Nghị định 83/2006/NĐ-CP của Chính phủ về việc quy định nguyên tắc, điều kiện, trách nhiệm của cơ quan đề nghị, trình tự, thủ tục thành lập, tổ chức lại, giải thể tổ chức hành chính, tổ chức sự nghiệp nhà nước

DECREE

PROVIDING FOR THE ORDER AND PROCEDURES OF ESTABLISHMENT, REORGANIZATION AND DISSOLUTION OF ADMINISTRATIVE ORGANIZATIONS AND STATE NON-BUSINESS ORGANIZATIONS

THE GOVERNMENT

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

Pursuant to the November 26, 2003 Law on Organization of People's Councils and People's Committees;

At the proposal of the Minister of Home Affairs,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree provides for responsibilities of agencies proposing, and principles, conditions, order and procedures for, the establishment, reorganization and dissolution of administrative organizations and state non-business organizations (hereinafter collectively referred to as establishment, reorganization and dissolution of organizations).

Article 2.- Subjects of application

1. Subjects of application of this Decree include:

a/ Government-attached agencies;

b/ Administrative organizations and non-business organizations under the Prime Minister's direct management;

c/ Administrative organizations and state non-business organizations under ministries, ministerial-level agencies or government-attached agencies;

d/ Administrative organizations and state non-business organizations under provincial/municipal People's Committees (hereinafter collectively referred to as provincial-level People's Committees);

e/ Administrative organizations and state non-business organizations under People's Committees of rural and urban districts as well as towns and provincial cities (hereinafter collectively referred to as district-level People's Committees).

2. This Decree shall not apply to:

a/ Ministries and ministerial-level agencies;

b/ People's Councils and People's Committees of all levels;

c/ Councils, Committees and Standing or Provisional Boards which assist the Prime Minister, ministers or presidents of provincial-level People's Committees;

d/ State enterprises (including also state non-business organizations within the enterprises' organizational structures);

e/ Associations and non-governmental organizations;

f/ Non-state non-business organizations.

Article 3.- Interpretation of terms

In this Decree, the terms below shall be construed as follows:

1. "Administrative organizations" means organizations which advise on and formulate institutions and policies and implement laws, and operate within the organizational structure of ministries, ministerial-level agencies or government-attached agencies (including departments, general departments, inspectorates, ministry offices and organizations under other names); professional agencies of provincial-level people's committees (including provincial/municipal services, inspectorates, people's committee offices and organizations under other names); and professional agencies of district-level people's committees (including sections, inspectorates, people' committee offices and organizations under other names).

2. "State non-business organizations" means organizations set up and performing state management tasks or providing several public services (including education and training, medical, scientific and technological, culture and information, physical training and sports, labor and social affairs organizations and other non-business organizations).

3. "Reorganization of administrative organizations or non-business organizations" means reorganization or consolidation of organizations in the form of merger, consolidation, transformation, transfer or separation for the formation of new organizations to meet management requirements.

Article 4.- Principles of establishment, reorganization and dissolution of organizations

1. Establishment of organizations

The establishment of organizations shall stem from state management requirements, serve the state management or the provision of public services, and adhere to the following principles:

a/ Administrative organizations shall be established only when the organizations' objectives, functions and tasks are clearly defined not to overlap the functions and tasks of existing organizations. The size and type of to be-established organizations shall suit the organizations' functions and tasks and state administrative reform requirements;

b/ State non-business organizations shall only be established for the performance of state management functions and tasks or the provision of public services in a branch or domain which have not yet been transferred by the State to non-state organizations or are not or cannot be performed by non-state organizations.

For branches and domains in which the plannings on networks of non-business organizations have been approved by competent authorities, the establishment of state non-business organizations should conform to such plannings.

2. Reorganization of organizations

a/ Administrative organizations shall be reorganized upon the adjustment of functions, tasks and subjects of management or upon the merger, consolidation, separation, transformation, transfer or upgrading of organizations under the schemes approved by competent authorities;

b/ State non-business organizations shall be reorganized upon the merger, consolidation, separation, transformation, transfer or upgrading of organizations or upon the implementation of schemes on adjustment of plannings on networks of state non-business organizations.

3. Dissolution of organizations

Administrative organizations or state non-business organizations shall be dissolved when they fail to clearly define their functions and tasks and inefficiently operate or when they no longer have any functions and tasks.

4. The establishment, reorganization and dissolution of administrative organizations or state non-business organizations shall comply with the order and procedures specified in this Decree and other relevant legal documents.

