Decree 167/2024/ND-CP amend Decree 91/2015/ND-CP on investment of state capital in enterprises and management and use of capital and assets at enterprises

DECREE

Amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP of October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises, which was amended and supplemented under the Government’s Decree No. 32/2018/ND-CP of March 8, 2018, and the Government’s Decree No. 140/2020/ND-CP of November 30, 2020

Pursuant to the June 19, 2015 Law on Organization of the Government; and the November 22, 2019 Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration;

Pursuant to the November 26, 2014 Law on Management and Use of State Capital Invested in Production and Business at Enterprises;

Pursuant to the June 17, 2020 Law on Enterprises;

At the proposal of the Minister of Finance,

The Government promulgates the Decree amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP of October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises, which was amended and supplemented under the Government’s Decree No. 32/2018/ND-CP of March 8, 2018, and the Government’s Decree No. 140/2020/ND-CP of November 30, 2020.

Article 1. To amend and supplement a number of articles of the Government’s Decree No. 91/2015/ND-CP of October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises, which was amended and supplemented under the Government’s Decree No. 32/2018/ND-CP of March 8, 2018, and the Government’s Decree No. 140/2020/ND-CP of November 30, 2020, as follows:

1. To amend and supplement Clause 3, Article 37 of Decree No. 91/2015/ND-CP, which was amended and supplemented under Clause 14, Article 1 of Decree No. 32/2018/ND-CP, which was amended and supplemented under Clause 17, Article 2 of Decree No. 140/2020/ND-CP, as follows:

“3. The rights, responsibilities, wages, remunerations, bonuses and other benefits of representatives of state capital amounts at enterprises must comply with Articles 48 and 50 of the Law on Management and Use of State Capital Invested in Production and Business at Enterprises and the following provisions:

a/ The representative of the state capital amount at an enterprise having shares or capital contributions held by the State shall obtain the owner’s representative agency’s opinions about a plan on annual distribution of after-tax profits of such enterprise in order to give opinions, vote and make decisions at the General Meeting of Shareholders or at a meeting of the Members' Council of the enterprise under regulations. Before directing such representative to give opinions, vote and make decisions at the General Meeting of Shareholders or at a meeting of the Members' Council of the enterprise, the owner’s representative agency shall send a consultation request to the same-level finance agency (for enterprises with 36% or more of their shares or capital contributions held by the State). Within 10 working days after receiving the consultation request (enclosed with the Charter of the enterprise organization and operation, audited annual financial statement and plan on annual distribution of dividends or after-tax profits), the same-level finance agency shall give its opinions to the owner’s representative agency for the latter to direct the representative of the state capital amount at the enterprise to give opinions, vote and make decisions at the General Meeting of Shareholders or at the meeting of the Members' Council of the enterprise. A plan on annual distribution of after-tax profits of an enterprise having shares or capital contributions held by the State (except credit institutions that are state-invested joint-stock commercial banks) must adhere to the following principles:

For an enterprise with the State-held shares or capital contributions accounting for more than 50% of charter capital or total voting shares, a plan on annual distribution of dividends or after-tax profits must comply with the following order:

Dividing profits to capital contributors as partners under the signed economic contracts (if any).

Offsetting the previous years’ losses which are no longer eligible for being offset from before-tax profits under regulations.

Deducting at most 30% for the enterprise’s development investment fund (if the Charter of the enterprise organization and operation specifies the making of deductions for this fund).

Making deductions for the reward fund and welfare fund for employees in the enterprise, and the bonus fund for enterprise managers under the Government’s regulations on labor, wages, remunerations and bonuses for companies having dominant shares or capital contributions held by the State.

Dividing the remaining profits in cash or stocks to shareholders or capital-contributing members. The amount of dividends or profits divided in cash in proportion to the state capital amount invested in the enterprise shall be remitted to the state budget under regulations.

The division of dividends in stocks only applies to joint-stock companies subject to additional investment of state capital to implement national important projects according to the project classification criteria specified in the Law on Public Investment, of which the investment policy has been approved by the competent authority. The owner’s representative agency shall fully exercise the rights and perform the responsibilities specified in Article 43 of the Law on Management and Use of State Capital Invested in Production and Business at Enterprises, ensuring the efficient use of capital from division of dividends in stocks, while not creating loopholes for embezzlement or corruption, and violations, if any, shall be handled in accordance with law.

