Decree No. 167/2024/ND-CP on amendments to Decree No. 91/2015/ND-CP on state capital investment in enterprises and management, utilization of capital and assets in enterprises, as amended by Decree No. 32/2018/ND-CP and Decree No. 140/2020/ND-CP

DECREE

DECREE ON AMENDMENTS TO DECREE NO. 91/2015/ND-CP DATED OCTOBER 13, 2015 OF THE GOVERNMENT ON STATE CAPITAL INVESTMENT IN ENTERPRISES AND MANAGEMENT, UTILIZATION OF CAPITAL AND ASSETS IN ENTERPRISES, AS AMENDED BY DECREE NO. 32/2018/ND-CP DATED MARCH 8, 2018, AND DECREE NO. 140/2020/ND-CP DATED NOVEMBER 30, 2020 OF THE GOVERNMENT

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on amendments to the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

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

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

At the request of the Minister of Finance;

The Government hereby promulgates this Decree on amendments to Decree No. 91/2015/ND-CP dated October 13, 2015 of the Government on state capital investment in enterprises and management, utilization of capital and assets in enterprises, as amended by Decree No. 32/2018/ND-CP dated March 8, 2018, and Decree No. 140/2020/ND-CP dated November 30, 2020 of the Government.

Article 1. Amendments to Decree No. 91/2015/ND-CP dated October 13, 2015, of the Government on state capital investment in enterprises and management, utilization of capital and assets in enterprises, as amended by Decree No. 32/2018/ND-CP dated March 8, 2018, and Decree No. 140/2020/ND-CP dated November 30, 2020, of the Government, as follows:

1. Amendments to Clause 3, Article 37 of Decree No. 91/2015/ND-CP , as amended by Clause 14, Article 1 of Decree No. 32/2018/ND-CP , and further amended by Clause 17, Article 2 of Decree No. 140/2020/ND-CP , are as follows:

“3. The rights, responsibilities, salaries, remuneration, bonuses, and other benefits of the representative of state capital shall be implemented in accordance with Articles 48 and 50 of the Law on Management and Utilization of State Capital Invested in Production and Business at Enterprises and the following provisions:

a) The representative of state capital in enterprises with state-owned shares or contributed capital must seek the opinion of the owner’s representative agency regarding the annual post-tax profit distribution plan of the enterprise they represent before providing opinions, voting, and making decisions at the General Meeting of Shareholders or the Members’ Council meeting, as required by regulations. Before directing the representative to participate in discussions, vote, and decide at the General Meeting of Shareholders or the Members’ Council meeting, the owner’s representative agency must submit a written request for consultation to the financial authority of the same level (applicable to enterprises with state-owned shares or contributed capital where the State holds at least 36% of charter capital). Within 10 working days from the date of receiving the request (enclosed with the enterprise’s current charter, audited annual financial statements, and the enterprise’s annual dividend and post-tax profit distribution plan), the financial authority must provide feedback to the owner’s representative agency to enable it to direct the state capital representative to participate in discussions, voting, and decision-making at the General Meeting of Shareholders or the Members’ Council meeting. The annual post-tax profit distribution plan in enterprises with state-owned shares or contributed capital (excluding credit institutions that are state-owned commercial banks) must adhere to the following principles:

For enterprises in which the State holds more than 50% of charter capital or total voting shares, the annual dividend and post-tax profit distribution plan shall be executed in the following order:

Distribute profits to partners under joint venture agreements as per the signed economic contracts (if applicable);

Offset accumulated losses from previous years that have exceeded the allowable deduction period from pre-tax profits, as stipulated by regulations;

Allocate up to 30% of post-tax profits to the enterprise’s development investment fund, provided that the enterprise’s charter stipulates the establishment of this fund;

Allocate to the reward and welfare funds for employees within the enterprise, as well as the bonus fund for enterprise managers, in accordance with the Government’s regulations on labor, salaries, remuneration, and bonuses applicable to enterprises in which the State holds controlling shares or capital contributions;

The remaining profit shall be distributed in full as cash dividends or stock dividends to shareholders or capital-contributing members. For dividends and profits distributed in cash for the state-owned capital portion, the amount must be remitted to the state budget as per regulations.

