Decision No. 76/2003/QD-BTC of the Minister of Finance on the issuance of the Regulation on Management and Use of the Fund for Supporting the Restructuring and Shareholding Reform of State-Owned Enterprises

Pursuant to …;

Regarding the issuance of the Management and Utilization Regulation for the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises

 

THE MINISTER OF FINANCE

Pursuant to Decree No. 86/CP dated November 5, 2002 of the Government stipulating the functions, tasks, powers, and organizational structure of Ministries and ministerial-level agencies;

Pursuant to Decree No. 178/CP dated October 28, 1994 of the Government stipulating the tasks, powers, and organizational structure of the Ministry of Finance;

Pursuant to Decree No. 64/2002/NĐ-CP dated June 19, 2002 of the Government on converting state-owned enterprises into joint-stock companies;
The operation of the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises;

Pursuant to the approval opinion of the Prime Minister at Official Letter No. 2181/VPCP-ĐMDN dated May 7, 2003 of the Government Office;

At the proposal of the Director of the Enterprise Financial Department, the Head of the State Budget Department, the General Director of the Central Treasury,

DECISION:

Article 1: This Decision promulgates the Management and Utilization Regulation for the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises.

Article 2: Authorizing the Director of the Enterprise Financial Department to manage and operate the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises.

Article 3: This Decision replaces Decision No. 95/2000/QĐ-BTC dated June 9, 2000 of the Minister of Finance and shall take effect 15 days from the date of publication in the Official Gazette.

Ministers of Ministries, Heads of ministerial-level agencies, Heads of government agencies, Chairmen of People's Committees of provinces and centrally-administered cities, Chairmen of State Enterprise Management Councils, Directors of the Enterprise Financial Department, General Directors of the Central Treasury, management agencies of the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises at all levels, and related organizations and individuals are responsible for implementing this Decision.

 

REGULATIONS

Management and utilization of the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises
(Annexed to Decision No. 76/2003/QĐ-BTC dated May 28, 2003 of the Minister of Finance)

 

This technical regulation sets out technical requirements, testing methods, sampling procedures; management requirements; responsibilities of organizations and individuals producing, trading, and importing cigarettes.

Article 1. The Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises (hereinafter referred to as the Restructuring Enterprise Fund) is established to support the settlement of employee benefits and provide financial assistance to state-owned enterprises during the restructuring and ownership transfer process as prescribed in Decision No. 174/2002/QĐ-TTg dated December 2, 2002 of the Prime Minister on the organization and operation of the Fund to Support the Restructuring and Shareholding Reform of State-Owned Enterprises (hereinafter referred to as Decision No. 174/2002/QĐ-TTg).

Article 2. The Restructuring Enterprise Fund is established at the central level, People's Committees of provinces and centrally-administered cities (hereinafter referred to as localities), and State-owned corporations established under Decision No. 90/TTg and Decision No. 91/TTg dated March 7, 1994 of the Prime Minister (hereinafter referred to as State-owned corporations), specifically:

1. The central-level Restructuring Enterprise Fund is centralized in one account opened at the Central Treasury under the management of the Minister of Finance to support the restructuring and conversion activities of enterprises directly subordinate to Ministries, ministerial-level agencies, and government agencies.

2. The local-level Restructuring Enterprise Fund is centralized in one account opened at the provincial or city treasury under the management of the Chairman of the People's Committee of the province or centrally-administered city to support the restructuring and conversion activities of enterprises belonging to the locality.

3. The Restructuring Enterprise Fund of State-owned corporations is centralized in a separate account of the corporation opened at a bank or treasury where the main office of the corporation is located, managed by the Board of Directors or the General Director (in cases where the corporation does not have a Board of Directors) of the corporation.

Article 3. The management agency of the Restructuring Enterprise Fund at all levels (understood as the Ministry of Finance for the central-level Restructuring Enterprise Fund; People's Committees of provinces and centrally-administered cities for the local-level Restructuring Enterprise Fund; and the Board of Directors for the Restructuring Enterprise Fund of State-owned corporations) is responsible for managing and utilizing the fund in accordance with the provisions of Decision No. 174/2002/QĐ-TTg and this Regulation; subject to inspection, supervision, and coordination by the Ministry of Finance.

