DECREE No. 73/2000/ND-CP OF DECEMBER 6, 2000 PROMULGATING THE REGULATION ON MANAGEMENT OF STATE CAPITAL IN OTHER ENTERPRISES
I. GENERAL PROVISIONS
1. "Other enterprises" are enterprises operating under the Enterprise Law, the Law on Foreign Investment in Vietnam or the Cooperatives Law.
2. "The State capital in other enterprises" means the amount of capital under the State ownership, invested by the State budget or enterprises in other enterprises, which also includes the State capital in the already equitized State enterprises.
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.
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.
1. Other enterprises with the State�s investment capital operate according to corresponding laws and the enterprises� charters; observe the financial and statistical report regime as prescribed by law. When sending reports to competent State bodies, the enterprises shall at the same time send the copies thereof to the State capital representatives.
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.
b) The State capital proportion in enterprises set up through the full equitization of independent State enterprises, which have been set up under decisions of the presidents of the provincial/municipal People�s Committees.
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.
2. To request the direct managers to report periodically or extraordinarily on the business situation, the financial management, the management of capital and assets, the business results of other enterprises with the State�s investment capital. To task and request the direct managers to manage the State�s dominant shares in joint-stock companies, report on the use of rights of the State�s dominant shares to orient strategy, dermine objectives as well as long-term and annual plans of these enterprises.
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.
3. To report to the Finance Ministry and agencies that have decided the establishment of the enterprises on measures to retrieve the State capital in other enterprises; the performance of tasks by the representatives and the direct managers in cases where the State-invested enterprises are dissolved or bankrupt.
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.
5. For the direct managers who join the management and executive boards of enterprises invested with the State capital, to enjoy salaries, allowances and bonuses, paid by the enterprises according to their regulations.
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.
The direct managers for cases prescribed in Clause 1, Article 6 of this Regulation, when sending reports to the representatives, shall also send a copy thereof to the economic and technical ministries or branches.
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.
5. Not being the relatives (fathers, mothers, wives or husbands, offspring, blood siblings) of Managing Board members, directors of enterprises with capital contributed to the enterprises assigned directly to such persons for management; having no relations in capital contribution, capital lending or signing of purchase-sale contracts with State-invested enterprises assigned to such persons for direct management.
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.
b) For State enterprises without Managing Boards, the enterprise directors shall decide them after obtaining the opinions of the bodies that have decided the establishment of the enterprises.
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.
4. To request the representatives to apply measures to enhance the management of the State capital invested in other enterprises in order to preserve and develop the State capital.
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 31