DECREE

ON CONVERTING STATE ENTERPRISES, ENTERPRISES OF POLITICAL ORGANIZATIONS OR SOCIO-POLITICAL ORGANIZATIONS INTO ONE-MEMBER LIMITED LIABILITY COMPANIES

THE GOVERNMENT

Pursuant to the September 30, 1992 Law on Organization of the Government;
Pursuant to the June 12, 1999 Enterprises Law No. 13/1999/QH10;
At the proposal of the Minister of Planning and Investment,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation and objects of application

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2. State enterprises, enterprises of political organizations or socio-political organizations that fully meet the following conditions may be converted into one-member limited liability companies and operate under the Enterprises Law:

a/ Being business enterprises with 100% of their charter capital held by the State, political organizations or socio-political organizations;

b/ Not being subject to the assignment, sale, business contracting, lease, dissolution or bankruptcy of enterprises or not falling under the equitization plan.

Article 2.- Company owners

1. An enterprise, after its conversion into a one-member limited liability company, shall have only one organization being its owner or authorized to be the company owner’s representative.

2. The following organizations may be authorized to be representatives of owners of one-member limited liability companies converted from State enterprises:

a/ The ministries, ministerial-level agencies, agencies attached to the Government, and People’s Committees of the provinces or centrally-run cities (hereafter called the provincial-level People’s Committees for short), for one-member limited liability companies converted from independent enterprises set up under their respective decisions;

b/ The Managing Boards of the State corporations, for one-member limited liability companies converted from enterprises being members of State corporations.

3. Political organizations and socio-political organizations may act as the direct owners, or appoint other organizations to act as representatives of owners, of their one-member limited liability companies.

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Article 3.- Powers and tasks of organizations being owners or authorized to act as representatives of company owners

1. The owner or the organization authorized to be the representative of the owner, of a one-member limited liability company shall have the following powers and tasks:

a/ To decide on the contents, amendments and supplements of the company’s charter;

b/ To decide on the adjustment of the company’s charter capital; to transfer part or the whole of the company’s charter capital to other organization(s) and/or individual(s);

c/ To decide on investment projects; the purchase or sale of properties; the borrowing or lending contracts with a value equal to or higher than 50% of the value of properties recorded in the company’s accounting books or lower as prescribed in the company’s charter according to the order and procedures prescribed by law;

d/ To decide on the company’s managerial and organizational structure; to appoint, dismiss, demote and decide on the wage and bonus levels as well as other benefits for, the chairman and members of the Managing Board (for companies with Managing Boards), the company president (for companies with presidents); to assign the Managing Board or company president to appoint, dismiss, reward or discipline the company director, and decide on the latter’s wage, bonus and other benefits;

e/ To organize the supervision, monitoring and evaluation of the company’s business activities and managerial activities of the Managing Board or company president;

f/ To approve the annual final account settlement reports; to decide on the use of the company’s profits;

g/ To decide on the reorganization of the company;

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2. The organization authorized to be the representative of the company owner shall take responsibility before the owner for the assigned tasks and delegated powers.

3. The company owner or organization authorized to be the company owner’s representative shall fulfill the obligations and responsibilities towards the company according to Clause 1, Article 27; Clause 1, Article 46; Clause 2, Article 47 and Article 48 of the Enterprises Law, and other obligations under law provisions.

Article 4.- Acceptance of the rights and obligations of converted enterprises

The companies converted from State enterprises, enterprises of political organizations or socio-political organizations shall inherit the legitimate rights and interests as well as obligations of converted enterprises.

