Decree No. 131/2018/ND-CP dated September 29, 2018 of the Government on defining functions, tasks, powers and organizational structure of the Commission for the Management of State Capital at enterprises

THE GOVERNMENT 

DecreeNo. 131/2018/ND-CP dated September 29, 2018 of the Government on defining functions, tasks, powers and organizational structure of the Commission for the Management of State Capital at enterprises

Pursuant to the Law Organization of the Government dated June 19, 2015;

Pursuant to the Law on Enterprises dated November 26, 2014;

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

Pursuant to the Government’s Decree No. 10/2016/ND-CP dated February 01, 2016 on the on the Government-attached agencies;

Pursuant to the Government s Resolution No. 09/NQ-CP dated February 03, 2018 on establishment of the Commission for the Management of State Capital at enterprises;

At the request of the Minister of Planning and Investment;

The Government promulgates this Decree defining functions, tasks, powers and organizational structure of the Commission for the Management of State Capital at Enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Position and functions

1. The Commission for the Management of State Capital at enterprises (hereinafter referred to as “CMSC”) is a government agency; is designated by the Government to exercise rights and take on duties as the owner’s representative to wholly state-owned enterprises and state capital invested in joint-stock companies and multi-member limited liability companies in accordance with laws.

2. International business name: Commission for the Management of State Capital at enterprises, abbreviated as CMSC.

3. CMSC is a level-I budget estimate unit of the central-government budget.

Article 2. Relationship of CMSC with regulatory authorities

1. CMSC shall exercise rights and take on duties as the owner s representative to enterprises in accordance with laws on use and management of state capital invested in manufacturing and business operations of enterprises; comply with regulations on financial management for enterprises and mechanism for financial supervision of enterprises of which CMSC acts as the owner’s representative.

2. CMSC and enterprises of which CMSC represents the owner shall manage and use state capital to make investments in conformity with national strategies, plans and policies for development of industries approved by competent authorities.

3. CMSC shall cooperate with relevant regulatory authorities in placing orders and assigning enterprises to perform duties concerning public interests or other socio-economic duties in accordance with laws.

Article 3. Principles of assignment of duties to manage enterprises

1. Conform to principles of transfer of rights of a representative of the owner of state capital in enterprises in accordance with regulations on use and management of state capital invested in manufacturing and business operations of enterprises.

2. The transfer of documents concerning the rights to represent the owner in enterprises from ministries, ministerial-level agencies, the Government agencies, people’s committees of provinces and central-affiliated cities (hereinafter referred to as “transferring agencies”) must adhere to the principle of preserving the status quo.

3. With regard to plans, programs, projects and operations of enterprises and other contents within the authority and responsibility of the owner’s representative, which have been decided by transferring agencies before the date of entry into force of this Decree, enterprises shall continue implementing decisions of such transferring agencies.

4. With regard to plans, programs, projects and operations of enterprises and other contents within the authority and responsibility of the owner s representative of which procedures are being conducted for obtaining decisions from transferring agencies:

a) If procedures for obtaining approval from the owner s representative have been conducted in accordance with laws and the submitted application documentation is satisfactory, enterprises shall continue reporting CMSC for considering and deciding within its competence;

b) If procedures for obtaining approval from the owner s representative have been conducted in accordance with laws and the submitted application documentation is not yet satisfactory, CMSC shall request enterprises and transferring agencies to supplement documents as regulated;

c) If procedures for obtaining approval from the owner s representative have been conducted inconsistently with laws, CMSC shall request enterprises to conduct procedures in accordance with laws.

5. With regard to plans, programs, projects and operations of enterprises which are managed and executed by transferring agencies as assigned by the National Assembly, the Government or the Prime Minister in medium-term and annual plans:

a) Transferring agencies shall continue implementing plans of the current year and assume responsibility to make payment and statement of plans, programs and projects until completing such plans of the current year;

b) CMSC shall receive in-progress plans, programs, projects and operations of enterprises for managing and organizing the implementation of plans of the following year.

