Decree No. 109/2008/ND-CP on the sale and transfer of state-owned enterprises with 100% state capital

DECREE

On the sale and transfer of wholly state-owned enterprises

___________________

THE GOVERNMENT

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

Based on the Law on State-Owned Enterprises dated November 26, 2003;

Pursuant to the Enterprise Law dated November 29, 2005;

The Prime Minister issues this Decision on principles, criteria, and allocation standards for state budget investment capital development phase 2016-2020.

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates on the sale and transfer of wholly state-owned enterprises, independent accounting subsidiaries, and the sale of affiliated units of wholly state-owned enterprises and independent accounting subsidiaries.

Article 2. Subjects and Conditions for Application

1. The sale of wholly state-owned enterprises and independent accounting subsidiaries not dependent on the scale of state capital in the following cases:

a) Enterprises that have been approved for sale in the overall restructuring plan for state-owned enterprises with 100% state capital by the Prime Minister;

b) Enterprises that fall under the privatization plan in the overall restructuring plan for state-owned enterprises with 100% state capital but cannot be privatized.

2. The sale of affiliated units of wholly state-owned enterprises, applicable to affiliated accounting units of state-owned corporations, parent companies, wholly state-owned enterprises, and independent accounting subsidiaries under the following circumstances:

a) Belonging to the category of selling parts of enterprises that have been approved by the Prime Minister in the Comprehensive Plan for the Restructuring of Wholly State-Owned Enterprises but not affecting the operation and ability to fulfill debt obligations of the remaining part of the enterprise;

b) Belonging to the category of equitizing parts of enterprises in the Comprehensive Plan for the Restructuring of Wholly State-Owned Enterprises but unable to implement equitization.

3. The transfer of wholly state-owned enterprises and independent accounting subsidiaries (hereinafter referred to as transferring enterprises) when meeting the following conditions:

a) Total asset value recorded in the accounting books is less than 15 billion VND;

b) No land advantage;

c) Belonging to the category of transferring enterprises in the Comprehensive Plan for the Restructuring of Wholly State-Owned Enterprises that have been approved by the Prime Minister or have been sold but not sold successfully.

Article 3. Explanation of Terms

2. Self-generated and self-consumed electricity is electricity produced and consumed by an organization or individual to serve their own needs.

1. “Sale of Enterprise” includes: the sale of the entire or part of wholly state-owned enterprises and independent accounting subsidiaries as prescribed in Clause 1 of Article 2 of this Decree and the sale of affiliated units as prescribed in Clause 2 of Article 2 of this Decree is the transfer of ownership with payment for the entire enterprise or part of the enterprise to collective, individual, or other legal entities.

2. “Transfer of Enterprise” is the transfer of ownership without payment for wholly state-owned enterprises and independent accounting subsidiaries to become the property of the labor collective within the enterprise with clear ownership assigned to each individual.

3. “Wholly State-Owned Enterprise” includes: independent state-owned company, a limited liability company with one member 100% state capital established by Ministries, agencies at the level of ministries, government agencies (hereinafter collectively referred to as Ministries), People's Committees of provinces and centrally governed cities (hereinafter collectively referred to as Provincial People's Committees) as the representative owner.

4. “Independent Accounting Subsidiary” includes: independent accounting subsidiary, a limited liability company with one member established by state-owned corporations, parent companies belonging to state-owned corporations, economic groups, parent companies in the parent company - subsidiary model as the owner.

5. “Parent Company ” includes: parent companies belonging to state-owned corporations, economic groups, parent companies in the parent company - subsidiary model.

6. “Purchaser of the enterprise or part of the enterprise” is the labor collective within the enterprise, legal entity, group of people, or individual purchasing the enterprise or part of the enterprise.

7. “Recipient of the transferred enterprise” is the labor collective within the enterprise receiving the transferred enterprise.

8. “Transferor, seller of the enterprise or part of the enterprise” is the agency or organization representing the owner of the enterprise.

9. “Direct Sale Method” is the method of negotiating, agreeing, and signing a contract directly between the seller of the enterprise or part of the enterprise and the purchaser of the enterprise or part of the enterprise when there is only one organization or labor collective within the enterprise, or a group of people, or an individual registering to purchase (hereinafter referred to as the purchaser).

10. “Auction Sale Method” is the method of selecting the purchaser of the enterprise or part of the enterprise when there are two or more purchasers registering to purchase through competitive bidding at the auction session.

11. “Labor Collective within the Enterprise” is the current employees listed in the regular work roster of the enterprise voluntarily implementing the resolution of the Workers' and Employees' Congress of the enterprise or part of the enterprise regarding accepting the transfer or purchase of the enterprise or part of the enterprise at the time the decision approving the labor restructuring plan takes effect. The labor collective within the enterprise is represented by the Trade Union Executive Committee or the Temporary Trade Union Executive Committee or the person elected by the Workers' and Employees' Congress to represent them in accepting the transfer or purchase of the enterprise or purchasing part of the enterprise.

12. “Reform Board at the Enterprise” is the organization established at the enterprise to carry out the sale and transfer of enterprises decided to be established by the Ministry, Provincial People's Committee, state-owned corporation, or parent company.

13. “Enterprise Reform and Development Board” is the organization under the Ministry, Provincial People's Committee, state-owned corporation, or parent company belonging to an economic group or state-owned corporation decided to be established by the Prime Minister to perform the tasks and powers stipulated in this Decree when selling enterprises or parts of enterprises or transferring enterprises.

14. “Enterprise Unable to Equitize” is an enterprise that according to the Comprehensive Plan for the Restructuring of Wholly State-Owned Enterprises approved by the Prime Minister belongs to the list of equitization, but after applying all measures prescribed by the law on equitization, it still cannot be equitized or does not meet the conditions for equitization.

