Decree No. 167/2024/ND-CP amends and supplements some articles of Decree No. 91/2015/ND-CP dated October 13, 2015 of the Government on investment of state capital in enterprises and management and use of capital and assets at enterprises which have been amended and supplemented by Decree No. 32/2018/ND-CP dated March 8, 2018 of the Government and Decree No. 140/2020/ND-CP dated November 30, 2020 of the Government.

DECREE
Amending and supplementing certain articles of Decree No. 91/2015/NĐ-CPdated October 13, 2015 of the Government on state capital investment in enterprises and management, use of capital and assets in enterpriseswhich has been amended and supplemented by Decree No. 32/2018/NĐ-CP dated March 8, 2018 of the Government and Decree No. 140/2020/NĐ-CP dated November 30, 2020 of the GovernmentThe Government promulgates this Decree to amend and supplement certain articles of Decree No. 91/2015/NĐ-CP dated October 13, 2015 of the Government on state capital investment in enterprises and management, use of capital and assets in enterprises which has been amended and supplemented by Decree No. 32/2018/NĐ-CP dated March 8, 2018 of the Government and has been further amended and supplemented by Decree No. 140/2020/NĐ-CP dated November 30, 2020 of the Government.

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Pursuant to the Law on Organization of the Government dated June 19, 2015; the Law Amending and Supplementing Certain Provisions of the Law on Organization of the Government and the Law on Organization of Local Administration dated November 22, 2019;

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

Pursuant to the Law on Enterprises dated June 17, 2020;

At the proposal of the Minister of Finance;

Article 1. Amending and supplementing certain articles of Decree No. 91/2015/NĐ-CP dated October 13, 2015 of the Government on state capital investment in enterprises and management, use of capital and assets in enterprises which has been amended and supplemented by Decree No. 32/2018/NĐ-CP dated March 8, 2018 of the Government and Decree No. 140/2020/NĐ-CP dated November 30, 2020 of the Government as follows:

1. Amending and supplementing Clause 3 Article 37 of Decree No. 91/2015/NĐ-CP which has been amended and supplemented by Clause 14 Article 1 of Decree No. 32/2018/NĐ-CP and has been further amended and supplemented by Clause 17 Article 2 of Decree No. 140/2020/NĐ-CP as follows:

"3. Rights, responsibilities, salaries, remuneration, bonuses, and other benefits of representatives of state capital at enterprises shall be implemented according to the provisions of Articles 48 and 50 of the Law on Management and Use of State Capital for Investment in Production and Business Activities in Enterprises and the following contents:

a) Representatives of state capital at enterprises with shares or contributions from the State must seek opinions from the agency representing the owner regarding the profit distribution plan after tax of the enterprise they represent to participate in discussions, vote, and make decisions at the General Shareholders' Meeting or Board of Directors meeting in accordance with regulations. Before instructing representatives to participate in discussions, vote, and make decisions at the General Shareholders' Meeting or Board of Directors meeting, the agency representing the owner must send a request for opinion to the same-level financial agency (for enterprises with State shares or contributions exceeding 36% of the charter capital). Within ten working days from the date of receipt of the document from the agency representing the owner (attached: current organizational and operational charter of the enterprise, audited annual financial report, and dividend distribution plan and post-tax profit distribution plan of the enterprise), the same-level financial agency will provide its opinion for the agency representing the owner to instruct representatives of state capital at the enterprise to participate in discussions, vote, and make decisions at the General Shareholders' Meeting or Board of Directors meeting. For enterprises with State shares or contributions (excluding state-owned commercial joint-stock banks), the annual post-tax profit distribution plan must comply with the following principles:

For enterprises with State shares or contributions exceeding 50% of the charter capital or the total number of voting shares, the dividend and post-tax profit distribution plan for each year shall be distributed in the following order:

Dividing profits to associated parties according to the economic contract signed (if applicable);

Covering previous years' losses that have exceeded the allowable deduction period from pre-tax profits according to regulations.

Allocating up to 30% into the enterprise development fund (if the organizational and operational charter of the enterprise stipulates the establishment of such a fund).

Allocating funds for employee rewards and welfare, and managerial bonuses according to government regulations on labor, wages, remuneration, and bonuses for companies with controlling State shares or contributions.

The remaining profits shall be fully distributed in cash or shares to shareholders or contributors. For dividends and profits distributed in cash to the State's contribution in the enterprise, they shall be paid into the state budget according to regulations.

Distribution of dividends in shares shall only apply to joint-stock companies within the scope of additional state capital investment to implement national key projects approved by competent authorities according to the classification criteria specified in the Public Investment Law. The agency representing the owner shall fully exercise the rights and responsibilities stipulated in Article 43 of the Law on Management and Use of State Capital for Investment in Production and Business Activities in Enterprises, ensuring effective use of funds from share dividends, preventing embezzlement and corruption, and if violated, shall be handled according to the law.