II. SOURCES OF THE FUND

Article 4. The sources forming the Restructuring Enterprise Fund at all levels are determined as follows:

1. Sources of the central-level Restructuring Enterprise Fund include:

a. Revenues from the restructuring and full ownership transfer of independent state-owned enterprises and their affiliated units under Ministries, ministerial-level agencies, and government agencies. This includes revenues from the restructuring and full ownership transfer of member enterprises of State-owned corporations established under Decision No. 90/TTg dated March 7, 1994 of the Prime Minister, arising before the effective date of Decree No. 64/2002/NĐ-CP.

b. Donations from domestic and foreign organizations and individuals to the Government and Ministries for the purpose of restructuring and shareholding reform of state-owned enterprises.

c. Central budget allocated annually (if any).

2. Sources of the local-level Restructuring Enterprise Fund include:

a. Revenues from the restructuring and full ownership transfer of independent state-owned enterprises and their affiliated units under provinces and centrally-administered cities. This includes revenues from the restructuring and full ownership transfer of member enterprises of State-owned corporations established under Decision No. 90/TTg dated March 7, 1994 of the Prime Minister, arising before the effective date of Decree No. 64/2002/NĐ-CP.

b. Donations from domestic and foreign organizations and individuals to localities for the purpose of restructuring and shareholding reform of state-owned enterprises.

c. Local budget allocated annually (if any).

3. Sources of the State-owned corporation-level Restructuring Enterprise Fund include:

a. Revenues from the restructuring and full ownership transfer of member enterprises or affiliated units of member enterprises of State-owned corporations.

b. Donations from domestic and foreign organizations and individuals to State-owned corporations for the purpose of restructuring and shareholding reform of state-owned enterprises.

Article 5. National revenues from the restructuring and ownership transfer of state-owned enterprises are deposited into the Fund and include:

1. The revenue from selling state capital shares at state-owned enterprises undergoing shareholding reform (including the difference from selling auctioned state-owned shares) after deducting approved shareholding reform costs.

2. The revenue from transferring and selling enterprises after deducting costs for ownership conversion.

3. The revenue from selling unused assets, liquidation assets, and recovered bad debts excluded from the enterprise value when ownership is converted after deducting costs for the sale and debt recovery process (if applicable).

4. The revenue from liquidating and selling assets when state-owned enterprises are dissolved and bankrupt after settling all debts to creditors according to the law (if any remain).

5. Dividends distributed, profits, and revenues from selling off state capital shares at other enterprises (joint-stock companies, limited liability companies, etc.) as stipulated in Article 12 and Article 14 of the Management Regulation of State Capital in Other Enterprises issued together with Decree No. 73/2000/NĐ-CP dated December 6, 2000 of the Government and Part IV of Circular No. 64/2001/TT-BTC dated August 10, 2001 of the Ministry of Finance guiding the implementation of the Management Regulation of State Capital in Other Enterprises.

Article 6. Within no more than thirty days after completing the sale of assets, transfer of enterprises, sale of shares, and distribution of dividends, state-owned enterprises implementing ownership conversion and the Enterprise Liquidation Board (for dissolved and bankrupt enterprises) shall be responsible for timely and fully remitting the state's revenues to the Enterprise Reorganization Fund at the same level as prescribed in Articles 4 and 5 of this Regulation. Any late payments beyond the above period must be subject to interest charges (equivalent to the commercial bank loan interest rate).

Article 7. Ministries, People's Committees of provinces and centrally-run cities, and State-owned Corporations shall be responsible for:

1. Checking the costs for ownership conversion of enterprises under their management and determining the amount that enterprises must pay into the Fund.

2. Urging enterprises implementing ownership conversion, asset liquidation boards, and dissolution councils under ministries, localities, and State-owned Corporations to timely and fully remit revenues from reorganization and ownership conversion activities to the Fund as prescribed in Article 4 of this Regulation.