The issuance of stock dividends is only applicable to joint-stock companies that fall under the scope of supplementary state capital investment for nationally significant projects, as classified under the Law on Public Investment and approved by the competent authority. The owner’s representative agency must fully exercise its rights and responsibilities under Article 43 of the Law on Management and Use of State Capital Invested in Production and Business Activities at Enterprises, ensuring effective utilization of funds from stock dividend distribution, preventing loopholes for corruption or embezzlement; any violations shall be subject to legal consequences as prescribed by law.

For enterprises in which the State holds between 36% and 50% of charter capital, upon receiving feedback from the financial authority of the same level, the owner’s representative agency is responsible for directing the state capital representative at the enterprise to participate in discussions, vote, and decide at the General Meeting of Shareholders or the Members’ Council meeting on the annual post-tax profit distribution plan, following the same order as for enterprises where the State holds more than 50% of charter capital, as outlined above.

a) For enterprises in which the State holds less than 36% of charter capital:
Based on the annual business plan, the owner’s representative agency shall be responsible for directing the state capital representative at the enterprise to provide opinions, vote, and decide at the General Meeting of Shareholders or the Members’ Council meeting on the annual post-tax profit distribution plan in a suitable manner. The remaining profit, after allocations to funds as prescribed in the enterprise’s charter and financial management regulations, must be fully distributed as cash dividends or profit shares to shareholders and capital-contributing members. The dividends or profit shares in cash for the state capital portion must be remitted to the state budget in accordance with regulations.

b) For credit institutions that are state-owned joint-stock commercial banks:
The post-tax profit distribution shall comply with Decree No. 93/2017/ND-CP dated August 7, 2017, on the financial regime for credit institutions, foreign bank branches, financial supervision, and performance evaluation of state capital investment in credit institutions wholly owned by the State, as well as credit institutions with state capital, along with any amendments, supplements, or replacements.

c) Within 15 days after the end of each quarter and 30 days after the end of each year, or upon an ad hoc request from the owner’s representative agency or the relevant financial authority, the state capital representative must report on the business performance, financial status, and recommendations regarding the enterprise they represent. The report must be submitted to the owner’s representative agency and the financial authority using the prescribed form in Appendix III enclosed with this Decree.”

2. Amendments to Clauses 5a and 5b, Article 42 of Decree No. 91/2015/ND-CP , as supplemented by Clause 22, Article 2 of Decree No. 140/2020/ND-CP , as follows:

“5a. The owner’s representative agency shall direct the state capital representative at enterprises where the State holds at least 50% of charter capital to provide opinions on amendments to the enterprise’s charter and other internal governance regulations, in accordance with Decree No. 91/2015/ND-CP , Decree No. 32/2018/ND-CP , Decree No. 140/2020/ND-CP , and this Decree, to ensure appropriate management and utilization of capital and assets, as well as the divestment of state capital in other enterprises.

If an enterprise in which the State holds at least 50% of charter capital develops a capital transfer plan at an unlisted joint-stock company, but cannot implement the method of transferring capital to external investors as prescribed in Article 29 of Decree No. 91/2015/ND-CP (as amended by Clause 13, Article 1 of Decree No. 32/2018/ND-CP and Clause 16, Article 2 of Decree No. 140/2020/ND-CP) due to non-fulfillment of the conditions under Point b, Clause 1, Article 15 of the 2019 Securities Law, the enterprise shall develop a capital transfer plan in accordance with Clause 2, Article 127 of the Enterprise Law 2020. The owner’s representative agency shall instruct the state capital representative to participate in discussions, vote, and decide at the General Meeting of Shareholders, the Board of Directors meeting, or the Members’ Council meeting regarding the capital transfer plan.

5b. The Members’ Council or the President of an enterprise wholly owned by the State shall direct the capital representative of the enterprise at companies in which the wholly state-owned enterprise holds at least 50% of charter capital to provide opinions on amendments to the charter and other internal governance regulations to align with the management and utilization of capital and assets, as well as the divestment of capital from other enterprises.

Article 2. Entry into force

1. This Decree comes into force as of the date of signing.

2. The remaining post-tax profits that have not been distributed as dividends to shareholders up to the effective date of this Decree shall be subject to the provisions of Clause 1, Article 1 of this Decree.

3. Ministers, Heads of ministerial-level agencies, Heads of Government-affiliated agencies, Chairpersons of the People’s Committees of provinces and centrally governed cities, Members’ Councils of parent companies of economic groups, state-owned general corporations, state-owned enterprises holding 100% charter capital, and representatives of state capital shall be responsible for implementing this Decree./.