Nghị định 159/2020/NĐ-CP quản lý người giữ chức vụ và người đại diện phần vốn Nhà nước tại doanh nghiệp

DECREE

On management of persons holding posts or titles and representatives of state capital portions in enterprises

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Pursuant to the Law on Organization of the Government dated June 19, 2015;

Pursuant to the Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration dated November 22, 2019;

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

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

Pursuant to the Law on Cadres and Civil Servants dated November 13, 2008;

Pursuant to the Law Amending and Supplementing a Number of Articles of the Law on Cadres and Civil Servants and Law on Public Employees dated November 25, 2019;

At the proposal of the Minister of Home Affairs;

The Government hereby promulgates the Decree on management of persons holding posts or titles and representatives of state capital portions in enterprises.

 

Chapter I
GENERAL PROVISIONS

 

Article 1. Scope of regulation

This Decree provides regulations on:

1. Assessment, planning, appointment, re-appointment, transfer, rotation, resignation, relief of duty, commendation, discipline, retirement for persons holding posts or titles and supervisors in enterprises in which the State holds 100% of charter capital.

2. Assessment, assignment, re-assignment, removal from office of representatives of the state capital portions, commendation, discipline and retirement of the representatives of the state capital portions in enterprises.

Article 2. Subjects of application

1. Agencies representing the State owner.

2. Enterprises in which the State holds 100% of charter capital.

3. Enterprises in which the State holds more than 50% of charter capital or total of the voting shares; enterprises in which the State holds maximum of 50% of charter capital or total of the voting shares (hereinafter referred to as enterprises with State capital).

4. Persons holding posts or titles in enterprises in which the State holds 100% of charter capital (hereinafter referred to as state enterprise managers), including:

a) Chairperson of the Members’ Council;

b) Company president (for companies in which the Members’ Council is not organized);

c) Members of the Members’ Council;

d) Director General;

dd) Director;

e) Deputy Director General;

g) Deputy Director;

h) Chief accountant.

5. Supervisors of enterprise in which the State holds 100% of charter capital (hereinafter referred to as supervisors).

6. Representatives of state capital portions at enterprises in which the State holds more than 50% of charter capital or total of the voting shares and representatives of state capital portions at enterprises in which the State holds maximum of 50% of charter capital or total of the voting shares (hereinafter referred to representative of state capital portions).

7. Other agencies, organizations and individuals involved in the management and use of state enterprise managers, supervisors and representative of state capital portions.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Competent authority means an authority competent to decide on:

a) Assessment, planning, appointment, re-appointment, transfer, rotation, approval of the resignation, relief of duty, commendation, discipline and retirement of state enterprise managers and supervisors;

b) Assessment, assignment, re-assignment, removal from office of representatives of the state capital portions, commendation, discipline and retirement of the representatives of the state capital portions.

2. Advisory agency means an agency in charge of organization and personnel of a competent authority.

3. The leadership collective of an enterprise includes the Members' Council or the company president and the party committee at the same level.

4. A representative of the State capital portions at an enterprise means a person assigned by the agency representing the owner to represent the whole or a part of the State capital invested at an enterprise in order to exercise all or a number of rights, responsibilities and obligations of State shareholders or capital-contributing members at an enterprise in accordance with law provisions.

5. Supervisor means a person under the management competence of the agency representing the owner, appointed by the agency representing the owner and working on a full-time or part-time basis.

Article 4. Principles of management of enterprise managers, supervisors and representatives of the State capital portions

1. Ensuring the Party’s consistent leadership in the management and use of state enterprise managers, supervisors and representative of state capital portions at enterprises.

2. Ensuring the proper compliance with the law on enterprises and relevant laws.

3. Implementing the principles of democratic centralization, clearly defining the collective and individual responsibilities, especially the responsibility of the leader in personnel work.

4. In case where the state enterprise manager, supervisor or representative of the State capital portions concurrently holding different posts or titles, it is required to ensure that there is no conflict of interest.

5. If the management and use of state enterprise managers, supervisors and representative of state capital portions is otherwise provided by a Law, then such Law shall prevail.

 

Chapter II

DECISION-MAKING COMPETENCE AND PLURALISM OF ENTERPRISE MANAGERS, SUPERVISORS AND REPRESENTATIVE OF THE STATE CAPITAL PORTIONS

 

Article 5. Competence of the Prime Minister

1. To decide on appointment, re-appointment, transfer, rotation, and approval of the resignation, relief of duty, discipline, recommendation, and retirement of Chairpersons of the Member's Council of enterprises established under the Prime Minister’s competence.

2. To decide on appointment, re-appointment, transfer, rotation, approval of the resignation, relief of duty, discipline, recommendation, and retirement of Chairpersons of Viettel.

3. To decide on appointment of Director General of the State Capital and Investment Corporation.

4. To give opinions before appointing the Director General of enterprises established under the Prime Minister's competence, except for the cases specified in Clause 3 of this Article.

Article 6. Competence of agencies representing the owner

1. With regard to enterprises in which the State holds 100% of charter capital established under the Prime Minister's competence:

a) To decide on assessment of the Chairperson of the Member's Council or the company president;

b) To decide on planning of the Chairperson of the Member's Council or the company president after obtaining opinions from the Ministry of Home Affairs;

c) To decide on assessment, planning, appointment, re-appointment, transfer, rotation, approval of the resignation, relief of duty, commendation, discipline and retirement of members of the Members’ Council and supervisors;

d) To give opinions before the Members’ Council or company president decides on the planning, appointment, re-appointment, transfer, rotation, approval of the resignation, relief of duty, commendation, discipline and retirement of the Director General and Director, except for the cases specified in Clause 3, Article 5 of this Decree;

dd) To approve policies upon request of the Members’ Council regarding the appointment of the Deputy Director General or Deputy Director.

2. With regard to enterprises in which the State holds 100% of charter capital established under the agency representing the owner's competence:

a) To decide on assessment, planning, appointment, re-appointment, transfer, rotation, approval of the resignation, relief of duty, commendation, discipline and retirement of the Chairperson of the Member's Council, members of the Members’ Council and supervisors;

b) To give opinions before the Members’ Council or company president decides on the planning, appointment, re-appointment, transfer, rotation, approval of the resignation, relief of duty, commendation, discipline and retirement of the Director General and Director;

c) To approve policies upon request of the Members’ Council regarding the appointment of the Deputy Director General or Deputy Director.

3. With regard to enterprises with State capital:

To decide on assessment, assignment, re-assignment, removal from office of representatives of the state capital portions, commendation, discipline and retirement of the representatives of the state capital portions.

Article 7. Pluralism of state enterprise managers, supervisors and representatives of the State capital portions

1. The concurrently holding different posts or titles of the state enterprise manager is prescribed as follows:

a) A member of the Members’ Council is not allowed to concurrently hold management titles at his/her enterprise, except for cases specified at Point c of this Clause;

b) The Chairperson of the Member's Council, Director General, Director or Chief accountant is not allowed to concurrently hold management titles at his/her enterprise and other enterprises. A company president may concurrently act as a Director General or Director at his/her enterprise but not permitted to concurrently hold management titles at other enterprises;

c) Except for the Chairperson of the Member's Council, other members of the Members’ Council may concurrently act as a Director General, Director at their enterprises or other enterprises other than member enterprises under the owner-representing agency’s decisions;

d) The Deputy Director General or Deputy Director may concurrently hold the following titles: Chairperson of the Members’ Council or Chairperson of the Board of Directors, member of the Members’ Council or Board of Directors or company president at a member enterprise, but not more than 03 titles;

dd) State enterprise manager must not be a cadre, civil servant or public employee.

2. The concurrently holding different posts or titles of the supervisor is prescribed as follows:

a) A head of a Supervisory Board or supervisor is not allowed to act as a company manager and manager at other enterprises; is not allowed to act as a supervisor of a non-state enterprise or an employee of the company;

b) An individual may concurrently be appointed to be a head of the Supervisory Board or supervisor at 04 state enterprises at most.

3. The concurrently holding different posts or titles of the representative of the state capital portions is prescribed as follows:

a) A representative of the state capital portions working on a full-time basis is only allowed to represent the state capital portions in one enterprise;

b) A representative of the state capital portions working on a part-time basis may represent the state capital portions at other enterprises under the same agency representing the owner, provided that the maximum number of such enterprises is 03;

c) A representative of the state capital portions is not allowed to concurrently act as a representative of the state capital portions at enterprises of different agencies representing the owner;

d) A representative of the state capital portions must not be a cadre, civil servant or public employee.

 

Chapter III

ANNUAL QUALITY ASSESSMENT AND CLASSIFICATION FOR MANAGERS OF STATE ENTERPRISES, SUPERVISORS AND REPRESENTATIVES OF STATE CAPITAL PORTIONS

 

Article 8. Quality classification

A state enterprise manager, supervisor or representative of the state capital portions is assessed and classified on annual quality according to 4 levels: Excellent accomplishment of tasks, good accomplishment of tasks, accomplishment of tasks and non-accomplishment of tasks.

Article 9. Responsibilities for quality assessment and classification

1. On an annual basis, the competent authority shall be responsible for assigning and determining specific targets and tasks for the Members’ Council, supervisors and representatives of the state capital portions.

2. The competent authority shall carry out the quality assessment and classification and take responsibility before law for its decision.

Article 10. Time for assessment

1. The assessment of state enterprise managers and supervisors shall be conducted on an annual basis after the owner-representing agency announces enterprise rating results as prescribed by law. The assessment of the representative of state capital portions shall be carried out after the announcement of the annual financial statements of the enterprise.

2. With regard to the state enterprise managers, supervisors and representatives of the state capital portions who are party members, the quality of party members shall be assessed and classified first; assessing and classifying the quality of management later.

Article 11. Bases for quality assessment and classification

1. With regard to state enterprise managers:

a) Enterprise charter;

b) Rights and responsibilities of the state enterprise managers in accordance with law provisions;

c) Programs, plans, targets and tasks that are assigned and approved annually.

2. With regard to supervisors and representatives of the state capital portions:

a) Rights and responsibilities of the supervisors and representatives of the state capital portions in accordance with law provisions;

b) Programs, plans, targets and tasks that are assigned and approved annually.

c) The compliance with the charter while performing its functions, duties and powers.

Article 12. Contents of assessment

Contents of assessing state enterprise managers, supervisors and representatives of the state capital portions include:

1. The enterprise’ operation results in accordance with law provisions and enterprise charter;

2. Work results of individuals:

a) Political qualities, ethics, lifestyle, sense of organization and discipline, working style and manners;

b) The observance of the guidelines, undertakings and policies of the Party and the laws of the State as well as law provisions on anti-corruption; the practice of thrift and the fight against wastefulness; internal rules and regulations of the enterprises;

c) Results of implementation of assigned targets and tasks in the year;

d) Results of overcoming the indicated limitations and weaknesses (if any);

dd) The compliance with the direction of the owner-representing agency.