Chapter II

DUTIES, POWERS AND RESPONSIBILITIES OF CMSC

Article 4. Formulating and organizing implementation of strategies, plans and programs

1. Formulate and submit master plans for investment and development of enterprises under the management of CMSC according to socio-economic development strategies or plans and relevant plans approved by competent authorities to the Government and the Prime Minister.

2. Formulate and submit long-term, 05-year and annual operating plans and programs of CMSC to the Government and the Prime Minister in accordance with laws.

3. Organize implementation of strategies, plans and programs for management of state capital in enterprises approved by competent authorities.

Article 5. Performing duties and powers of the owner’s representative as regulated by laws

1. Propose charters of state-owned enterprises established according to the Prime Minister’s decisions and of which CMSC represents the owner to competent authorities for promulgation and modifications.

2. Advise and assist the Prime Minister to exercise rights and take on duties to enterprises of which CMSC acts as the owner’s representative, including:

a) Takes charge and collaborate with the Ministry of Finance and the Ministry of Planning and Investment in requesting the Prime Minister to make decision on state capital invested in enterprises in accordance with the Law on use and management of state capital invested in manufacturing and business operations of enterprises;

b) Takes charge and collaborate with the Ministry of Planning and Investment, the Ministry of Finance and relevant authorities in requesting the Prime Minister to make decisions on restructuring, ownership transfer, dissolution and petition for bankruptcy of enterprises which are established according to decision of the Prime Minister;

c) Takes charge and collaborate with the Ministry of Finance on requesting the Prime Minister to make decisions on the charter capital of new enterprises and adjustment of charter capital of operating enterprises established according to decision of the Prime Minister;

d) Takes charge and collaborate with the Ministry of Planning and Investment, the Ministry of Finance and relevant authorities in requesting the Prime Minister to give approval for 05-year investment and development strategies or plans and business and production plans of enterprises established according to decision of the Prime Minister;

dd) Takes charge and collaborate with the Ministry of Home Affairs in requesting the Prime Minister to make decisions on planning, appointment, re-appointment, dismissal, approval for resignation, dispatch, alternation, rewarding, punishment, discharge and retirement of Presidents of the Boards of Members of enterprises established according to decision of the Prime Minister;

Takes charge and collaborate with the Ministry of Home Affairs in requesting the Prime Minister to make decisions on appointment of Presidents of the Boards of Members of enterprises established according to decision of the Prime Minister after obtaining the consent from the Government’s Party Civil Affairs Committee in conformity with the enterprise s charter.

Takes charge and collaborate with the Ministry of Home Affairs in requesting the Prime Minister to make decisions on appointment of the General Director of the State Capital and Investment Corporation after obtaining the consent from the Government’s Party Civil Affairs Committee.

Takes charge and collaborate with the Ministry of Home Affairs in getting opinions from the Government’s Party Civil Affairs Committee before giving written approval for appointment of General Directors of enterprises by the Boards of Members as regulated in the enterprise s charter.

e) Takes charge and collaborate with the Ministry of Planning and Investment, the Ministry of Finance and relevant authorities in requesting the Prime Minister to give approval for establishment schemes of enterprises that are established according to CMSC’s decision in accordance with the Law on use and management of state capital invested in manufacturing and business operations of enterprises;

g) Takes charge and collaborate with the Ministry of Planning and Investment, the Ministry of Finance and relevant authorities in requesting the Prime Minister to give approval for master plans for arrangement and restructuring of enterprises of which CMSC acts as the owner’s representative;

h) Takes charge and collaborate with relevant authorities in requesting the Prime Minister to make decisions on policies for transfer of state capital invested in enterprises between CMSC and the owner’s representative agencies, and between CMSC and enterprises specializing in the investment and trading of state capital.

