Decree No. 45/2024/ND-CP Amending and supplementing some articles of Decree No. 39/2019/ND-CP dated May 10, 2019 of the Government on the organization and operation of the Small and Medium Enterprise Development Fund

 DECREE
AMENDING AND SUPPLEMENTING SEVERAL ARTICLES OF DECREE NO. 39/2019/NĐ-CP
dated May 10, 2019 of the Government ON THE ORGANIZATION AND OPERATIONS
OF THE SMALL AND MEDIUM ENTERPRISE DEVELOPMENT FUND

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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 Article 24MANAGEMENT AND USE OF STATE CAPITAL FOR INVESTMENT AND BUSINESS OPERATIONS IN ENTERPRISES AS PROVIDED FOR ON NOVEMBER 26, 2014;

BASED ON THE LAW ON THE STATE BUDGET dated June 25, 2015;

Pursuant to the Law on Supporting Small and Medium Enterprises dated June 12, 2017;

BASED ON THE LAW ON CREDIT ORGANIZATIONS dated June 16, 2010; THE LAW AMENDING AND SUPPLEMENTING SEVERAL PROVISIONS OF THE LAW ON CREDIT ORGANIZATIONS dated November 20, 2017;

Pursuant to the Law Domestic air passenger transport service on regular basic economy classENTERPRISES dated June 17, 2020; AMENDING AND SUPPLEMENTING SEVERAL PROVISIONS OF THE LAW 3. Amend Clause 3 Article 2 as follows:ON PUBLIC INVESTMENT, THE LAW 3. Amend Clause 3 Article 2 as follows:ON PUBLIC-PRIVATE PARTNERSHIP INVESTMENT, THE LAW ON INVESTMENT, THE LAW N |||ON URBAN PLANNING, THE LAW 3. Amend Clause 3 Article 2 as follows:ON PROCUREMENT, THE LAW 3. Amend Clause 3 Article 2 as follows:ON ENFORCEMENT, THE LAW Domestic air passenger transport service on regular basic economy classON ENTERPRISES, THE LAW TON SPECIAL CONSUMPTION TAXES AND THE LAW TON CIVIL EXECUTION PROCEDURES dated January 11, 2022;

PURSUANT TO THE PROPOSAL OF THE MINISTER Ministry of Planning and Investment;

THE GOVERNMENT ISSUES THIS DECREE AMENDING AND SUPPLEMENTING SEVERAL PROVISIONS OF DECREE NO. 39/2019/NĐ-CP DATED MAY 10, 2019 OF THE GOVERNMENT ON THE ORGANIZATION AND OPERATIONS OF THE SMALL AND MEDIUM ENTERPRISE DEVELOPMENT FUND.

ARTICLE 1. AMENDING AND SUPPLEMENTING SEVERAL PROVISIONS OF DECREE NO. 39/2019/NĐ-CP DATED MAY 10, 2019 OF THE GOVERNMENT ON THE ORGANIZATION AND OPERATIONS OF THE SMALL AND MEDIUM ENTERPRISE DEVELOPMENT FUND

1. AMENDING CLAUSE 1, CLAUSE 2 OF ARTICLE 4 AS FOLLOWS:

"1. "FUND MANAGER" means a person holding the position of Chairman of the Board of Members, member of the Board of Members, Director, Deputy Director.

2. "FUND EMPLOYEE" means a person working for the Fund under an agreement, receiving salary, and subject to management, direction, and supervision by the Fund in accordance with the laws on labor but not holding the positions specified in Clause 1 of this Article.".

2. AMENDING CLAUSE 2 OF ARTICLE 6 AS FOLLOWS:

"2. Supervisory Board;".

3. AMENDING AND SUPPLEMENTING CLAUSE 4, CLAUSE 5, CLAUSE 6, CLAUSE 7 OF ARTICLE 7 AS FOLLOWS:

a) AMENDING POINT a, POINT d, POINT đ AND ADDING POINT i, POINT k OF CLAUSE 4 AS FOLLOWS:

"a) Deciding the five-year strategy and annual plan of operations of the Fund after approval by the Ministry of Planning and Investment;

d) Deciding the financial report; distribution of profits, establishment of reserves annually after approval by the Ministry of Planning and Investment;

đ) Appointing, reappointing, dismissing, rewarding, disciplining, or hiring according to personnel plans for the Director after approval by the Ministry of Planning and Investment;

i) Deciding on salaries, remuneration, bonuses, and other benefits for the Director and other positions appointed by the Board of Members;

k) Appointing, reappointing, dismissing, rewarding, disciplining, salaries, remuneration, bonuses, and other benefits for the Deputy Director.".

b) ADDING POINT e OF CLAUSE 5 AS FOLLOWS:

"e) Except for the Chairman of the Board of Members, other members of the Board of Members may concurrently hold the position of Director.".

c) AMENDING POINT c OF CLAUSE 6 AS FOLLOWS:

"c) Inspecting, reviewing, searching, copying, and extracting records from books of accounts and tracking contracts, transactions, accounting books, financial reports, minutes of meetings of the Board of Members, and other documents of the Fund;".

d) AMENDING POINT d OF CLAUSE 7 AS FOLLOWS:

"d) In case a member of the Board of Members discovers another member of the Board of Members committing violations in the performance of assigned rights and obligations, they have the responsibility to report in writing to the Ministry of Planning and Investment; request the violator to cease the violation and rectify the consequences.".

4. AMENDING CLAUSE 4 OF ARTICLE 8 AS FOLLOWS:

"4. Developing quarterly and annual plans of activities for the Board of Members.".

5. AMENDING ARTICLE 9 AS FOLLOWS:

a) Amend the name of Article 9 as follows:

"ARTICLE 9. SUPERVISORY BOARD, SUPERVISOR".

b) Amend Clause 1 as follows:

"1. BASED ON THE SCALE OF THE FUND, THE MINISTRY OF PLANNING AND INVESTMENT DECIDES TO ESTABLISH A SUPERVISORY BOARD WITH FROM 01 TO 05 SUPERVISORS, INCLUDING THE CHAIRMAN OF THE SUPERVISORY BOARD. THE TERM OF A SUPERVISOR SHALL NOT EXCEED 05 YEARS AND CAN BE REAPPOINTED BUT NOT MORE THAN 02 CONSECUTIVE TERMS. IN CASE THE SUPERVISORY BOARD HAS ONLY 01 SUPERVISOR, THAT SUPERVISOR SHALL ALSO BE THE CHAIRMAN OF THE SUPERVISORY BOARD AND MUST MEET THE STANDARDS OF THE CHAIRMAN OF THE SUPERVISORY BOARD.".

c) AMENDING THE NAME OF CLAUSE 2 AS FOLLOWS:

"2. QUALIFICATIONS AND CONDITIONS FOR THE CHAIRMAN OF THE SUPERVISORY BOARD AND SUPERVISORS".

d) AMENDING POINT a, POINT c OF CLAUSE 2 AS FOLLOWS:

"a) Hold a bachelor's degree or higher in one of the following majors: economics, finance, banking, accounting, auditing, law, business administration, and have at least 03 years of work experience; The Chairman of the Supervisory Board must have at least 05 years of work experience;
c) Not be a Fund Manager; not be a Supervisor of a non-state-owned enterprise; not be a Fund employee;".

đ) AMENDING THE NAME OF CLAUSE 3 AS FOLLOWS:

"3. RIGHTS AND OBLIGATIONS OF THE SUPERVISORY BOARD".

e) AMENDING POINT b, POINT c, POINT d, POINT đ AND ADDING POINT e, POINT g, POINT h, POINT i OF CLAUSE 3 AS FOLLOWS:

"b) Monitoring and evaluating the implementation of rights and obligations by members of the Board of Members and the Board of Members, Director;

c) Monitoring and evaluating the financial status, operations of the Fund, operational status, and effectiveness of operational regulations of the Fund;

d) Monitoring the implementation of large investment projects; purchase, sale, and other economic transactions of the Fund with significant scale according to the requirements of the Ministry of Planning and Investment;

đ) Preparing and submitting reports on evaluations and recommendations regarding the contents stipulated in points a, b, c, d of this clause to the Ministry of Planning and Investment and the Board of Members;

e) Participating in meetings of the Board of Members, formal and informal consultations and exchanges with the Board of Members organized by the Ministry of Planning and Investment; questioning the Board of Members and the Director about decisions in management when necessary;

g) Reviewing accounting books, reports, contracts, transactions, and other documents of the Fund; inspecting the management and operation work of the Board of Members, members of the Board of Members, Director when deemed necessary or upon request of the Ministry of Planning and Investment;

h) Requesting the Board of Members, members of the Board of Members, Director, Deputy Director to report and provide information within the scope of management and operations of the Fund;

i) Other rights and obligations as required by the Ministry of Planning and Investment.".

g) ADDING POINT d, POINT đ, POINT e OF CLAUSE 4 AS FOLLOWS:

"d) Report promptly to the Ministry of Planning and Investment, and at the same time request the Supervisor to terminate the violation behavior and remedy the consequences in case of discovering that such Supervisor violates the rights, obligations, and responsibilities assigned;"

"đ) Report promptly to the Ministry of Planning and Investment, other Supervisors, and related individuals, and at the same time request those individuals to terminate the violation behavior and remedy the consequences in the following cases: Discovering that members of the Board of Members, Directors, and other managers violate the provisions on their rights, obligations, and responsibilities or there is a risk of violating such provisions; discovering acts of violating laws, regulations stipulated in this Decree, or the operational rules of the Fund;"

"e) In case of violating the responsibility stipulated in this Clause causing damage to the Fund, the Supervisor must bear individual or joint liability for compensating such damage; depending on the nature, degree of violation, and damage, they may also be subject to disciplinary action, administrative penalties, or criminal prosecution according to the law; return all income and benefits obtained due to the violation of the responsibility stipulated in this Clause."