15. “Enterprise Without Land Advantage” is an enterprise:

a) Having land use rights for an area less than 200 square meters;²;

b) The market price for land transfer rights or land lease price under normal conditions does not exceed 20% of the price set by the Provincial People's Committee. In case the price cannot be determined, the land transfer price or lease price of a similar area will be used to determine it.

Article 4. Subjects eligible to purchase or receive transfer of enterprises

1. Subjects entitled to purchase enterprises include:

a) Labor collectives within the enterprise;

b) Individual employees within the enterprise;

c) Enterprises with 100% state capital and enterprises of all economic sectors including foreign-invested enterprises in Vietnam, except financial intermediaries providing valuation advisory and auction services for the sale of enterprises;

d) Vietnamese citizens who have full capacity for civil acts, except those prohibited from establishing and managing enterprises under points b, c, d, đ, e, g of Clause 2, Article 13 of the Enterprise Law, members of the Enterprise Reform and Development Board, and individuals belonging to financial intermediaries providing valuation advisory and auction services for the sale of enterprises;

đ) Economic and financial organizations established under foreign laws operating outside Vietnam or in Vietnam, and foreign individuals, except financial intermediaries and individuals belonging to financial intermediaries providing valuation advisory and auction services for the sale of enterprises.

2. Foreign-invested enterprises specified in point c and subjects specified in point đ of Article 4 herein, according to the provisions of the law, shall be recognized as foreign investors eligible to participate alongside other Vietnamese enterprises and citizens in purchasing a portion of an enterprise up to the maximum percentage committed internationally by Vietnam regarding the rights of foreign investors in certain industries and fields; for enterprises in other industries and fields, foreign investors may purchase the entire enterprise.

3. The subject eligible to receive transfer of an enterprise is a group of workers within the enterprise meeting the conditions stipulated in Article 21 of this Decree.

Article 5. Principles for selling and transferring enterprises

1. The buyer or recipient of the transfer shall not resell the enterprise during the period specified in the contract.

2. The assets of the enterprise when implementing the sale or transfer shall be valued. The value of the enterprise being sold shall be calculated based on the actual market price. The value of the enterprise being transferred shall be calculated based on the audited book value.

3. Priority order in selecting the method to sell the enterprise:

a) Auction with assumption of debts;

b) Auction without assumption of debts;

c) Direct negotiation sale with assumption of debts;

d) Direct negotiation sale without assumption of debts;

Priority shall be given to the group of workers within the enterprise if they match the highest bid made by another buyer in the final auction round.

4. Public announcement shall be carried out as prescribed in Articles 15 and 23 of this Decree.

5. The means of payment for purchasing an enterprise shall be Vietnamese dong. Foreign investors wishing to purchase an enterprise must open a deposit account at a service provider operating within the territory of Vietnam and make payments for the purchase through this account.

6. Actual, reasonable, and necessary expenses incurred for the sale or transfer of an enterprise shall be deducted from state capital or proceeds from the sale of the enterprise; if insufficient, such expenses shall be supported from the Enterprise Restructuring Support Fund. The Ministry of Finance shall provide guidance on the content and level of expenses for the sale and transfer of enterprises.

Article 6. State Guarantee

The State recognizes and protects the ownership rights, usage rights of assets, and other legitimate rights and interests of the buyer or recipient of the transfer of the enterprise; the legitimate rights and interests of workers and related parties shall be protected in accordance with the law.

Chapter II

SALE OF ENTERPRISES

Article 7. Rights and obligations of the buyer of a business or part of a business

1. The enterprise buyer registrant:

a) Has the right to survey the actual status of the business; study the files, financial reports, asset lists, certificates of ownership and use rights to assets and land, related contracts.

b) Is responsible for keeping confidential information obtained from the survey and business documents; shall not disclose or use such information in a way that harms the business or part of the business.

2. The enterprise buyer:

a) Has the right to choose the legal form of the enterprise after purchase; may continue leasing land or receiving allocated land with payment of land use fees in accordance with the law on land;

b) Shall inherit all lawful rights and interests, and obligations of state-owned enterprises recorded in the purchase-sale contract and other signed contracts.

c) Pay the purchase price for the business according to the signed contract.

Article 8. Procedure for selling a business or part of a business

1. Preparation for selling the business includes: announcing the sale of the business; preparing legal documents and files of the business.

2. Developing and approving the plan for selling the business, including: inventory, verification, classification of assets and debts; preparation of financial statements and plans for handling assets, finances, and debts; development of labor arrangement plans; determination of the value of the business; development of sales plans, minimum selling prices, and sales methods, estimated costs for organizing the sale of the business; approval of the sales plan, handling of assets, finances, debts, and labor. In cases where the expected revenue from the sale of the business is insufficient to cover the costs of implementing the sale (in cases where the buyer inherits the debt) or insufficient to cover costs and pay off debts (in cases where the buyer does not inherit the debt), then it must be transferred to the form of transfer or dissolution, bankruptcy.

3. Handling assets, finances, debts, and labor.

4. Organizing the sale of the enterprise.

5. Approving the results of the sale; preparing the financial statement of the business at the time of handover to the buyer; signing the contract; payment; handing over assets, books, and related documents to the buyer; announcing the completion of the sale of the business.

6. Registering business operations for the enterprise after the sale.

Article 9. Notification of Enterprise Sale

Based on the overall restructuring plan for 100% state-owned enterprises approved by the Prime Minister, the agency or organization deciding to sell the enterprise informs the enterprise about the sale of the enterprise.

Article 10. Handling assets and finances when selling a business

1. The handling of assets, cash balances of the Reward Fund, Welfare Fund, unfinished construction costs, provisions, losses or profits shall be carried out in accordance with Chapter II of Decree No. 109/2007/ND-CP dated June 26, 2007, of the Government on converting 100% state-owned enterprises into joint-stock companies (hereinafter referred to as Decree No. 109/2007/ND-CP).

