Decree 97/2024/ND-CP amend Decree 10/2019/ND-CP on the exercise of rights and performance of responsibilities of the state owner’s representatives

DECREE

Amending and supplementing a number of articles of the Government’s Decree No. 10/2019/ND-CP of January 30, 2019, on the exercise of rights and performance of responsibilities of the state owner’s representatives

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 Planning and Investment;

The Government promulgates the Decree amending and supplementing a number of articles of the Government’s Decree No. 10/2019/ND-CP of January 30, 2019, on the exercise of rights and performance of responsibilities of the state owner’s representatives.

Article 1. To amend and supplement a number of articles of the Government’s Decree No. 10/2019/ND-CP of January 30, 2019, on the exercise of rights and performance of responsibilities of the state owner’s representatives (below referred to as Decree No. 10/2019/ND-CP), as follows:

1. To amend and supplement Clause 2, Article 3 as follows:

“2. The Prime Minister shall exercise rights and perform responsibilities of the state owner’s representative in accordance with the Law on Management and Use of State Capital Invested in Production and Business at Enterprises and other relevant laws, for enterprises established under the Prime Minister’s decisions and on the List provided in Appendix I to this Decree.”

2. To amend and supplement Clause 3, Article 3 as follows:

 “3. The owner’s representative agencies shall exercise rights and perform responsibilities of the state owner’s representatives in accordance with the Law on Management and Use of State Capital Invested in Production and Business at Enterprises and other relevant laws for:

a/ Enterprises established under decisions of the owner’s representative agencies;

b/ Enterprises assigned to the owner’s representative agencies for management or for acting as the owner’s representatives, including also enterprises established under the Prime Minister’s decisions before the effective date of the Law on Management and Use of State Capital Invested in Production and Business at Enterprises and not on the List provided in Appendix I to this Decree;

c/ State capital amounts invested in joint-stock companies or limited liability companies with two or more members.”

3. To amend Point c, Clause 2, Article 6 as follows:

“c/ To approve 5-year production and business strategies and plans and development investment plans of enterprises based on the proposal of the owner’s representative agencies and the appraisal opinions of related line ministries. The line ministries on the List provided in Appendix II to this Decree shall assume the prime responsibility for, and coordinate with the Ministry of Finance, Ministry of Planning and Investment and related agencies in, preparing appraisal reports, and send them to the owner’s representative agencies for summarization and submission to the Prime Minister for consideration and decision.

For 5-year production and business strategies and plans and development investment plans of enterprises directly serving national defense or security purposes, the Ministry of National Defense or Ministry of Public Security shall assume the prime responsibility for, and coordinate with the Ministry of Finance, Ministry of Planning and Investment and related agencies in, preparing appraisal reports, and submit them to the Prime Minister for consideration and decision.

Contents of 5-year production and business strategies and plans and development investment plans must comply with Clause 3, Article 9 of Decree No. 10/2019/ND-CP.”

 4. To amend Point c, Clause 4, Article 9 as follows:

“c/ The supervision and inspection of the implementation of approved plans must comply with the Government’s regulations on supervision of state capital investment in enterprises, financial supervision, evaluation of operation efficiency, and disclosure of financial information of state enterprises and enterprises with state capital.”

5. To amend Point b, Clause 1, Article 10 as follows:

“b/ To grant approval for the Members’ Council and Company President to decide on the appointment, re-appointment, relief from duty, commendation or disciplining of Chief Executive Officers; to approve the policy on the appointment of Chief Operations Officers at the request of the Members’ Council or Company President.

The owner’s representative agencies shall assume the prime responsibility for, and coordinate with the Ministry of Home Affairs in, consulting the Government’s Party Caucus Commission before issuing the written approval for the Members’ Councils of enterprises established under the Prime Minister’s decisions to appoint Chief Executive Officers according to the charter of enterprises.”

6. To amend Clause 2, Article 10 as follows:

“2. For supervisors:

a/ To decide on the planning, appointment, re-appointment, resignation, relief from duty, transfer, rotation, commendation, disciplining, dismissal, or retirement of supervisors in accordance with law.

b/ Based on the size of an enterprise, the owner’s representative agency shall decide to establish a Supervisory Board composed of between 1 supervisor and 5 supervisors. If the Supervisory Board has only 1 supervisor, this supervisor may concurrently act as the Head of the Supervisory Board and must satisfy the criteria for the Head of the Supervisory Board.

c/ The owner’s representative agencies shall select and decide to appoint cadres or civil servants under their management as supervisors and assign appropriate jobs for such cadres or civil servants after they no longer act as supervisors.”

7. To amend Clause 3, Article 11 as follows:

“3. Consider and approve at the request of the Members’ Council or Company President:

a/ A plan on capital mobilization for each project expected to mobilize capital exceeding the level specified at Point a, Clause 3, Article 23 of the Law on Management and Use of State Capital Invested in Production and Business at Enterprises.

The capital mobilization by enterprises with 100% charter capital held by the State that are credit institutions must comply with the law on credit institutions and other relevant laws.

b/ A plan on mobilization of capital from foreign organizations and individuals.

For foreign loans taken by the method that enterprises borrow and are liable to pay loans by themselves, except foreign loans taken in the form of goods import on delayed payment, the owner’s representative agencies shall approve the policy on foreign loan borrowing of the enterprises. The capital mobilization by enterprises by the method that enterprises borrow and are liable to pay loans by themselves must comply with relevant laws.

For the Government-guaranteed loans, the law on public debt management and other relevant laws shall apply.

c/ An investment, construction or fixed asset purchase and sale project of enterprises with a value higher than that specified at Point a, Clause 1, Article 24 of the Law on Management and Use of State Capital Invested in Production and Business at Enterprises.

d/ A project on investment outside enterprises with a value higher than that specified at Point a, Clause 4, Article 28 of the Law on Management and Use of State Capital Invested in Production and Business at Enterprises.