Article 13. Order and procedures for assessment

1. With regard to state enterprise managers:

a) The state enterprise manager shall write his/her self-assessment considering the assessment contents and criteria, classify himself/herself into levels of quality classification;

b) The Members’ Council shall hold a meeting to make comment and assessment of the enterprise manager. Such a meeting must be recorded in writing, clearly stating the participants and their opinions;

c) Collection of written opinions from the party committee at the same level on the assessment and classification of the enterprise manager's quality;

d) Based on the opinions of the party committee at the same level, the Members’ Council or the company president shall consider and decide on the assessment and classification of the quality of the enterprise managers according to their competence or report on the quality assessment and classification of the Chairperson of the Members 'Council, members of the Members' Council or the company president and send to the agency representing the owner for consideration and decision.

2. With regard to supervisors:

a) The supervisor shall write his/her self-assessment, classify himself/herself into levels of quality classification and send it to the owner-representing agency;

b) Based on the quality assessment and classification criteria specified in this Decree and the assigned tasks according to the annual plan, the agency representing the owner shall consider and decide the quality classification for the supervisor.

3. With regard to representatives of the state capital portions:

a) The representative of the state capital portions shall write his/her self-assessment considering the assessment contents and criteria, classify himself/herself into levels of quality classification and send to the agency representing the owner;

b) The agency representing the owner shall collect comments and assessment from the Members’ Council, company president and the Board of Directors of the representative of the state capital portions (if any);

c) Based on the quality assessment and classification criteria specified in this Decree and the assigned tasks according to the annual plan, the agency representing the owner shall consider and decide the quality classification for the representative of the state capital portions.

4. Quality assessment and classification results shall be recorded in the dossier and notified to each manager of state enterprises, supervisor and representative of state capital portions.

Article 14. Criteria for being assessed as excellent accomplishment of tasks

A state enterprise manager, supervisor or representative of the state capital portions is assessed as excellent accomplishment of tasks when meeting the following criteria:

1. Operation results of enterprises:

a) With regard to state enterprise managers: An enterprise is classified A according to the regulations;

b) With regard to supervisors: The enterprise is assessed to well comply with the law provisions, the company charter, the direction of the agency representing the owner and competent authorities;

c) With regard to representatives of the state capital portions: The enterprise has well complied with law provisions, enterprise charter, directions of the competent authorities; completed 100% or more of the after-tax profit target and the after-tax profit-to-equity ratio assigned as planned, except for the case of force majeure or due to objective reasons approved by the agency representing the owner.

2. Work results of individuals:

a) Having good political qualities, ethics having a healthy lifestyle and standardized working manners and style;

b) Being always exemplary, well observing the guidelines, undertakings and policies of the Party and laws of the State as well as law provisions on anti-corruption; the practice of thrift and the fight against wastefulness; internal rules and regulations of the enterprises;

c) Accomplishing 100% or more of the assigned targets and tasks in the year, except for the case of force majeure or due to objective reasons approved by the competent authority;

d) Good accomplishment of overcoming the indicated limitations and weaknesses (if any);

dd) The compliance with the direction of the owner-representing agency, for supervisors and representatives of the state capital portions.

Article 15. Criteria for being assessed as good accomplishment of tasks

A state enterprise manager, supervisor or representative of the state capital portions is assessed as good accomplishment of tasks when meeting the following criteria:

1. Operation results of enterprises:

a) With regard to state enterprise managers: An enterprise is classified A according to the regulations;

b) With regard to supervisors: Meeting criteria specified at Point b, Clause 1, Article 14 of this Decree;

c) With regard to representatives of the state capital portions: The enterprise has well complied with law provisions, enterprise charter, directions of the competent authorities; completed 90% or more of the after-tax profit target and the after-tax profit-to-equity ratio assigned as planned, except for the case of force majeure or due to objective reasons approved by the agency representing the owner.

2. Operation results of individuals:

a) Meeting criteria specified at Points a, b, d and dd, Clause 2, Article 14 of this Decree;

b) Accomplishing 90% or more of the assigned targets and tasks in the year, except for the case of force majeure or due to objective reasons approved by the competent authority.

Article 16. Criteria for being assessed as accomplishment of tasks

A state enterprise manager, supervisor or representative of the state capital portions is assessed as accomplishment of tasks when meeting the following criteria:

1. Operation results of enterprises:

a) With regard to state enterprise managers: An enterprise is classified B according to the regulations;

b) With regard to supervisors: The enterprise is assessed for not performing well the law provisions, the enterprise charter, the direction of the competent authorities. This Point shall not be applied if the supervisor has given written warning and reported to the agency representing the owner;

c) With regard to representatives of the state capital portions: The enterprise has not performed well law provisions, enterprise charter, directions of the competent authorities; completed from 70% to under 90% of the after-tax profit target and the after-tax profit-to-equity ratio assigned as planned, except for the case of force majeure or due to objective reasons approved by the agency representing the owner.

2. Work results of individuals:

a) Meeting criteria specified at Points a, b, d and dd, Clause 2, Article 14 of this Decree;

b) Accomplishing from 70% to under 90% of the assigned targets and tasks in the year, except for the case of force majeure or due to objective reasons approved by the competent authority.

Article 17. Criteria for being assessed as non-accomplishment of tasks

A state enterprise manager, supervisor or representative of the state capital portions is assessed as non-accomplishment of tasks when meeting the following criteria:

1. Operation results of enterprises:

a) With regard to state enterprise managers: An enterprise is classified C according to the regulations;

b) With regard to supervisors: The enterprise violates the law provisions, the enterprise charter, the direction of the agency representing the owner and competent authorities, unless the supervisor has given a written warning and reported to the agency representing the owner;

c) With regard to representatives of the state capital portions: The enterprise has violated law provisions, enterprise charter, not fully complied with directions of the competent authorities or completed under 70% of the after-tax profit target and the after-tax profit-to-equity ratio assigned as planned, except for the case of force majeure or due to objective reasons approved by the agency representing the owner.

2. Working results of individuals:

a) Showing signs of deterioration in political qualities and ethics; an unhealthy lifestyle; violating the regulations on sense of organization and discipline and the working manners and style concluded by competent authorities;

b) Failing to perform or violating the guidelines, undertakings and policies of the Party and the laws of the State as well as law provisions on anti-corruption; the practice of thrift and the fight against wastefulness; charter, internal rules and regulations of enterprises;

c) Accomplishing less than 70% targets and tasks assigned in the year, except for the case of force majeure or due to objective reasons approved by the competent authority;

d) Failing to comply with or failing to properly complying with directions of the owner-representing agency and the competent authority;

dd) Failing to overcome the indicated limitations and weaknesses (if any).

 

Chapter IV
PLANNING WITH STATE ENTERPRISE MANAGERS AND SUPERVISORS

 

Section 1

PRINCIPLES, CONDITIONS FOR PLANNING AND PREPARATION BEFORE PLANNING

 

Article 18. Principles and conditions for planning

1. The planning shall be formulated once every 05 years and shall be reviewed and supplemented every year, ensuring the “flexible and open” principle. At the beginning of the second year of the period, the planning for the next period shall be formulated.

2. The planning must be serious and objective; methods of organization must be scientific, accurate, economical and effective, ensuring the selection of people who satisfy the criteria and conditions.

3. Personnel considered to be placed in the planning must:

a) Meet general criteria of the Party, State and basically satisfy requirements for each managerial title promulgated by the competent authority;

b) Be based on the task requirements of the enterprise;

c) Be assessed in term of political qualities and ethics, lifestyle, qualification and practical capacity; development trends and prospects before being placed in the planning;

d) Be not in the time of consideration for discipline, executing the discipline decision, investigation, prosecution or trial.

4. With regard to a person who is holding the managerial title, he/she shall only be planned for a higher title and must reach the required age (calculating by months) for at least 01 term of office, from the time on which the planning is approved by the competent authority.

5. The planning of supervisors shall be carried out and decided according to competence by the owner-representing agency.

Article 19. Preparation before planning

At the first year of each 5-year period, the Members’ Council, company president shall only have to direct and guide member enterprises to formulate plannings for each tittle decentralized and managed; such planning shall serve as the basis for selection of planning sources of the directly managed level.

 

Section 2
STEPS OF PLANNING

 

Article 20. Discovery and introduction of planning sources

The discovery and introduction of the list of personnel expected to be included in planning sources shall be carried out as follows:

1. The advisory agency shall develop a plan and propose a list of personnel expected to be included in the planning and report it to the Members’ Council and company president.

The list of personnel expected to be included in the planning must fully contain the following information: Full name; date of birth; hometown; date of joining the Party (if he/she is a Party member); professional qualifications; political qualifications (if any); management titles; current agencies and units.

2. The enterprise leadership collective shall hold a meeting to reach an agreement on structure, and number of personnel expected to be planned; review the list of personnel expected to be included in the planning and additional introduce personnel (if any); ballot to decide the list of personnel that is proposed for comments at the conference of collecting vote for introducing planning sources.

Article 21. Organization of a conference of key officers to introduce planning sources

The Members’ Council and the company president shall chair a meeting of key officers to introduce the planning sources. Such a meeting must be participated by at least 2/3 of the convoked persons.

1. Participants of the meeting at the corporation are prescribed as follows:

a) At the parent company of the group, participants include: Chairperson of the Members’ Council, members of the Members’ Council; supervisors, Director General, Deputy Director General; Chief accountant; Head and deputy head of the specialized boards and equivalent; Standing committee of the party committee, Chairperson of the Trade union, Secretary of the Youth Union;

a) At an enterprises in which the group holds 100% of charter capital, participants include: Chairperson of the Members’ Council or company president, Director General, Director or Secretary of the party committee;

c) At an enterprises in which the group holds over 50% of charter capital or total voting shares, participants include: Representative of the State capital portions or general representative, Secretary of the party committee;

d) At an enterprises in which the group holds 50% or less of charter capital or total voting shares, participants include: Representative of the State capital portions or general representative;

dd) At a non-business unit of the group, participants include: The Head and Secretary of the party committee.

2. Participants of the meeting at the corporation are prescribed as follows:

a) At the parent company of the corporation, participants include: Chairperson of the Members’ Council, members of the Members’ Council; supervisors, Director General, Deputy Director General; Chief accountant; Head and deputy head of the specialized division and equivalent; Standing committee of the party committee, Chairperson of the Trade union, Secretary of the Youth Union;

b) At an enterprises in which the corporation holds 100% of charter capital, participants include: Chairperson of the Members’ Council or company president, Director General, Director or Secretary of the party committee;

c) At an enterprises in which the corporation holds over 50% of charter capital or total voting shares, participants include: Representative of the State capital portions or general representative, Secretary of the party committee;

d) At an enterprises in which the corporation holds 50% or less of charter capital or total voting shares, participants include: Representative of the State capital portions or general representative;

dd) At a non-business unit of the corporation, participants include: The Head and Secretary of the party committee.

