Decision No. 63/2011/QD-TTg dated November 10, 2011 of the Prime Minister amending and supplementing a number of articles of the Regulation on organization and operation of private universities promulgated together with the Prime Minister’s Decision No. 61/2009/QD-TTg of April 17, 2009

THE PRIME MINISTER

Decision No. 63/2011/QD-TTg of November 10, 2011, amending and supplementing a number of articles of the Regulation on organization and operation of private universities promulgated together with the Prime Minister’s Decision No. 61/2009/QD-TTg of April 17, 2009

THE PRIME MINISTER

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 14, 2005 Education Law and the November 25, 2009 Law Amending and Supplementing a Number of Articles of the Education Law;

Pursuant to the Government’s Decree No. 75/2006/ND-CP of August 2, 2006, detailing and guiding a number of articles of the Education Law, and Decree No. 31/2011/ND-CP of May 11, 2011, amending and supplementing a number of articles of Decree No. 75/2006/ND-CP;

Pursuant to the Government’s Decree No. 115/2010/ND-CP of December 24, 2010, providing responsibilities for state management of education;

Pursuant to the Prime Minister’s Decision No. 58/2010/QD-TTg of September 22, 2010, promulgating the University Charter;

At the proposal of the Minister of Education and Training,

DECIDES:

Article 1. To amend and supplement a number of articles of the Regulation on organization and operation of private universities promulgated together with the Prime Minister’s Decision No. 61/2009/QD-TTg of April 17, 2009, as follows:

1. To annul Clause 5 and amend and supplement Clauses 2 and 8, Article 3 as follows:

a/ To annul Clause 5, Article 3.

b/ To supplement Clause 2, Article 3 as follows:

“2. Common ownership by consolidation means the ownership by consolidation of assets of organizations and individuals contributing capital to establish a university and assets additionally acquired in the course of operation of that university. A university’s assets under common ownership by consolidation include those under divisible and indivisible common ownership by consolidation.”

c/ To supplement Clause 8, Article 3 as follows:

“8. Shareholder means the owner of at least one share. A shareholder may be institutional or individual. All shareholders may vote and the number of votes of a shareholder is in proportion to the number of its/his/her shares.”

2. To amend and supplement Article 4 as follows:

“Article 4. State management of private universities

A private university is subject to the state management of education and training by the Ministry of Education and Training; and to the territory-based administration by the provincial-level People’s Committee of the locality in which it is headquartered.

Provincial-level People’s Committees shall coordinate with the Ministry of Education and Training in managing private universities in their localities.”

3. To amend and supplement Article 6 as follows:

“Article 6. Tasks and powers of private universities

Tasks and powers of private universities are specified in the University Charter.”

4. To amend and supplement Article 7 as follows:

“Article 7. Establishment, licensing of educational activities, termination of operation, merger, division, split-up and dissolution of universities

The licensing of establishment, educational activities, termination of operation, merger, division, split-up and dissolution of private universities complies with the Prime Minister’s regulations.

The establishment of a private university requires at least 3 members (institutional or individual) contributing charter capital in which the portion of capital contributed by each member must not exceed 51% of the charter capital.”

5. To amend and supplement Article 9 as follows:

“1. The Shareholders’ General Meeting rallies all shareholders. The Shareholders’ General Meeting is the highest decision-making body of a university.

2. The Shareholders’ General Meeting has the following rights and tasks:

a/ To approve the university’s construction and development plans; annual and periodical plans; extension, change or adjustment of training disciplines, scale and levels, and orientations for scientific and technological activities in association with the university’s development strategy proposed by the rector.

b/ To elect, dismiss and relieve from office members of the university’s Board of Directors and Control Board; to carry out requests for adding new members to or replacing existing members of the Board of Directors;

c/ To approve annual financial statements of the university;

d/ To approve the university’s internal regulations on criteria for selection of member of the Board of Directors and Control Board, rector and vice rector; regulations on recruiting and laying off lecturers and other full-time members of the university;

e/ To approve the university’s organization and operation regulation and internal finance regulation;

f/ To approve decisions on increase or decrease of charter capital;

g/ To exercise other rights and perform other tasks according to the university’s organization and operation regulation.