3. Perform duties and powers in wholly state-owned enterprises of which CMSC represents the owner, including:

a) Decide the charter capital when establishing a new enterprise and adjust the charter capital of an existing enterprise, except for enterprises established according to the Prime Minister’s decision; make investment in supplementation to the charter capital of an existing enterprise in accordance with the Law on use and management of state capital invested in manufacturing and business operations of enterprises;

b) Make decisions on establishment, restructuring, ownership transfer, dissolution and petition for bankruptcy of enterprises in accordance with laws and in conformity with approved master plans for arrangement and restructuring of enterprises;

c) Introduce and revise the enterprise s charter, except for charters of enterprises established according to the Prime Minister’s decision;

d) Give approval for 05-year investment and development strategies and plans, except for those of enterprises established according to the Prime Minister’s decision; give approval for annual business and production plans;

dd) Make decisions on planning, appointment, re-appointment, dismissal, approval for resignation, dispatch, alternation, rewarding, punishment, discharge, retirement, salary, remuneration, bonus and other interests paid to Presidents and members of Boards of Members, Presidents of enterprises, Comptrollers, Financial Controllers of enterprises; make decisions on funds for salary, remuneration annually paid to corporate managers and comptrollers, except for those matters of enterprises established according to the Prime Minister’s decision;

e) Approve the request of the Boards of Members or Presidents of enterprises for planning, appointment, re-appointment, dismissal, approval for resignation, dispatch, alternation, rewarding, punishment, discharge and retirement of General Directors or Directors of enterprises and holders of other executive positions as regulated.

Submit reports for getting opinions from the Government’s Party Civil Affairs Committee before giving written approval for the request of the Boards of Members or Presidents of enterprises for appointment of General Directors of enterprises in conformity with the enterprise s charter;

g) Give authority to the Boards of Members or Presidents of enterprises to make decision on capital mobilization plans, projects on investment, construction, purchase and sale of fixed assets, external investment projects and outward investment projects of enterprises in accordance with the Law on use and management of state capital invested in manufacturing and business operations of enterprises as well as other relevant laws.

h) Decide the transfer of the enterprise’s invested capital in joint-stock companies and multi-member limited liability companies if the value of disposed capital stays lower than its book value recorded on the enterprise’s accounting books after setoff or deduction of provisions against any loss on invested capital;

i) Decide policies on capital contribution, increase, reduction in capital amount, disposal of the enterprise’s invested capital in joint-stock companies and multi-member limited liability companies; decide the intention to acquire joint-stock companies and multi-member limited liability companies to become subsidiary companies and associate companies of the enterprise;

k) Approve financial statements, plan to distribute profits and set up annual funds for the enterprise;

l) Supervise, examine and inspect the management, utilization, preservation and development of capital, implementation of the strategy and plan for investment and development, and policies on recruitment, payroll, and bonus in accordance with laws;

m) Evaluate the operating outcome, efficiency in manufacturing and trading activities of the enterprise; evaluate the performance of the enterprise s managers and comptrollers in accordance with laws.

4. Perform duties and rights to a share of the state capital invested in joint-stock companies and multi-member limited liability companies of which CMSC represents the owner, including:

a) Adopt regulations on appointment, dismissal, discharge, alternation, dispatch, commendation, reward, penalties and decide salary, responsibility allowance, bonus and other benefits for the representative of state capital share in accordance with laws;

b) Exercise the delegated decision-making authority over an increase in capital, disposal of stocks and state investments in joint-stock companies and multi-member limited liability companies;

c) Control the divestment of invested capital, collection of distributable profits and dividends from joint-stock companies and multi-member limited liability companies;

d) Request the person representing the state capital share to perform their assigned tasks regulated in the Law on use and management of state capital invested in manufacturing and business operations of enterprises; give written advice on issues that the representative person is responsible to report and advise on;

dd) Examine, monitor and evaluate the performance of the representative person of state capital share.