2. Asset discrepancies:

a) For excess assets if the cause and owner cannot be determined, the enterprise may record an increase in state capital corresponding to the actual value of the excess assets.

b) For lost, missing, or damaged assets, the enterprise must clearly identify the cause and responsibility of the collective or individual and request compensation in accordance with the law. The difference between the compensation value of the relevant individuals, collectives, and insurance organizations (if any) and the actual loss value shall be covered by the Financial Reserve Fund; if insufficient, it shall be recorded in the business results; if the enterprise still incurs a loss, it shall be recorded as a reduction in state capital.

Article 11. Handling debts and determining the value of the business

1. Enterprises being sold or having parts sold have the responsibility to reconcile, confirm, and recover receivables due before the sale; mobilize resources to settle payable debts or negotiate with creditors to handle them before the sale.

2. For remaining receivables and payables, depending on the conditions of the purchase and sale agreement, whether or not the debts are inherited, they shall be handled according to the following principles:

a) In cases where the buyer commits to inheriting debts, the buyer has the responsibility to pay the payable debts and recover receivables according to the commitment; the commitment to inherit receivables and payables must be recorded in the purchase-sale contract and notified in writing to creditors, debtors, and related parties.

b) In cases where the buyer does not commit to inheriting debts, the enterprise being sold has the responsibility to handle these debts in accordance with current state regulations on handling outstanding debts. If the debts are not fully resolved according to current state regulations on handling outstanding debts, they shall be handled in accordance with Clause 2, Article 15 of Decree No. 109/2007/ND-CP at the time of determining the enterprise's value.

3. For prepaid amounts for goods and services provided, such as rent, land lease payments, purchase payments, and labor costs, they must be reconciled with the contract and the quantity of goods and services provided to be included in the enterprise's value.

4. Determination and adjustment of the enterprise's value shall be applied in accordance with the principles stipulated in Chapter III of Decree No. 109/2007/ND-CP. The Enterprise Reform and Development Board is responsible for reviewing compliance with legal regulations on determining the enterprise's value, reporting to the competent authority to decide on the enterprise's value. If the result of determining the enterprise's value does not comply with state regulations, the competent authority deciding to sell the enterprise may refuse to pay consulting service fees for valuation; if causing damage to the state and the enterprise, the valuation consulting organization must compensate.

5. For enterprises that cannot be listed and must be sold, they can inherit the results of determining the enterprise's value approved by the competent authority during the listing process.

Article 12. Determination of Enterprise Sale Price

1. The initial sale price of the enterprise shall be determined according to the following principles:

a) Not lower than the total value of the state capital already determined in accordance with Clause 4, Article 11 of this Decree and the value of land use rights (if any) based on the announced price by the provincial People's Committee if the buyer inherits the debts.

b) Not lower than the total value of the enterprise already determined in accordance with Clause 4, Article 11 of this Decree and the value of land use rights (if any) based on the announced price by the provincial People's Committee if the buyer does not inherit the debts.

2. The sale price of the enterprise:

Based on the sales method (auction or direct sale), payment method (one-time or multiple times), purchase price level, and number of employees the buyer continues to use, the selling price is decided but not lower than the starting price specified in Clause 1 of this Article.

Article 13. Organization of Enterprise Sale through Auction Method

1. In cases where there are two or more buyers registering to purchase the enterprise, the sale must be conducted through one of the following auction methods:

a) Auctioning with labor inheritance, applicable in cases where part of the workforce has already been resolved according to the laws on labor and policies for surplus workers due to the restructuring of state-owned enterprises;

b) Auctioning without labor inheritance, applicable in cases where all workers have been resolved or a plan to resolve all workers has been approved according to the laws on labor and policies for surplus workers due to the restructuring of state-owned enterprises.

2. The Enterprise Reform and Development Board shall have the following powers and responsibilities in directing and supervising auctions:

a) Drafting auction regulations to be submitted to the agency or organization deciding to sell the enterprise for approval;

b) Selecting and submitting to the agency or organization authorized to decide on selling the enterprise for approval the signing of contracts to hire consulting organizations to value the enterprise and organizations to conduct the auction;

c) Submitting to the agency or organization authorized to decide on selling the enterprise for approval the auction method and the announcement of the starting price;

d) Supervising the auction.

3. Determination of Enterprise Value:

a) Within sixty days from the date of the decision to sell the enterprise, the Enterprise Reform Board at the enterprise must complete the tasks stipulated in Clauses 1, 2, 3, 4, and 5 of Article 18 of this Decree and send the results to the Enterprise Reform and Development Board;

b) Within thirty days from the date of receiving the results as prescribed in point a of this clause, the Enterprise Reform and Development Board must organize the determination of the enterprise's value according to the principles stipulated in Clause 4 of Article 11 of this Decree;

c) Based on the results of determining the enterprise's value, the Enterprise Reform and Development Board shall submit to the agency or organization authorized to approve the announcement of the starting price;

4. Selection of organizations to conduct the auction:

Enterprises with a total asset value, after revaluation, under thirty billion dong shall be publicly auctioned at financial intermediary organizations. In case there is no financial intermediary organization willing to auction the enterprise, the auction shall take place within the enterprise;

The remaining enterprises shall be publicly auctioned at the Stock Exchange or Securities Trading Center;

5. Within five working days from the date the agency or organization authorized to decide on selling the enterprise announces the starting price, the organization conducting the enterprise auction must publicly announce at the enterprise and in one newspaper or online publication for three consecutive issues not later than forty-five days before the sale auction date the following information:

a) Name, address, and business activities of the enterprise being auctioned;

b) Basic information about assets, workforce, finances, land, including the remaining lease term (if the enterprise is leasing land);

c) Initial sale price;

d) Deposit amount;

đ) Conditions for sale;

e) Time and place to submit bidding invitation forms;

g) Time and location for submitting purchase registration forms and deposits;

h) Time and location for organizing the auction session;