Chapter II

ORDER AND PROCEDURES FOR CONVERSION OF ENTERPRISES INTO ONE-MEMBER LIMITED LIABILITY COMPANIES

Article 5.- Decision on the list of to be-converted enterprises and plan for conversion

1. For State enterprises

a/ The ministers, the heads of the ministerial-level agencies and agencies attached to the Government and the presidents of the provincial-level People’s Committees shall decide on the lists and plans for conversion of independent enterprises set up under their respective decisions;

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c/ The Managing Boards of the State corporations set up by the ministers, the heads of the ministerial-level agencies or agencies attached to the Government or the presidents of the provincial-level People’s Committees under the Prime Minister’s authorization shall draw up lists and plans for conversion of the corporations’ member enterprises and submit them to the ministers, the heads of the ministerial-level agencies or agencies attached to the Government or the presidents of the provincial-level People’s Committees for decision;

d/ The ministers, the heads of the ministerial-level agencies and agencies attached to the Government, the presidents of the provincial-level People’s Committees and the Managing Boards of the State corporations set up by decisions of the Prime Minister shall notify the converted enterprises and organizations authorized to be the company owners’ representatives, of the conversion plans.

2. For enterprises of political organizations or socio-political organizations

a/ Political organizations and socio-political organizations shall classify enterprises under their respective management, clearly identify capital sources in each enterprise and proceed with the reorganization of their dependent enterprises before deciding on the conversion thereof.

b/ Basing themselves on the plans for classification and reorganization of enterprises as well as the subjects defined in Article 1 of this Decree, political organizations and socio-political organizations shall decide on the lists and plans for conversion of their dependent enterprises into one-member limited liability companies and notify the converted enterprises and organizations authorized to be the company owners representatives, of the conversion plans.

Article 6.- Responsibilities of converted enterprises

1. A converted enterprise shall have the responsibility:

a/ To inventory, classify and determine types of available capital and property as well as existing debt and labor of the enterprise; to make financial reports till the time of conversion;

b/ To work out plans on the transfer of interests, obligations, properties, capital, debts and laborers to the one-member limited liability company; and capital amount expected to be registered as the company’s charter capital;

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d/ To report to the company owner or organization authorized to be the representative of the company owner, on the dossiers prescribed at Points a, b and c of this Clause.

2. The Managing Boards of the State corporations shall submit to the persons competent to decide on the lists and plans for conversion of enterprises defined in Article 5 of this Decree, the conversion plans for consideration and decision.

Article 7.- Principles for the handling of capital, properties, finance and laborers of converted enterprises

1. All properties of converted enterprises shall be calculated according to their value.

2. The available properties under the management and use right of enterprises shall be inventoried, classified, quantified and evaluated so as to be transferred to the one-member limited liability companies.

3. Regarding the leased, borrowed, kept in custody or consigned properties: the companies shall continue to hire, borrow, keep or consign them according to agreements with the lessors, lenders or consignors.

4. Regarding unused properties and properties in stock waiting for liquidation: enterprises may sell or liquidate them according to current regulations.

5. Principles for financial and debt settlement:

a/ For redundant properties: enterprises are allowed to account them as the increase of the owners� capital at enterprises;

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c/ For the to be-recovered debts: the companies shall have to accept the to be-recovered debts of converted enterprises and retrieve the recoverable due debts. Regarding the bad debts, after clearly determining the reasons and responsibilities of collectives and individuals therefor, enterprises are allowed to account the difference between the loss value and compensations paid by collectives and individuals as the decrease of the owners capital;

d/ For the to be-repaid debts: The companies shall have to inherit the to be-repaid debts and repay them to creditors according to commitments, including tax debts and budget debts as well as debts owed to officials and employees; and pay due debts. Regarding the to be-paid debts without any claimants and with the property value being indeterminable, the company owners may account them in their capital.

6. One-member limited liability companies shall have to continue employing all laborers of the converted enterprises and inherit all the latter’s rights and obligations towards the laborers according to the provisions of the legislation on labor, except for laborers who voluntarily terminate labor contracts.

Laborers who voluntarily terminate labor contracts shall enjoy the regimes prescribed by law.

Article 8.- Determination of the company’s charter capital

1. The company’s charter capital shall be determined on the basis of the owner’s actual capital amount recorded in the enterprise’s accounting books after having been handled according to the principles prescribed in Article 7 of this Decree, and the capital amount (if any) the owner commits to supplement to the company.

Regarding enterprises of political organizations and socio-political organizations with properties formed from the State budget capital and capital originating from the State budget, such political organizations and socio-political organizations shall be authorized to act as representatives of the owners of this capital.