The order and procedures for formulating, appraising and approving the projects and plans specified in Clause 2 of this Article must comply with relevant laws.”

8. To amend Clause 4, Article 11 as follows:

“4. Decide to let the Members’ Council or Company President sign contracts on lease, pledge or mortgage of fixed assets of enterprises with a value higher than the level decentralized for the Members’ Council or Company President to decide under the Law on Management and Use of State Capital Invested in Production and Business at Enterprises and the Government’s guiding regulations.”

9. To amend Point e, Clause 5, Article 13 as follows:

“e/ The policy on contribution, increase and decrease of capital of enterprises at subsidiaries; establishment, reorganization or dissolution of branches or representative offices; and takeover of enterprises volunteering to become subsidiaries, joint-venture companies or affiliated companies;”

10. To amend Point g, Clause 5, Article 13 as follows:

“g/ The policy on fixed asset purchase and sale and borrowing or lending contracts with a value equal to 50% or more of the charter capital of enterprises or another smaller percentage as specified in the charter of enterprises; and the policy on borrowing of foreign loans by enterprises;”

11. To amend Point i, Clause 5, Article 13 as follows:

 “i/ Plans on employment, and plans on salary, remuneration and bonus of managers;”

12. To amend Clause 5, Article 14 as follows:

“5. Propose the owner’s representative agencies to submit to competent authorities the adjustment of charter capital; modification and supplementation of the charter; reorganization, ownership transformation, dissolution, or request for bankruptcy of enterprises; decide on the establishment, reorganization or dissolution of dependent cost-accounting units in accordance with the Law on Enterprises, and notify such to the owner’s representative agencies within 180 days from the date of establishment, reorganization or dissolution of dependent cost-accounting units.

 The establishment of branches or representative offices of enterprises with 100% charter capital held by the State that are credit institutions must comply with the law on credit institutions.

The establishment of branches or representative offices of enterprises with 100% charter capital held by the State that are under the Ministry of National Defense or Ministry of Public Security must comply with relevant laws and the charter of enterprises.”

13. To amend Clause 6, Article 14 as follows:

“6. Propose the owner’s representative agencies to consider and submit to the Prime Minister for approval the policy on establishment, rearrangement or ownership transformation of subsidiaries with 100% capital of enterprises specified in Clause 3, Article 54 of the Government’s Decree No. 23/2022/ND-CP of April 5, 2022, on the establishment, rearrangement and ownership transformation of, and transfer of the rights to represent the ownership at, enterprises with 100% charter capital held by the State.”

14. To amend Clause 8, Article 14 as follows:

“8. Propose the owner’s representative agencies to consider and decide on the policy on making additional investment or not making additional investment in joint-stock companies or limited liability companies with two or more members; and decide on investment after the owner’s representative agencies decide on the investment policy.”

15. To amend Point a, Clause 1, Article 15 as follow:

“a/ To decide on the reorganization, ownership transformation, dissolution or bankruptcy of enterprises. The establishment of branches or representative offices of enterprises with 100% charter capital held by the State that are under the Ministry of National Defense or Ministry of Public Security must comply with relevant laws and the charter of enterprises.”

16. To amend Point e, Clause 1, Article 15 as follow:

“e/ To approve capital mobilization plans, investment, construction or fixed asset purchase and sale projects, and projects on investment outside enterprises with a value exceeding the level decentralized for the Members’ Council or Company President to decide in accordance with law;”

17. To amend and supplement Clause 1, Article 17 as follows:

“1. Related organizations and individuals have the following responsibilities:

a/ The owner’s representative agencies shall formulate and implement their internal regulations on exercise of rights and performance of responsibilities with regard to enterprises with 100% charter capital held by the State and state capital at enterprises established under their decisions or assigned to them for management.

b/ The Ministry of Finance shall guide the settlement of financial problems in case of reorganization (merger, consolidation, division or splitting) and dissolution of enterprises with 100% charter capital held by the State.

c/ Political organizations and socio-political organizations may apply this Decree to organize the exercise of rights and performance of responsibilities of the owner’s representatives for enterprises of which they act as owners.”

Article 2. Effect

1. This Decree takes effect on September 10, 2024.

2. This Decree annuls Clause 11, Article 11 of Decree No. 10/2019/ND-CP.

3. In case there are differences between the provisions on the exercise of rights and performance of responsibilities of the owner’s representative agencies of the Government’s Decree No. 01/2018/ND-CP of January 3, 2018, promulgating the Charter on Organization and Operation of the Vietnam Northern Food Corporation, and the Government’s Decree No. 11/2018/ND-CP of January 16, 2018, promulgating the Charter on Organization and Operation of the Vietnam Railway Corporation, and the provisions of this Decree, the latter shall prevail.

The Government’s Decree No. 01/2018/ND-CP of January 3, 2018, promulgating the Charter on Organization and Operation of the Vietnam Northern Food Corporation, and the Government’s Decree No. 11/2018/ND-CP of January 16, 2018, promulgating the Charter on Organization and Operation of the Vietnam Railway Corporation, cease to be effective after 24 months from the effective date of this Decree. The Commission for the Management of State Capital at Enterprises shall promulgate the Charters on Organization and Operation of the Vietnam Northern Food Corporation and the Vietnam Railway Corporation in accordance with Clause 1, Article 9 of Decree No. 10/2019/ND-CP.

4. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, Members’ Councils or Company Presidents of enterprises with 100% charter capital held by the State, and state capital representatives shall implement this Decree.-

On behalf of the Government
For the Prime Minister
Deputy Prime Minister
LE MINH KHAI

* The Appendices to this Decree are not translated.