Tiếng Việt
中文 (中国)
The Ministry of Finance is proposing to develop a draft Law amending the Law on Management and Use of State Capital to invest in production and business in enterprises (Law No. 69/2014/QH13).
According to the Vietnam Ministry of Finance, on November 26, 2014, the National Assembly promulgated Law No. 69/2014/QH13, effective from July 1, 2015. After more than 6 years of implementation, Law No. 69/2014/QH13 creates a legal corridor for State capital investment in production and business in enterprises, mechanisms and policies for management and use of State capital and investment assets in state-owned enterprises (SOEs) have been synchronously built in accordance with the requirements of innovation, integration and restructuring of SOEs; mechanisms and policies have created a sufficient and stable legal environment for the management and use of state capital and assets at state agencies and enterprises.
However, in the past period, a number of guidelines, guiding views and legal systems related to the management and use of state capital invested in production and business at enterprises have changed. The implementation process of Law No. 69/2014/QH13 and guiding documents through the review revealed a number of shortcomings and limitations that needed to be reviewed and revised to be suitable with the orientation of restructuring SOEs in the coming time.
Therefore, it is necessary to develop Law No. 69/2014/QH13 (amended) with new policies in order to further improve the legal framework to ensure the development and improve operational efficiency of SOEs; strengthen the management and supervision of the use of State capital for the right purposes and for the right subjects.
New regulations on transfer of State capital invested in enterprises
Regarding the transfer of State capital invested in enterprises: Law No. 69/2014/QH13 stipulates the method of capital transfer and the principles of capital transfer.
In fact, over the past time, the competitive offering method is a method of offering competitive prices to continue the transfer of capital, which is actually a public auction.
Enterprises with contributed capital that need to transfer the basic capital formed from the equitization of enterprises with 100% state capital have not previously been required to have an approved land use plan before equitization for construction enterprises, to submit land use plans for approval, and at the same time with the equitization process, leading to when switching to operate in the form of joint stock companies, there are cases where the land use plan has not been approved.
Therefore, the draft proposes: Abolish the method of “competitive offering”. The starting price must be determined by an organization with the function of price appraisal, except where the State holding rate is less than 36% of the charter capital and the value of the State’s holding in the transferable charter capital is less than 10 billion VND, the owner’s representative agency shall consider and decide that the starting price is not lower than the actual value of the transferable contributed capital on the financial statement closest to the time of capital transfer of the enterprise having State contributed capital.
Additional regulatory principles: Requiring a review of the entire land area the enterprise is managing and using in order to fully complete legal documents on land, closely manage and supervise the converted land purpose of land auction in accordance with the Land Law. Strictly implement the mechanism of land lease, payment of rent in accordance with the law, as well as the calculation of the value of land use rights assigned in the starting price of capital transfer.
This option has a positive effect of speeding up the equitization process, converting it into a joint stock company soon, increasing competitiveness in the market, and increasing the ability to raise capital for business development.
Distribution of profit after tax – bonus and welfare fund
The problem is that according to current regulations, the deduction of the bonus and welfare fund up to 3 months’ salary is carried out for enterprises rated A; 1.5 months’ salary for enterprises rated B; 1 month’s salary for enterprises rated C; Enterprises that do not perform the classification shall not be deducted.
In fact, many enterprises have a large number of officers and employees, the revenue, profit, etc. of the enterprise is guaranteed according to the assessment and rating, so the balance of these two funds at the enterprise is relatively large (while the remaining profit to be remitted to the State budget is insignificant and does not accurately reflect the scale and efficiency of production and business activities of enterprises). On the other hand, according to the provisions of current corporate income tax law, the total amount of welfare expenditures does not exceed 1 month of actual average salary made in the tax year of the enterprise.
Therefore, the draft proposes a solution: Adjusting in the direction that enterprises deduct no more than 2 months’ salary based on the performance of the business and the level of completion of the assigned tasks. National defense and security will be supported by the State to ensure this deduction.
This plan will help to effectively and closely manage as well as ensure social security, encourage timely reward for employees, and increase mobilization of the State budget.
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