2. Regarding the business lines, which require legal capital as prescribed by law, the company�s charter capital must not be less than the legal capital.

3. In cases where the company’s capital is supplemented, the capital amount to be supplemented and the committed time limit therefor must be clearly inscribed. The company owner shall have to invest enough charter capital for the company according to the committed time limit. If the owner fails to do so, it shall take responsibility therefor according to the provisions of Clause 1, Article 27 of the Enterprises Law.

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1. The company’s charter shall include the following contents:

a/ The names and addresses of the company’s head office, branches and representative offices (if any);

b/ The objectives and business lines;

c/ The charter capital;

d/ The name, address, rights and obligations of the company owner or organization authorized to act as the company owner’s representative;

e/ The company’s organizational and managerial structure;

f/ The company’s representative at law;

g/ The principles for using the company’s profits;

h/ Cases of dissolution and procedures for liquidation of properties of the company;

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j/ Other contents to be decided by the company owner or organization authorized to act as representative of the company owner, which must not be contrary to law.

2. The company’s charter must be approved by the company owner or organization authorized to act as the company owner’s representative.

Article 10.- Decision on conversion

1. The persons competent to decide on the conversion plans and lists of converted enterprises defined in Article 5 of this Decree shall be the persons to sign decisions to convert enterprises into one-member limited liability companies.

2. A conversion decision shall include the following contents:

a/ The name, address and account number of the converted enterprise;

b/ The objectives and business lines;

c/ The company’s charter capital;

d/ The name and address of the organization being the company owner or organization authorized to be the company owner’s representative;

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Article 11.- Business registration

The converted enterprises shall make business registration and announcement on the mass media according to the provisions of the Enterprises Law. The business registration dossier shall comply with the provisions of the Enterprises Law and must be enclosed with the conversion decision.

Article 12.- Re-registration of the property ownership right

After being granted business registration certificates, one-member limited liability companies must fill in the procedures for re-registration of the property ownership right over the properties transferred from the converted enterprises to the companies, at the State agencies competent to grant the registration. The re-registration of the property ownership right shall not be subject to the registration fee.

Chapter III

ORGANIZATION OF MANAGEMENT OF ONE-MEMBER LIMITED LIABILITY COMPANIES

Article 13.- Application of models and organizational structure for management of the companies

Depending on the companies business scopes and lines, their owners or organizations authorized to be the company owners representatives (hereafter referred collectively to as the company owners) shall decide on the application of organizational structure for management of each specific company after the model of Managing Board, general director (director) and assisting apparatus or the model of company president, general director (director) and assisting apparatus.

Section I. ORGANIZATION OF MANAGEMENT OF THE COMPANY AFTER THE MANAGING BOARD MODEL

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The Managing Board shall act as the company-managing body, have full power to decide, on behalf of the company, on all matters relating to the management and benefits of the company, except for those falling under the owner’s competence as prescribed in Article 3 of this Decree.

Article 15.- Powers and tasks of the Managing Board

The Managing Board shall exercise the following powers and perform the following tasks:

1. To decide on the company’s development strategy and annual business plans.

2. To decide on solutions to developing market, marketing and technology; to submit to the company owner investment projects, trading, borrowing and lending contracts as well as other contracts with a value being equal to or higher than 50% of the total value of properties recorded in the company’s accounting books or lower as stipulated in the company’s charter; to decide on investment projects, trading, borrowing and lending contracts as well as other contracts valued at under 50% of the total value of properties recorded in the company’s accounting books or lower as stipulated in the company’s charter.

3. To decide on the company’s organizational structure and internal management regulation as well as payroll of the managerial apparatus; to set up branches and representative offices of the company.

4. To appoint, relieve from office, dismiss, sign contract with and decide on the wage levels for, the general director (director) of the company. To appoint, relieve from office and dismiss deputy general director (deputy director) of the company at the proposal of the general director (director).

5. To inspect and supervise the general director (director) in the latter’s performance of his/her tasks and exercise of his/her powers prescribed in this Decree.