6. The auction invitation documents include: the information stipulated in Clause 5 of this Article, a sample purchase registration form, and the auction session rules;

7. The buyer of the enterprise must submit the purchase registration form and deposit to the organization conducting the sale auction according to the following provisions:

a) The purchase registration form and deposit must be submitted no later than five working days before the auction date;

b) The purchase registration form must specify the minimum purchase price, which cannot be lower than the starting price;

c) The deposit amount equals ten percent of the starting price;

d) When submitting the purchase registration form, the submitter must present identification cards (for Vietnamese individuals), passports (for foreign individuals), letters of introduction (for organizations), and sign a commitment to comply with the auction session rules;

Upon receipt of the registration form and deposit, the selling organization will issue a certificate of submission of the purchase registration form and a receipt for the deposit to the submitter. The selling organization is responsible for keeping confidential the bid prices of the purchasers;

đ) During the period of accepting purchase registration forms, those who have registered may withdraw their registration forms and immediately receive a refund of the deposit;

8. The auction session will be conducted when at least two valid purchase registration forms and deposits are received. If only one valid purchase registration form is accepted, the seller will apply the direct method as stipulated in Article 14 of this Decree;

If no valid purchase registration forms are received, the organization conducting the enterprise auction will report to the Enterprise Reform and Development Board to reduce the starting price but not below the level specified in Clause 1 of Article 12 of this Decree or to apply other transfer methods;

9. The auction session will be conducted as follows:

a) The organization conducting the enterprise auction decides to appoint a representative with authority to manage the auction session and invites a notary public to participate as a witness;

The bidding process and behavior rules during the auction session are carried out according to the auction session rules;

b) The organization conducting the enterprise auction decides to choose one of the two auction methods, either oral bidding or sealed bid auction, to proceed with the enterprise auction;

c) Oral bidding is conducted through each participant directly bidding verbally. After each bid, the auction session manager clearly and accurately repeats the highest bid three times, each time separated by thirty seconds. Bidding continues until no further bids are made, at which point the highest bidder becomes the winner and has the right to purchase the enterprise;

d) Sealed bid auction is conducted in rounds continuously. The auction session manager announces the highest bid recorded on the bid sheet of the purchaser. The highest announced bid of the previous round becomes the starting price for the next round until no further bids are made, at which point the highest bidder becomes the winner and has the right to purchase the enterprise;

d) In case the successful bidder refuses (does not sign the auction record or signs the auction record but does not sign the enterprise purchase contract), the auction organization selects and notifies the next highest bidder to be the supplementary successful bidder if their bid is not lower than the starting price of the final auction round. If the supplementary successful bidder also refuses, the auction organization issues a document canceling the auction results and reports to the enterprise auction seller to conduct another auction at a later time.

10. Auction sale record:

a) Upon completion of the auction sale session, the auction organization prepares the auction sale record and sends it to the Enterprise Reform and Development Board. The auction sale record must have the signatures of the auction sale manager, witness, and buyer;

b) In case the auction sale session fails, the auction organization must prepare an unsuccessful auction sale record. This record must have the signatures of the auction session manager and witness.

Article 14. Selling enterprises through the direct method

1. In case only one valid enterprise purchase registration is approved, the competent authority deciding on the sale of the enterprise shall apply the direct negotiation sale method.

2. The Enterprise Reform and Development Board together with the company's General Director directly negotiate with the buyer regarding the selling price, labor utilization plan, and agree on the contents of the purchase contract. The total value of the enterprise's assets (in cases where the purchase does not inherit debts) or the total value of state capital in the enterprise (in cases where the purchase inherits debts) as stipulated in Clause 4, Article 11 of this Decree serves as the basis for negotiating the selling price with the buyer.

The Enterprise Reform and Development Board sends the file and record to the competent authority deciding on the sale of the enterprise.

Article 15. Approval of sale results, signing of contracts, handover, payment, and notification of completion of business sale

1. Within five working days from the date of receiving the request from the Enterprise Reform and Development Board, the head of the competent authority deciding on the sale of the enterprise must review and approve the sale result.

2. Within two working days from the date of approving the sale result, the auction organization must refund the deposit to legitimate bidders who did not win the auction. The deposit of the successful bidder will be deducted from the purchase price. Deposits will not be refunded to those who violate the auction session rules, or to the successful bidder who does not sign the contract as prescribed. The amount of the deposit that is not refunded must be recorded as an increase in revenue from the sale of the enterprise and managed and used according to the provisions of Article 16 of this Decree.

3. Within ten working days from the date of the decision approving the sale result, representatives of the seller and buyer must sign the enterprise purchase contract. The enterprise purchase contract includes the following main contents:

a) Name, address, bank account number of the enterprise for sale;

b) Name, address, bank account number (if any) of the enterprise buyer;

c) Sale price of the enterprise;

d) Commitments of the buyer and seller of the enterprise;

đ) Methods of transferring assets, paying the enterprise purchase price, and the handover period;

e) Handling arising issues and disputes under the contract.

Attached to the contract is a list of assets and debts (if any) agreed upon by the buyer and seller.

4. The enterprise buyer must pay within the period specified in the enterprise purchase contract, but not exceeding one year from the date the enterprise purchase contract is signed, including making the first payment within one month and paying no less than 70% of the selling price.

When the buyer has paid at least 70% of the selling price and has sufficient collateral or guarantee according to the law for the remaining portion, the Enterprise Reform and Development Board must organize the transfer of the enterprise to the buyer. The enterprise seller continues to manage the enterprise until the transfer. In case of causing asset loss, the seller is responsible for compensation according to the law.

