Decree No.91/2015/ND-CP

DECREE

STATE CAPITAL INVESTMENT IN ENTERPRISES, USE AND MANAGEMENT OF CAPITAL AND ASSETS IN ENTERPRISES

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

Pursuant to the Law on use and management of state capital invested in manufacturing and business operations of enterprises dated November 26, 2014;

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

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

Pursuant to the Law on Public Investment dated June 18, 2014;

At the request of the Minister of Finance,

The Government hereby promulgates the Decree on state capital investment in enterprises, use and management of capital and assets in enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree provides for state capital investment in enterprises, financial management in state enterprises and state capital investment management in joint stock companies and multiple members limited liability companies.

Article 2. Applicable entities

1. The state agency which exercises rights and obligations of the state capital owner on behalf of the state (hereinafter referred to as representative agency).

2. State enterprises shall include:

a) A single-member limited company of which charter capital is wholly owned by a parent company of a state economic corporation, a parent company of a state incorporation or a parent company that belongs to the group of a parent company - subsidiary company.

b) An independent single-member limited company of which charter capital is wholly owned by the state.

3. The representative person of state capital invested in a joint stock company, multiple-member limited liability company (hereinafter referred to as representative person).

4. Other agency, organization or individual engaged in investment, use and management of state capital and assets in state enterprises.

Article 3. Application of related laws

In addition to complying with provisions stated in this Decree, state enterprises that currently operate in finance-specific industries or sectors must implement the Government’s specific regulations applied to such specific financial aspects. Where there exists a discrepancy between such regulations and those enshrined in this Decree, the latter shall prevail.

Article 4. Interpretation of terms

Terms used herein shall be construed as follows:

1. Representative agency of state capital owner refers to Ministries, Ministry-level agencies and Government agencies (hereinafter referred to as managing Ministry); People’s Committees of centrally-affiliated cities and provinces (hereinafter referred to as provincial People’s Committee), or organizations established under legal regulations.

2. Same-level financial institution refers to the Ministry of Finance in a relationship with state enterprises established under the decision of the Prime Minister and the managing Ministry or delegated to exercise management authority; the Department of Finance in a relationship with state enterprises established under the decision of the provincial People’s Committee or delegated to exercise management authority.

3. Government-guaranteed loan and state-owned investment and development loan will be defined as state capital invested in state enterprises in the event that such loans have been repaid by the state, transformed into state loans allocated to enterprises under the decision of competent authorities.

4. Mobilized capital of a state enterprise refers to the capital that such state enterprise borrows from credit institutes, other financial organizations, or domestic and foreign individuals; the capital that such state enterprise obtains by issuing bonds and employing other methods of capital mobilization under laws for the purpose of financing for manufacturing and trading activities.

5. Other state capital invested in an enterprise refers to the capital invested in a joint stock company or multiple-member limited liability company to which the portion of capital contributed is owned by the representative agency.

6. State enterprise’s outward investment capital refers to the capital of a state enterprise invested in a joint stock company, limited liability company or invested in other forms as stipulated by laws.

Chapter II

STATE CAPITAL INVESTMENT IN ENTERPRISES

Section 1. STATE CAPITAL INVESTMENT IN ESTABLISHMENT OF STATE ENTERPRISES

Article 5. Scope of state capital investment in establishment of state enterprises

1. State enterprises which supply essential public products and services, and ensure the social security, including:

a) Public postal services;

b) Publication (exclusive of publication printing and release sector);

c) Agricultural and forestry operations stipulated by laws;

d) Management and operation of inter-province or inter-district water resources and agricultural irrigation works;

dd) Monitoring, operation and management of national and urban rail infrastructural facilities; systems for ensuring aviation and navigation safety;

e) Others decided by the Prime Minister.

2. State enterprises involved in the field of providing direct assistance for national defence and security under the Government’s regulations.

3. State enterprises involved in the field of natural monopoly, including:

a) National electric power transmission systems; large and multiple-objective hydropower plants, nuclear power plants which have special importance in socio-economic, national defence and security aspects;

b) Printing of paper money and coining of currency as well as manufacture of gold pieces;

c) Lottery;

d) State enterprises that have functions such as state capital investment and trading and debt trading and treatment for restructuring and macroeconomic regulation and stabilization purposes;

dd) Others decided by the Prime Minister.