6. To propose the company owner to decide on the following matters which fall beyond the competence of the Managing Board:

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b/ The ratification of investment projects that fall under the deciding competence of the company owner;

c/ The adjustment of the company’s charter capital;

d/ The amendment and supplement of the company’s charter.

7. To execute decisions of the company owner.

8. To report to the company owner on the company’s business results and situation.

9. To take responsibility before the company owner and before law for the exercise of its powers and the performance of its tasks as well as for the development of the company according the objectives assigned by the owner.

If the company suffers from losses, the Managing Board members shall, depending on the loss amount, be removed from positions or have to pay compensation therefor as prescribed by law.

10. Other powers and tasks as prescribed by law and the company’s charter.

Article 16.- Members of the Managing Board

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2. Members of the Managing Board must satisfy the following basic criteria:

a/ Being Vietnamese citizens and permanently residing in Vietnam;

b/ Having capability for business and management of enterprises;

c/ Having good health and good morals, being honest and uncorrupt, having law knowledge and sense of law observance;

d/ Not concurrently holding the leading positions in the State apparatus or the apparatus of political organizations or socio-political organizations;

e/ Being other than the subjects stipulated in Article 50 of the Law on Enterprise Bankruptcy.

3. The chairman and members of the Managing Board shall be appointed, dismissed, rewarded or disciplined by the company owner. The term of office of members of the Managing Board shall be defined in the company’s charter. The members of the Managing Board may be re-appointed and replaced.

4. The members of the Managing Board shall be dismissed and replaced in the following cases:

a/ Breaching law to the extent of being prosecuted or breaching the regulations on cases of dismissal and replacement prescribed in the company’s charter;

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c/ Asking for resignation;

d/ Submitting to decisions on job transfer or rearrangement;

e/ Being dishonest in exercising their powers or abusing their positions and/or powers to gain profits for themselves or for other persons;

f/ The company’s failure to fulfill tasks or achieve targets assigned by the owner.

5. The members of the Managing Board shall jointly take responsibility before the persons that have issued decisions on their appointment and before law for decisions of the Managing Board; and fulfill the obligations prescribed in Article 86 of the Enterprises Law.

Article 17.- The chairman of the Managing Board

The chairman of the Managing Board shall have the following rights and tasks:

1. To elaborate programs and plans for activities of the Managing Board.

2. To prepare agenda, contents and documents in service of meetings; to convene and preside over meetings of the Managing Board.

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4. To oversee the process of organizing the implementation of decisions of the Managing Board.

5. Other rights and tasks as provided for in the Enterprises Law and the company’s charter.

Article 18.- Working regime of the Managing Board

1. The Managing Board shall meet at least once a quarter to consider and decide on issues falling within their tasks and powers. The Managing Board may convene extraordinary meetings to solve urgent problems of the enterprise at the request of the chairman of the Managing Board or the general director (director) or more than 50% (fifty percent) of the total number of the Managing Board members.

2. The chairman of the Managing Board shall convene and preside over meetings or authorize members of the Managing Board to do so.

3. A meeting of the Managing Board shall be considered valid when it is attended by at least 2/3 (two thirds) of the total number of the Managing Board members. The resolutions and decisions of the Managing Board shall be effective when they are voted for by more than 50% (fifty percent) of the total number of the Managing Board members attending the meeting. Where the numbers of votes for and against are equal, the side having the vote of the chairman of the Managing Board shall be the majority.

The members of the Managing Board shall have the right to reserve their opinions.

4. The contents of discussions, opinions, voting results, decisions approved by the Managing Board and conclusions of meetings of the Managing Board must be recorded in writing. The chairperson and secretary of each meeting shall take joint responsibility for the accuracy and truthfulness of the meeting’s record.

5. The members of the Managing Board shall have the right to be supplied with information and documents on the company’s financial status and business activities according to the provisions of Article 83 of the Enterprises Law.

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Article 19.- Wage regime for full-time and part-time members of the Managing Board

1. The full-time members of the Managing Board shall enjoy wages and bonuses on a yearly basis corresponding to the efficiency of operations of the company, as stipulated by the company owner.