3. Annual meetings of the Shareholders’ General Meeting shall be convened by the Board of Directors once a year within the first four months of a fiscal year.

The Board of Directors may convene an extraordinary meeting of the Shareholders’ General Meeting:

a/ Under a decision of the chairman of the Board of Director or at the request of at least two-thirds of members of the Board of Directors in the interest of the university.

b/ When there is a need to add new members to the Board of Directors as the number of members of the Board of Directors falls by more than one-third of the number provided in the university’s organization and operation regulation.

c/ When a shareholder or a group of shareholders holding more than 30% of shares requests in writing the convening of an extraordinary meeting after detecting that the Board of Directors seriously infringes upon shareholders’ rights or makes decisions beyond its competence.

d/ When the term of office of the Board of Directors has expired for more than 6 months but no meeting has been organized to elect a new Board of Directors;

e/ In other cases as provided in the university’s organization and operation regulation.

All costs for convening and organizing a meeting of the Shareholders’ General Meeting shall be accounted as the university’s operation expenses.

4. Conditions for conducting a meeting of the Shareholders’ General Meeting

a/ A meeting of the Shareholders’ General Meeting shall be considered valid when it is attended by shareholders representing at least 65% of the total shares.

b/ When several meetings of the Shareholders’ General Meeting are convened to deal with a single issue, if the first meeting is invalid (attending shareholders represent less than 65% of the total shares), the second meeting shall be convened within 30 days after the first meeting and considered valid if it is attended by shareholders representing at least 51% of the total shares. In case the second meeting is also invalid, the third meeting shall be held 20 days after the second meeting, regardless of the number of attending shareholders and the proportion of their shares.

Annual or extraordinary meetings of the Shareholders’ General Meeting shall be convened by the chairman of the Board of Directors. In case the chairman of the Board of Directors fails to convene a meeting as scheduled by the Board of Directors, after 30 days from the scheduled date, shareholders who request the convening of a meeting under Point c, Clause 3 may select a member of the Board of Directors or Control Board to convene a meeting of the Shareholders’ General Meeting and that meeting will be considered valid.

c/ A meeting (annual or extraordinary) of the Shareholders’ General Meeting must be convened through sending written invitations. Invitations, enclosed with the tentative agenda and related documents, must be addressed to shareholders at their permanent residence. It must be guaranteed that all shareholders receive notices of the meeting at least 7 days before it is convened.

A decision of the Shareholders’ General Meeting must be notified to each shareholder within 15 days after its adoption.

5. Proceedings at a meeting of the Shareholders’ General Meeting must be recorded in writing and adopted at the meeting, with signatures of the meeting’s chairperson and secretary, for archive. Decisions of the Shareholders’ General Meeting shall be adopted by show-of-hands or secret-ballot voting at meetings.

A decision of the Shareholders’ General Meeting shall be adopted if it is voted for by shareholders representing at least 65% of total votes of attending shareholders. A specific proportion shall be set in the university’s organization and operation regulation. Members of the Board of Directors and Control Board shall be elected by cumulative voting under which the number of votes of each shareholder is in proportion to his/her number of shares multiplied by the number of to-be-elected members of the Board of Directors or Control Board and a shareholder may cast all of its/his/her votes for one or several candidates.”

6. To amend Clauses 1 and 2, Article 10 as follows:

“1. The Board of Directors is the managing body and the sole representative of the ownership of a private university; responsible for organizing the implementation of resolutions of the Shareholders’ General Meeting and competent to decide on issues regarding the university’s organization, personnel, finance and property in accordance with law.

2. The Board of Directors of a private university shall be elected by the Shareholders’ General Meeting of the university and recognized by the provincial-level People’s Committee of the locality in which the university is headquartered. The number of members of the Board of Directors must be an odd number, three at least, two-thirds of whom must possess a university or higher degree. Members of the Board of Directors of a private university must be shareholders representing organizations or individuals that hold a certain quantity of shares as required by the university. The specific number of members of the Board of Directors is provided in the university’s organization and operation regulation.

A term of office of the Board of Directors is 5 years from the date of issuance of a recognition decision by a competent agency.”