3. Directing those directly managing state capital contributions in joint-stock companies to check and urge the timely distribution and transfer of income allocated to the Enterprise Reorganization Fund account at the same level according to this Regulation.

 

III. CONTENT OF SUPPORT FROM THE FUND

A. SUPPORT FOR RESOLVING SURPLUS LABOR:

Article 8. Supporting state-owned enterprises in reorganization and conversion to pay severance benefits as prescribed in the Labor Code for workers who lose their jobs or resign and are not eligible for surplus labor policies as stipulated in Decree No. 41/2002/NĐ-CP dated April 11, 2002 of the Government. Specifically:

1. For voluntary resignees and employees hired after April 21, 1998 who lose their jobs or terminate employment contracts at the time of ownership conversion and within twelve months after the state-owned enterprise officially operates under the Enterprise Law, the Enterprise Reorganization Fund will support the full remaining cost to resolve severance and unemployment benefits for workers (after the enterprise has exhausted its Unemployment Benefit Reserve Fund, fully established according to regulations).

The level of support from the Fund is determined based on:

- The total severance benefit amount for workers as specified in Article 17 and Article 42 of the Labor Code.

- The enterprise's ability to self-fund from its Unemployment Benefit Reserve Fund.

The Fund's support activities for enterprises to pay severance benefits to workers fall into two categories:

- Severance benefits for workers who lose their jobs or resign at the time of enterprise reorganization and conversion;

- Severance benefits for workers who lose their jobs or resign within twelve months after the state-owned enterprise officially becomes a joint-stock company. The deadline for the Fund to accept applications and provide support to enterprises to pay severance benefits to these workers is no later than three months from the end of the twelve-month period operating under the Enterprise Law.

2. For workers (listed in the regular workforce at the time of reorganization and conversion) who lose their jobs or resign between the second and fifth years after the state-owned enterprise officially operates under the Enterprise Law, the enterprise is responsible for paying fifty percent of the total severance benefit and receives fifty percent support from the Enterprise Reorganization Fund based on the level specified in Article 17 and Article 42 of the Labor Code.

The Fund's support activity for each enterprise to pay severance benefits to workers in this category is conducted annually.

3. For workers in state-owned enterprises that have undergone conversion under Decree No. 44/1998/NĐ-CP and Decree No. 103/1999/NĐ-CP who lose their jobs or resign before the effective date of Decree No. 64/2002/NĐ-CP, the enterprise will receive support from the Enterprise Reorganization Fund to pay for the time they worked in the state sector but did not receive severance benefits as stipulated in Article 17 and Article 42 of the Labor Code.

The Fund's support activities for enterprises to pay severance benefits to workers in this category are implemented with a time limit and cease on December 31, 2003.

Article 9. Supporting enterprises to retrain surplus labor at the time of conversion to arrange new jobs in joint-stock companies. The retraining period does not exceed six months; the level of support is based on the training contract signed but is capped at 350,000 VND per person per month.

B. SUPPORT AND CAPITAL INVESTMENT FOR ENTERPRISES:

Article 10. Supplementing capital for enterprises that have completed shareholding reform to ensure the required proportion of state capital in the charter capital structure of joint-stock companies.

1. In case at the time when the enterprise is granted the business registration certificate there is a decrease in the value of the State capital, the enterprise shall be supplemented with capital from the Enterprise Reorganization Fund at the same level to ensure the required State capital ratio.

The maximum amount of additional capital shall not exceed the revenue from selling the State capital in the enterprise and shall be based on:

- The registered charter capital structure as stated on the business registration certificate;

- The shareholding restructuring plan and the decision adjusting the enterprise's value approved by the competent authority;

- Any material compensation amounts (if applicable).

2. In case the enterprise has been converted to operate under a joint-stock company form and has a plan to issue additional shares to raise funds for its production and business activities; if the State capital representative agency at the enterprise considers it necessary to maintain the State shareholding ratio in the company, the Enterprise Reorganization Fund at the same level shall supplement the State capital contribution.

The amount of additional capital shall be based on the joint-stock company's share issuance plan, the required State shareholding ratio, and the capital supplementation plan approved by the competent authority.