5. Suggest the enterprise’s regulations on financial management to the Ministry of Finance, which shall be submitted to the Government for promulgation or revision; introduce and revise the enterprise’s regulations on financial management within its competence; give approval for the Board of Members for promulgation of the enterprise’s regulations on financial management within its competence as regulated in the enterprise’s charter.

6. Perform other duties and rights to fulfill functions of the owner’s representative as regulated by laws and assigned by the Government and the Prime Minister in management and use of state capital in enterprises.

Article 6. Performing duties and powers of a government agency as regulated by laws

1. Request the Government to consider deciding the establishment, restructuring and dissolution of divisions and units under the CMSC’s organizational structure.

2. Organize the training, retraining, recruitment, assignment, appointment, dismissal, dispatch, alternation, retirement, commendation, rewarding, punishment and other benefits of officials, public employees, representative of direct ownership in enterprises, representative of the capital share in enterprises of which CMSC represents the owner and workers under the CMSC’s competence in accordance with laws.

3. Make annual state budget estimates, 05-year and 03-year state budget - finance plans of CMSC for submission of them to competent authorities in accordance with laws. Collaborate with relevant authorities in formulating financial mechanism, policies, standards and limits on budget expenditures of CMSC in assigned sectors. Perform financial management and accounting works in accordance with laws.

4. Inspect the compliance with policies and laws, and the fulfillment of assigned duties of officials, public employees and workers under the management of CMSC; settle complaints and denunciations within its competence; prevent and combat corruption and carry out thrift practices in accordance with laws.

5. Formulate and organize the implementation of solutions for promotion of modern corporate governance in enterprises of which CMSC represents the owner.

6. Make decisions on investment projects within the competence of CMSC in accordance with laws.

7. Carry out international cooperation activities in accordance with laws.

8. Perform other duties and rights as assigned and delegated by the Government and the Prime Minister and as regulated by the Law on government agencies.

Article 7. Responsibilities of CMSC

1. Be held accountable to the Government, the Prime Minister and the law for the efficiency of utilization, preservation and increase in total state capital invested in enterprises managed by CMSC. Comply with regulations of the Law on investment, management and use of state capital invested in enterprises.

2. Do not directly get involved in manufacturing and business activities of an enterprise, and administrative work of the enterprise’s management; do not make decisions on issues managed under the delegated authority of the Board of Members, enterprise’s President, Shareholders’ General Meeting, Board of Directors, General Director or Director of enterprise in accordance with laws and the enterprise s charter.

3. Respect the public disclosure and transparency in investment, utilization and management of state capital invested in enterprises of which CMSC acts as the owner’s representative. Disclose information about investment, utilization and management of state capital invested in enterprises of which CMSC acts as the owner’s representative in accordance with laws.

4. Submit periodic reports or on-demand reports to the Government and the Prime Minister on the performance of assigned duties.

5. Prepare and provide competent authorities with reports serving the inspection of the CMSC’s performance of assigned and delegated objectives, functions, duties and powers as well as fulfillment of inspection and supervisions tasks in accordance with laws.

6. Propagate and disseminate policies and laws of the Government within the ambit of its assigned functions and duties.

7. Provide competent authorities with explanation about the investment, utilization and management of state capital invested in enterprises of which CMSC acts as the owner’s representative as delegated and assigned by the Government or the Prime Minister.

8. Fulfill other responsibilities as delegated by the Government or the Prime Minister and as regulated by laws.

Chapter III

LEADERSHIP AND ORGANIZATIONAL STRUCTURE OF CMSC

Article 8. Leadership

1. CMSC is comprised of a Chairman and no more than 04 Vice Chairmen.

2. CMSC’s Chairman and Vice Chairmen shall be appointed, dismissed or discharged by the Prime Minister in accordance with laws.

3. The Chairman of CMSC shall be held accountable to the Government, the Prime Minister and before the law for all operations of CMSC. Vice Chairmen shall assist the Chairman and be answerable to the Chairman and before the law for their assigned duties.