Article 5.- Conditions for establishment, reorganization and dissolution of organizations

1. Establishment of an organization

a/ Preparing a complete dossier specified in Article 15 of this Decree;

b/ Ensuring necessary conditions on staff, payroll, funds, working offices as well as necessary equipment and facilities for operation after the organization is established.

2. Reorganization of an organization

a/ Preparing a complete dossier specified in Clause 1, Article 20 of this Decree;

b/ Having a plan on key leading staff, reorganization, payroll and material foundations for the implementation of the decision on reorganization of the organization.

3. Dissolution of an organization

a/ Preparing a complete dossier specified in Clause 2, Article 20 of this Decree;

b/ Having a plan for handling matters related to staff, payroll, finance, property and land and other relevant matters.

Article 6.- Order and procedures for establishment, reorganization or dissolution of organizations

The establishment, reorganization or dissolution of an organization shall comply with the following order and procedures:

1. Formulating a scheme, report and draft decision on the establishment, reorganization or dissolution of the organization; draft operation regulations of the organization (in case of establishment of state non-business organizations).

2. Evaluating the scheme, report and draft decision on the establishment, reorganization or dissolution of the organization; draft operation regulations of the organization (in case of establishment of state non-business organizations).

3. Verifying the scheme, report and draft decision on the establishment, reorganization or dissolution of the organization.

4. Issuing decision on the establishment, reorganization or dissolution of the organization.

Article 7.- Responsibilities of agencies requesting the establishment, reorganization or dissolution of organizations

1. To adhere to the principles and conditions for the establishment, reorganization or dissolution of organizations specified in Articles 4 and 5 of this Decree in formulating schemes or reports for submission to competent authorities for decision, draft decisions or operation regulations of organizations (in case of establishment of state non-business organizations), consult evaluation agencies and relevant agencies, report on their comments, and make dossiers proposing competent authorities to decide on the establishment, reorganization or dissolution of organizations according to the provisions of this Decree.

2. To ensure necessary conditions for operation of organizations after their establishment or reorganization decisions are issued.

3. To direct the implementation of decisions on the establishment, reorganization or dissolution of organizations.

Article 8.- Competence to establish, reorganize or dissolve organizations

The competence to establish, reorganize or dissolve administrative organizations or state non-business organizations shall comply with the current provisions of law and the management decentralization by the Government or the Prime Minister.

Chapter II

ORDER AND PROCEDURES OF ESTABLISHMENT, REORGANIZATION AND DISSOLUTION OF ADMINISTRATIVE ORGANIZATIONS AND STATE NON-BUSINESS ORGANIZATIONS

Section 1. ESTABLISHMENT OF ORGANIZATIONS

Article 9.- Schemes on establishment of organizations

1. Schemes on the establishment of organizations shall be formulated by agencies proposing the establishment of organizations for submission to agencies competent to decide on the establishment of organizations.

2. Contents of such a scheme shall cover:

a/ The necessity and legal grounds for the establishment of an organization;

b/ Objectives, functions and tasks of the organization;

c/ Type of the to be-established organization;

d/ Structure of the to be-established organization;

e/ Necessary conditions to ensure the operation of the to be-established organization, including the projected personnel, payroll, operation funds, working offices as well as necessary equipment and facilities;

f/ Establishment plan and operation schedule of the organization;

g/ Proposals of the scheme-formulating agency.

For state non-business organizations, apart from the above-said contents, an establishment scheme shall also cover other contents as provided for in specialized laws, regulations of the Government or the Prime Minister, and the guidance of concerned ministries and branches.

Article 10.- Reports on establishment of organizations

1. Reports on the establishment of organizations shall be made by agencies proposing the establishment of organizations for submission to agencies competent to decide on the establishment of organizations.

2. Contents of such a report shall cover:

a/ The necessity and legal grounds for the establishment of an organization;

b/ Principal contents of the scheme on establishment of the organization;

c/ Issues on which there remain divergent opinions and issues which need to be commented by the agency competent to decide on the establishment of the organization.

3. Reports on the establishment of organizations shall be signed by competent heads of agencies proposing the establishment of organizations and duly stamped.

Article 11.- Collection of comments of concerned agencies

1. Agencies proposing the establishment of organizations shall send schemes to concerned agencies according to the provisions of specialized laws and working regulations of the Government and state administrative agencies at all levels for written comments on such establishment.

2. The collection and contribution of written comments by agencies shall comply with the provisions of Article 13 of the Government's Decree No. 144/2005/ND-CP of November 16, 2005, providing for coordination among state administrative agencies in formulating, and inspecting the implementation of, policies, strategies, plannings and plans.