7. To amend and supplement Clauses 1 and 4, Article 11 as follows:

a/ To amend and supplement Clause 1, Article 11 as follows:

“1. To elaborate the university’s organization and operation regulation for adoption by the Shareholders’ General Meeting; to propose the Shareholders’ General Meeting to consider amending or supplementing the university’s rules and regulations.

To propose the Shareholders’ General Meeting to add new members to or  dismiss or relieve from office existing members of the Board of Directors.”

b/ To amend and supplement Clause 4, Article 11 as follows:

“4. To elect the university’s rector and submit the election results to the chairperson of the provincial-level People’s Committee of the locality in which the university is headquartered for issuance of a recognition decision. To appoint as vice rectors persons nominated by the rector.”

8. To amend Clause 1, Point b, Clause 2, and supplement Clause 3, Article 14 as follows:

a/ To amend Clause 1, Article 14 as follows:

“1. The chairman of the Board of Directors is head of the Board of Directors, who must have clear personal records, good political and ethical quantities and possess a university or higher degree, and is elected by the Board of Directors among its members and recognized under a decision of the chairperson of the provincial-level People’s Committee of the locality in which the university is headquartered.

The chairman of the Board of Directors may concurrently act as the rector if meeting the criteria set for teachers and university rectors.”

b/ To amend Point b, Clause 2, Article 14 as follows:

“2. The chairman of the Board of Directors has the following powers and tasks:

b/ To sign and submit to the chairperson of the provincial-level People’s Committee of the locality in which the university is headquartered for issuance a decision recognizing the rector. To approve decisions to appoint vice rectors, heads or deputy heads of divisions (departments), deans and vice deans of faculties, and chiefs and deputy chiefs of disciplines at the proposal of the rector.”

c/ To amend and supplement Clause 3, Article 14 as follows:

“3. The chairman of the Board of Directors may use the university’s organizational apparatus and seal for operation within the ambit of functions and tasks of the Board of Directors and sign documents and decisions of the Board of Directors.”

9. To amend and supplement Clauses 1, 2 and 3, amend Points j and k, and add Point l to Clause 4, Article 15 as follows:

a/ To amend and supplement Clause 1, Article 15 as follows:

“1. The rector of a private university must meet the criteria set in the Education Law and the University Charter; be neither a civil servant nor public employee on the state payroll; not be older than 70 years counting to the date of issuance of a decision recognizing the rector by a competent authority.”

b/ To amend and supplement Clause 2, Article 15 as follows:

“2. The rector of a private university shall be nominated by the Board of Directors by a secret-ballot voting with more than half of the votes being cast for, approved by the Shareholders’ General Meeting and recognized under a decision of the chairperson of the provincial-level People’s Committee of the locality in which the university is headquartered.  In case of necessity, the Board of Directors may hold a vote of confidence on the rector in the middle of his/her term of office or on an irregular basis.

The term of office of the rector coincides with the term of office of the Board of Directors.”

c/ To amend and supplement Clause 3, Article 15 as follows:

“3. The rector of a private university is the person administering the university’s education and training activities; is subject to supervision by the Board of Directors and takes responsibility before the Board of Directors and law for the discharge of assigned powers and tasks. In case the university’s organization and operation regulation does not state that the chairman of the Board of Directors is the university’s at-law representative, the rector shall act as the university’s at-law representative.”

d/ To amend and supplement Points j and k of, and add Point l to, Clause 4, Article 15 as follows:

“4. In addition, the rector of a private university has the following powers and responsibilities:

j/ To nominate vice rectors, heads and deputy heads of divisions (departments), deans and vice deans of faculties, and chiefs and vice chiefs of disciplines to the chairman of the Board of Directors for consideration and recognition;

k/ To propose the Shareholders’ General Meeting to approve the university’s construction and development plans; annual and periodical plans; extension, change and adjustment of training disciplines, scale and levels; and orientations for scientific and technological activities in association with the university’s development strategy; to report to the Board of Directors and the Shareholders’ General Meeting on the university’s training activities and other activities according to regulations; to reserve his/her opinions for decisions of the Board of Directors for reporting to the Shareholders’ General Meeting and the Ministry of Education and Training or competent authorities for consideration and handling;

l/ To perform other tasks as provided in the university’s organization and operation regulation.”

