Decree No. 147/2017/NĐ-CP Amending and Supplementing Certain Articles of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government on the Functions, Tasks, and Operational Mechanism of the State Capital Investment Corporation

DECREE
Amending and supplementing certain articles of Decree No. 151/2013/NĐ-CP

dated November 1, 2013 of the Government on functions, tasks and

operational mechanisms of the State Capital Investment Corporation

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

Pursuant to the Securities Law dated June 29, 2006 and the Law amending and supplementing certain articles of the Securities Law dated November 24, 2010;

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

Pursuant to the Enterprise Law dated November 26, 2014;

Pursuant to the Investment Law dated November 26, 2014;

At the proposal of the Minister of Finance;

The Government promulgates this Decree amending and supplementing certain articles of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government on functions, tasks and operational mechanisms of the State Capital Investment Corporation.

Article 1. Amending and supplementing certain articles of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government on functions, tasks and operational mechanisms of the State Capital Investment Corporation as follows:

1. Point d Clause 1 Article 3 is amended as follows:

"d) "Person representing the State Capital Investment Corporation's share capital at another enterprise" means a person appointed and authorized in writing by the Corporation to exercise the rights and responsibilities of the Corporation with respect to a portion or all of the Corporation's share capital at another enterprise, including those appointed by competent state authorities to represent the state ownership interest and subsequently authorized by the Corporation to continue as representative upon assuming the state ownership representative role at the enterprise (hereinafter referred to as the Representative)."

2. Clause 9 Article 4 is amended and supplemented as follows:

"9. Other tasks assigned by the state ownership representative."

3. Article 5 shall be amended and supplemented as follows:

"Article 5. Organizational structure of the Corporation

The organizational structure, management and operation mechanism of the Corporation shall be implemented in accordance with the provisions of the law and the Charter of the Corporation's organization and operations."

4. Article 6 is amended and supplemented as follows:

"Article 6. Rights and obligations of the Corporation

The rights and obligations of the Corporation shall be carried out in accordance with the provisions of the Charter of the Corporation's organization and operations."

5. Clause 1, Clause 2 and Clause 3 Article 7 are amended and supplemented as follows:

"1. The Corporation shall undertake the acceptance of the state ownership representative rights at the following types of enterprises (excluding agricultural and forestry companies after implementing restructuring plans approved by the Prime Minister; enterprises mainly engaged in production and supply of public goods and services according to the list of public goods and services prescribed by law; enterprises directly serving national defense and security; state-owned enterprises operating in the lottery sector and other enterprises as decided by the Prime Minister):

a) State-owned joint-stock company with one member converted from independent state-owned companies or newly established under ministries, agencies at the level of ministries, provincial People's Committees;

b) Joint-stock company with two or more members converted from independent 100% state-owned enterprises or newly established under ministries, agencies at the level of ministries, provincial People's Committees;

c) Joint venture company with state capital contribution represented by ministries, agencies at the level of ministries, provincial People's Committees;

d) Joint-stock company converted from independent 100% state-owned enterprises or newly established under ministries, agencies at the level of ministries, provincial People's Committees;

d) For economic groups, corporations and other cases, the transfer of state ownership representative rights to the Corporation shall be implemented in accordance with the Decision or directive of the Prime Minister.

2. The Corporation shall fully reflect the value of the state capital contributed at enterprises that have been transferred according to the value determined in the Minutes of Transfer of State Ownership Representative Rights between the parties, or in the Minutes of Adjustment of Transfer of State Ownership Representative Rights (if any).

3. Ministries, ministerial-level agencies, provincial People's Committees shall be responsible for transferring the state ownership representative rights at enterprises to the Corporation within the following deadlines:

a) For enterprises specified in point d Clause 1 of this Article and joint-stock companies converted from independent 100% state-owned enterprises:

- Enterprises specified in point d Clause 1 of this Article: Implement the transfer according to the deadline set forth in the Decision or directive of the Prime Minister or within 30 working days from the date of approval by the Prime Minister;

- Joint-stock companies converted from independent 100% state-owned enterprises: Implement the transfer within 30 working days from the date when the ministerial-level agency or provincial People's Committee approves the actual value of the state capital at the time the joint-stock company is first issued a Business Registration Certificate according to the law on converting 100% state-owned enterprises into joint-stock companies.