3. Participants of the meeting at the company in which the State holds 100% of charter capital are prescribed as follows:

a) At the company, participants include: Chairperson of the Members’ Council or company president, members of the Members’ Council; supervisors, Director, Deputy Director; Chief accountant; Heads and deputy heads of the specialized divisions and equivalent; Standing committee of the party committee, Chairperson of the Trade union, Secretary of the Youth Union;

b) At an enterprises in which the company holds 100% of charter capital, participants include: The Head and Secretary of the party committee;

c) At an enterprises in which the company holds over 50% of charter capital or total voting shares, participants include: Representative of the State capital portions or general representative, Secretary of the party committee;

d) At an enterprises in which the company holds 50% or less of charter capital or total voting shares, participants include: Representative of the State capital portions or general representative;

dd) At a non-business unit of the company, participants include: The Head and Secretary of the party committee.

4. Order to conduct a conference:

a) The chairperson of the conference shall disseminate purposes, requirements, standards, conditions and structure and number of personnel expected to be included in the planning for each title.

The advisory agency shall introduce the list of personnel expected to be included in the planning sources. Participants of the conference may introduce additional planning sources other than those provided in the prepared list, but the background summary, comments and assessment of working results in the latest 3 year of the introduced persons are required;

b) The conference shall discuss and give comments;

c) The conference participants shall ballot to introduce the planning, the number of issued votes and collected votes must be announced at the conference. The vote counting results shall not be announced at this conference.

Article 22. Organization of the extended leadership collective’s conference to collect comments on the list of personnel expected to be included in the planning

1. The advisory agency shall summarize results of the planning source introduction and report it to the enterprise leadership collective for discussion and agreement on the list of personnel expected to be included in the planning in order to collect opinions at the extended leadership collective’s conference. Personnel expected to be included in the planning must receive 30% or more of the votes at the introducing conference of the key officers.

2. Such an extended leadership collective’s conference must be participated by at least 2/3 of the convoked persons.

Participants of the conference include: Chairperson of the Members’ Council or company president, members of the Members’ Council, supervisors, Director General, Deputy Director General, Chief accountant and party committee of the same level; Heads of divisions (boards) and equivalent at the parent company; Chairperson of the Members’ Council, company president of enterprises in which the parent company holds 100% of charter capital; general representative (if any) or representative of the State capital portions at an enterprises in which the parent company holds over 50% of charter capital or total voting shares.

3. Order to conduct a conference:

a) The Chairperson of the Members’ Council, company president shall disseminate purposes, requirements, standards, conditions and structure and number of personnel expected to be included in the planning for each title.

The advisory agency shall introduce the list of personnel expected to be included in the planning that has been consistently approved by the extended leadership collective as prescribed in Clause 1 of this Article;

b) The conference shall discuss and give comments;

c) The conference participants shall ballot to introduce the planning, the number of issued votes and collected votes must be announced at the conference. The vote counting results shall not be announced at this conference.

Article 23. Planning decision

1. Based on results of the planning source introduction in steps of the process, and standards, conditions, structure and quantity as prescribed, the advisory agency shall review, summarize and report to the enterprise leadership collective for discussion and ballot to decide personnel planned for each title and must ensure the following requirements:

a) 01 title must be planned for 02 - 04 persons, avoiding planning 01 title for 01 person;

b) Not planning 01 person for more than 03 titles;

c) Appropriate structure and age.

2. If the above-mentioned cases are agreed to be introduced by more than 50% of members of the enterprise leadership collective, they shall be decided or submitted to the competent authority to be included in the planning.

Article 24. Periodical review and supplementation of the planning

The Members’ Council, company president shall review and supplement the planning once every year to review and include new personnel into the planning and remove those who no longer satisfy conditions and criteria for the planned titles. The review and supplementation shall be conducted after having results of the annual quality assessment and classification or according to decisions of the Members’ Council or company president in order to meet the enterprise's requirements.

Article 25. Procedures for review and supplementation of the planning

1. Based on results of the annual quality assessment and classification, the advisory agency shall be responsible for:

a) Appraising, reviewing planning for the addition of personnel who meet the criteria and conditions for inclusion in the planning and propose to take out of the planning for cases no longer meeting the criteria and conditions as prescribed;

b) Reporting the enterprise leadership collective for consideration and comment on the plan for supplementing the planning before collecting opinions at the conference of key officers and consider and ballot for the cases proposed to take out of the planning. The cases approved by more than 50% of the total members of the enterprise leadership collective shall be taken out of the planning or proposed to the competent to take out of the planning.

2. Organization of the key officers’ conference to introduce personnel expected to be added in the planning: Complying with Clause 2, Article 21 of this Decree.

3. Organization of the extended leadership collective's conference to collect opinions on the list of personnel expected to be added in the planning: Complying with Clause 2, Article 22 of this Decree.

3. Decision on supplementation of the planning:

On the basis of the results of consultation with the conferences specified in Clauses 2 and 3 of this Article, and at the same time, on the basis of criteria, conditions, structure and quantity as prescribed, the advisory agency shall review, summarize and report to the enterprise leadership collective for discussion and ballot to decide personnel additionally planned for each title.

If the above-mentioned cases are agreed to be introduced by more than 50% of members of the enterprise leadership collective, they shall be decided or submitted to the competent authority to be included in the planning.

Article 26. Planning dossiers

A dossier of planned personnel must be declared truthfully, accurately and fully with the contents mentioned in the sections and must be certified or authenticated by competent authorities according to regulations, including:

1. A report on the request for planning approval, signed by the head of the competent agency or organization;

2. List of excerpts of the planned people and results of recommendation cards at conferences in the planning process, certified by competent authorities;

3. Curriculum vitae declared by the individual in the prescribed form, certified by a competent authority, with a color photo of 4x6 cm size, taken within 06 months;

4. Reviews and assessments of the Members’ Council or the company president;

5. Reviews and assessments of the party committee at the same level;

6. Reviews of the party cell executive of place of residence on such person and his/her family. In case the place of residence of such person is different from the place of residence of his/her family, reviews of the party cell executive of place of residence of both him/her and his/her family are required;

7. An income and asset declaration made according to the provided form;

8. Copies of diplomas and certificates required by standard of the appointed title. If the personnel have a diploma granted by a foreign educational institution, they must be recognized in Vietnam according to regulations;

9. The health certificate issued by a competent medical establishment within 06 months.

 

Chapter V

APPOINTMENT, RE-APPOINTMENT AND TRANSFER, ROTATION OF STATE ENTERPRISE MANAGERS AND SUPERVISORS

 

Section 1
APPOINTMENT

 

Article 27. Term of holding posts

1. The term of holding post for each appointment term of a state enterprise manager or supervisor is 05 years, from the date on which the appointment decision takes effect. In case where the term of holding post is less than 05 years, the competent authority's decisions shall be complied with.

2. In case where the state enterprise manager or supervisor is transferred or appointed to a new post equivalent to the previous post or higher, the term of holding post shall be counted from the effective date of the decision on transferring or appointing to a new post.

3. In case of change of management titles due to change of the enterprise's names, the term of holding post shall start from the date of deciding to appoint according to the former titles and the former enterprise's names.

Article 28. Conditions for appointment

1. Ensuring general criteria according to regulations of the Party, the State and specific criteria of the appointed titles as prescribed by the competent agency.

2. Being planned to the appointed titles for the on-spot human resources or planned to the equivalent title if the human resource is from elsewhere. In case the newly established enterprise has not yet approved the planning, it shall be considered and decided by the competent authority.

3. Having verified personal records and profiles, asset and income declarations according to regulations.

4. Appointment age:

a) Must be of sufficient age (in months) to work for a full term of office of the managerial title, counting from the implementation of the appointment process. In special cases, report to competent authorities for consideration and decision;

b) If, due to the work needs, a person is assigned to a new post equivalent to or lower than the current post, the age for appointment shall not be calculated according to Point a of this Clause.

5. Being physically fit to accomplish the assigned tasks.

6. Not falling into cases banned from holding titles in accordance with law provisions.

7. Not being in the time of disciplining, investigation, prosecution or trial. In case the enterprise is in the period of inspection and examination by the competent agency, the competent authority shall discuss with the inspecting and examining agency about the personnel proposed for appointment before making a decision.

Article 29. Proposal of appointment policies

1. With regard to appointment of state enterprise managers:

a) The enterprise leadership collective shall hold a meeting to discuss, decide or submit to the authority competent to appoint to decide policy, number, human resource and expected assigned tasks of to-be appointed person;

b) Within 15 days from the date on which the competent authority's written approval of the appointment policy is issued, the Members' Council and the company president must proceed with the personnel selection process as prescribed.

2. With regard to appointment of supervisors:

a) The advisory agency shall send a written proposal of the appointment policy and personnel expected to be appointed to the owner-representing agency;

b) Within 15 days after the written approval of the appointment policy is issued, the advisory agency shall carry out process of transfer and appointment of supervisors under the appointment process of personnel from elsewhere.

Article 30. Order and procedures for appointment of on-spot personnel

1. Proposal of structure, criteria, conditions and process:

Based on the policy, task requirements and personnel as provided in the planning, the enterprise leadership collective shall hold a meeting to discuss and propose structure, criteria, conditions and process of personnel introduction.

2. Organization of an extended leadership collective's conference to discuss and reach an agreement on structure, criteria, conditions and process of personnel introduction and introduce personnel by balloting.

Participants of the conference shall comply with Clause 2, Article 22 of this Decree. Each participant shall introduce one person for one title. Those who have the rate of introduction votes of over 50% of the total number of convoked people convoked may be selected. In case there is no one has more than 50% votes, the two persons with the highest introduction votes from the top down shall be chosen for introduction in the next steps. The vote counting results shall not be announced at this conference.

3. Selection of personnel to give a vote of confidence at the conference of key officers:

The enterprise leadership collective shall, based on structure, criteria, conditions, task requirements and responsiveness of the introduced personnel and on the basis of the personnel introduction results in the second step, conduct discussion and introduce personnel by ballot. Each participant shall introduce one person for one title among the introduced persons in the second step or introduce another who fully satisfies criteria and conditions as prescribed.

Those who have the rate of introduction votes of over 50% of the total number of enterprise leadership collective members may be selected. In case there is no one has more than 50% votes, the two persons with the highest introduction votes from the top down shall be chosen for confidence votes at the key officers’ conference. The vote counting results shall be announced at this conference.

In case the introduction result of the leadership collective is different from the result of introduction of personnel in second step for personnel under the deciding competence of the agency representing the owner, the Members' Council or the president of the company shall report and explain clearly to the agency representing the owner for consideration and guidance before proceeding to the next steps.

4. Organization the conference of key officers:

The organization the conference of key officers and participants shall comply with Article 21 of this Decree.

The conference shall implement the following contents: notifying structure, criteria, conditions and responsiveness of the title to be appointed; notifying the list of personnel introduced by the enterprise leadership collective at the third step; summarizing the background, studying and working process; comments, assessment of pros and cons, strengths, weaknesses, development prospects; expected work assignment; writing a vote of confidence (can be signed or not). The vote counting results shall not be announced at this conference.

5. Appointment decisions:

The enterprise leadership collective shall discuss the results of taking votes at conferences; verify, conclude new arising problems (if any); discuss, comment, evaluate and vote on personnel by ballot. Those who have the rate of approval votes of over 50% of the total number of enterprise leadership collective members may be selected to propose for appointment. In case where there are 02 people with equal votes (reaching the rate of 50%), the personnel recommended by the Chairperson of the Members' Council or the company president shall be selected to propose for appointment, and at the same time report fully the different opinions for competent authorities for consideration and decision.

