distribution, establishment and use of the funds in State Owned Enterprise, reporting mechanism and financial transparency of the State Owned Enterprise, integrated financial report of the General Corporation and the monitoring and supervising mechanism.

2. Ministry of Finance shall submit to the Government for the issuance and organize the implementation of the provisions on finance and report as provided for in Section 1 of this Article.

3. The Board of Directors of the State Owned Enterprise shall provide the regulations on financial maters for application I the enterprise; approve annual financial report; approve the plan of the use of after tax profit or deal with losses of the enterprise in its business.

Article 11. To nominate, dismiss, remove, reward and punish the Chairman of the Board of Directors, Members of the Board of Directors, General Director or Director of the State Owned Enterprise

1. The Prime Minister:

a) Shall decide to nominate, dismiss, remove from post, punish the Chairman and the Members of the Board of Directors of the State Owned Enterprise that has Board of Directors, established by the Decision of the Prime Minister at the request of the Line Ministry and appraisal of the Ministry of Internal Affairs.

b) Shall approve the Decision of the Board of Directors on nomination, dismissal, removal from post, signing of employment contract, reward and punishment of the General Director of the State Owned Enterprise established  by the Decision of the Prime Minister.

c) Shall approve to authorise the Minister of the Line Ministry to nominate, dismiss, remove from post, reward and punish the General Director (Director) of the State Owned Enterprise established by the Decision of the Prime Minister, that has no Board of Directors.

2. Ministry, Provincial People’s Committee:

a) Shall decide to nominate, dismiss, remove from post, reward and punish the Chairman, Members of the Boards of Directors of the State Owned Enterprise that was established by its Decision and has Board of Director.

b) Shall approve to authorise the Board of Directors to nominate, dismiss, remove from post, sign employment contracts, reward or punish the General Director or Director of the State Owned Enterprise that was established by its Decision and has Board of Directors,

c) Shall Decide to nominate, dismiss, remove from post, sign employment contract, reward, punish the Director, Deputy Director, Chief Accountant of the State Owned Enterprise that was established by its Decision and has no Board of Directors and of the State Owned Enterprise that was established by the Decision of the Prime Minister and has no Board of Directors.

3. Board of Directors:

a) Shall decide to nominate, dismiss, remove from post, sign employment contract, reward and punish the General Directors of the State Owned Enterprise upon the approval of the body who decided the establishment of the State Owned Enterprise.

b) Shall decide to nominate, dismiss, remove from post, sign employment contract, reward and punish the Deputy General Directors, Chief Accountant of the State Owned Enterprise at the request of the General Director of that State Owned Enterprise.

c) Shall approve to authorise the General Director of the State Owned Enterprise to decide the nomination, dismissal, removal from post, signing of the employment contract, rewards and punishment of the Director, Chief Accountant  of the member company and other subordinate units whose charter capital is wholly owned by the mother State Owned Enterprise and other key persons of management posts as per the provisions of the Charter of the Enterprise.

d) Shall decide to nominate the representative for the investment capital of the Enterprise into other businesses at the request of the General Director.

4. Ministry of Internal Affairs shall guide the procedure of nomination, dismissal, removal from post, rewards and punishment applicable to the Chairman of the Board of Directors, Member of the Board of Directors, General Director or Director, Deputy General Director or Deputy Director, Chief Accountant and other key persons of management in the State Owned Enterprise.

Article 12. To provide the rules on wages, allowance for application to the Chairman, members of the Board of Directors, General Director or Director of the State Owned Enterprise.

1. The Government shall provide the rules on wages, wage allowance, bonus in the State Owned Enterprise; provide the rules on wages, bonus, allowance and other benefits applicable to the Chairman, Member of the Board of Directors, General Director or Director of State Owned Enterprise.

2. The person who has the power to nominate the personnel as provided for at the Article 11 of this Decree shall decide the wage rate, wage rate promotion and allowance  for these personnel.

Article 13. To provide the mechanism for tender, order placement or assignment of tasks to produce and supply of public goods and services

1. The Government shall provide the list of public goods and services for the society and the economy, the list of State Owned Enterprises established and operated to achieve the main, constant and stable target that is to provide public goods and services and the list of the State Owned enterprises that serve the national defense and security.

The Prime Minister shall provide the mechanism for tender, order placement or assignment of tasks to produce and supply of public goods and services.

2. Line Ministry, Provincial People’s Committee in charge of the public goods and services shall assign the task to the State Owned General Corporations, Autonomous Company that are capable to conduct the tender or placement of order for public goods and services.

The State Owned General Corporations assigned with the task of producing and supplying public goods and services shall reassign such tasks to its member companies that are capable of doing the job.

Article 14. To organise the check and supervision of the achievement of the objectives, implementation of tasks and decisions of the owner and appraise the performance of the State Owned Enterprise

1. The Prime Minister shall provide the mechanism of check and supervision on State Owned Enterprise for their implementation of assigned tasks and achievement of the targets, the mechanism of check and supervision on use of capital at State Owned Enterprise; the criteria to assess the business performance of the Enterprise and the management of the Board of Directors and the execution work of the General Director or Director.