Article 11. Support state enterprises to handle overdue loans and social insurance debts before conversion.

1. The subjects eligible for capital support from the Fund to handle the above debts are enterprises:

- Included in the reorganization and conversion plan that has been approved by the competent authority and is currently implementing the conversion plan.

- Having difficulty in payment due to operating losses.

2. The level of support from the Fund for these enterprises shall be determined based on:

- The debt restructuring plan prior to implementation of the conversion, approved by the competent authority.

- The total social insurance debt and overdue loans up to the payment date.

- The actual payment capacity of the enterprise at the time of requesting support.

- Ensuring that the State capital does not exceed 50% of the total business capital.

Article 12. Support the settlement of debts of state enterprises through sales.

1. The subjects eligible for support from the Fund are state enterprises implementing sales according to Decree No. 103/1999/ND-CP and Decree No. 49/2002/ND-CP to settle debts in cases where the buyer does not assume the enterprise's debts.

2. The level of support from the Fund for this situation shall be determined based on:

- The results of the enterprise sale announced by the competent authority.

- The results of liquidation and sale of assets and recovery of receivables...

- The debt settlement support plan approved by the competent authority.

Article 13. Provide capital support for state enterprises to invest in technological innovation, enhance competitiveness, and develop the business.

1. The subjects eligible for investment capital support from the Fund are enterprises that require the State to maintain 100% capital, with an investment plan approved by the competent authority.

2. The level of support shall be determined based on:

- The investment capital requirement according to the project approved by the competent authority.

- The ability to balance from various sources of investment capital (including the Development Investment Fund and depreciation reserves that have been set aside but not yet used) to meet the investment requirements.

- The ability to balance of the Enterprise Reorganization Fund.

 

IV. PROCEDURES AND DOCUMENTS

Article 14. Enterprises eligible for support from the Enterprise Reorganization Fund shall proactively prepare plans and submit applications to the competent authority for review and approval, and send them to the Fund management agency for implementation of financial support.

Article 15. Application documents for support from the Enterprise Reorganization Fund:

1. Documents for requesting support to resolve surplus labor include:

- A letter from the enterprise requesting the Enterprise Reorganization Fund to support the resolution of surplus labor.

- A support plan for resolving policies for workers, retraining (accompanied by a list of regular employees at the time of the reorganization decision, a list of workers entitled to benefits and retraining), approved by the competent authority.

- The enterprise's financial report at the time of reorganization.

- The decision on reorganization and ownership transfer made by the competent authority and the business registration certificate of the enterprise after reorganization and ownership transfer.

- Training contracts between the enterprise and training institutions.

2. Documents for requesting the Fund to support debt restructuring and capital supplementation for enterprises:

- A letter from the enterprise requesting the Enterprise Reorganization Fund to provide capital or supplementary capital.

- An investment plan, technology renewal plan; a pre-conversion debt restructuring plan approved by the competent authority.

- The decision approving the reorganization, shareholding restructuring, and sale plan for the enterprise.

- The shareholders' meeting resolution on the share issuance plan.

- The support plan approved by the competent authority.

- The enterprise's financial report at the time of reorganization.

- A report on the results of asset liquidation and sale excluded from the enterprise valuation and the recovery of receivables that the enterprise buyer does not assume.

3. The enterprise is responsible for the legality and validity of the application documents, while the competent state authority is responsible for reviewing and approving the plan in accordance with current regulations.

Article 16. Within 15 working days from the date of receipt of all documents, the Fund management agency shall be responsible for checking and providing support to enterprises according to the approved plan. Among which, the provision of capital to state enterprises to implement investment, technology renewal, and capital supplementation to ensure the State capital ratio in joint-stock companies shall be carried out by the Enterprise Reorganization Fund according to the project implementation schedule.

If the application documents do not meet the requirements stipulated or contain calculation errors, the Fund management agency must promptly notify the competent authority approving the support plan and the enterprise in writing to complete the documents.

Article 17. Enterprises receiving support from the Enterprise Reorganization Fund are responsible for managing and using the support funds in accordance with the approved plan and are subject to inspection and supervision by the Fund management agency.

