Nghị định 93/2015/NĐ-CP về hoạt động của doanh nghiệp quốc phòng, an ninh

DECREE

ON THE MANAGEMENT ORGANIZATION AND OPERATION OF NATIONAL DEFENSE AND SECURITY ENTERPRISES

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

Pursuant to the Law on Enterprises dated November 26, 2014;

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

At the proposal of the Minister of Planning and Investment,

The Government hereby promulgates the Decree on the management organization and operation of national defense and security enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Decree provides regulations on the management organization and operation of national defense and security enterprises.

2. The establishment, merger, consolidation, division, splitting, dissolution, bankruptcy, and other contents regarding the management organization and operation of national defense and security enterprises which are not prescribed in this Decree shall comply with the Law on Enterprises and guiding documents.

Article 2. Subjects of application

This Decree shall be applied to national defense and security enterprises as prescribed in Article 3 of this Decree; organizations and individuals involved in the management organization, operation, and inspection, supervision of national defense and security enterprises.

Article 3. Conditions for determining national defense and security enterprises

1. National defense and security enterprise means a state enterprise that is established or re-organized to perform stable and regular tasks in sectors, fields, and areas directly serving national defense and security or ensuring national secret and security.

2. An enterprise meeting the following conditions shall be determined as a national defense and security enterprise:

- Being a state enterprise under the Ministry of National Defence or the Ministry of Public Security.

- Having sectors or fields of operation specified in the Appendix on the List of sectors, fields, or areas directly serving national defense and security attached to this Decree.

- Being assigned by competent agencies the tasks of production and provision of national defense and security products and services or performance of stable and regular national defense and security tasks by State or enterprise forces according to the investment and enterprise establishment purpose.

Chapter II

ORGANIZATION AND OPERATION OF NATIONAL DEFENSE AND SECURITY ENTERPRISES

Article 4. Powers and obligations of national defense and security enterprises

Apart from powers and obligations of an enterprise producing and providing products and public services as prescribed in Article 9 of the Law on Enterprises and relevant law, a national defense and security enterprise shall have the following powers and obligations:

1. Having forces guaranteed to perform assigned national defense and security tasks by the agency representing the owner.

2. Being allowed to use assigned forces to conduct additional business activities other than the plan of national defense and security service and product provision and production or to perform national defense and security tasks if the following conditions are satisfied:

a) Being permitted in writing by the agency representing the owner;

b) Conducting targeted additional business activities to combine and support national defense and security tasks or to promote capacity and efficiency of the use of assets after completing the national defense and security product and service production and provision or the performance of assigned national defense and security tasks;

c) Not reducing capacity and affecting the production and provision of national defense and security products and services or the performance of assigned national defense and security tasks;

d) Separately accounting the additional business activities in accordance with law provisions;

dd) Fulfilling tax obligations in accordance with law provisions.

3. Managing assigned forces to perform national defense and security tasks according to current regulations on the management and use of state assets at units of people’s armed forces and relevant laws.

4. Complying with decisions of the agency representing the owner on allocating capital or assets serving national defense and security tasks of an enterprise to perform national defense and security tasks in another enterprise if necessary. The agency representing the owner shall be jointly liable for debt amounts and other asset obligations of an enterprise in case of allocating capital or assets serving national defense and security tasks of the enterprise.

5. The change or addition of business lines must be decided by the competent agency.

6. Complying with law provisions on national cooperation and of the agency representing the owner when carrying out activities associated with foreign organizations and individuals to produce and provide national defense and security products and services or perform national defense and security tasks.

Article 5. The organizational structure of national defense and security enterprises

1. Based on the size and characteristics of the enterprise, the Ministry of National Defence and the Ministry of Public Security shall decide to apply the organizational structure according to the model of Members’ Council, General Director (Director), Supervisor (Supervisory Board), or the model of Company President, General Director (Director), Supervisor (Supervisory Board).

2. For a national defense and security enterprise conducting in special sectors and fields, its organizational structure shall be decided by the Prime Minister.

3. Standards, conditions, and process of appointment, relief of duty, removal from office, reward, and discipline with managers of national defense and security enterprises shall comply with regulations of the Ministry of National Defence, the Ministry of Public Security.

Article 6. Operation mechanism of enterprises and employees at national defense and security enterprises

1. A national defense and security enterprise shall be entitled to the following operation mechanisms:

a) Being entitled to the exemption, reduction of the land rental, land use levy, and land use tax for the area of land serving national defense and security tasks assigned for management and use in accordance with the Land Law and guiding documents;

b) Having some specialized expenses accounted into business and production costs (in case where the state budget does not support or the support from the state budget is not enough), including: Expenses for wage payment, the contribution of social insurance premiums for persons who are close to retirement; expenses for ensuring costumes and items for military officers, professional army personnel, national defense workers and employees, non-commissioned officers, and people’s public security workers; expenses for payment of discharge from the army, work cessation according to the current regime; expenses for national defense and security works and serving national defense and relations between the army and the people;

c) Being allocated capital by the state for the maintenance, repair, and operation of national defense and security lines, in case of suspending production operation without the ability of self-paying off expenses;

d) Being supported bonus and welfare funds by the state. Such support shall be equal to 02 months of wages, in case there is not enough source to set up those two funds;

dd) The state shall support expenses of kindergarten and education in the area where there is no class or school under the public education system; medical expenses for places where, due to special conditions, a clinic must be maintained;

e) National defense and security enterprises performing tasks and operating in strategy and important areas shall be entitled to other mechanisms, preferential policies, and supports according to the Prime Minister’s decision.