5. Within fifteen days from the date of signing the handover record, the competent authority deciding on the sale of the enterprise must notify the sale of the enterprise with the following contents:

a) Name, address of the enterprise for sale;

b) Name and address of the buyer.

c) Sale price, sale method, payment deadline;

d) Responsibilities of the buyer, seller of the enterprise, and related agencies in handling existing and arising issues.

The notification of the completion of the enterprise sale must be published on mass media and sent to the following agencies: Corporate Finance, Taxation, Business Registration, Planning and Investment, Labor - War Invalids and Social Affairs, Statistics Office of the province or centrally administered city where the enterprise's headquarters is located, Enterprise Reform and Development Steering Committee.

Article 16. Management and use of the proceeds from selling the enterprise

The proceeds from the sale of the enterprise, after deducting the land use rights value (if any) paid into the state budget, shall be used for the following purposes: to cover costs related to the sale of the enterprise; to pay off debts that the buyer does not inherit; to implement policies for employees when selling the enterprise; the remaining amount shall be remitted to:

1. The enterprise restructuring support fund of the holding company or parent company in the case of selling an independent accounting subsidiary or business unit under the holding company or parent company.

2. A wholly state-owned enterprise or independent accounting subsidiary in the case of selling a business unit of a wholly state-owned enterprise or independent accounting subsidiary.

3. The enterprise restructuring support fund at the State Capital Investment and Business Corporation in the case of selling a wholly state-owned enterprise.

Article 17. Principles for handling labor and management personnel

1. Treatment for workers:

a) Workers who meet the conditions to enjoy social insurance benefits shall be handled according to the provisions of the Labor Law;

b) Those continuing to transfer to new enterprises shall continue to sign labor contracts and enjoy benefits as stipulated under current regulations;

c) Workers terminating their labor contracts shall receive treatment and policies according to the Labor Law or policies for surplus workers due to the restructuring of state-owned companies;

d) The General Director, Deputy General Director, and Chief Accountant of the enterprise, decided by the competent authority to sell the enterprise, shall be considered on a case-by-case basis to arrange work or resolve according to the Government's policy on streamlining the workforce.

2. Responsibilities of the buyer and seller:

a) The General Director of the enterprise being sold has the responsibility to:

- Coordinate with the social insurance agency to settle benefits for workers entitled to social insurance benefits according to current regulations;

- Settle benefits for workers terminating their labor contracts according to the Labor Law or policies for surplus workers due to the restructuring of state-owned companies;

- Process for the social insurance agency to issue social insurance books according to regulations for workers continuing to work at the new enterprise and transfer the list and files of these workers to the new enterprise.

b) The buyer of the enterprise has the responsibility to accept and utilize the number of workers recorded in the purchase and sale contract; inherit obligations towards the workers already accepted and implement policies for workers according to the provisions of the law.

Article 18. Responsibilities of the selling enterprise when selling all or part of itself

Upon receiving notification of the sale of the enterprise, the enterprise shall organize and carry out the following tasks:

1. Preparing all necessary legal documents, unfulfilled contracts, certificates of ownership and use of assets and land of the enterprise.

2. Inventorying and determining the quantity of current assets at the enterprise or business unit, assessing the condition and classifying assets that can continue to be used, assets for liquidation, or sale.

3. Verify and classify receivables and payables; prepare a list of creditors and amounts owed, receivables, including separating recoverable debts from non-recoverable debts and propose measures to handle them.

4. Prepare a report on the most recent quarter's organization; develop plans to handle assets, finances, and receivables and payables according to the principles set forth in Articles 10 and 11 of this Decree.

5. Develop a plan to reorganize the existing workforce of the enterprise with the following contents:

a) Compile a complete list of all workers of the enterprise at the time of announcing the initial price for selling the enterprise, including those currently working and receiving salaries and contributing to social insurance or not contributing to social insurance; those who have stopped working but are still listed in the enterprise's records and contributing to social insurance or not contributing to social insurance;

b) Estimate the number of workers that the buyer must inherit and use, and the number of workers that must be resolved according to the Labor Law or policies for surplus workers due to the restructuring of state-owned companies.

6. Create conditions for potential buyers to survey and access materials specified in Clause 1, Article 7 of this Decree.

7. Handling assets, finances, debts, and labor according to the approved plan and the enterprise purchase and sale contract.

8. Signing contracts for hiring valuation consultants and organizations to conduct auctions of the enterprise.

9. Preparing the enterprise's financial report at the time of transfer to the buyer and addressing financial issues arising from the valuation date of the enterprise to the transfer date.

10. Transferring assets, books, and related documents to the buyer according to the agreement recorded in the enterprise purchase and sale contract.

Article 19. Business Registration

After receiving the handover of the enterprise, the buyer shall register business according to the corresponding form of operation as prescribed by law.

The business registration dossier must include the purchase and sale contract of the enterprise and the handover record of the enterprise.

Article 20. Monitoring and Supervising the Implementation of Contract Commitments

The entity deciding to sell the enterprise has the responsibility to organize monitoring and inspecting the implementation of commitments in the purchase and sale contract; handle or recommend relevant state authorities to handle according to the law in cases of breach of contract commitments.

Chapter III

TRANSFERRING THE BUSINESS TO A GROUP OF WORKERS

Article 21. Conditions for a Group of Workers to Receive the Transfer of a Business

The collective of workers in the enterprise may be assigned the enterprise if they meet the following conditions:

1. Voluntarily registering to receive the transfer of the business.

2. Commitment to maintain and develop production and business operations, ensuring employment for a minimum of three years from the date of receiving the enterprise, and fully paying social insurance for workers continuing to work at the enterprise according to the law.

3. Inherit receivables and financial liabilities of the enterprise after processing according to the provisions of this Decree. Inherit rights and obligations towards workers according to the Labor Law.

4. Not sell, lease, or self-dissolve the enterprise within a minimum period of three years after receiving it, except in cases where the enterprise is in a state of bankruptcy.