All cases of using capital for purposes other than those intended or not in accordance with the designated objects shall be recovered. At the same time, depending on the level of violation, the General Director of the enterprise and related persons must compensate material losses or bear responsibility in accordance with the provisions of the Law.

Article 18. Within thirty days from the completion of the payment of unemployment benefits, termination benefits, after the completion of the retraining program, and after completing investment plans and issuance of corporate shares, the enterprise must prepare a final settlement report on support funds to be submitted to the authority that approved the support plan (which is the People's Committee of provinces and centrally governed cities; Ministries, ministerial-level agencies, government agencies; Board of Directors of State-owned Corporations) and send it to:

- The Enterprise Finance Department (an agency assisting the Minister of Finance in managing the Central Enterprise Restructuring Fund).

- Provincial and city Price and Finance Departments (agencies assisting the Chairman of the People's Committees of provinces and centrally governed cities in managing the Local Enterprise Restructuring Fund).

- The Financial Accounting Board or the Financial Accounting Office of State-owned Corporations (agencies assisting the Chairman of the Board of Directors in managing the Enterprise Restructuring Fund of State-owned Corporations).

The final settlement report on support funds includes the following documents:

- A comprehensive report on the use of funds allocated from the Enterprise Restructuring Fund, detailing each support item, surplus amounts, and reasons.

- Payment vouchers for unemployment benefits and retraining (with confirmation from the beneficiaries and training institutions), final settlement of support funds.

- Payment vouchers and reconciliation statements confirming debts (for restructured debts).

- Final settlement of completed basic construction investment capital, approved by the competent authority.

- Business registration certificate (after adjusting the registered capital).

 

V. FUND INCOME AND EXPENDITURE PLAN

Article 19. The Enterprise Restructuring Fund income and expenditure plan:

1. Annually, along with the budget planning period, based on the restructuring and ownership transfer plan of state-owned enterprises already approved by the Prime Minister, Ministries, ministerial-level agencies, government agencies, People's Committees of provinces and centrally governed cities, and Boards of Directors of State-owned Corporations instruct the Enterprise Reform and Development Board to develop the income plan and forecast expenditures from the Enterprise Restructuring Fund to be sent to the Ministry of Finance (Enterprise Finance Department) for consolidation and reporting to the Government. The latest submission date is December 25 of the reporting year.

2. Based on the actual income and usage of the Fund in the reporting year, the restructuring and ownership transfer plans of enterprises of various Ministries, localities, State-owned Corporations, and the income and expenditure plans of the various levels of Enterprise Restructuring Funds, the Enterprise Finance Department of the Ministry of Finance will review, consolidate, and report to the Minister of Finance the plan for using the Fund nationwide.

Article 20. Fund Coordination:

1. The Minister of Finance has the authority to coordinate capital sources between Enterprise Restructuring Funds at the local level and State-owned Corporations when deemed necessary after consulting with relevant Fund management agencies.

2. Conditions for implementing fund coordination:

a. The Funds eligible for capital reallocation are:

- Having significant revenue.

- In the planned year, the demand for expenditure is smaller than the revenue or temporarily does not have a need for use.

- The reallocation of capital does not affect the implementation of the enterprise restructuring and conversion plan during the period.

b. The Funds eligible for receiving reallocated capital are:

- Having small revenue.

- The demand for support funding for enterprise restructuring and conversion activities in the year is larger than the revenue.

- The need for coordination must be reflected in the income and expenditure plan of the Fund submitted to the Ministry of Finance within the prescribed deadline.

3. Based on the decision of the Minister of Finance, within fifteen days from the receipt of the decision, the management agency of the Fund being coordinated must complete the procedures to transfer funds from the Fund to the account of the Central Enterprise Restructuring Fund.

Periodically or unexpectedly, the management agency of the Central Enterprise Restructuring Fund will conduct inspections on the management and use of the supported Enterprise Restructuring Fund.

 

VI. REPORTING AND ACCOUNTING REGIME

Article 21. The Enterprise Restructuring Funds at all levels are responsible for maintaining accounting records, fully recording all revenues and expenditures, and storing files and vouchers in accordance with the regulations set by the State.