4. State enterprises that apply high technologies make large investments, stimulate rapid growth of other industries and sectors and the whole economy.

Article 6. Procedures for state capital investment in establishment of state enterprises

1. Procedures for request for state capital investment in establishment of state enterprises

a) The representative agency prepares documents submitted to apply for state capital investment in establishment of state enterprises to same-level finance agencies within a permitted period of 30 days as from the date on which the decision on establishment of a state enterprise was obtained from competent authorities.

Application documents shall be composed of the followings:

- Copy of the decision on establishment of a state enterprise granted by competent authorities, enclosing the scheme for establishing such state enterprise. The scheme for establishing such state enterprise must be implemented under the Government's regulations on establishment, restructuring and dissolution of enterprises;

- Copy of the document explaining funding sources used for investing in establishment of a state enterprise and already approved by competent authorities (finances derived from the state budget, finances derived from the Enterprise Arrangement and Development Fund and other state capital).

b) Same-level financial institution:

Within a maximum period of 15 days of receipt of applications for state capital investment in establishment of state enterprises, this same-level financial institution shall be held responsible for verifying that submitted application documents conform to specified regulations to initiate procedures for state capital investment in establishment of state enterprises under the provisions of Clause 2 of this Article.

Where documents submitted to apply for state capital investment in establishment of state enterprises fail to meet stipulated requirements, finance agencies must send written response in which reasons are clearly stated to the representative agency within a permitted period of 07 days of receipt of such documents.

2. Procedures for state capital investment in establishment of state enterprises

a) With regard to investment in establishment of a new state enterprise and non-execution of projects for investment in development of fixed asset formation works, given the charter capital specified in the decision on establishment of state enterprises approved by competent authorities, and the planned investment fund already arranged in the state expenditure estimate approved and made known by competent authorities or the investment capital from the Enterprise Arrangement and Development Fund approved by the Government, finance agencies will provide such funds for such state enterprise.

b) With regard to investment in establishment of a new state enterprise on the basis of transfer of assets from completed construction projects, given the decision on establishment of state enterprises and the final account in completed construction works approved by competent authorities in accordance with regulations, project owners or state capital representative agencies will carry out the transfer of assets, identify state capital sources and amounts invested in such projects transferred to such state enterprise in order to complete procedures for providing financing for the charter capital for such state enterprise. 

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Article 42. Enforcement responsibilities and implementation

1. Authority to enforce financial regulations provided for state enterprises:

a) The Government shall issue financial regulations provided for certain state enterprises that are parent companies of state-owned economic corporations and incorporations established under the Prime Minister’s decision.

b) The representative agency shall enforce financial regulations provided for parent companies, state-owned incorporations established under the decision of the representative agency or assigned to be managed under its authority after entering into an agreement with the Ministry of Finance; enforce financial regulations provided for the rest of state enterprises established under the decision of the representative agency or assigned to be managed under its authority.

2. The Ministry of Finance shall provide regulations on the depreciation of fixed assets of enterprises; dealing with, taking an inventory of assets and setting aside provisions; dealing with exchange rate differences; criteria for the enterprise’s financial plan; accounting and financial reporting regulations.

3. The Minister of Finance shall bear responsibility to provide guidance on, inspect and supervise the enforcement of this Decree.

4. Political organizations, socio-political organizations can apply provisions laid down in this Decree to their implementation of financial management towards enterprises owned by these organizations.

5. Parent companies of a state economic corporations, parent companies of state incorporations or parent companies that belong to the parent company - subsidiary company group shall assume the following responsibilities:

a) Set and enforce regulations on financial management towards a subsidiary company that is a single-member limited liability company of which the charter capital is wholly held by a parent company.

b) Contents of financial management regulations issued by a parent company on the basis of applying regulations laid down in this Decree must conform to regulations enshrined in the Enterprise Law 2014 and other relevant laws.

4. Ministers, Heads of Ministry-level agencies, Heads of Government agencies, the Presidents of the People’s Committees of centrally-affiliated cities, provinces and state enterprises, and representative persons of state capital, shall be responsible for enforcing this Decree./.