Article 22. Principles for Handling Assets, Finances, Debts, and Labor When Transferring a Business

1. The Reform Board at the enterprise conducts an inventory and determines the quantity and status of all assets; long-term and short-term investments; leased, borrowed, held-in-trust, consigned, occupied, rented, and lent assets; verify and classify various types of receivables and payables; compile lists of creditors and amounts owed, debtors and amounts receivable, clearly distinguishing between recoverable and non-recoverable debts; proceed to classify assets, process assets, and debts.

2. Principles for disposing of assets:

a) For assets contributed to joint ventures or received through joint venture contributions; external leases, financial leases; borrowed, held-in-trust assets, and other assets not belonging to the enterprise, the parties involved in the handover and the asset owners agree on inheritance and sign new contracts or terminate existing contracts;

b) For occupied assets, the enterprise identifies the owner to return or sign a lease agreement to borrow the asset again. If the owner cannot be identified, the enterprise increases the state capital equivalent to the actual value of the asset;

c) For assets included in welfare facilities, such as kindergartens, health clinics, and other welfare assets formed from Reward Funds and Welfare Funds, transferred to the new enterprise for management and use to serve the collective of workers in the enterprise. For housing for officials, employees, including housing funded by state budget, transfer to local land management agencies for management or sell to current users according to current regulations.

d) For assets used in production and business operations invested from the Enterprise Reward Fund and Welfare Fund, transfer to the enterprise for continued use in production and business operations.

đ) The remaining balance of the Reward Fund and Welfare Fund is distributed to workers currently working based on their actual years of service at the business before the transfer.

3. Principles for Handling Debts:

a) For tax debts, other state budget payments; state commercial bank loans, Vietnam Development Bank loans where the enterprise has raised funds to repay but is insufficient, shall be handled according to the guidance of the Ministry of Finance.

b) For social insurance debts under the responsibility of the enterprise and employees that the enterprise has collected, before transferring the enterprise, such debts may be deducted from the value of state capital at the enterprise for payment. In cases where there is no remaining state capital, payment support will be provided from the Enterprise Restructuring Support Fund according to the guidance of the Ministry of Finance;

c) The person receiving the transfer of the enterprise shall be responsible for inheriting the receivables and payables of the enterprise after being processed.

4. The remaining value of the assets, after deducting necessary costs for transferring the business, is transferred entirely to the ownership of the group of workers in the business.

5. In cases where the General Director, Deputy General Director, Chief Accountant of the enterprise does not participate in receiving the transfer of the enterprise, they shall be granted a decision on the transfer of the enterprise to consider each specific case to arrange work or resolve according to the government's policy on streamlining the workforce.

Article 23. Procedure for transferring enterprises

1. Based on the overall restructuring plan for enterprises with 100% state capital which has been approved by the competent authority, the agency or organization deciding to transfer the enterprise shall notify the enterprise and publicize on mass media about the implementation of the enterprise transfer.

2. The Trade Union Executive Committee or the Temporary Trade Union Executive Committee together with the General Director of the enterprise shall organize a Workers' Congress to vote by a majority on voluntarily accepting the transfer of the enterprise; build and approve a plan to accept the transfer of the enterprise including both production and business plans and labor restructuring plans; implement conditions for accepting the transfer of the enterprise, including a commitment to use all labor in the enterprise (excluding those who voluntarily terminate their labor contracts); appoint representatives to carry out procedures for accepting the transfer of the enterprise. In enterprises without a trade union, the Reform Board at the enterprise shall cooperate with the General Director to organize a Workers' Congress.

3. The Reform Board at the enterprise shall classify assets, determine and classify receivables and payables; prepare financial statements; estimate costs for organizing the transfer of the enterprise. Based on accounting records, inventory results, asset and financial classification and handling according to the principles set forth in Article 22 of this Decree, the General Director and the Reform Board at the enterprise shall establish a plan to determine the value of the enterprise transferred to the collective of workers. If the estimated costs for organizing the transfer of the enterprise exceed the remaining value of state capital at the enterprise, then it must be converted to liquidation or bankruptcy.

4. The Trade Union Executive Committee of the enterprise or the Temporary Trade Union Executive Committee or the person elected by the Workers' Congress to represent them shall compile a list, classify labor and prepare related files of workers; build a production and business plan and commit to accepting the transfer of the enterprise.

5. The representative of the workforce collective shall submit the application for accepting the transfer of the enterprise to the Reform and Enterprise Development Board, the application includes:

a) Application for accepting the transfer of the enterprise;

b) Production and business plan;

c) Plan for labor utilization and retraining;

d) Proposed form of the new enterprise organization;

đ) Commitments of the workforce collective within the enterprise.

6. The competent authority shall approve the application to accept the transfer of the enterprise and issue a decision to transfer the enterprise to the collective of workers; this decision shall be sent to the following agencies: Corporate Finance, Tax, Business Registration, Planning and Investment; Labor - Invalids and Social Affairs, Statistics Department of the province or centrally administered city where the main office of the enterprise is located; Steering Committee for Enterprise Reform and Development.

7. Organize the signing of the enterprise transfer contract between the representative of the collective of workers and the person authorized by the Minister, Chairman of the People's Committee of the province/city; General Director of State-owned holding company, parent company. The enterprise transfer contract includes the following main contents and shall be announced at the enterprise and in one of the types of newspapers or online newspapers for three consecutive issues.

a) Name and address of the enterprise being transferred to the workforce collective;

b) Full name and address of the representative for the workforce collective;

c) Value of the enterprise being transferred, method of transfer and acceptance;

d) Commitments of the workforce collective at the enterprise;

đ) Rights and obligations of the workforce collective receiving the transferred enterprise.

Attached to the contract is a list of assets classified as value, list of the workforce collective receiving the enterprise.