"h) Amend Clause 5 as follows:"

"5. Working regime of the Supervisory Board"

"a) The Chairman of the Supervisory Board shall develop monthly, quarterly, and annual work plans for the Supervisory Board; assign specific tasks and duties to each Supervisor;"

"b) Supervisors shall independently and proactively perform their assigned tasks and duties; propose and recommend additional supervisory tasks and duties outside the plan and beyond the scope of their assignment when deemed necessary;"

"c) The Supervisory Board shall convene at least once a month to review, evaluate, and approve the monthly supervision report to be submitted to the Ministry of Planning and Investment; discuss and approve the next activity plan of the Supervisory Board;"

"d) A decision of the Supervisory Board shall be adopted when a majority of attending members agree. Any dissenting opinions with respect to the adopted decision must be fully and accurately recorded and reported to the Ministry of Planning and Investment."

"6. Amend Article 10 as follows:"

a) Amend Clause 1 as follows:

"1. The Director shall be appointed or hired by the Board of Members based on the personnel plan approved by the Ministry of Planning and Investment. The appointed Director shall serve a five-year term and may be reappointed."

"b) Amend the name of Clause 3 as follows:"

"3. The Director shall have the duty to manage the daily operations of the Fund and shall have the following rights and obligations:"

"c) Supplement Point k of Clause 3 as follows:"

"k) Sign contracts and transactions on behalf of the Fund, except for cases within the authority of the Chairman of the Board of Members."

"7. Amend Article 11 as follows:"

a) Amending the name of Article 11 as follows:

"Article 11. Relationship between the Board of Members, the Supervisory Board, Supervisors, and the Director in managing and operating the Fund"

b) Amend Clause 4 as follows:

"4. The relationship between the Supervisory Board and Supervisors with the Ministry of Planning and Investment, the Board of Members, and the Director shall be governed by the law applicable to a limited liability company wholly owned by the State and the operational rules of the Supervisory Board, Supervisors, and the Board of Members."

"8. Supplement Clause 4 of Article 15 as follows:"

"4. Small and medium enterprises that have fully repaid the principal and interest of the loan in accordance with the agreed terms (except in cases of force majeure) shall be eligible for further consideration for loans by the Fund."

"9. Amend and supplement Clause 1, Clause 2, and Clause 3 of Article 16 as follows:"

"a) Amend Point a and Point b of Clause 1 as follows:"

"a) Meet the criteria for innovative small and medium enterprises as prescribed in the Law on Supporting Small and Medium Enterprises and guiding documents;"

"b) Have a feasible production and business project and ensure it aligns with the criteria for innovative small and medium enterprises;"

"b) Amend Point a, Point b, and supplement Point c of Clause 2 as follows:"

"a) Participate in industry clusters as prescribed in the Law on Supporting Small and Medium Enterprises and guiding documents;"

"b) Have a feasible production and business project within the industry cluster;"

"c) Comply with the provisions of Point c and Point d of Clause 1 of this Article;"

"c) Amend Point a, Point b, and supplement Point c of Clause 3 as follows:"

"a) Participate in value chains as prescribed in the Law on Supporting Small and Medium Enterprises and guiding documents;"

"b) Have a feasible production and business project and produce products within the value chain;"

"c) Comply with the provisions of Point c and Point d of Clause 1 of this Article;"

"10. Amend and supplement Article 22 as follows:"

a) Amending Clause 2 as follows:

"2. Banks shall apply the provisions on lending activities of credit institutions and foreign bank branches for customers and the provisions of this Decree to accept funds from the Fund and implement indirect lending activities;"

b) Amending Clause 3 as follows:

"3. Banks shall independently assess and decide on lending to small and medium enterprises when they meet the conditions stipulated by the law on lending activities of credit institutions for customers and satisfy the borrowing conditions under Article 23 of this Decree; banks shall be responsible for their lending decisions and any resulting risks;"

"c) Supplement Clause 6 as follows:"

"6. Small and medium enterprises that have fully repaid the principal and interest of the loan in accordance with the agreed terms (except in cases of force majeure) shall be eligible for further consideration for loans by the Fund."