Article 12.- Evaluation of the establishment of organizations

1. Evaluation agencies

In case of establishment of administrative organizations, evaluation agencies shall be specified as follows:

a/ For organizations established under decisions of the Government or the Prime Minister, the Ministry of Home Affairs shall be the evaluation agency;

b/ For organizations established under decisions of ministers, heads of ministerial-level agencies or heads of government-attached agencies, Organization and Personnel Departments or Organization and Personnel Boards shall be evaluation agencies;

c/ For organizations established under decisions of provincial-level People's Committees, provincial/municipal Services of Home Affairs shall be evaluation agencies;

d/ For organizations established under decisions of district-level People's Committees, Sections of Home Affairs, Labor, War Invalids and Social Affairs shall be evaluation agencies.

For state non-business organizations established under decisions of authorities of each level, evaluation agencies shall be specified in relevant specialized laws.

2. Contents to be evaluated shall cover:

a/ The necessity and legal grounds for the establishment of an organization;

b/ Objectives, functions, tasks, type and structure of the to be-established organization;

c/ Dossiers and procedures for establishment of the organization as prescribed;

d/ Conditions for ensuring the operation of the to be-established organization;

e/ The feasibility of establishment of the organization.

3. Evaluation documents shall be signed by heads of evaluation agencies. Evaluation documents should present sufficient grounds for competent state agencies to make decision in one of the following three cases:

a/ Agreement with the establishment of the organization;

b/ Disagreement with the establishment of the organization;

c/ Postponement of the establishment of the organization because several issues in the scheme should be studied more carefully.

4. For organizations established under decisions which are legal documents, the evaluation shall also comply with the provisions of law on promulgation of legal documents.

Article 13.- Verification of procedures and dossiers of establishment of organizations

1. Verification agencies

a/ For organizations established under decisions of the Government or the Prime Minister, the Government Office shall be the verification agency;

b/ For organizations established under decisions of ministers, heads of ministerial-level agencies or heads of government-attached agencies, offices of ministries, ministerial-level agencies or government-attached agencies shall be verification agencies;

c/ For organizations established under decisions of provincial-level or district-level People's Committees, offices of People's Committees of the same level shall be verification agencies.

2. Contents to be verified

a/ Procedures and dossiers of agencies proposing the establishment of organizations, and evaluation dossiers of evaluation agencies;

b/ Analyzing, synthesizing and independently assessing schemes' contents;

c/ Making final modifications to the contents and form of draft documents before submitting them to authorities competent to decide on the establishment of organizations.

3. Verification agencies shall prepare written notices on reasons for establishment or non-establishment of organizations and submit them to competent agencies for promulgation when verification agencies agree or disagree with the organization establishment proposals.

Article 14.- Decision on establishment of organizations

1. Competent agencies shall base themselves on evaluation documents and the verification and checking of procedures and dossiers which have been duly processed according to their working regulations and the provisions of this Decree to decide on the establishment of organizations.

2. Forms of decisions on establishment of organizations shall correspond to the competence of agencies issuing such decisions.

3. The adjustment and finalization of draft decisions on establishment of organizations before submission to agencies competent to decide on establishment of organizations shall be made by verification agencies on the basis of draft documents of agencies proposing the establishment of organizations and opinions of evaluation agencies.

Article 15.- Dossiers for establishment of organizations

1. A dossier for establishment of an organization shall comprise:

a/ The scheme on establishment of the organization;

b/ The report on the scheme on establishment of the organization; the draft decision on establishment of the organization (enclosed with the report); the draft operation regulation of the organization (in case of establishment of state non-business organizations);

c/ Concerned agencies' written opinions on establishment of the organization;

d/ The report on the assimilation of comments of concerned agencies and the additional report as required by the agency competent to decide on establishment of the organization (if any).

2. An evaluation dossier

a/ The written evaluation of the draft decision, report and scheme on establishment of an organization, the draft operation regulation of the organization (in case of establishment of state non-business organizations);

b/ The draft decision on establishment of the organization, which has been amended and finalized with assistance of the evaluation agency (if any).

3. A verification dossier

a/ The verification report of the agency competent to verify procedures and dossiers of the proposing agency, and dossiers of the evaluation agency;

b/ Finalized documents of the dossier for submission to the agency competent to decide on establishment of the organization.

Article 16.- Sending and receipt of dossiers on establishment of organizations

1. Agencies proposing the establishment of organizations shall send their dossiers to agencies specified below:

a/ The agency competent to decide on the establishment of organizations;

b/ The evaluation agency;

c/ Concerned agencies for coordinated handling or information. The names of such agencies shall be written at the bottom of official letters or reports (at the section "recipients").

2. To be-sent dossiers shall include documents submitted to the agency competent to decide on the establishment of organizations.