Collecting written opinions of the superior party committee of the enterprise's committee in case personnel are required to consult the superior party committees as prescribed.

Chairperson of the Members’ Council, company president shall issue an appointment decision under the competence or propose the competent agency for consideration and decision.

Article 31. Order and procedures for appointment of personnel from elsewhere

1. In case where personnel from elsewhere are proposed by an enterprise, the order and procedures are prescribed as follows:

a) The enterprise leadership collective shall discuss and reach an agreement on the implementation policy and carry out a number of works as follows: Assigning the representative to meet the person proposed to be appointed to discuss about the work requirements; exchange and get comments and assessment of the leadership collective where such person is working on the policy of transfer and appointment; personal background verification;

b) The enterprise leadership collective shall discuss, comment, assess and vote on personnel by ballot. Person proposed to be appointed must be agreed by more than 50% of the total members of the enterprise leadership collective;

c) Collecting written opinions of the superior party committee of the enterprise's committee in case personnel are required to consult the superior party committees as prescribed;

d) Chairperson of the Members’ Council, company president shall issue an appointment decision under the competence or propose the competent agency for consideration and decision.

2. In case where personnel from elsewhere expected to transfer or appoint by the owner-representing agency, the order and procedures are prescribed as follows:

a) The owner-representing agency shall assume the prime responsibility for: Exchanging opinions with the Members’ Council, the company president on the expectation of transfer and appointment; exchanging and collecting comments and assessment of the leadership collective where that person is working on the policy of transfer and appointment; meeting a person proposed to be transferred or appointed to exchange opinions on the work requirements; personal background verification;

b) Collecting written opinions of the superior party committee of the enterprise's committee in case personnel are required to consult the superior party committees as prescribed;

c) The leadership collective of the owner-representing agency shall discuss, comment, assess and vote on personnel by ballot. Person proposed to be appointed must be agreed by more than 50% of the total members of the leadership collective of the owner-representing agency;

d) The agency representing the owner shall decide on transfer and appointment, or notify so that the Chairperson of the Members’ Council, company president issues a decision on receipt and appointment under the competence.

Article 32. Order and procedures for appointment of personnel under the deciding competence of the Prime Minister

1. For the on-spot personnel, the following steps shall be complied with:

a) The enterprise leadership collective shall discuss and propose on the appointment demand, and submit it to the owner-representing agency;

b) The owner-representing agency shall submit it to the Prime Minister for approval of the policy, number and expected assigned tasks of to-be appointed person, and at the same time, send it to the Ministry of Home Affairs for appraisal;

c) The Ministry of Home Affairs shall appraise and submit to the Prime Minister for consideration and decision on the appointment policy;

d) Within 15 days from the date of obtaining the Prime Minister's written consent to the appointment policy, the owner-representing agency must preside over and cooperate with the Members' Council and the company president in, implementing the process of selecting personnel according to regulations. In case of arising difficult or complicated problems, they must be reported to the Prime Minister;

dd) The agency representing the owner shall submit to the Prime Minister, and at the same time, send a written proposal and appointment dossier to the Ministry of Home Affairs for appraisal;

e) The Ministry of Home Affairs shall appraise and report the Prime Minister for consideration and decision on appointment, after obtaining the agreement of the Party Central Committee.

2. With regard to personnel from elsewhere:

a) The owner-representing agency shall submit to the Prime Minister for approval of the transfer and appointment policy, and at the same time, send it to the Ministry of Home Affairs for appraisal;

b) The Ministry of Home Affairs shall appraise and submit the Prime Minister for consideration and decision on the transfer and appointment policy;

c) Within 15 days after obtaining the Prime Minister’s written approval on the transfer and appointment policy, the owner-representing agency shall preside the process of personnel appointment as prescribed. In case of arising difficult or complicated problems, they must be reported to the Prime Minister;

d) The owner-representing agency shall submit to the Prime Minister, and at the same time, send the report and appointment dossier to the Ministry of Home Affairs for appraisal;

dd) The Ministry of Home Affairs shall appraise and report to the Prime Minister for consider and decision on appointment, after obtaining the agreement of the Party Central Committee.

3. For the case of appointment of person to act as the Director General of an enterprise established under the Prime Minister's competence as prescribed in Clause 4, Article 5 of this Decree:

a) Chairperson of the Members’ Council shall preside to implement the process of selecting personnel as prescribed, report to the owner-representing agency;

b) The owner-representing agency shall submit to the Prime Minister, and at the same time, send the report and appointment dossier to the Ministry of Home Affairs for appraisal;

c) The Ministry of Home Affairs shall appraise and report the Prime Minister for opinions before the competent authority decides to appoint.

Article 33. Other cases of appointment

1. In case of consolidation, merger, division, separation, reorganization or transformation of an enterprise type:

a) With regard to the state enterprise manager, if the post or title that he/she currently holding in the former enterprise is equivalent or higher than the post or title expected to be held at the new enterprise, the owner-representing agency shall consider and decide or propose the competent authority to decide on changing title or post according to the title or post at the new enterprise.

In case where the post or title that the state enterprise manager currently holding is lower than the post or title expected to be held at the new enterprise, the appointment shall be carried out according to the appointment process applicable to personnel from elsewhere;

b) With regard to the supervisors, the agency representing the owner shall consider and decide to re-appoint supervisors at the new enterprise in accordance with regulations.

2. The owner-representing agency shall directly preside the implementation of the appointment process for the following cases:

a) Appointment of state enterprise managers at newly established enterprises;

b) In case of implementing the appointment process at the time when internal leaders of the enterprise lost their solidarity, many people violated the discipline. And the implementation of appointment process shall lead to the lack of objectivity;

c) In case where there is no leader or manager at the enterprise due to natural disasters, accidents or force majeure events.

3. In case where the enterprise has not yet strengthened the title of Chairperson of the Members’ Council or company president, Director General or Director, the authority competent to appoint shall, based on the task requirements, consider, decide and take responsibility for transferring rights of the company president, Director General or Director or assigning those to be in charge of the Members’ Council until the official appointment decision is issued by the competent authority. Time for transferring rights or assigning persons to be in charge shall not be counted into the tenure of office when such persons are appointed.

Article 34. Appointment dossiers

1. A report of request for appointment signed by the head of competent agency or organization.

2. A report on summarization of vote counting accompanied with a vote count record according to steps specified in the appointment process.

3. Curriculum vitae declared by the individual in the prescribed form, certified by a competent authority, with a color photo of 4x6 cm size, taken within 06 months.

4. A self-criticism of the last 3 working years.

5. Reviews and assessments of the Members’ Council or the company president.

6. Reviews and assessments of the party committee of the same level.

7. Conclusion on political criteria of the competent party committee.

8. Reviews of the party cell executive of place of residence on such person and his/her family. In case the place of residence of such person is different from the place of residence of his/her family, reviews of the party cell executive of place of residence of both him/her and his/her family are required.

9. A asset and income declaration made according to the provided form.

10. A copy of degrees and certificates according to requirements of criteria for the appointed title or post. In case where a person processes a diploma granted by a foreign education institution, it shall be recognized in Vietnam in accordance with regulations.

11. The health certificate issued by a competent medical establishment within 06 months.

12. Conclusions of examination, inspection and settlement of complaints and denunciations and relevant documents (if any).

 

Section 2
RE-APPOINTMENT

 

Article 35. Time and duration for implementation of re-appointment

1. When the term of holding post expires as prescribed, the competent shall consider and decide to re-appoint or not to re-appoint the state enterprise manager or supervisor. In case of failing to implement the re-appointment process under Clause 3 of this Article, the authority competent to appoint shall send a written notice to the enterprise and that person.

2. If the duration from the expiration of the term of holding post of the state enterprise manager or supervisor to the time of retirement is full 24 working months or more (if the term of holding post is 05 years) or full 18 working months or more (if the term of holding post is 03 years), the procedures for consideration for re-appointment shall be conducted. If such person is re-appointed, the term of appointment shall be counted to the date of retirement according to law provisions.

3. Cases of not implementing the process of consideration for re-appointment:

a) The state enterprise manager or supervisor is in the time of disciplining, investigation, prosecution or trial;

b) The state enterprise manager or supervisor is in the time of inpatient treatment (03 months or more) at medical establishments or in the maternity leave period.

4. A re-appointment decision or decision on extension of the term of holding post must be issued at least 01 working day before the expiration of the term of holding post.

In case where the state enterprise manager or supervisor’s term of holding post expires but there is no decision on re-appointment or extension of the term of holding post issued by the competent authority, such person shall not be allowed to perform powers, obligations or competence of the current post. The performance of powers, obligations and competence of such post shall be considered and decided by the authority competent to appoint.

Article 36. Conditions for re-appointment

1. The state enterprise manager or supervisor accomplishes tasks during his/her term of holding post and still satisfies criteria for such title, meets task requirements for the next period.

2. As demanded by the enterprise.

3. Being physically fit to fulfill the assigned tasks, certified by the competent health agencies.

3. Not falling into cases banned from holding titles in accordance with law provisions.

4. Not being in the time of disciplining, investigation, prosecution or trial. If the enterprise is inspected or examined by a competent agency, the competent authority shall discuss with the inspecting or examining agency about the person proposed to be re-appointed before making decision.

5. A person shall be appointed to act as a Chairperson of the Members’ Council, member of Members’ Council or company president for a maximum of 02 terms of office at an enterprise, except he/she has more than 15 years of continuously working for that enterprise before being appointed for the first time.

A person shall not be appointed to act as a supervisor for more than 02 consecutive terms of office at an enterprise.

Article 37. Order and procedures for re-appointment

1. Within 90 days before the expiration of the term of holding posts as prescribed, the competent authority shall send a written notice to the state enterprise manager or supervisor and carry out process of consideration for re-appointment.

2. Order and procedures for re-appointment of state enterprise managers:

a) The state enterprise manager shall make a self-assessment of his/her performance, advantages, disadvantages, shortcomings, limitations when exercising powers and obligations in the period of holding post, and send it to the  authority competent to appoint, and at the same time, send to the advisory agency;

b) Organization of the key officers’ conference for collecting opinions of the re-appointment: Complying with Article 21 of this Decree;

c) The enterprise leadership collective shall discuss and decide on personnel:

The enterprise leadership collective shall discuss on the result of collecting confidence opinions at the key officers’ conference; verify and conclude arising problems (if any); discuss, give comments, assessment and vote for personnel by ballot. A person proposed to be re-appointed must have over 50% approval votes of the total votes of the enterprise leadership collective. In case a person only have 50% approval votes, the Chairperson of the Members’ Council, company president shall decide; at the same time, report all different opinions to the competent authority for consideration and decision.

Collecting written opinions of the superior party committee of the enterprise's committee in case personnel are required to consult the superior party committees as prescribed.