"11. Amend Clause 2 and Clause 3 of Article 23 as follows:"

"a) Amend Point a of Clause 2 as follows:"

"a) Meet the provisions of Point c of Clause 1, Point a and Point b of Clause 2 of this Decree;"

b) Amending Point a of Clause 3 as follows:

"a) Meet the provisions of Point c of Clause 1, Point a and Point b of Clause 3 of this Decree;"

"12. Supplement Clause 3 of Article 28 as follows:"

"3. Each small and medium enterprise can be considered and decided upon for capital financing by the Fund not more than once."

"13. Amend Clause 1 of Article 29 as follows:"

"1. Small and medium enterprises can be considered and decided upon for capital financing by the Fund if they meet the conditions stipulated in Point a, Point b, and Point c of Clause 1 or Point c of Clause 1, Point a, and Point b of Clause 2 or Point c of Clause 1, Point a, and Point b of Clause 3 of Article 16 of this Decree."

"14. Amend Clause 1 of Article 38 as follows:"

"1. The Fund shall establish a general reserve for direct lending and include it in the Fund's operating costs. The level of general and specific reserves shall comply with the legal provisions on establishing reserves for credit institutions."

15. Amend Clause 6 of Article 45 as follows:

"6. Utilize idle capital as defined in Article 43 of this Decree to deposit at commercial banks but must ensure the safety of capital."

16. Amend Clause 1 of Article 52 as follows:

"1. The Fund shall implement accounting regulations for state financial funds outside the budget."

17. Amend Clause 3 of Article 53 as follows:

"3. After receiving the approval opinion of the Ministry of Planning and Investment, the Board of Members decides to send the audited annual financial report to the Ministry of Planning and Investment and the Ministry of Finance."

18. Amend Point a and Point b of Clause 4 of Article 54 as follows:

"a) Supervision is carried out through the activities of the Audit Committee;"

"b) The content of supervision is implemented according to the provisions of Points a, b, c, d, đ of Clause 3 of Article 9 of this Decree."

19. Amend Point c of Clause 2 of Article 56 as follows:

"c) Changing the Chairman of the Board of Members, members of the Board of Members, Director, Deputy Director, Head of the Audit Committee, or Auditor;"

20. Amend Clause 5, Clause 6, Clause 8, Clause 10, and add Clause 12 of Article 57 as follows:

a) Amend Clause 5 as follows:

"5. Approve the strategic plan, annual operational plan of the Fund for five years."

b) Amend Clause 6 as follows:

"6. Decide on the appointment, reappointment, dismissal, commendation, disciplinary action, salary, remuneration, bonuses, and other benefits of the Chairman and members of the Board of Members, Auditors; decide on the annual salary pool and remuneration of managers, Auditors. Approve the Board of Members' proposal regarding the appointment, reappointment, dismissal, commendation, disciplinary action, or hiring under personnel plans for the Director."

c) Amend Clause 8 as follows:

"8. Issue the Operational Regulations of the Audit Committee, Auditors."

d) Amend Clause 10 as follows:

"10. Evaluate the results and effectiveness of the Fund's operations; assess the level of completion of management and operational tasks by managers, Auditors."

đ) Add Clause 12 as follows:

"12. Approve the annual financial report, profit distribution plan, and establishment of various reserve funds of the Fund."

21. Amend Article 58 as follows:

"Article 58. Responsibilities of the Ministry of Finance

Capitalizing the registered capital that has been approved by the Prime Minister for the Fund"

Article 2. Replace certain phrases in some articles, clauses, and points of Decree No. 39/2019/NĐ-CP dated May 10, 2019 of the Government on the organization and operation of the Small and Medium Enterprise Development Fund

Replace the phrase "manager of the Fund" and "manager" with "manager, Auditor" in Point a of Clause 2 of Article 48; Article 49; Point c, Point đ, Point e of Clause 2, Clause 4, Clause 5 of Article 50; Point a of Clause 2, Clause 4, Clause 5, Clause 6 of Article 51 and Article 59.

Article 3. Effectiveness and Responsibility for Implementation

1. This Decree takes effect from June 10, 2024.

2. Projects and production and business plans of small and medium enterprises that have been decided by the Fund to provide capital, direct loans, or transfer capital to banks for indirect lending before this Decree takes effect shall continue to be implemented in accordance with Decree No. 39/2019/NĐ-CP dated May 10, 2019 of the Government.

3. Ministers of ministries, heads of ministerial-level agencies, heads of government agencies, Chairmen of provincial and centrally-run city People's Committees, and relevant agencies, organizations, and individuals are responsible for implementing this Decree.