The fiscal year of the Enterprise Restructuring Fund starts on January 1 and ends on December 31. The first fiscal year is calculated from the start of the Fund's operation until the end of the year.

Article 22. Quarterly, the management agencies of the Enterprise Restructuring Funds at all levels are responsible for preparing and submitting reports on the management and use of the Enterprise Restructuring Fund (according to Appendix number...) to the Ministry of Finance (Enterprise Finance Department) for monitoring.

Specifically, the reports on the management and use of the Fund by State-owned Corporations are also sent to the People's Committees of provinces and centrally governed cities and the Ministries overseeing the sectors for monitoring.

Article 23. By the end of the fiscal year within forty-five days, the management agencies of the Enterprise Restructuring Funds at all levels must submit final settlement reports on the Fund to the Ministry of Finance (Enterprise Finance Department) and bear legal responsibility for the published figures. The final settlement report on the Fund must comprehensively and truthfully reflect the status of the Fund at the time of the report; the income and expenditure situation, and remaining issues in the management of the Fund such as uncollected or unspent amounts; over-expenditures without sources of payment... accompanied by confirmation of the Fund balance from the Treasury or Bank where the Fund has an account.

Based on the financial final settlement reports of the Funds, the Enterprise Finance Department will consolidate and report to the Minister of Finance.

VII. INSPECTION AND FINAL SETTLEMENT OF FUNDS

Article 24. The Enterprise Restructuring Funds at all levels are subject to regular inspection and supervision by the Ministry of Finance (Enterprise Finance Department).

Based on the final settlement report, within ninety days from the receipt of the final settlement report on the Fund, the Enterprise Finance Department is responsible for developing a plan and notifying the schedule for inspecting the final settlement report to the Enterprise Restructuring Funds at State-owned Corporations and some local Funds when necessary.

The results of the final account examination of the Fund shall be notified to the Chairman of the Board of Directors of State-Owned Enterprises, People's Committees of provinces and centrally governed cities, and reported to the Minister of Finance.

 

VIII. IMPLEMENTATION

Article 25. Ministries, ministerial-level agencies, governmental agencies, People's Committees of provinces and centrally governed cities, Boards of Directors of state-owned enterprises, and enterprises shall be responsible for implementing the provisions of this Regulation.

Article 26. Responsibilities of units under and affiliated with the Ministry of Finance:

1. The Department of Corporate Finance shall be responsible for:

a. For the enterprise restructuring fund system:

- Assist the Minister of Finance in performing the state management function over the activities of the enterprise restructuring fund throughout the country.

- Aggregate plans and submit to the Minister of Finance proposals for fund resource balancing; implement the balancing according to the approved plan by the Ministry.

- Aggregate and report to the Minister of Finance the situation regarding the management and utilization of the fund.

- Inspect, aggregate, and report the final account revenue and expenditure of the enterprise restructuring fund to the Minister of Finance.

b. For the central enterprise restructuring fund: Assist the Minister of Finance in directly managing and operating the central enterprise restructuring fund in accordance with the provisions of this Regulation.

2. The State Treasury shall be responsible for:

- Guiding the opening of enterprise restructuring fund accounts.

- Processing the transfer of support funds from the fund to enterprises according to the decision of the competent authority.

- Implementing the control of fund usage in accordance with the approved decision on funding allocation from the enterprise restructuring fund.

- Cooperating with the Enterprise Financial Department to implement fund resource balancing according to the plan approved by the Minister of Finance.

3. The Accounting System Department shall be responsible for:

Guiding the accounting of the receipt and use of support funds at enterprises and the accounting of enterprise restructuring funds at all levels.

Article 27. Provincial Departments of Finance and Prices shall assist the Chairman of the People's Committee of the province or centrally governed city in managing and operating the local enterprise restructuring fund in accordance with the provisions of this Regulation.

 

IX. VIOLATION HANDLING

Article 28. Acts violating the provisions of this Regulation shall be subject to handling according to the current laws depending on the nature and degree of violation.