2. The part-time members of the Managing Board shall enjoy responsibility allowances according to regulations of the company owner and enjoy bonuses corresponding to the efficiency of operations of the company.

Article 20.- Conditions for the Managing Board chairman and general director (director) to take part in the management of other enterprises

The Managing Board chairman and the general director (director) of the company may only set up or hold managerial or executive positions in, other limited liability companies or joint-stock companies when they are recommended to such positions or appointed as legal representatives of the company for its capital contributed to other enterprises, by the company owner.

The wife, husband, father, mother, offspring and siblings of the Managing Board chairman or the general director (director) of the company must not hold the post of chief accountant or cashier in the same company.

Article 21.- The general director (director) and assisting apparatus

1. The Managing Board shall appoint for a definite term one member of the Managing Board or another person to be the general director (director).

The general director (director) shall take responsibility before the Managing Board and before law for the administration of the company’s daily activities. Where the company’s charter does not prescribe that the Managing Board chairman is the representative at law, the general director (director) shall be the company’s representative at law.

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2. The deputy general directors (deputy directors) shall be appointed by the Managing Board for a definite term at the proposal of the general director (director).

The deputy general directors (deputy directors) shall assist the general director (director) in running the company under the assignment and authorization of the general director (director), and be answerable to the general director (director) for the tasks assigned or authorized by the latter.

3. The office and professional as well as specialized boards (or sections) shall have the function of advising and assisting the Managing Board and the general director (director) in managing and administering the company’s affairs.

Article 22.- Powers and tasks of the general director (director)

The general director (director) of the company shall have the following powers and tasks:

1. To decide on matters related to the company’s daily activities.

2. To organize the implementation of business plans and investment projects, decided by the company owner and the Managing Board; to decide on investment projects assigned by the Managing Board; to organize the implementation of decisions of the Managing Board.

3. To propose the Managing Board to decide on: the company’s organizational structure and internal management regulation; development strategy, long-term and annual plans, capital mobilization plan and joint-venture plan.

4. To appoint, dismiss and relieve from position the managerial titles in the company, except for the those appointed, dismissed and removed by the Managing Board; to propose the Managing Board to appoint, dismiss, reward or discipline the deputy general directors (deputy directors).

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6. To attend meetings of the Managing Board. To report to the Managing Board on the results of the company�s business activities.

7. To submit to inspection and supervision by the Managing Board and company owner, over the exercise of his/her powers and the performance of his/her tasks prescribed in this Decree.

8. Other rights and tasks provided for by decisions of the Managing Board and the company’s charter.

Article 23.- Obligations and responsibilities of the general director (director)

The general director (director) shall have the obligation and take responsibility before the Managing Board and before law for running the company as follows:

1. To exercise the rights and perform the assigned tasks honestly and diligently, for the benefit of the company.

2. Not to abuse his/her position and powers or use the company’s properties for their own benefits or for others; not to give the company’s properties to other persons; not to disclose the company’s secrets, except for cases approved by the Managing Board.

3. When the company fails to fully pay the due debts and fulfill other property obligations:

a/ To notify all the creditors of the company’s financial status;

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c/ To take personal responsibility for damage caused to the creditors due to his/her failure to fulfill the obligations prescribed at Points a and b of this Clause;

d/ To propose measures for overcoming the company’s financial difficulties.

4. In case of breaching the company’s charter, making ultra vires decisions or abusing his/her powers, thus causing losses to the company and the State, he/she shall have to pay compensation therefor according to law provisions and the company’s charter.

5. If administering the company inefficiently, failing to achieve the business targets as agreed upon in the contracts; making the company suffer from losses, lose capital or fail to ensure the minimum wages for laborers; letting violations of the management, capital, property, accounting and auditing regimes, as well as other regimes set by the company owner happen, he/she shall not be rewarded or be disciplined according to law.

6. In case of failing to comply with the set plan, schedule and quality in deploying the implementation of investment projects, thus causing losses to the company, he/she shall, depending on the seriousness of his/her faults, be removed from his/her position or have to pay compensation therefor according to law provisions.