8. The Enterprise Reform and Development Board together with the General Director of the enterprise shall organize the handover of the enterprise according to the approved plan to the collective of workers represented by the Trade Union Chairman or the person elected by the Workers' Congress to receive and manage, witnessed by representatives of the agency or organization deciding to transfer the enterprise and the corporate finance agency.

9. After receiving the transfer, the representative of the collective of workers shall organize a Shareholders' Meeting, Members' Meeting, or Members' Congress, depending on the type of joint-stock company, limited liability company, or cooperative chosen by the collective of workers to accept the transfer, and register business operations in accordance with the law on business registration. The business registration file must include the decision to transfer the enterprise, the transfer contract, and the handover record of the enterprise to the collective of workers.

10. The enterprise representative shall publicly announce on mass media within thirty days from the date of issuance of the Business Registration Certificate, in accordance with the law, regarding the transfer of the enterprise and the change in its legal form.

Article 24. Ownership rights for enterprises after transfer

The entire remaining value of the enterprise's assets after processing in accordance with Article 22 of this Decree belongs to the collective of workers and is divided into shares or equity contributions to be assigned to each worker participating in the acceptance of the enterprise transfer.

Each worker accepting the enterprise transfer shall be granted ownership of a portion of the remaining asset value through shares or equity contributions corresponding to the number of years worked in the state sector; entitled to dividends or profits; have the right to inherit but cannot transfer the assigned shares or equity contributions within three years after accepting the enterprise transfer.

Article 25. Rights and obligations of the party receiving the enterprise transfer

1. Register business operations according to the selected legal form.

2. Be allowed to use the transferred assets, organize production and business activities, distribute income according to the charter of the enterprise's organization and operation.

3. Be entitled to inherit legitimate rights and interests of the old enterprise as agreed in the enterprise transfer contract; inherit land lease contracts and electricity and water supply contracts of the old enterprise in accordance with the law. The enterprise has the right to choose to inherit the land lease form or convert to the land grant form in accordance with the law on land.

4. Receiving financial support to organize retraining to solve employment for workers from the Enterprise Restructuring Support Fund in accordance with the guidance of the Ministry of Finance.

5. Having the responsibility to fulfill commitments in the enterprise transfer contract and obligations to the State as prescribed by law.

Chapter IV

POLICY FOR ENTERPRISES AND PURCHASERS, RECEIVERS OF ENTERPRISE TRANSFERS

Article 26. Policy for enterprises transferring

The policy for enterprises transferring to a group of workers; enterprises selling to a group, individual, or legal entity shall be applied according to the provisions set forth in Article 50 of Decree No. 109/2007/NĐ-CP.

Article 27. Policy for purchasers paying immediately

If the purchaser, enterprise unit pays the full amount immediately after purchase, they shall receive a maximum discount of 5% on the selling price excluding the value of land use rights but not exceeding the current net asset value at the enterprise or enterprise unit.

Article 28. Policy for groups of workers purchasing enterprises

In cases where a group of workers within the enterprise wins the auction or is the sole registrant for purchase, they shall receive a 15% discount on the selling price excluding the value of land use rights but not exceeding the current net asset value at the enterprise or enterprise unit.

Chapter V

IMPLEMENTATION OF ENTERPRISE SALES AND TRANSFERS

Article 29. Authority to decide on sales and transfers of enterprises

Based on the overall restructuring plan for state-owned enterprises that has been approved by the competent authority and the conditions stipulated in Clause 2 of this Decree.

1. The Prime Minister authorizes the Board of Directors of state-owned holding companies and parent companies established by the Prime Minister to decide: transfer independent accounting subsidiaries; sell independent accounting subsidiaries, dependent units of holding companies, parent companies, and dependent parts of independent accounting subsidiaries with asset values exceeding 50% of the remaining total asset value reported in the most recent financial statement of the enterprise.

2. Ministers, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of provincial People's Committees:

a) Decide to sell or transfer enterprises established by themselves, including independent accounting subsidiaries and dependent units of state-owned holding companies, and limited liability companies with one member that have not transferred ownership representation rights to the State Capital Investment Corporation;

b) Decide to sell parts of enterprises established by themselves that have not transferred ownership representation rights to the State Capital Investment Corporation, where the remaining asset value of those enterprise parts exceeds 30% of the remaining total asset value reported in the most recent financial statement of the enterprise (if the enterprise does not have a Board of Directors) or exceeds 50% of the remaining total asset value reported in the most recent financial statement of the enterprise (if the enterprise has a Board of Directors).

3. The Board of Directors of state-owned holding companies and parent companies decides or delegates authority to the General Director to decide to sell parts of enterprises where the remaining asset value of those enterprise parts does not exceed 50% of the remaining total asset value reported in the most recent financial statement of the enterprise.

4. The Director of an enterprise without a Board of Directors decides to sell parts of enterprises where the remaining asset value of those enterprise parts does not exceed 30% of the remaining total asset value reported in the most recent financial statement of the enterprise.

Article 30. Responsibility for organizing the sale and transfer of enterprises

1. The Enterprise Reform and Development Board shall be the agency assisting the Minister, the Chairman of the People's Committee at the provincial level, the State-Owned Enterprise Management Council, and the parent company.

Depending on the nature of the industry, the form of transfer or sale of the enterprise, and the financial status of the enterprise, the Enterprise Reform and Development Board may invite representatives from banks, enterprises, employees within the enterprise, and relevant agencies to participate.

2. The Minister, the Chairman of the People's Committee at the provincial level, the State-Owned Enterprise Management Council, and the parent company shall decide to establish an Enterprise Reform Board at the enterprise to carry out the tasks stipulated in this Decree.

3. In cases where the enterprise does not implement the plan for selling or transferring the enterprise that has been approved by the competent authority in accordance with this Decree, the General Director of the enterprise must bear disciplinary actions, and the head of the agency or organization deciding to sell the enterprise shall jointly bear responsibility in accordance with the Law on State-Owned Enterprises.