The Chairperson of the Members’ Council, company president shall issue a decision on re-appointment within his/her competence or submit to the competent agency for consideration and decision.

3. The order and procedures for re-appointment of supervisors shall comply with regulations of the owner-representing agency.

Article 38. Extension of the period of holding posts

1. If the duration from the expiration of the term of holding post of the state enterprise manager or supervisor to the month of retirement is less than 24 working months (if the term of holding post is 05 years) or less than 18 working months (if the term of holding post is 03 years), the procedures for consideration for re-appointment is not required. The authority competent to re-appoint shall consider and decide to extend the period of holding post until the time of retirement as prescribed, provided that conditions and criteria are fully met.

2. Within 90 days before the expiration of the term of holding the appointed post as prescribed, the competent authority shall send a written notice to the state enterprise manager or supervisor and consider to extend the period of holding post until the time of retirement as prescribed.

3. The consideration for extension of the period of holding posts for state enterprise managers is prescribed as follows:

a) The state enterprise manager shall make a self-assessment of his/her performance, advantages, disadvantages, shortcomings, limitations when exercising powers and obligations in the period of holding post, and send it to the  authority competent to appoint, and at the same time, send to the advisory agency;

b) The enterprise leadership collective shall discuss and consider, if the state enterprise manager is physically fit, reputable and meets the requirements of the task, then unanimously vote by ballot.

A person proposed to be extended the period of holding posts must have over 50% approval votes of the total votes of the enterprise leadership collective. In case a person only have 50% approval votes, the Chairperson of the Members’ Council, company president shall decide; at the same time, report all different opinions to the competent authority for consideration and decision;

c) Collecting written opinions of the superior party committee of the enterprise's committee in case personnel are required to consult the superior party committees as prescribed;

d) The Chairperson of the Members’ Council, company president shall issue a decision on extension of the period of holding posts according to his/her competence or submit to the competent agency for consideration and decision.

4. The consideration for extension of the period of holding posts of supervisors shall comply with regulations of the owner-representing agency.

Article 39. Dossiers of re-appointment or extension of the period of holding posts

1. A report of request for re-appointment or extension of the period of holding posts until the time of retirement as prescribed, signed by the head of the competent agency or organization.

2. A report on summarization of vote counting accompanied with a vote count record according to steps specified in the re-appointment process or the process of consideration for extension of the period of holding posts.

3. Curriculum vitae declared by the individual in the prescribed form, certified by a competent authority, with a color photo of 4x6 cm size, taken within 06 months.

4. A self-assessment of the performance of powers and obligations when holding the post.

5. Reviews and assessments of the party committee of the same level.

6. Conclusion on political criteria of the competent party committee.

7. Reviews of the party cell executive of place of residence on such person and his/her family. In case the place of residence of such person is different from the place of residence of his/her family, reviews of the party cell executive of place of residence of both him/her and his/her family are required.

8. A asset and income declaration made according to the provided form.

9. The health certificate issued by a competent medical establishment within 06 months.

 

Section 3

TRANSFER AND ROTATION

Article 40. Subjects and scope of transfer and rotation

1. Subjects of transfer and rotation:

a) State enterprise managers and supervisors in the planning approved by the competent authority;

b) State enterprise managers and supervisors who are not allowed to hold more than 02 consecutive term of office at an enterprise.

2. Based on the task requirements, planning, plan on employing leaders and managers of the enterprise, the state enterprise managers and supervisors may be transferred or rotated among enterprises of the same agency representing the owner or other agencies, organizations and enterprises according to decisions of the competent authority.

3. The transfer and rotation must be based on the working demand, planning and plan of transfer and rotation that is approved by the competent authority and ensure conditions and criteria for the title of the position expected to be planned.

Article 41. Process of implementation of the transfer and rotation plan

1. On an annual basis, the advisory agency shall develop a plan of transfer and rotation for the state enterprise managers and supervisors and report to the Chairperson of the Members’ Council and the company president or the owner-representing agency according to decentralization of officer management.

2. The enterprise leadership collective or the owner-representing agency shall hold a meeting to discuss, exchange and reach an agreement on the plan and specific personnel expected to be transferred and rotated.

3. Collecting written comments and assessment of the enterprise leadership collective where the person expected to be transferred or rotated is working and the leadership collective of enterprise, organization or agency where such person is expected to work after transfer or rotation.

4. Directly discussing with such person about the implementation of the transfer or rotation policy.

5. The enterprise leadership collective, the owner-representing agency shall decide according to its competence or submit to the competent authority for consideration and decision.

Article 42. Duration of rotation

The duration of rotation is at least 36 months, for each time of rotation. Duration of rotation in special cases shall be considered and decided by the competent authority.

Article 43. Job arrangement after rotation

1. After the expiration of the period of rotation, the authority competent to decide on rotation shall give comments and assessments of the working process during the rotation period, and arrange, assign job to the state enterprise manager or supervisor.

2. The consideration for arrangement and assignment of job for the state enterprise manager or supervisor after rotation shall be based on the task requirement, practical situation, and the task performance of the agency, organization or enterprise, associated with individual responsibility of the rotated person and review, assessment results of the competent authority.

Article 44. Regimes and policies applicable to the transferred or rotated state enterprise managers and supervisors

1. The agency, unit or enterprise where the transferred or rotated state enterprise manager or supervisor is going to work must prepare and create necessary conditions for such person to stably working.

2. The state enterprise manager or supervisor shall be entitled to regimes and policies equivalent to the rotated or transferred post or title in accordance with law provisions.

3. The rotated or transferred state enterprise manager or supervisor shall discontinue holding the current managerial post from the date on which the decision on transfer or rotation takes effect.

 

Chapter VI

ASSIGNMENT AND RE-ASSIGNMENT OF REPRESENTATIVES OF THE STATE CAPITAL PORTIONS

 

Section 1

ASSIGNMENT OF REPRESENTATIVES OF THE STATE CAPITAL PORTIONS

 

Article 45. Term of representation of the State capital portions

1. The term of assigning a representative of the State capital portions shall not exceed the term of office of a Members’ Council or Board of Directors. In case where the representative of the State capital portions is nominated to elect and appoint to a managerial title in mid-term of such title, the term of representation of the State capital portions shall be the remaining time of such term according to the enterprise charter.

2. In case where the representative of the State capital portions is assigned to representing the State capital portions at another enterprise, the term of representation of the State capital portions shall be counted from the effective date of the decision on assignment of representation of the State capital portions at the new enterprise.

3. In case of change of managerial titles due to change of names of the enterprises, the terms for representation of the State capital portions shall start from the date of assignment of representation of the State capital portions according to the former titles and the former names of the enterprises.

Article 46. Conditions for assignment of representatives of the State capital portions

1. Ensuring general criteria according to regulations of the Party, the State and specific criteria according to the competent agencies.

2. Having verified personal records and profiles, asset and income declarations according to regulations.

3. Reaching the required age (calculating by months) to work until the end of the term of office of the Members’ Council or Board of Directors of the enterprise where such person is assigned to act as the representative of the State capital portions.

4. Being physically fit to accomplish the assigned tasks.

5. Not falling into cases banned from holding titles in accordance with law provisions.

6. Not being in the time of disciplining, investigation, prosecution or trial, serving an imprisonment sentence or executing a disciplining decision. If the enterprise is being inspected or examined by a competent agency, the competent authority shall discuss with the inspecting or examining agency about such person before assigning his/her to act as a representative of the State capital portions.

Article 47. Order and procedures for assignment of representatives of the State capital portions

1. Based on the state capital value, enterprise size and comparison with conditions and criteria of the representative of the State capital portions, the advisory agency shall propose the policy, number, structure, human resources and specific personnel expected to act as the representative of the State capital portions to the owner-representing agency, including: Full name; date of birth; hometown; date of joining the Party (if he/she is a Party member); professional qualifications; political qualifications (if any); managerial titles; current agencies and units.

2. The agency representing the owner shall reach an agreement on the implementation policy and carry out a number of works as follows:

a) Meeting the person expected to be assigned to act as the representative of the State capital portions so that such person can make a commitment to comply with policies, resolutions and directions of the owner-representing agency and perform roles, responsibilities and obligations of the representative of the State capital portions in case of assignment;

b) Discussing and collecting comments and assessments on the assignment of representative of the State capital portions from leadership collectives of the enterprise where such person is working; verifying such person's background.

3. The owner-representing agency shall collect written opinions from the party committee at the same level on the person expected to be appointed to act as the representative of the State capital portions.

4. The owner-representing agency shall consider and conclude arising problems (if any), discuss and decide to assign the representative of the State capital portions.

Article 48. Dossiers of assignment of representatives of the State capital portions

1. A report of request for assignment of the representative of the State capital portions, signed by the head of competent agency or organization.

2. Curriculum vitae declared by the individual in the prescribed form, certified by a competent authority, with a color photo of 4x6 cm size, taken within 06 months.

3. A self-criticism of the last 03 working years.

4. Reviews and assessments of the leadership collective and the party committee of the agency or organization currently managing the person assigned to act as the representative of the State capital portions.

5. Conclusion on political criteria of the competent party committee.

6. Reviews of the party cell executive of place of residence on such person and his/her family. In case the place of residence of such person is different from the place of residence of his/her family, reviews of the party cell executive of place of residence of both him/her and his/her family are required.

7. A asset and income declaration made according to the provided form.

8. A copy of degrees and certificates according to requirements of criteria for the appointed title or post. In case where a person processes a diploma granted by a foreign education institution, it shall be recognized in Vietnam in accordance with regulations.

9. The health certificate issued by a competent medical establishment within 06 months.

10. A commitment to comply with the policies, resolutions and instructions of the owner and the performance of the roles, responsibilities and obligations of the representative of the State capital portions toward the owner approved by the owner-representing agency.

 

Section 2

RE-ASSIGNMENT OF REPRESENTATIVES OF THE STATE CAPITAL PORTIONS

 

Article 49. Conditions for re-assignment of representatives of the State capital portions

1. A representative of the State capital portions shall be re-assigned to act as the representative if meeting the following conditions:

a) Being assessed as accomplishment of tasks during the period of acting as a representative of the State capital portions;

b) Fully meeting conditions for assignment of representatives of the State capital portions as prescribed in Clauses 1, 2, 4, 5 and 6, Article 46 of this Decree.

2. If the representative of the State capital portions is retired before the expiration of term of office of the Members’ Council or the Board of Directors, the term of re-assignment of a representative of the State capital portions shall be calculated until the time of retirement as prescribed.

Article 50. Order and procedures for re-assignment of representatives of the State capital portions

1. Within 90 days before the expiration of the term of assignment of representatives of the State capital portions as prescribed, the representative of the State capital portions shall make a report of self-assessment of his/her performance of jobs and responsibilities when acting as a representative of the State capital portions and send it to the owner-representing agency.

2. The owner-representing agency shall collect written opinions from the party committee at the same level on the person expected to be re-assigned to act as the representative of the State capital portions.

3. The owner-representing agency shall consider and conclude arising problems (if any), discuss and decide to re-assign the representative of the State capital portions.