For an enterprise having the State-held shares or capital contributions accounting for between 36% and 50% of charter capital, after obtaining opinions from the same-level finance agency, the owner’s representative agency shall direct the representative of the state capital amount at such enterprise to give opinions, vote and make decisions at the General Meeting of Shareholders or at a meeting of the Members' Council of the enterprise on a plan on annual distribution of after-tax profits according to the order similar to that for enterprises with having the State-held shares or capital contributions accounting for 50% or more of charter capital as mentioned above.

For an enterprise having the State-held shares or capital contributions accounting for less than 36% of charter capital, based on its annual production and business plan, the owner’s representative agency shall direct the representative of the state capital amount at such enterprise to give opinions, vote and make decisions at the General Meeting of Shareholders or at a meeting of the Members' Council of the enterprise on a plan on annual distribution of after-tax profits as appropriate, in which the profits that are left after making deductions for the funds according to the enterprise’s Charter and financial management regulations shall be used up for payment of dividends or profits in cash to shareholders or capital-contributing members. The amount of dividends or profits divided in cash in proportion to the state capital amount invested in the enterprise shall be remitted to the state budget under regulations.

b/ For credit institutions being state-invested joint-stock commercial banks, the distribution of profits after paying corporate income tax must comply with the Government’s Decree No. 93/2017/ND-CP of August 7, 2017, on the financial regime applicable to credit institutions and foreign bank branches and financial supervision and assessment of efficiency of state capital investment at credit institutions with 100% charter capital held by the State and state-invested credit institutions, and the amending, supplementing and replacing documents.

c/ Within 15 days from the end of each quarter and within 30 days from the end of each year, and when requested by the owner’s representative agency and the same-level finance agency, the representative of the state capital amount at an enterprise shall submit a report on the situation of production, business and finance of the enterprise, and propose solutions. Such report, made according to the form provided in Appendix III to this Decree, shall be sent to the owner’s representative agency and the same-level finance agency.”

2. To amend and supplement Clauses 5a and 5b, Article 42 of Decree No. 91/2015/ND-CP, which was amended and supplemented under Clause 22, Article 2 of Decree 140/2020/ND-CP, as follows:

“5a. The owner’s representative agency shall direct representatives of state capital amounts at enterprises having the State-held capital contributions accounting for 50% or more of charter capital to, in compliance with Decree No. 91/2015/ND-CP, Decree No. 32/2018/ND-CP, Decree No. 140/2020/ND-CP, and this Decree, give opinions on modifications and supplementations to the charters of state-invested enterprises and other internal governance regulations of such enterprises as suitable to the management and use of capital and assets at the enterprises and organization of divestment of capital from other enterprises.

In case an enterprise with 50% or more of charter capital held by the State formulates a plan on transfer of investment capital at a joint-stock company not yet listed or registered for making transactions according to the law-specified order and procedures for which it is impossible to apply the transfer of  capital invested outside the enterprises under Article 29 of Decree No. 91/2015/ND-CP, which was amended and supplement under Clause 13, Article 1 of Decree No. 32/2018/ND-CP, and Clause 16, Article 2 of Decree No. 140/2020/ND-CP, due to its failure to satisfy the conditions specified at Point b, Clause 1, Article 15 of the 2019 Law on Securities, the enterprise may apply the provisions on share transfer of Clause 2, Article 127 of the 2020 Law on Enterprises for plan formulation. The owner’s representative agency shall give opinions for the representative of the state capital amount at the enterprise to give opinions, vote and make decisions at the General Meeting of Shareholders and at meetings of the Board of Directors and the Board of Members on the plan on transfer of investment capital.

5b. The Board of Members or Chairperson of an enterprise with 100% of charter capital held by the State shall direct the representative of the enterprise’s capital amount at other enterprises having capital contributions accounting for 50% or more of charter capital to, in compliance with the Government’s Decree No. 91/2015/ND-CP, Decree No. 32/2018/ND-CP, Decree No. 140/2020/ND-CP and this Decree, give opinions on modifications and supplementations to the charter  and other internal governance regulations of such other enterprises as suitable to the management and use of capital and assets at the enterprise and organization of divestment of capital from other enterprises.”

Article 2. Effect

1. This Decree takes effect on the date of its signing.

2. The remaining amount of after-tax profits which has not been used to divide dividends to shareholders by the effective date of this Decree must comply with Clause 1, Article 1 of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and the Boards of Members of the parent companies of economic groups, state corporations, enterprises with 100% of charter capital held by the State, and representatives of state capital amounts at enterprises shall implement this Decree.-

On behalf of the Government

For the Prime Minister

Deputy Prime Minister

HO DUC PHOC