3. Agencies receiving dossiers of establishment of organizations shall monitor the processing of dossiers according to regulations.

Article 17.- Processing of dossiers and submission to authorities competent to decide on the establishment of organizations

1. Dossier-receiving agencies shall, according to their functions and competence, process dossiers on establishment of organizations according to working regulations of agencies of the same level before deciding or giving evaluation opinions on establishment of organizations according to the provisions of law.

2. After verifying and checking procedures and dossiers of establishment of organizations, if the contents of schemes or other documents remain unclear or there remain divergent opinions, dossier-processing agencies shall request agencies proposing the establishment of organizations to make additional explanations or, under authorization of persons competent to decide on the establishment of organizations, meet with the scheme-submitting agencies and concerned agencies to clarify the remaining problems and report the meeting results to competent persons for decision.

3. Dossier-processing agencies shall assume the prime responsibility for, and coordinate with agencies proposing the establishment of organizations in, finalizing dossiers and procedures according to regulations for submission to agencies competent to decide on the establishment of organizations.

Article 18.- Time limit for dealing with the establishment of organizations

1. Within 15 working days after receiving complete and valid dossiers, evaluation agencies shall complete evaluation documents.

2. Within 15 working days after receiving evaluation dossiers, verification agencies shall give official opinions on the establishment of organizations.

Verification agencies shall verify and review for the last time procedures and dossiers and prepare necessary documents according to their working regulations for submission to agencies competent to decide on the establishment of organizations.

3. Within 20 working days after receiving complete dossiers for establishment of organizations which have been processed according to regulations, competent agencies shall promulgate decisions on the establishment of organizations according to regulations. Where competent agencies have not yet decided on the establishment of organizations, they must notify in writing the proposing agencies of the reasons therefor.

Section 2. REORGANIZATION AND DISSOLUTION OF ORGANIZATIONS

Article 19.- Schemes and reports on reorganization or dissolution of organizations

1. A scheme or report on reorganization or dissolution of an organization shall cover:

a/ The necessity and legal grounds for reorganization or dissolution of the organization;

b/ The plan for handling matters related to personnel, apparatus, payroll, finance, property and land and other relevant matters;

c/ Organizations or individuals in charge of implementing the plan on reorganization or dissolution of the organization, and the time limit for handling matters in the plan.

2. The evaluation of schemes, reports and enclosed draft decisions and the verification of procedures and dossiers for submission to agencies competent to decide on the reorganization or dissolution of organizations shall be the same as for the establishment of organizations.

Article 20.- Dossiers of reorganization or dissolution of organizations

1. Reorganization of organizations

a/ The scheme on reorganization of an organization;

b/ The report on the scheme on reorganization of the organization and the draft decision on reorganization of the organization (enclosed);

c/ Documents certifying the financial status, property, land, loans, payable debts and other relevant matters;

d/ Written comments of concerned agencies.

2. Dissolution of organizations

a/ The scheme on dissolution of an organization;

b/ The report on the scheme on dissolution of the organization and the draft decision on dissolution of the organization (enclosed with the report);

c/ Concerned agencies' documents certifying the financial status, property, land, loans, payable debts and other relevant matters.

3. In specific cases, the sending, receipt and processing of dossiers and the evaluation and verification of procedures and dossiers of reorganization or dissolution of organizations shall be the same as for the establishment of organizations.

Article 21.- Time limit for dealing with reorganization or dissolution of organizations

1. Within 15 working days after receiving complete and valid dossiers, evaluation agencies shall complete evaluation documents.

2. Within 15 working days after receiving evaluation dossiers, verification agencies shall give their official opinions on the reorganization or dissolution of organizations.

Verification agencies shall verify and review for the last time procedures and dossiers and prepare necessary documents according to their working regulations for submission to authorities competent to decide on the reorganization or dissolution of organizations.

3. Within 20 working days after receiving complete dossiers on the reorganization or dissolution of organizations which have been processed according to regulations, competent agencies shall promulgate decisions on the reorganization or dissolution of organizations according to regulations. Where competent agencies have not yet decided on the reorganization or dissolution of organizations, they shall notify in writing agencies proposing the reorganization or dissolution of organizations of the reasons therefor.

Chapter III

IMPLEMENTATION PROVISIONS

Article 22.- Implementation effect

This Decree shall take effect 15 days after its publication in "CONG BAO."

Article 23.- Responsibilities for implementation

1. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees shall have to implement this Decree.

2. The Minister of Home Affairs shall inspect and monitor the implementation of the provisions on the order and procedures for establishment, reorganization and dissolution of organizations according to this Decree.