In case the representative of the State capital portions is not allowed to be re-assigned, the agency representing the owner shall arrange other positions for them or settle the regimes and policies according to law provisions.

Article 51. Dossiers of re-assignment of representatives of the State capital portions

1. A report of request for re-assignment of the representative of the State capital portions, signed by the head of competent agency or organization.

2. Curriculum vitae declared by the individual in the prescribed form, certified by a competent authority, with a color photo of 4x6 cm size, taken within 06 months.

3. A self-assessment of the performance of powers and obligations when acting as a representative of the State capital portions.

4. Reviews and assessments of the agency representing the owner.

5. Conclusion on political criteria of the competent party committee.

6. Reviews of the party cell executive of place of residence on such person and his/her family. In case the place of residence of such person is different from the place of residence of his/her family, reviews of the party cell executive of place of residence of both him/her and his/her family are required.

7. A asset and income declaration made according to the provided form.

8. The health certificate issued by a competent medical establishment within 06 months.

 

Chapter VII

RESIGNATION, RELIEF OF DUTY AND REMOVAL FROM OFFICE OF REPRESENTATIVES OF THE STATE CAPITAL PORTIONS

 

Article 52. Resignation

1. The competent authority shall consider to approve the resignation of the state enterprise managers and supervisors in one of the following cases:

a) Voluntarily requesting permission to discontinue holding the posts to transfer the leader position;

b) Self-perceiving of the inadequate standards, conditions, or the physically unfit to complete the assigned tasks or the unsuitable job position;

c) Other personal reasons.

2. The enterprise manager or supervisor is not allowed to resign if falling into one of the following cases:

a) He/she is performing national defense, national security tasks; important and secret tasks; tasks of prevention and control of natural disasters and epidemics and such resignation shall seriously affect to the general interests;

b) He/she is inspected, examined or investigated by the competent agency according to law provisions and the Party’s regulations.

3. Process of resignation approval:

a) Within 10 days after receiving the resignation letter from the state enterprise manager or supervisor, the advisory agency or enterprise leaders must discuss with the person who submitted the resignation letter. In case where such person withdraw his/her resignation letter, the process shall terminate. If he/she does not withdraw the resignation letter, the advisory agency shall consider and propose the competent authority according to the decentralization of officer management;

a) Within 15 days after the advisory agency issues a written proposal, the enterprise leadership collective or the owner-representing agency shall discuss and vote by ballot. The decision on approval of the state enterprise manager’s or supervisor's resignation must be approved by more than 50% of the total members of the enterprise leadership collective or the owner-representing agency. If such resignation is only approved by 50% votes, it shall be decided by the head owner-representing agency or Chairperson of the Members’ Council or the company president.

4. The state enterprise manager or supervisor still have to perform his/her assigned obligations, responsibilities and powers during the period the resignation letter has not yet been approved by the competent authority.

5. After the decision on approval of resignation, the state enterprise manager or supervisor shall be arranged a job suitable to his/her capacity, strong point, qualification, professional; be entitled to reserve his/her job wage according to current regulations until the expiration of the term of holding posts.

Article 53. Relief of duty

1. The relief of duty of managers of State enterprises, supervisors shall be considered and performed by the competent authority in the following cases:

a) Having no longer met all criteria and conditions for managers of State enterprises as specified by the law;

b) Being classified as non-accomplishment of tasks for 02 consecutive years;

c) Being subject to disciplining that is not as dismissal or more but the replacement is required due to the requirement of the job;

d) Being disciplined in the form of reprimand or caution for 02 times in the same term of office;

dd) A competent agency concludes that they violate the Party's regulations on internal political protection;

e) Other reasons for relief of duty according to regulations of the Party and the law.

2. Process of considering the relief of duty for managers of State enterprises, supervisors:

a) When there are sufficient grounds for relief of duty as prescribed in Clause 1 of this Article, the advisory agency shall propose the relief of duty to the competent authority according to the decentralization of cadre management;

b) No later than 30 days from the date of receiving the written proposal on such relief of duty, the enterprise leadership collective or the agency representing the owner must discuss and ballot. Decision on relief of duty for managers of State enterprises, supervisors shall be agreed by more than 50% of total members of the enterprise leadership collective; if the rate reaches 50%, the head of the agency representing the owner or the Chairperson of Members’ Council or the company president shall decide it.

3. Managers of State enterprises, supervisors subject to relief of duty shall not be entitled to payment of salary in accordance with their titles or posts from the date of decision on relief of duty. After being relieved of duty, managers of State enterprises, supervisors shall be assigned to suitable jobs by competent authorities; they shall be responsible for implementing decisions of assignment of the competent authorities. In case of relief of duty due to their classification as non-accomplishment of tasks for 02 consecutive years, the competent authorities shall settle the removal from office according to law regulations.

4. Settlement of complaints and denunciation related to the relief of duty

a) The settlement of complaints and denunciation related to relief of duty for managers of State enterprises, supervisors shall comply with the Party’s regulations, the Law on Complaints and the Law on Denunciation;

b) Relevant organizations and individuals shall perform the decision on relief of duty issued by the competent authority in case the complaint settlement decision has not yet promulgated;

c) Within 30 days since there are sufficient grounds to conclude that the relief of duty is wrong, the competent authority shall issue a decision on rearrangement of posts and settle lawful rights related to the previous posts of managers of State enterprises, supervisors.

Article 54. Removal from office for representatives of the State capital portions

1. Removal from office for a representative of the State capital portion shall be considered by the competent authority in one of the following cases:

a) There is an application for resignation of the representative of the State capital portion ahead of time and with the consent of the owner's agency;

b) Owner’s agency runs out of capital in a group, corporation or company;

c) Having no longer met all criteria and conditions for representatives of the State capital portions as specified by the law;

d) Being classified as non-accomplishment of tasks for 2 consecutive years;

dd) Being reprimanded or cautioned for 02 times in the same term of office of representatives of the State capital portions;

e) A competent agency concludes that it violates the Party's regulations on internal political protection;

g) Other reasons for removal from office for representatives of the State capital portions according to the Party’s regulations and the law.

2. Process for removing representatives of the State capital portions from office:

a) No later than 10 days from the date of receiving the applications for resignation of representative of the State capital portion ahead of the time or the date of having sufficient grounds for removal from office for the representative of the State capital portion as prescribed in Clause 1 of this Article, advisory agency shall propose the removal from office to the competent authority according to the decentralization of cadre management;

b) No later than 30 days from the date of receiving the written proposal on such removal from office of the representative of the State capital portion, the enterprise leadership or the agency representing the owner must discuss and ballot. Decision on removal from office for representatives of the State capital portions shall be agreed by more than 50% of total members of the enterprise leadership collective; if the rate reaches 50%, the head shall decide it.

3. After being removed from office, representatives of the State capital portions shall be assigned to suitable jobs by competent authorities; such individuals shall be responsible for implementing decisions of assignment of the competent authorities; in case the individuals voluntarily apply for retirement or job discontinuation, it shall be handled according to current regulations. In case of removal from office for representatives of the State capital portions due to their classification as non-accomplishment of tasks for 2 consecutive years, the competent authorities shall settle the removal from office according to law regulations.

4. Settlement of complaints and denunciation related to removal from office for representatives of the State capital portions:

a) The settlement of complaints and denunciation related to the removal from office of representatives of the State capital portions shall comply with the Party’s regulations, the Law on Complaints and the Law on Denunciation;

b) Relevant organizations and individuals shall perform the decision on removal from office for representatives of the State capital portions issued by the competent authority in case the complaint settlement decision has not yet promulgated;

c) Within 30 days since there are sufficient grounds to conclude that the removal from office for representatives of the State capital portions is wrong, the competent authority shall issue a decision on rearrangement of jobs and settle lawful rights related to representatives of the State capital portions.

 

Chapter VIII
COMMENDATION OR DISCIPLINING FOR RETIREMENT FOR MANAGERS OF STATE ENTERPRISES, SUPERVISORS, REPRESENTATIVES OF THE STATE CAPITAL PORTIONS

 

Article 55. Commendation

Managers of State enterprises, supervisors, representatives of the State capital portions having achievements or a process of devotion shall be commended according to the law on emulation and commendation.

Article 56. Principles for disciplining

1. Ensure the impartial, fair; open, transparent; strict and lawful disciplining.

2. Each act of violation must be disciplined only once with one form of disciplining. At the same time of consideration for disciplining, if a person commits 02 or more acts of violation, he/she shall be disciplined for each violation and the applied disciplinary form shall be heavier (with one level) than the one applied to the most serious violation, except cases being disciplined with the form of sack; do not separate each violating content to discipline him/her many times with different disciplinary forms.

3. In case managers of State enterprises, supervisors, representatives of the State capital portions commit other acts of violation in course of disciplining decision implementation, the following forms of disciplining shall be applied to them:

a) The acts of violation whose disciplinary forms are lighter or equal to the disciplinary forms currently applied to them shall be applied heavier disciplinary forms (1 level higher) than those currently applied to them;

b) The acts of violation whose disciplinary forms are heavier than the disciplinary forms currently applied to them shall be applied with heavier disciplinary forms (1 level higher) than the new disciplinary forms.

4. Consideration for disciplining shall be based on contents, nature, extent, harm, causes of violation, aggravating or extenuating circumstances, attitude of absorption and correction, remediation of the shortcomings, violations and consequences.

5. Do not apply forms of administrative sanctions or Party disciplining instead of the form of disciplining prescribed in this Decree; such disciplining shall not replace the penal liability examination if an act of violation is subject to the criminal handling.

6. In case the Party disciplining has been applied to managers of State enterprises, supervisors, representatives of the State capital portions, the form of disciplining applied to them must be commensurate with the Party disciplining.

Within 30 days from the date of announcement of the decision on Party disciplining, the competent authority must consider and decide on the disciplining.

7. Abuses of the body, spirit, honor and dignity of violators in the disciplinary process shall be prohibited.

8. Managers of State enterprises, supervisors, representatives of the State capital portions who commit an act of violation for the first time and have been disciplined but do the same act of violation within 24 months from the effective date of disciplining decision, the violation shall be considered as the recidivism; but do such act of violation after the 24-month period, it shall be considered as the first violation, but be an aggravating circumstance upon consideration of disciplining.

Article 57. Statute of limitations and time limits for disciplining

1. The statute of limitations for disciplining is a time limit at the end of which the disciplining shall not be considered. The statute of limitations for disciplining is determined from the time of committing an act of violation to the time of issuing a notification on organization of the reviewing meeting according to Article 65 of this Decree. Except for the case specified in Clause 2 of this Article, the statute of limitations for disciplining shall be as follows:

a) 02 years for less serious acts of law violation with the form of disciplining as reprimand at most;

b) 05 years for the acts of law violation other than those prescribed at Point a of this Clause.

2. The statute of limitations for disciplining shall not apply for one of the following acts of law violation:

a) Managers of State enterprises, supervisors, representatives of the State capital portions are party members who violate the law to the extent that they must be disciplined in the form of exclusion;

b) Committing acts of violation of internal political protection;

c) Committing acts infringing national interests in defense, security or foreign affairs;

d) Using fake or illegal diplomas, certificates or certifications.