4. The Chairman of CMSC shall stipulate functions, duties, powers and organizational structure of units and divisions of CMSC; appoint, dismiss or discharge heads and vice heads of units and divisions of CMSC in accordance with laws.

5. The Chairman of CMSC shall enjoy the same benefits as a Minister; benefits of holders of other executive positions shall be provided in conformity with provisions in Section I.1 – Schedule of allowances for holders of executive positions (voted or appointed) in government agencies and public service providers enclosed with the Government’s Decree No. 204/2004/ND-CP dated December 14, 2004 on salary regime for cadres, public servants, officials, and armed force personnel.

Article 9. Organizational structure and enterprises of which CMSC acts as the owner’s representative

1. Organizational structure:

a) Department of Agriculture;

b) Department of Industry;

c) Vietnam Electricity;

d) Department of Technology and Infrastructure;

dd) Department of General Affairs;

e) Department of Legislation and Internal Control;

g) Organization and Personnel Department;

h) The Office;

i) Information Center.

The units specified in Points a thru h Clause 1 of this Article shall assist the Chairman of CMSC in performing functions of a representative agency of the owner of state capital invested in enterprises and other assigned functions and duties; the unit specified in Point i Clause 1 of this Article is a public service provider.

The Office is comprised of 05 sections.

2. Enterprises of which CMSC acts as the owner’s representative:

a) State Capital and Investment Corporation;

b) Vietnam Oil and Gas Group;

c) Vietnam Electricity;

d) Vietnam National Petroleum Group;

dd) Vietnam National Chemical Group;

e) Vietnam Rubber Group;

g) Vietnam National Coal and Mineral Industries Holding Corporation Limited;

h) Vietnam Posts and Telecommunications Group;

i) Vietnam Mobile Telecom Services One Member Limited Liability Company;

k) Vietnam National Tobacco Corporation;

l) Vietnam Airlines Corporation;

m) Vietnam National Shipping Lines;

n) Vietnam Railway Corporation;

o) Vietnam Expressway Corporation;

p) Airports Corporation of Vietnam;

q) Vietnam National Coffee Corporation;

r) Vietnam Southern Food Corporation;

s) Vietnam Northern Food Corporation;

t) Vietnam Forest Corporation;

u) Other enterprises decided by the Prime Minister.

3. State Capital and Investment Corporation is delegated to exercise rights to represent the owner of state capital invested in enterprises which are transferred from Ministries and Provincial People s Committees in accordance with laws, except for enterprises specified in Clause 2 of this Article.

Chapter IV

EFFECT AND IMPLEMENTATION

Article 10. Effect

1. This Decree takes effect on the signing date.

2. CMSC shall exercise rights to represent the owner of state capital invested in enterprises in accordance with regulations herein and other decisions made by the Prime Minister from the date of entry into force of this Decree.

3. Regulations on powers and duties of CMSC introduced in this Decree shall supersede regulations on powers and duties of representative agencies of the state capital’s owner introduced in the Government s decrees or the Prime Minister’s decisions on promulgation of charters on organization and operation of wholly state-owned enterprises mentioned in Clause 2 Article 9 hereof.

Article 11. Implementation

1. Relevant agencies shall transfer the right to represent the owner of state capital invested in enterprises mentioned in Clause 2 Article 9 hereof to CMSC and carry out procedures for transfer of enterprise-related documentation to CMSC within a period of not exceeding 45 days from the effective dates of this Decree and other decisions on enterprise transfer made by the Prime Minister.

Procedures for transfer of documents concerning the rights to represent the owner of state capital invested in enterprises to CMSC shall be carried out according to the Prime Minister’s specific decision.

2. The Chairman of CMSC, Ministers, heads of ministerial-level agencies, heads of the Government agencies, Chairpersons of people’s committees of provinces and central-affiliated cities, and relevant organizations and individuals shall implement this Decree./.

For the Government
Prime Minister
Nguyen Xuan Phuc