7. Other obligations prescribed by law and the company’s charter.

Section II. ORGANIZATION OF MANAGEMENT OF THE COMPANY AFTER THE COMPANY-PRESIDENT MODEL

Article 24.- President of the company

1. The company president shall be appointed by the company owner for a definite term.

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2. The company president shall have the following rights and tasks:

a/ To decide on the annual business plan of the company;

b/ To decide on the appointment, removal from office, dismissal, as well as wage levels and other benefits of the company’s director after obtaining consent from the company owner;

c/ To appoint, dismiss, reward and discipline the company’s deputy directors at the proposal of the director;

d/ To decide on the company’s organizational structure and internal management regulation as well as managerial staff payroll;

e/ To decide on the trading, borrowing and lending contracts valued at under 50% of the total value of properties recorded in the company’s accounting books or lower as prescribed in the company’s charter;

f/ To approve the annual financial settlements and plans on the use of after-tax profits or handling of losses in the business course, proposed by the director for submission to the company owner for approval; to publicize the financial reports according to the Government’s stipulations;

g/ To inspect and supervise the director in the exercise of his/her rights and the performance of his/her tasks;

h/ To request the company owner to decide on other matters falling beyond the competence of the company president;

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j/ To report to the company owner on the company’s business results and situation;

k/ Other rights and tasks as prescribed by law and the company’s charter.

3. The company president shall have to meet the criteria and perform the obligations stipulated in Article 16 of this Decree.

4. The company president shall enjoy wage according to the provisions in Clause 1, Article 19 of this Decree.

Article 25.- The company’s director and assisting apparatus

1. The company president may concurrently be the director or appoint another person the director, after getting consent from the company owner.

The director shall take responsibility before the company president and before law for administering the company’s activities. In cases where the company’s charter does not stipulate that the company president is the representative at law, the director shall be the company’s representative at law.

The director shall enjoy wage on the yearly basis and bonuses corresponding to the efficiency of the company’s activities.

2. The deputy directors shall be appointed by the company president for a definite term, at the proposal of the director.

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3. The office and professional as well as specialized sections shall function to advise and assist the company president and director in managing and administering the company’s affairs.

Article 26.- Powers and tasks of the director

The company’s director shall have the following powers and tasks:

1. To decide on matters related to the company’s daily activities.

2. To organize the implementation of the company’s business plans and investment projects.

3. To decide on the appointment, dismissal, reward and discipline of, as well as wage and allowance levels for managerial positions in the company, except for the titles appointed, dismissed, rewarded and disciplined by the company president; to decide on the wage and allowance levels for laborers in the company.

4. To decide on the buying and selling prices of products and services according to the assignment of responsibility by the company president; to represent the company to sign civil and economic contracts under the assignment and authorization of the company president.

5. To elaborate the company’s development strategy, long-term and annual plans, capital mobilization plan, investment projects, joint-venture plan and management organization project.

6. To request the company president to appoint, dismiss, reward or discipline deputy director(s).

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8. To organize the implementation of decisions of the company president.

9. To report to the company president on the results of the company’s business activities.

10. Other rights and tasks provided for by decisions of the company president and the company’s charter.

11. To submit to inspection and supervision by the company president and owner regarding the exercise of his/her powers and the performance of his/her tasks as prescribed by law.

12. The company’s director shall perform the obligations stipulated in Article 23 of this Decree.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 27.- Implementation effect

This Decree takes effect 15 (fifteen) days after its signing.

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Article 28.- Responsibilities for implementation organization

1. The ministries of: Planning and Investment; Finance; Labor, War Invalids and Social Affairs, and the Government Commission for Organization and Personnel shall have to guide the implementation of this Decree.

2. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People�s Committees of the provinces and centrally-run cities and organizations being owners or authorized to be representatives of the owners of one-member limited liability companies shall have to implement this Decree.

The Ministry of Planning and Investment shall have to oversee the implementation of this Decree.

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Phan Van Khai