3. The time limit for disciplining managers of State enterprises, supervisors, representatives of the State capital portions is determined from the time of issuing a notification on organization of the reviewing meeting as prescribed in Article 65 of this Decree to the time the competent authority promulgates a disciplining decision.

The time limit for disciplining must not exceed 90 days. If a case involves complicated circumstances which need further verification, this time limit may be prolonged but must not exceed 150 days.

4. For a manager of a State enterprise, supervisor or a representative of State capital portion against whom a criminal case was instituted or who was prosecuted or decided to be brought to trial according to criminal procedures but then his/her investigation or trial is terminated under a decision, if his/her act of violation shows signs of breach of discipline, he/she shall be considered to be disciplined.

The time of investigation, trial according to criminal procedures is not included in the time limit for disciplining.

Within 03 working days after the date the investigation or trial termination decision is issued, the decision issuer shall send the decision and relevant documents to the competent authority for disciplining.

Article 58. Disciplinary forms and extent of violations

1. Forms of disciplining managers of State enterprises, supervisors shall consist of: Reprimand, caution, dismissal, sack.

2. Forms of disciplining representatives of the State capital portions shall consist of: Reprimand, caution, removal from office, sack.

3. Extent of violations shall be determined as follows:

a) The violation causing less serious consequences is the violation which causes the harm with not great nature and extent, internal impact, affects the reputation of the enterprise;

b) The violation causing serious consequences is the violation which causes the harm with great nature and extent, impact outside the internal scope, bad public opinion, reduces the reputation of the enterprise;

c) The violation causing very serious consequences is the violation which causes the harm with very great nature and extent, impact on the whole society, irritation in public opinion and discredit on the enterprise;

d) The violation causing particularly serious consequences is the violation which causes the harm with particularly great nature and extent, profound impact on the whole society, special frustration in public opinion, discredit on the enterprise.

Apart from those, the extent of the violation may be based on the material damage in money that are determined by the owner-representing agency or according to the enterprise's regulations.

Article 59. Cases of having not yet considered the disciplining and disciplinary responsibility exemption

1. Cases of having not yet considered and implement the disciplining:

a) Being on annual leaves, leaves according to the regimes, private leaves permitted by the competent authorities according to law provisions;

b) Undergoing medical treatment of serious diseases or having the ability to perceive lost; being seriously ill and undergoing inpatient treatment at hospitals with certification of the competent health agencies;

c) Being female during pregnancy and maternity leaves, or nursing children under 12 months; being male (in case his wife died or for other objective and force majeure reasons) nursing children under 12 months;

d) Being instituted, held in custody or under temporary detention waiting for the conclusion of the competent authorities on investigation, execution and trial of law violations, except according to decisions of the competent authorities.

2. Cases of disciplinary responsibility exemption for the managers of State enterprises, supervisors, representatives of the State capital:

a) Having their civil act capacity lost when committing violations with certification of competent agencies;

b) Complying with decisions of superior authorities. When there are grounds to believe that the decisions are illegal, they must promptly report it in writing to the authorities competent to issue the decisions; in cases where the competent authorities still decide the implementation, it must be in writing and the executors must comply with but are not responsible for the consequences of the implementation, and shall report to the superior authorities at the same time. The authorities competent to issue the decisions shall be responsible before law for their decisions;

c) Committing the violation in an emergency circumstance, a force majeure event or an objective hindrance according to the Civil Code upon task performance with certification of competent agencies;

d) Committing the violation but did die.

Article 60. Application of the disciplinary form of reprimand

The disciplinary form of reprimand shall be applied to a manager of State enterprise, supervisor or representative of the State capital portion committing an act of law violation for the first time that causes less serious consequences in one of the following cases:

1. Violating regulations on labor discipline; internal working regulations of the unit.

2. Taking advantage of his/her position for self-seeking purposes.

3. Failing to comply with decisions of competent authorities; failing to implement assigned tasks without plausible reasons; sowing disunity in the unit.

4. Violating law regulations on: crime prevention; prevention of social evils; order and safety of society; anti-corruption; thrift practice and waste combat.

5. Violating law regulations protection of State secrets.

6. Violating law regulations on complaints and denunciation.

7. Violating provisions on democratic centralism regulation, regulations on propaganda, speech, regulations on internal political protection.

8. Violating law regulations on: Enterprises, investment, construction; land, resources and environment; finance, accounting, banking; management and use of public property in course of performance of duty.

9. Violating law regulations on: domestic violence prevention and control; population, marriage and family; gender equality; social security; other regulations of the law related to enterprises.

Article 61. Application of the disciplinary form of caution

The disciplinary form of caution shall be applied to a manager of State enterprise, supervisor or representative of the State capital portion who commits an act of law violation in one of the following cases:

1. Being disciplined with reprimand for the acts of violation prescribed in Article 60 of this Decree but still re-committing the act of violation.

2. Committing an act of law violation for the first time that causes serious consequences in one of the cases specified in Article 60 of this Decree.

3. Committing an act of law violation for the first time that causes less serious consequences in one of the following cases:

a) Using fake or illegal diplomas, certificates or certifications to participate in a training or course;

b) Failing to accomplish tasks of management, operation according to the assignment of the competent authority.

Article 62. Application of the disciplinary forms of dismissal, removal from office

The disciplinary form of dismissal shall be applied to a manager of State enterprise, supervisor or representative of the State capital portion who commits an act of law violation in one of the following cases:

1. Committing an act of law violation for the first time that causes very serious consequences in one of the cases specified in Article 60 of this Decree but is not subject to sack, the violator has the attitude of absorption and correction, proactive remediation of consequences with many
extenuating circumstances.

2. Committing an act of law violation for the first time that causes serious or very serious consequences in one of the cases specified in Clause 3, Article 61 of this Decree.

3. Using fake or unlawful diplomas, certificates or certifications to be appointed to the post or to be assigned as representative of the State capital portion.

Article 63. Application of the disciplinary form of sack

The disciplinary form of sack shall be applied to a manager of State enterprise, supervisor or representative of the State capital portion who commits an act of law violation in one of the following cases:

1. Committing an act of law violation for the first time that causes particularly serious consequences in one of the cases specified in Article 60 of this Decree.

2. Committing an act of law violation for the first time that causes particularly serious consequences in one of the cases specified in Clause 3, Article 61 of this Decree.

3. Using fake or illegal diplomas, certificates or certifications to be recruited to an enterprise.

4. Being addicted to drug; in this case, the competent authority's notice is required.

Article 64. Order and procedures for disciplining

1. Disciplining for managers of State enterprises, supervisors, representatives of the State capital portions shall be performed according to the following steps:

a) Organizing reviewing meetings;

b) Establishing the Disciplinary Councils;

c) Issuing decisions on disciplining.

2. For the disciplining in accordance with decision of the competent agency as prescribed at Point d, Clause 1, Article 59 of this Decree, or in case managers of State enterprises, supervisors, representatives of the State capital portions commit acts of law violation and are imprisoned without suspended sentences or are convicted by a court for the act of corruption, not to implement according to Points a and b, Clause 1 of this Article.

Article 65. Organization of reviewing meetings

When detecting an act of violation of a manager of State enterprise, supervisor or representative of the State capital portion, the authority competent to discipline shall organize a reviewing meeting to consider the disciplining with the following contents:

1. Meeting composition:

a) If the reviewed person is the Chairperson of the Members’ Council, the company president or supervisor or representative of the State capital portion, the head of the owner-representing agency shall assume the prime responsibility for organizing the reviewing meeting and deciding on composition of the reviewing meeting, including representatives of the leadership, Party committee, Trade Union, the advisory agency of owner-representing agency, representatives of the Members’ Council, the Board of Directors of the enterprise where the reviewed person works;

a) If the reviewed person is enterprise manager, the Chairperson of the Members’ Council or the company president where he/she works shall assume the prime responsibility for organizing the reviewing meeting and deciding on composition of the reviewing meeting, including representatives of owner-representing agency, the leadership, Party committee, Trade Union of the enterprise where the reviewed person works;

c) The competent authority may invite additional representatives of relevant agencies, organizations, individuals to participate the meeting. Invited persons shall speak up but shall not attend the ballot of disciplining consideration.

2. The organization of meetings shall be implemented as follows:

a) The chairperson of the meeting declares the reasons and assigns the secretary, notifies or authorizes the advisory agency to notify the following contents: summary of the working process; acts of violation; disciplinary forms issued (if any); time of occurrence of, and time of detecting the acts of violation; aggravating or extenuating circumstances; statute of limitations and time limits for disciplining according to the law regulations;

b) The reviewed person presents self-criticism statement, in which clearly stating the acts of law violation and recommending the disciplinary forms for themselves.

In cases the violator is present but does not make the self-criticism statement, the meeting shall be conducted. If the violator is absent after the notification on convening of the meeting is sent for 02 times, the review meeting shall be conducted with his/her absence;

c) Participants of the meeting speak up and express their opinions about contents prescribed at Point a of this Clause;

d) The chairperson of the meeting gives the conclusion.

Contents of the meeting must be made in minutes.

3. Within 05 working days from the end of the reviewing meeting, the host of the meeting shall be responsible for sending the meeting report and minutes to the authority competent at disciplining. The report must clearly state the following contents:

a) The acts of violation, the nature and consequences of the acts of violation;

b) Aggravating or extenuating circumstances (if any);

c) Responsibilities of the person committing the acts of violation and the corresponding level of disciplining;

d) Statute of limitations and time limits for disciplining according to law regulations;

dd) Proposal on disciplining, disciplinary forms (if any).

Article 66. Establishment of the Disciplinary Councils

1. Within 05 working days from the date of receiving report and minutes of the reviewing meeting, if the disciplining is required, the authority competent to discipline shall decide to establish the Disciplinary Council to advice on the application of disciplinary forms against for the violator, except for the case specified in Article 67 of this Decree.

2. Each Disciplinary Council shall have 05 members, including:

a) A Chairperson of the Disciplinary Council who is the Chairperson of the Members’ Council, the company president or representative of leadership of the owner-representing agency;

b) A Council member is the representative of the Party committee at the superior level of the owner’s the Party committee (if the superior-level Party committee is local one, the Council member shall be the representative of the local Party committee) or the representative of the Party committee at the same level of the owner-representing agency;

c) A Council member who is the representative of the professional departments of the enterprise related to the person being disciplined;

d) A Council member who is the representative of the Trade Union’s Executive Committee of the enterprise having the person being disciplined;

dd) The member cum Secretary of the Council who is in charge of the advisory agency of the enterprise having the person being disciplined or owner-representing agency;

3. Spouses, natural father, natural mother, adoptive father, adoptive mother, natural son/daughter, adopted son/daughter; siblings; brothers-in-law; sisters-in-law or persons involved in acts of law violation of the managers of State enterprises, supervisors, representatives of the State capital portions who are considered for disciplining shall not be appointed to join the Discipline Councils.