For enterprises with State shares or contributions between 36% and 50% of the charter capital, after receiving the opinion of the same-level financial agency, the agency representing the owner shall instruct representatives of state capital at the enterprise to participate in discussions, vote, and make decisions at the General Shareholders' Meeting or Board of Directors meeting on the annual post-tax profit distribution plan in the same order as enterprises with State shares or contributions exceeding 50% of the charter capital.

For enterprises with State shares or contributions below 36% of the charter capital, based on the annual production and business plan, the agency representing the owner shall instruct representatives of state capital at the enterprise to participate in discussions, vote, and make decisions at the General Shareholders' Meeting or Board of Directors meeting on the annual post-tax profit distribution plan appropriately, where the remaining profits after setting aside funds according to the charter and financial management regulations shall be fully distributed as dividends and profits in cash to shareholders or contributors. For dividends and profits distributed in cash to the State's contribution in these enterprises, they shall be paid into the state budget according to regulations.

For enterprises with shares or capital contributions where the State holds less than 36% of the charter capital, based on the annual business plan, the agency representing the owner has the responsibility to direct the State's representative of capital at the enterprise to participate in giving opinions, voting, and deciding at the Annual General Meeting of Shareholders, the meeting of the Board of Members on the annual profit distribution plan after tax in a manner that is appropriate, in which the remaining profit after setting aside funds according to the Charter and Financial Management Regulations shall be fully distributed as dividends and profits in cash to shareholders and contributing members. As for the portion of dividends and profits distributed in cash from the State's contributed capital in this enterprise, it shall be remitted to the State budget in accordance with regulations.

b) For joint-stock commercial banks with state capital, the distribution of post-tax profit shall be carried out in accordance with the provisions of Decree No. 93/2017/ND-CP dated August 7, 2017 of the Government on financial systems for credit organizations, foreign bank branches, and financial supervision, evaluation of state capital investment efficiency in credit organizations holding 100% of charter capital and credit organizations with state capital, and any subsequent amendments, supplements, or replacements thereof.

c) Regularly within a maximum period of 15 days from the end of each quarter and 30 days from the end of the year, and at any time upon request of the agency representing the owner and the same-level finance agency, the representative of state capital shall report on production and business operations, financial status, and proposed solutions to the enterprise where they are appointed as state capital representatives. The report of the state capital representative shall be submitted to the agency representing the owner and the same-level finance agency according to the form prescribed in Appendix III issued together with this Decree.

2. Amend and supplement Clause 5a, 5b of Article 42 of Decree No. 91/2015/ND-CP which was supplemented under Clause 22 of Article 2 of Decree No. 140/2020/ND-CP as follows:

"5a. The agency representing the owner shall instruct the representative of state capital in enterprises with state shareholding of 50% or more of the charter capital to base their opinions on the provisions of Decree No. 91/2015/ND-CP, Decree No. 32/2018/ND-CP, Decree No. 140/2020/ND-CP, and this Decree to propose amendments and supplements to the articles of association of enterprises with state shareholding and other internal management regulations when managing and using capital and assets in enterprises and organizing divestment investments in other enterprises.

In cases where enterprises with state shareholding of 50% or more of the charter capital establish plans for transferring investment capital in unlisted joint-stock companies without public trading registration according to the prescribed procedures but cannot apply the method of transferring investment capital outside the enterprise as stipulated in Article 29 of Decree No. 91/2015/ND-CP amended in Clause 13 of Article 1 of Decree No. 32/2018/ND-CP and Clause 16 of Article 2 of Decree No. 140/2020/ND-CP due to non-compliance with the conditions specified in Point b Clause 1 of Article 15 of the Securities Law 2019, the enterprise may apply the provisions of Clause 2 of Article 127 of the Enterprise Law 2020 to formulate the plan. The agency representing the owner shall provide opinions for the state capital representative to participate in discussions, voting, and decision-making at the General Meeting of Shareholders, meetings of the Board of Directors, or Board of Members regarding the plan for transferring investment capital.

5b. The Board of Members or the Chairman of enterprises with state shareholding of 100% of the charter capital shall instruct the representative of the enterprise's capital in enterprises with the enterprise's shareholding of 50% or more of the charter capital to base their opinions on the provisions of Decree No. 91/2015/ND-CP, Decree No. 32/2018/ND-CP, Decree No. 140/2020/ND-CP, and this Decree to propose amendments and supplements to the articles of association of enterprises with the enterprise's shareholding of 100% of the charter capital and other internal management regulations when managing and using capital and assets in enterprises and organizing divestment investments in other enterprises.

Article 2. Effective Date

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

2. The remaining post-tax profits that have not been distributed as dividends to shareholders up to the date this Decree takes effect shall be governed by the provisions of Clause 1 of Article 1 of this Decree.

3. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairmen of provincial People's Committees, centrally-administered city People's Committees, Boards of Directors of parent companies of economic groups, state-owned corporations, enterprises with state shareholding of 100% of the charter capital, and representatives of state capital are responsible for implementing this Decree./.