2. Employees working in national defense and security enterprises shall be entitled to mechanisms and policies as follows:

a) The wage of military officers, professional army personnel, and non-commissioned officers shall comply with law regulations on mechanism and policies applicable to military officers, professional army personnel, and non-commissioned officers and base on the business and production performance of such enterprises.

b) An employee who is injured or dead when performing national defense and security tasks, and fully meets conditions and standards shall be considered and certified as a person with meritorious services according to law regulations on people with meritorious services. An employee who suffers an occupational accident when performing national defense and security tasks shall be considered to enjoy occupational accident regimes under law regulations on labor.

3. The state shall support the wage payment for a minimum number of employees to be employed to operate national defense and security production lines in case of suspending production operation without the ability of self-paying off expenses.

Chapter III

MANAGEMENT OF NATIONAL DEFENSE AND SECURITY ENTERPRISES

Article 7. Regimes of reporting and information disclosure of national defense and security enterprises

1. Before June 20 every year, national defense and security enterprises must disclose the following information on the portal or websites of enterprises, agencies representing the owners, and the Ministry of Planning and Investment:

a) Name, headquarter address, and the at-law representative;

b) Enterprise operation history, long-term development targets, the achievement of targets in the year and next year s targets;

c) Reports on key economic targets (revenue, profit, transfer to the state budget, owner’s equity and charter capital) of the preceding year;

d) Plans, results of arrangement and renovation of an enterprise (if any); the List of companies in which the enterprise holds more than 50% of charter capital;

dd) Average income of employees.

2. Based on regulations on information to be periodically disclosed by the state enterprises, a national defense and security enterprise must send information not to be disclosed due to national defense and security secret to the agency representing the owner. Before August 31 every year, the agency representing the owner shall be responsible for summarizing and sending such information to the Ministry of Planning and Investment and the Ministry of Finance for monitoring, recommending, or reporting to the Prime Minister if necessary.

Article 8. Inspection, supervision, and assessment of the effectiveness of national defense and security operation

1. Based on current provisions and this Decree, before April 30 every year, the Ministry of National Defence and the Ministry of Public Security shall make plans, contents, and subjects of inspection and supervision for national defense and security enterprises under their management and send them to the Ministry of Planning and Investment and the Ministry of Finance for cooperation and implementation.

2. Before June 30 every year, the Ministry of National Defence and the Ministry of Public Security shall report to the Prime Minister and send reports to the Ministry of Planning and Investment and the Ministry of Finance on the operation of national defense and security enterprises in the preceding year. The report contents including some basic contents on the operation of national defense and security enterprises; place of orders, assignment of plans of producing and providing national defense and security products and services or implementation of national defense and security tasks; results of producing and providing national defense and security products and services and performing national defense and security tasks of enterprises; results of implementing operation mechanism of enterprises and employees at national defense and security enterprises as prescribed in Article 6 of this Decree.

Article 9. Ordering, assigning plans or tasks to, national defense and security enterprises

1. Annually, the Ministry of National Defence, the Ministry of Public Security shall assign plans of producing and providing national defense and security products and services or national defense and security tasks to enterprises. Based on the written assignment of the plan of producing and providing national defense and security products and services or a national defense and security task, an enterprise shall be considered recognizing as a national defense and security enterprise and shall comply with regulations in Article 6 of this Decree.

2. Mechanism of order, plan assignment, price or charge of production and provision of national defense and security products and services and national defense and security tasks shall comply with regulations.

Article 10. Competence to recognize, re-recognize national defense and security enterprises

1. Within 01 year from the effective date of this Decree, the Prime Minister shall decide the recognition of national defense and security enterprises.

2. On a three-yearly basis, the Prime Minister shall decide the re-recognition of national defense and security enterprises.

3. The Ministry of Planning and Investment shall assume the prime responsibility for appraising the recognition and re-recognition of national defense and security enterprises, submit it to the Prime Minister for consideration and decision.

Article 11. Process of recognizing, re-recognizing national defense and security enterprises

1. Within 10 months from the effective date of this Decree, the Ministry of National Defence, the Ministry of Public Security shall make 03 applications for recognition, re-recognition of national defense and security enterprises in accordance with Article 12 of this Decree and send them to the Ministry of Planning and Investment for appraisal.