10. To supplement Clause 1, Article 16 as follows:

“1. Vice rectors of a private university must meet the criteria set in the Education Law and University Charter and be neither a civil servant nor public employee on the state payroll. Vice rectors are assistants to the rector. The vice rector in charge of training and scientific research activities must meet the criteria as for the rector. Vice rectors must not be older than 70 years upon appointment.”

11. To supplement Clause 2, Article 17 as follows:

“2. The Academic and Training Council is set up under a decision of the rector on the basis of the Board of Directors’ resolution. The Academic and Training Council shall elect its chairman by a secret-ballot voting with a majority of votes for. The term of office of the Academic and Training Council coincides with the term of office of the rector.”

12. To amend and supplement Clause 4; add Point e to Clause 5; and amend Clause 6, Article 29 as follows:

a/ To amend and supplement Clause 4, Article 29 as follows:

“4. The university’s assets must be annually inventoried and audited according to law. The private university may apply a rapid appreciation rate for its fixed assets to recover capital, which, however, must not exceed the maximum depreciation deduction rate prescribed by law for enterprises.”

b/ To add Point e to Clause 5, Article 29 as follows:

“5. Assets of a private university includes:

e/ Assets transferred from people-founded universities (if any).”

c/ To amend and supplement Clause 6, Article 29 as follows:

“6. Asset ownership rights

Assets of a private university created from capital contributed by organizations and individuals belong to private ownership while assets acquired from the university’s operation belong to common ownership by consolidation. Shareholders shall hold the university’s shares in proportion to their contributed capital. Donated, presented or allocated assets and those acquired from operation of a people-founded university (if any) which are transferred to the private university belong to indivisible common ownership by consolidation. Assets acquired from the private university’s operation belong to divisible common ownership by consolidation. Assets under private ownership or common ownership by consolidation are protected by the State according to law.

Assets under indivisible common ownership by consolidation of a people-founded university which are transferred to a private university shall be converted into capital under the private university’s indivisible common ownership by consolidation and assigned to the private university’s Board of Directors, the representative of capital contributors and full-time members for management on the principle of preservation and development. The capital portion under indivisible common ownership by consolidation may neither be withdrawn from the private university’s working capital nor converted into shares for calculation of dividends like other shares. Earned dividends shall be added to capital under indivisible common ownership by consolidation so as to increase the private university’s accumulative capital and used for development investment.

The representative of the capital portion under indivisible common ownership by consolidation transferred from a people-founded university shall be elected by the people-founded university’s capital contributors and full-time members who operate in a collective manner and vote by majority.

The representative of the capital under indivisible common ownership have rights like other individual shareholders and may attend the Shareholders’ General Meeting and vote on all matters of the Shareholders’ General Meeting.”

13. To amend and supplement Clauses 2 and 3, Article 30 as follows:

a/ To amend and supplement Clause 2, Article 30 as follows:

“2. A minimum deduction of 25% for setting up the university’s construction and development investment fund and deduction for setting up other funds according to resolutions of the Board of Directors and the Shareholders’ General Meeting.”

b/ To amend and supplement Clause 3, Article 30 as follows:

“3. Distribution of dividends to shareholders in proportion to their contributed capital portions after fulfilling obligations toward the state budget and making deductions for setting up funds according to Clauses 1 and 2 of this Article.”

14. To amend Clause 2, Article 31 as follows:

“2. Shareholders may transfer part or the whole of their contributed capital to others according to the following regulations:

a/ A shareholder shall, first of all, make offers to sale its/his/her contributed capital portion to other shareholders of the university in proportion to their contributed capital portions in the university and at a negotiable price at the time of transfer;

b/ A shareholder may transfer his/her contributed capital portion to persons other than the university’s shareholders only when these shareholders refuse to buy or do not buy up the transferred capital.”

Article 2. This Decision takes effect on December 26, 2011.

Article 3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees and private universities shall implement this Decision.-

For the Prime Minister
Deputy Prime Minister
NGUYEN THIEN NHAN