Article 31. Tasks of the Enterprise Reform and Development Board in organizing the sale and transfer of enterprises

1. In the case of selling an enterprise:

a) Develop plans for selling the enterprise; notify all employees in the enterprise and through mass media about the sale of the enterprise;

b) Direct and supervise the Enterprise Reform Board at the enterprise in determining the current state of assets, quality, and technical characteristics of the assets, verifying accounts receivable and payable, lists of creditors and debtors of the enterprise, amounts owed by creditors and debts due; develop plans to address financial and labor issues of the enterprise;

c) Supervise the advisory organization in determining the value of the enterprise and setting the initial price for reporting to the decision-making body for approval;

d) Supervise the organization and implementation of auctioning; organize direct sales and recommend the sale price (in the case of direct sales); recommend the enterprise seller to approve the auction results;

d) Draft the contract for selling the enterprise and report to the Minister, the Chairman of the People's Committee at the provincial level, the State-Owned Enterprise Management Council, and the parent company for decision;

e) Guide, inspect, and supervise the Enterprise Reform Board at the enterprise in recovering the enterprise's assets, returning leased, borrowed, or held-in-custody assets; collecting debts and settling the enterprise's liabilities; handing over assets, books, and related documents to the buyer according to the terms of the enterprise sale contract;

g) Urging payment and ensuring timely payment; manage mortgage files and handle foreclosure procedures when the buyer breaches payment commitments;

h) Handle issues arising from the sale of the enterprise within their authority.

2. In the case of transferring an enterprise:

a) Develop plans for transferring the enterprise; notify all employees in the enterprise and through mass media about the transfer of the enterprise;

b) Appraise the value of the enterprise, determine the current state of assets, quality, and technical characteristics of the assets, verify accounts receivable and payable, lists of creditors and debtors of the enterprise, amounts owed by creditors and debts due; develop plans to address organizational and labor issues of the enterprise;

c) Draft the contract for transferring the enterprise and report to the Minister, the Chairman of the People's Committee at the provincial level, the State-Owned Enterprise Management Council, and the parent company;

d) Guide, inspect, and supervise the Enterprise Reform Board at the enterprise in recovering the enterprise's assets, returning leased, borrowed, or held-in-custody assets; collecting debts and settling the enterprise's liabilities; handing over assets, books, and related documents to the transferee according to the terms of the enterprise transfer contract;

đ) Handle issues arising from the transfer of the enterprise within their authority.

Article 32. Responsibilities of the Enterprise Reform and Development Board

The Enterprise Reform and Development Board shall be responsible for the content and results of the assigned work before the decision-maker selling or transferring enterprises and before the law.

Article 33. Authority to Approve Plans for Selling and Transferring Enterprises

Based on the proposal of the Enterprise Reform and Development Board, the Minister, the Chairman of the People's Committee at provincial level, the Board of Directors of State-owned Joint Stock Corporations, and parent companies decide to approve plans for selling enterprises and prices for selling enterprises; approve plans for transferring enterprises.

Article 34. Authority to Sign Contracts for Selling and Transferring Enterprises

1. The Minister or the person authorized by the Minister signs contracts for selling and transferring enterprises with 100% state capital represented by the Ministry as the owner.

2. The Chairman of the People's Committee at provincial level or the person authorized by the Chairman of the People's Committee at provincial level signs contracts for selling and transferring enterprises with 100% state capital represented by the People's Committee at provincial level as the owner.

3. The General Director of State-owned Joint Stock Corporations and parent companies signs contracts for selling and transferring member enterprises of state-owned companies and parent companies.

Article 35. Responsibilities for Organizing Implementation and Monitoring Execution of Contracts for Selling and Transferring Enterprises

The person signing the contract for selling and transferring enterprises shall be responsible for:

1. Organizing the implementation of the contract for selling and transferring enterprises.

2. Organizing monitoring, supervision, inspection of the contract implementation, and handling arising issues.

3. Any difficulties arising during the execution of the contract for selling and transferring enterprises shall be resolved by both parties to the contract; if there is still a dispute, the case shall be brought to the People's Court according to the provisions of the law.

Article 36. Handling Cases Where There Is No Applicant for Purchasing or Receiving Transfer of Enterprises

For enterprises without applicants for purchasing or receiving transfer of enterprises as stipulated in this Decree, the competent authority shall proceed with the dissolution procedures for enterprises subject to sale or transfer; in cases where the enterprise has entered a state of bankruptcy, the Director of the enterprise must submit a request to the People's Court to initiate bankruptcy resolution procedures according to the provisions of the law.

Article 37. Complaints, Accusations, and Handling Violations

Complaints, accusations, and handling violations related to the process of selling and transferring enterprises shall be carried out according to the provisions of this Decree and according to the provisions of Articles 52 and 53 of Decree No. 109/2007/NĐ-CP.

Chapter VI

IMPLEMENTING PROVISIONS

Article 38. Effective Date

1. This Decree takes effect 15 days from the date of publication in the Official Gazette.

2. Abolish Decree No. 80/2005/NĐ-CP dated June 22, 2005 of the Government on transferring, selling, contracting management, and leasing state-owned companies.

3. Enterprises currently implementing management contracting and leasing contracts where the management contracting and leasing period exceeds July 1, 2010, must negotiate the termination of the contract and implement restructuring forms according to the law before July 1, 2010.

Article 39. Responsibilities for Enforcement and Organization of Implementation

1. The Ministries of Planning and Investment, Finance, Labor, Invalids and Social Affairs, Natural Resources and Environment, and the State Bank of Vietnam shall be responsible for coordinating with relevant agencies to guide the enforcement of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairmen of Provincial People's Committees, and Chairmen of Parent Companies - Economic Groups shall be responsible for enforcing this Decree.

The Minister of Planning and Investment is responsible for monitoring the implementation of this Decree./.