2. At least 60 days before the period of re-recognition of national defense and security enterprises as prescribed in Clause 2, Article 10 of this Decree, the Ministry of National Defence, the Ministry of Public Security shall review recognized national defense and security enterprises under their management (including national defense and security enterprises that are newly established before the re-recognition period) to make 03 applications for recognition, re-recognition of national defense and security enterprises in accordance with Article 12 of this Decree and send them to the Ministry of Planning and Investment for appraisal.

3. After fully receiving the applications for recognition, re-recognition of national defense and security enterprises, the Ministry of Planning and Investment shall assume the prime responsibility for collecting opinions of the Ministry of Finance and relevant agencies if necessary.

Within 15 working days from the day of receiving the applications for recognition, re-recognition of national defense and security enterprises, the Ministry of Finance and relevant agencies shall send the Ministry of Planning and Investment their written opinions on contents within their functions and tasks.

4. Within 10 working days from the date of receiving the written opinions of relevant agencies, the Ministry of Planning and Investment shall give its opinions on appraisal of the application for recognition, re-recognition of national defense and security enterprises, submit them to the Prime Minister for consideration and decision.

In cases of different opinions on main contents of the application for recognition, re-recognition of national defense and security enterprises, the Ministry of Planning and Investment shall hold a meeting with relevant agencies for agreeing on the appraisal contents before submitting them to the Prime Minister for decision.

5. After receiving appraisal opinions of the Ministry of Planning and Investment, the Prime Minister shall decide the recognition, re-recognition of national defense and security enterprises.

6. For cases of new establishment of defense and security enterprises, the Government s written approval of new establishment of defense and security enterprises shall replace the decision on recognizing national defense and security enterprises.

Article 12. Application for recognition, re-recognition of national defense and security enterprises

An application for recognition, re-recognition of national defense and security enterprises shall include the following contents:

1. Name of enterprises, operation sectors, fields and area of enterprises; national defense and security products, services and tasks performing by enterprises in the last 03 years up to the time of approval.

2. Assessment of enterprises’ current operation status in the last 03 years up to the time of approval (providing figures such as charter capital, the enterprise’s equity capital, after-tax profits, payment into the state budget, total payable debts, total employees, etc.).

3. Report on the situation of production and provision of national defense and security products and services or performance of national defense and security tasks that are ordered or assigned by the State in the last 03 years up to the time of approval.

4. Development objectives and plans of enterprises in next 03 years from the time of approval.

5. Advantages, difficulties and problems in the implementation of State supportive policies in production and provision of national defense and security products and services or in performance of national defense and security tasks.

6. Other contents relating to the recognition, re-recognition of national defense and security enterprises (if any).

Chapter IV

PROVISIONS OF IMPLEMENTATION

Article 13. Effect

This Decree takes effect on December 01, 2015 and replaces the Government s Decree No. 104/2010/ND-CP dated on October 11, 2010 on organization, management and operation of single-member limited liability companies owned by the State that directly serve national defense and security.

Article 14. Organization of implementation

1. Within 10 months from the effective date of this Decree, on the basis of the conditions prescribed in Clause 2, Article 3 of this Decree, the Ministry of National Defence, the Ministry of Public Security shall review state enterprises under their management to complete the application for recognition, re-recognition of national defense and security enterprises, send them to the Ministry of Planning and Investment for appraising and submitting them to the Prime Minister for consideration and decision.

State enterprises that are under the Ministry of National Defence and the Ministry of Public Security but are not determined as national defense and security enterprises must re-arrange on the basis of criteria, the list of classification of enterprises in which the State hold 100 % of capital, as prescribed in the Law on Enterprises and relevant regulations in the following cases:

a) Not being eligible for recognition, re-recognition of national defense and security enterprises as prescribed in Clause 2, Article 3 of this Decree;

b) In the period of recognition, re-recognition of national defense and security enterprises, enterprises are not continuously ordered or assigned plans of producing and providing national defense and security products and services or national defense and security tasks. In this case, the Ministry of National Defence, the Ministry of Public Security shall report to the Prime Ministry for decision on removing them from the list of national defense and security enterprises after receiving the opinions of the Ministry of Planning and Investment;

c) After 06 months from the time limit of performing the recognition, re-recognition of national defense and security enterprises in accordance with this Decree, the Ministry of National Defence, the Ministry of Public Security don t complete the application for recognition, re-recognition of national defense and security enterprises to send it to the Ministry of Planning and Investment for appraisal.

2. The Ministry of Finance shall assume the prime responsibility for, coordinate with the Ministry of Labor, War Invalids and Social Affairs, the Ministry of National Defence, the Ministry of Public Security in, guiding the implementation of Article 6 of this Decree.

3. Based on the law regulations, the Ministry of National Defence, the Ministry of Public Security shall guide the implementation of reporting regime, information disclosure of national defense and security enterprises; criteria, conditions and process of appointment, relief of duty, removal from office, commendation and disciplining for managers in national defense and security enterprises under their management.

4. Organizations and individuals relating to the organization, management and operation of national defense and security enterprises shall take responsibilities for implementing this Decree./.

* All Appendices are not translated herein.