2. Line Ministry, Provincial People’s Committee shall build up the regulations for check and supervision of the State Owned Enterprise by authority; cooperate with Ministry of Finance to organise for the assessment of performance, management and operation work of the Board of Directors, General Directors or Directors as per regulations approved by the Prime Minister; appraise the annual financial reports, financial status, labor, operation capability and performance of the State Owned Enterprise at the end of the financial year.

3. Ministry of Finance shall organise the check and supervision on the use and management of capital, establishment and use of funds at State Owned Enterprise.

4. The Board of Directors shall check and supervise over the General Director or Director of the Member company in their implementing the tasks and functions as per provisions of the Law on State Owned Enterprise and the Charter of the Enterprise.

SECTION 2. OBLIGATIONS OF THE STATE OWNER  AT STATE OWNED ENTERPRISE

Article 15. To invest adequate charter capital of the state owner to the State Owned Enterprise

1. Line Ministry shall be the authority in charge to cooperate with Ministry of Finance to define correctly the adequate amount of the Charter Capital to ensure the effective operation of the State Owned Enterprise it decides to establish.

2. Ministry of Finance shall make first and any additional investment to the charter capital of the State Owned Enterprise as per provisions at Sections 1 and 2, Article 8 of this Decree and other relevant provisions of the Laws.

3. Provincial People’s Committee:

a) Shall be the authority in charge to cooperate with Ministry of Finance to define correctly the adequate amount of the Charter Capital to ensure the effective operation of the State Owned Enterprise it decides to establish.

b) Shall make adequate investment into new State Owned Enterprise it decides to establish.

c) Shall make additional investment into the Charter Capital as defined by itself for the State Owned Enterprise it decides to establish.

Article 16. To implement full and correctly all provisions of the Charter of the State Owned Enterprise in connection with ownership.

1. Minister, Chairman of the Provincial People’s Committee, the Board of Directors shall be responsible to implement the provisions of the Charter of the State Owned Enterprise under their authority.

2. For those matters not provided for in the Charter of the State Owned Enterprise, the Minister, Chairman of the Provincial People’s Committee shall decide to apply provisions of relevant laws then request the Enterprise to change, amend the Charter soonest possible for his approval.

3. Minister, Chairman of the Provincial People’s Committee shall be responsible before the laws for his wrong decisions or unduly approvals that bring the Enterprise into in profitability, loss of State capital and inefficient operation..

Article 17. To be responsible for liabilities and other asset obligations

1. The Owner shall be responsible for the liabilities, asset obligations, maximum to the charter capital of the Enterprise

2. Minister. Chairman of the Provincial People’s Committee, Board of Directors shall organise regular or special check to assess debts and assets obligations of the Enterprise; In case low ability to pay the debts and other assets obligations is detected, he would immediately request the Enterprise to apply necessary remedy measures and report to the owner of the Enterprise for approval.

3. When the Enterprise is unable to pay due debts and other assets obligations, the Minister, Chairman of the Provincial People’s Committee, Board of Directors shall instruct the General Director, Director of the Enterprise to inform the financial status of the Enterprise to all its debtors; request the General Director or Director of the Enterprise to apply, or does it himself, for the bankruptcy as per provisions of Article 16 of the Law on Bankruptcy, 15 June, 2004.

4. Minister, Chairman of the Provincial People’s Committee, Board of Directors shall bear legal responsibility for non-conformity with provisions of  Clauses 2 and 3 of this Article.

Article 18. To make decision on investment, borrowing guaranty; approve the policy on procurement, selling, borrowing and lending, lease and leasing by authority

1. Minister, Chairman of the Provincial People’s Committee shall, in his authority, be responsible for his decision on investment project, borrowing guaranty, approval of procurement and selling, borrowing and lending, lease and leasing, joint capital contribution, partnership and approval of procurement of business in other economic sectors by the Enterprise; supervise the implementation of his decision or approval.

2. Board of Directors, Director of the State Owned Enterprise shall be in his authority, be responsible for his decision on investment project, borrowing guaranty, approval of procurement and selling, borrowing and lending, lease and leasing, joint capital contribution, partnership and approval of procurement of business in other economic sectors by the Enterprise; supervise the implementation of his decision or approval.

3. In case of non-compliance with the above and no timely remedy measure is taken and that leads to low efficiency of investment project, borrowing guaranty, procurement and selling, borrowing and lending, lease and leasing, joint capital contribution, partnership and that leads to short recovery of the investment, unability to repay the debts and loss of the assets and in profitability of the Enterprise, the Minister, Chairman of the Provincial People’s Committee is to be jointly responsible.

Article 19. To ensure the autonomy in business and self-responsibility of the enterprise; not to intervene illegally into the operation of the enterprise

The Head of the State Authority that hold the rights of the State Owner shall build the regulations to implement the rights of the State Owner assigned, delegated or authorized to him to ensure the business autonomy and self-responsibility of the State Owned Enterprise in its operation.

The State Authority holding the rights of the State Owner shall not illegally intervene into the work of the Board of Directors, General Director or Director of the State Owned Enterprise.

Chapter IV

IMPLEMENTATION

Article 20. Effect

This Decree shall be in effect 15 days since the date it is published in the Gazette. All previous provisions in contrary to this Decree shall void.

Điều 21. Implementation

Ministers, head of Ministry-equivalent Agencies, Chairman of the People’s Committees of provinces and centrally administered cities shall implement this Decree./.