4. In case of failure to arrange for members participating in the Disciplinary Council as prescribed in Clause 2 of this Article because such members are violators or persons involved in the acts of law violation or the disciplining decisions are being executed, the head of the owner-representing agency shall consider and decide on replacement of personnel or report it to the Prime Minister for consideration and decision.

Article 67. Cases of not establishing Disciplinary Councils

1. Committing acts of law violation and being imprisoned without suspended sentences or being convicted by a court for the act of corruption or according to a decision of a competent authority as specified at Point d, Clause 1, Article 59 of this Decree.

2. There is a conclusion on acts of law violation issued by a competent agency or organization.

3. There is a decision on Party disciplining.

For the cases specified in this Article, conclusions on acts of violation can be used without investigating or re-verifying.

Article 68. The working principles of the Disciplinary Councils

1. A Disciplinary Council shall meet when there is the participation of at least 03 members, including the Chairperson and Secretaries of the Disciplinary Council.

2. The Disciplinary Council shall propose to apply disciplinary forms in the form of ballot with results approved by the majority of participating members.

3. The meeting of the Disciplinary Council shall be recorded in writing with the opinions of the participating members and the results of the ballots for proposal of disciplinary forms.

4. The Disciplinary Council shall dissolve themselves after completing their missions.

Article 69. Meeting of the Disciplinary Councils

1. Preparation:

a) Within 07 working days before the meeting of a Disciplinary Council, the summons shall be sent to the person who commits acts of law violation.  The violator who is absent shall have plausible reasons.  In case the person committing acts of violation is absent despite of being summoned 02 times without plausible reasons, and continues to be absent for the third time after being summoned, the Disciplinary Council shall still consider and propose the disciplinary forms with his/her absence;

b) The Chairperson of the Disciplinary Council may invite additional representatives of relevant agencies, organizations, individuals to participate the meeting. Invited persons shall speak up but shall not attend the ballot of disciplinary forms;

c) The Council member cum Secretary of the Council shall prepare documents, dossiers related to the disciplining, record the minutes of the meeting of the Disciplinary Council;

d) A disciplinary dossier submitted to the Disciplinary Council shall include: Self-criticism statement, curriculum vitae, minutes of reviewing meeting of the enterprise where the violator is working and other relevant documents.

2. Order of the meeting:

a) The Chairperson of the Disciplinary Council declares the reasons and introduce participants;

b) The Council member cum Secretary of the Disciplinary Council shall present: curriculum vitae; acts of violation, time of occurrence of, and time of detecting the acts of violation; statute of limitations and time limits for disciplining; the disciplinary forms issued; aggravating or extenuating circumstances and other relevant documents;

c) The violator states the self-criticism. If the violator is absent, the Council member cum Secretary of the Disciplinary Council shall read it;

d) The Council member cum Secretary of the Disciplinary Council read out loud minutes of the reviewing meeting;

dd) The members of the Disciplinary Council and participants of the meeting express their opinions;

e) The violator expresses his/her opinions (if any);

g) The Disciplinary Council ballots for the disciplining or not; if the majority of votes propose the disciplining, it shall ballot for application of disciplinary forms; the voting is conducted in the form of ballot according to the method of accumulation of votes;

h) The Chairperson of the Disciplinary Council announces the results of the ballot and approves the meeting minutes;

i) The Chairperson and the Council member cum Secretary of the Discipline Council sign the meeting minutes.

3. In case the Discipline Council meets to consider the disciplining for many violators being managers of State enterprises, supervisors, representatives of the State capital portions in the same enterprise, the Discipline Council shall conduct the meeting to consider the disciplining for each violator.

Article 70. Decision on disciplining

1. Order to issuance of a disciplining decision:

a) Within 05 working days from the closing date of a meeting, the Disciplinary Council shall propose in writing the disciplining (enclosed with the minutes and disciplinary dossier) and send it to the authority competent to discipline;

b) Within 15 working days after receiving the written proposal of the Disciplinary Council in case of establishing Disciplinary Councils or the minutes of reviewing meeting as specified in Clause 3, Article 65 of this Decree in case of not establishing Disciplinary Councils, the competent authority in charge of discipline shall issue a disciplining decision or conclude that managers of State enterprises, supervisors, representatives of the State capital portions are not disciplined;

c) In case the law violations of managers of State enterprises, supervisors, representatives of the State capital portions have complicated circumstances, the competent authority shall decide to extend the time limit for disciplining according to Clause 3, Article 57 of this Decree and take responsibility for its decision;

d) In case managers of State enterprises, supervisors, representatives of the State capital portions commit acts of law violation and are imprisoned without suspended sentences or are convicted by a court for the act of corruption, within 15 working days from the date of receiving the effective judgment or ruling of the court, the competent authority shall issue the decision on sack for those cases.

2. The disciplining decisions shall specify the effective date of such decision.

3. After 12 months from the effective date of the disciplining decisions, if the managers of State enterprises, supervisors, representatives of the State capital portions do not continue to commit acts of law violation which require disciplinary forms, the disciplining decisions shall cease to be effective without any document on their termination.

In case the managers of State enterprises, supervisors, representatives of the State capital portions continue committing acts of law violation in the course of implementing the disciplining decision, the current disciplining decision shall cease to be effective from the time the disciplining decision for the new acts of law violations takes effect.

4. Managers of State enterprises, supervisors, representatives of the State capital portions that are disciplined with the forms of reprimand and caution shall not be planned, rotated, appointed to higher posts, assigned to the representatives of the State capital portions within 12 months from the effective date of the disciplining decision. If they are disciplined with the forms of dismissal or removal from office, they shall not be planned, rotated, appointed to higher posts, assigned to the representatives of the State capital portions within 24 months from the effective date of the disciplining decision.

Article 71. Complaints

Disciplined managers of State enterprises, supervisors, representatives of the State capital portions have the right to complain about the disciplining decision according to the law on complaints.

Article 72. Disciplinary dossiers

1. A disciplinary dossier for managers of State enterprises, supervisors, representatives of the State capital portions shall comprise: a written report of the Disciplinary Council sent to the competent authorities for consideration of disciplining; self-criticism statement; minutes of reviewing meetings; denunciations, inspection conclusions and other relevant documents; meeting minutes of the Disciplinary Council and the disciplining decision.

2. The disciplinary dossiers shall be kept with the personal dossiers. Disciplinary forms shall be recorded in the profiles of the managers of State enterprises, supervisors, representatives of the State capital portions.

Article 73. Responsibilities of compensation, reimbursement of managers of State enterprises, supervisors, representatives of the State capital portions

Managers of State enterprises, supervisors, representatives of the State capital portions commit acts of violation that cause damage to the economy, the property of the State, their enterprises are responsible for compensation, reimbursement according to the law regulations.

 

Chapter IX

PROCEDURES FOR RETIREMENT FOR MANAGERS OF STATE ENTERPRISES, SUPERVISORS, REPRESENTATIVES OF THE STATE CAPITAL PORTIONS

 

Article 74. Determination of the time of retirement

1. The time of retirement shall be the first day of the month following the month that the manager of a State enterprise, the supervisor or the representative of a State capital portion reaches the prescribed retirement age.

If the file of the manager of the State enterprise, the supervisor or the representative of the State capital portion does not clearly state the birth day and month in the year, the retirement time will be January 01 of the year following the year the manager of the State enterprise, the supervisor or the representative of the State capital portion reach the prescribed full retirement age.

2. The time of retirement will be postponed in one of the following cases:

a) For not more than 01 month, in any of these cases: The retirement time coincides with Tet holiday (Lunar New Year); spouses, parents (natural and in-law) or children of the manager of the State enterprise, the supervisor or the representative of the State capital portion die or are declared missing by courts; he/she and his/her family suffer damage caused by natural disasters, enemy sabotage or fires;

b) For not more than 03 months, in one of these cases: suffering from serious illness or accidents as certified in writing by hospitals;

c) For not more than 06 months, for cases of receiving treatment of diseases in the list of diseases requiring prolonged treatment as promulgated by the Ministry of Health, with written certifications of hospitals.

3. If the manager of the State enterprise, the supervisor or the representative of the State capital portion falls into more than one case of retirement time postponement prescribed in Clause 2 of this Article, only the longest retirement time postponement will be applied.

4. The competent authority shall decide on the postponement of retirement time according to Clause 2 of this Article, unless the manager of the State enterprise, the supervisor or the representative of the State capital portion does not wish to postpone his/her retirement time.

Article 75. Notification and decision on retirement

1. Six months before the retirement time prescribed in Clause 1, Article 74 of this Decree, the competent authorities shall issue the written notification of retirement. The notification of retirement time for managers of State enterprises, supervisors, representatives of the State capital portions shall be defined as follows:

a) The owner-representing agencies shall issue the written notification of retirement for Chairpersons of Members’ Councils, company presidents, supervisors, representatives of the State capital portions;

b) Chairpersons of Members’ Councils, company presidents shall issue the written notification of retirement for members of Members’ Councils, Directors General, Directors, Deputy Directors General, Deputy Directors, Chief Accountants.

2. Three months before the retirement time of managers of State enterprises, supervisors, representatives of the State capital portions according to regulations, the owner-representing agencies or enterprises shall issue decisions on retirement according to their competence or report to the competent authorities for promulgating retirement decisions.

 

Chapter X

IMPLEMENTATION PROVISIONS

 

Article 76. Effect

1. This Decree takes effect on the signing date.

2. This Decree replaces the Government's Decree No. 97/2015/ND-CP dated October 19, 2015 on management of persons holding the titles and positions in single-member limited liability companies in which the State holds 100% of charter capital and the Government's Decree No. 106/2015/ND-CP dated October 23, 2015 on management of representatives of State capital portions holding management titles at enterprises in which the State holds more than 50% of charter capital.

3. For the acts of violations of managers of State enterprises, supervisors, representatives of the State capital portions that are considered and handled before the effective date of this Decree, to continue applying the recent law regulations for handling; for the acts of violations have been committed before the effective date of this Decree but the consideration and handling of them are conducted after such date, to apply this Decree.

Article 77. Organization of implementation

1. Based on this Decree, the Ministry of National Defence, the Ministry of Public Security shall define the management of persons holding posts or titles and representatives of state capital portions in state enterprises under the Ministry of National Defence, the Ministry of Public Security according to working regulations for officers in the people’s army, the people’s public security and law regulations.

2.  The owner-representing agencies shall direct the Members’ Councils, presidents of companies in which the State holds 100% of charter capital, based on this Decree, to define regulations on management of persons holding posts or titles and representatives of state capital portions in member enterprises.

3. The State Capital and Investment Corporation shall, based on this Decree, define regulations on management of persons holding posts or titles and representatives of state capital portions in enterprises in which the Corporation is the owner-representing agency.

4. Recruitment, appointment via examination for titles of management and operation in enterprises or hire the titles of Director general, Director, Deputy Directors General, Deputy directors, Chief Accountants shall comply with the scheme approved the competent authorities before the implementation.

5. Ministers, Heads of ministerial-level agencies, Heads of government-attached agencies and Chairpersons of People’s Committees of provinces and central affiliated cities and other related agencies, organizations, individuals shall take responsibilities for the implementation of this Decree./.