Within the transfer period specified in point a Clause 3 of this Article, if ministries, ministerial-level agencies, provincial People's Committees have not yet announced the actual value of the state capital at the time the joint-stock company is first issued a Business Registration Certificate, the transfer shall be based on the approved value in the Privatization Plan or Decision adjusting the scale and capital structure of the privatized enterprise. After the transfer of state ownership representative rights, ministries, ministerial-level agencies, provincial People's Committees shall continue to cooperate with the Corporation and related enterprises to handle financial issues, settle accounts, announce the actual value of the state capital, and adjust the transferred state capital value (if necessary).

b) For remaining enterprises subject to transfer under Clause 1 of this Article: Implement the transfer within 30 working days from the date this Decree takes effect or within 30 days from the date the enterprise is first issued a Business Registration Certificate."

6. Clause 4 Article 12 is amended as follows:

"4. Determination of the initial price when selling state capital must fully reflect the actual value of the state capital at the enterprise, including the value created by lawful land use rights granted or transferred according to the law on land, the value of intellectual property rights and other intangible assets (if any) of the enterprise according to the law at the time of selling capital."

7. Article 16 is amended and supplemented as follows:

"1. The Corporation may proactively use business capital to invest in projects, sectors, and industries based on ensuring the following principles:

a) Compliance with current legal regulations;

b) Consistency with the Corporation's strategic plans, planning, and development programs that have been approved by competent authorities;

c) Effective investment;

d) Consistent with the Corporation's ability to balance capital sources;

đ) Ensuring the Corporation's capital when implementing the investment areas specified in Clause 1 and Clause 2, Article 17 of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government.

2. For important infrastructure projects that require state support for investment, the Corporation will participate as an investor to attract and mobilize domestic and foreign capital for implementation."

3. Cases where the Corporation is not allowed to invest:

a) Investing, contributing capital, purchasing shares, or acquiring another enterprise where the management or representative of that enterprise is the spouse, parent, child, full sibling, brother-in-law, sister-in-law, or half-sibling of the Chairman and members of the Board of Members, Supervisory Board member, General Director, Deputy General Director, Chief Accountant of the Corporation;

b) Contributing capital to establish joint-stock companies or limited liability companies, or implementing cooperation contracts for business operations".

8. Article 18 is amended and supplemented as follows:

"Article 18. Investment Decision Authority

1. The Prime Minister decides on investment policies for projects carried out by the Corporation as specified in Clause 1, Clause 2, and Clause 4 of Article 31 of the Investment Law.

2. The Prime Minister decides on investment policies abroad for projects carried out by the Corporation as specified in Clause 2 of Article 54 of the Investment Law.

3. Except for projects under the Prime Minister's authority to decide on investment policies as stipulated in Clause 1 and Clause 2 of this Article, the Ministry of Finance decides on investment policies for each project carried out by the Corporation with an investment scale exceeding 25% of the Corporation's equity capital reflected in the quarterly or annual financial report at the time closest to the decision-making date for the project, or above the level of Project Group B as defined by the Public Investment Law; simultaneously approving the investment policy for overseas investment projects according to the authority prescribed by laws on investment.

4. The Board of Members decides or delegates the General Director of the Corporation to decide on individual investment projects with an investment scale not exceeding 25% of the Corporation's equity capital recorded in the quarterly or annual financial report at the time closest to the decision-making date for the project, but not exceeding the level of Project Group B as defined by the Public Investment Law; and deciding on projects specified in Clause 1, Clause 2, and Clause 3 of this Article after obtaining approval from the competent authority.

9. Article 20 shall be amended and supplemented as follows:

"Article 20. Rights and Responsibilities of the Corporation towards Enterprises in which the Corporation Holds 100% of the Capital Contribution

The rights and responsibilities of the Corporation towards enterprises wholly owned by the Corporation shall be implemented in accordance with the Charter on Organization and Operation of the Corporation".

10. Article 22 is amended and supplemented as follows:

"Article 22. Rights and Responsibilities of the Corporation towards Joint Stock Companies and Limited Liability Companies with Two or More Members Having Capital from the Corporation

The rights and responsibilities of the Corporation towards joint-stock companies and limited liability companies with two or more shareholders having capital from the Corporation shall be implemented in accordance with the Charter on Organization and Operation of the Corporation".

11. Clause 4 of Article 31 is amended and supplemented as follows:

"4. Provision for reserve funds in accordance with the provisions of the law, including loss reserves for financial investments shall be carried out as follows:

a) Provision for received capital and capital decided by the Corporation to invest in listed or registered trading companies on the securities market (without distinguishing between short-term or long-term investments), based on the stock price on the market on the day of provision;

b) Provision for received capital and capital decided by the Corporation to invest in unlisted companies (without distinguishing between short-term or long-term investments), based on the equity capital index on the balance sheet of the invested company at the time of provision. If the Corporation has not yet received the annual financial report of the invested company before the provision date, it shall use the most recent collected financial report (annual or quarterly) to determine the amount of provision".

12. Article 32 is amended and supplemented as follows:

"Article 32. Wages, remuneration, and bonuses for employees and managers in the Corporation

1. The wage mechanism, remuneration, and bonuses for employees and managers of the Corporation shall be implemented in accordance with the law and consistent with the special characteristics of the Corporation, ensuring stable income for employees during the process of restructuring enterprises, selling state-owned shares, and investing in accordance with the Government's directives.

2. The Ministry of Labor, Invalids, and Social Affairs shall take the lead and coordinate with relevant ministries and sectors to guide the wage mechanism, remuneration, and bonuses for employees and managers suitable for the special characteristics of the Corporation."

13. Point c of Clause 1 of Article 34 is amended and supplemented as follows:

"c) Remaining profits, after deducting the amounts specified in point a and point b of Clause 1 of Article 34 of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government, shall be distributed as follows:

- Allocating up to 30% into the Corporation's development investment fund;

- Allocating the employee reward and welfare fund of the Corporation as prescribed by law;

- Allocating the management bonus fund and supervisory board members' bonus fund of the Corporation as prescribed by law;

- In cases where remaining profits after setting up the Development Investment Fund are insufficient to cover the sources for award funds, welfare funds, executive bonus funds, and supervisory board bonus funds as prescribed, the Corporation may reduce the portion of profits allocated to the Development Investment Fund to supplement the sources for award funds, welfare funds, executive bonus funds, and supervisory board bonus funds as prescribed, but the maximum reduction shall not exceed the amount allocated to the Development Investment Fund in the fiscal year;

- Establishing a bonus fund for successful divestiture sales equal to 10% of the difference between the total money received from divestiture sales in the year and the re-evaluated price as stipulated in Article 8 of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government, minus sales costs and corporate income tax, but not exceeding three months' worth of actual implementation;

- Remaining profits after establishing the Corporation's funds (Development Investment; Awards, Welfare; Executive Bonus; Supervisory Board Bonus; Divestiture Sales Achievement Bonus) as prescribed in this clause shall be remitted to the State budget".

14. Article 37 is amended and supplemented as follows:

"Article 37 Rights and responsibilities of the State owner towards the Corporation

The rights and responsibilities of the Government, the Prime Minister, the Ministry of Finance, and the Board of Members towards the Corporation shall be implemented in accordance with the Charter on the organization and operation of the Corporation."

15. Clause 3 of Article 38 is supplemented as follows:

"e) Determine and notify the Corporation of the list of enterprises belonging to the transfer object of the State owner's representative rights over the Corporation within fifteen days from the end of the quarter;

g) In case ministries, agencies at the level of ministries, provincial People's Committees do not implement the transfer as prescribed in this Decree, they shall bear responsibility before the Prime Minister and any financial consequences, losses related thereto (if any) in accordance with the provisions of the law".

Article 2. Responsibility for Implementation

The Ministers, Heads of agencies at the level of ministries, Heads of government agencies, Chairmen of provincial People's Committees directly under the central government, and the Board of Members of the State Capital Investment Corporation are responsible for implementing this Decree.

Article 3. Implementation Provisions

1. This Decree takes effect from the date of issuance.

2. Repeal the provisions at Clause 8 Article 4, Point a Clause 4 Article 14, Article 23, and Article 28 of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government./.