Nghị định 180/2004/NĐ-CP về việc thành lập mới, tổ chức lại và giải thể công ty nhà nước

DECREE

ON ESTABLISHMENT, REORGANI-ZATION AND DISSOLUTION OF STATE COMPANIES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 State Enterprise Law;
At the proposal of the Minister of Planning and Investment,

DECREES:

Chapter I

SUBJECTS AND SCOPE OF REGULATION

Article 1.- Subjects and scope of regulation

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2. This Decree prescribes the conditions, order and procedures for establishment, reorganization and dissolution of State companies.

Chapter II

ESTABLISHMENT OF STATE COMPANIES

Article 2.- Conditions for the establishment of State companies

1. The establishment of State companies shall be considered only when the to be-established companies fully meet the conditions prescribed in Article 8 of the State Enterprise Law as well as the following requirements:

a/ They are in the branches, domains or geographical areas for establishment of State companies prescribed in Article 3 of this Decree;

b/ They have sufficient charter capital prescribed in Article 4 of this Decree;

c/ They have establishment schemes already approved by the Prime Minister.

2. For State corporations invested and established under the State's decisions, apart from the conditions prescribed in Clause 1 of this Article, their establishment must also satisfy the conditions prescribed in Clauses 1, 2, 3 and 5, Article 48 of the State Enterprise Law.

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State companies shall be considered for establishment in the following branches, domains and geographical areas:

1. Production and supply of explosive materials;

2. Production and supply of toxic chemicals;

3. Production and supply of radioactive substances;

4. National power transmission system;

5. National and international axial information networks

6. Production of cigarettes;

7. Flight control;

8. Maritime assurance;

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10. Performance of special national defense or security tasks and location in strategic regions of combined economic and defense significance;

11. Printing of bank notes or valuable certificates; production of coins;

12. Construction lotteries;

13. Publication of books and newspapers;

14. Topography and cartography;

15. Management and maintenance of the national railway system, airports and seaports of large scale and important positions;

16. Management and exploitation of headwater and large-scale water works;

17. Water drainage in big urban centers;

18. Urban lighting;

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20. Exploitation of ores containing radioactive substances;

21. Building and repair of air transport means;

22. Wholesale of preventive and curative medicines and pharmaco-chemistry;

23. Assurance of essential needs for production development and improvement of material and spiritual life of ethnic minority people in mountainous, deep-lying and far-flung areas;

24. A number of other important branches, domains and geographical areas as decided by the Prime Minister.

Article 4.- Charter capital levels of newly-established State companies

1. A newly-established State company must have the charter capital of:

a/ At least VND 30 billion, for independent State companies;

b/ At least VND 500 billion, for State corporations.

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3. For a number of particular branches, domains and geographical areas, the charter capital level of a newly-established State company may be lower than the level prescribed in Clause 1 of this Article, which, however, must be permitted by the Prime Minister.

Article 5.- Persons requesting the establishment of State companies

The ministers, heads of the ministerial-level agencies, heads of the Government-attached agencies (hereinafter referred collectively to as ministers), and presidents of the People's Committees of the provinces and centrally-run cities (hereinafter called presidents of the provincial-level People's Committees) shall be the persons requesting the establishment of State companies.

Article 6.- Schemes for establishment of State companies

1. Based on the development demand as well as branches, domains and geographical areas considered for the establishment of State companies prescribed in Article 3 of this Decree, the persons requesting the establishment of State companies shall elaborate schemes for establishment of State companies and submit them to the Prime Minister for approval.

2. The schemes for establishment of State companies must have principal contents defined in Clause 3, Article 7 of the State Enterprise Law and must meet the conditions on charter capital levels prescribed in Article 4 of this Decree.

3. When choosing name for a State company, the person elaborating scheme shall coordinate with the provincial-level business registry of the locality where the company is to be headquartered in ensuring that the name of the State company shall not be identical to or mistaken for the name of another company having already registered its business.

4. In cases where the establishment of State companies falls under the deciding competence of the Prime Minister, the establishment schemes must each be made in 10 sets and sent to the Ministry of Planning and Investment, which acts as the standing body of the council for evaluation of schemes for establishment of State companies.

In cases where the establishment of State companies falls under the deciding competence of ministers or presidents of the provincial-level People's Committees, the establishment schemes must each be made in 10 sets and sent to the concerned ministers or presidents of the provincial-level People's Committees for evaluation organization.

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1. The persons deciding on the establishment of State companies must set up councils for evaluation of schemes for establishment of State companies. A council for evaluation of schemes for establishment of State companies (hereinafter called the evaluation council for short) is an advisory body for the persons deciding on the establishment of State companies. The evaluation councils shall have the right to request the persons requesting the establishment of State companies to adjust, supplement or explain the scheme-related issues. The establishment-deciding persons shall bear responsibility for decisions on the establishment of State companies.

2. The Ministry of Planning and Investment is the standing body of the council for evaluation of schemes for establishment of State companies that falls under the deciding competence of the Prime Minister. The Minister of Planning and Investment shall decide on the setting up of this evaluation council.

The evaluation council shall comprise representatives of the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Labor, War Invalids and Social Affairs, the Ministry of Science and Technology, the Ministry of Natural Resources and Environment, the branch-managing ministries, the Steering Committee for Renewal and Development of Enterprises and the provincial-level People's Committees of the localities where the State companies are to be headquartered. Depending on each specific case, the standing body of the evaluation council may invite more representatives from other agencies or organizations.

3. The ministers and presidents of the provincial-level People's Committees shall set up councils for evaluation of schemes for establishment of State companies that falls under their respective deciding competence. The evaluation council members shall be decided by ministers or presidents of the provincial-level People's Committees.

Article 8.- Contents of evaluation of schemes for establishment of State companies

Contents of evaluation of schemes for establishment of State companies include:

1. The necessity of the establishment of State companies;

2. The socio-economic efficiency and conformity of such establishment with the branch, domain and regional economic development planning and strategies;

3. The lists of products and/or services to be provided by the companies; the market situation, market demand and prospect for each type of product and/or service to be provided by the companies; the consumption possibility and competitiveness of their products and/or services;

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5. The charter capital levels and solutions to capital formation; the capital refunding plans;

6. The suitability and rationality of the organizational model of the State companies;

7. The companies' impacts on the environment and environmental protection measures.

Article 9.- Scheme-evaluation procedures and dossiers for establishment of State companies

1. For the establishment of State companies under the Prime Minister's decision:

a/ The Ministry of Planning and Investment shall send the scheme to the evaluation council members for comments before submission to the Prime Minister for consideration and decision. In case of divergent opinions on major contents of the scheme, the Ministry of Planning and Investment shall organize meetings of the evaluation council before submitting the scheme to the Prime Minister.

b/ Scheme evaluation time-limit:

- Within 10 working days after receiving a scheme, the Ministry of Planning and Investment shall send it to the evaluation council members for comments.

- Within 30 working days after receiving the scheme, the evaluation council members shall send their written comments to the Ministry of Planning and Investment on the contents of the scheme that fall within their management scope. Past this time limit, if the consulted members fail to give their written comments, they shall be considered having approved the scheme.

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In cases where the evaluation council members hold divergent opinions on major contents of the scheme, that requires the organization of meetings of the evaluation council, the time limit for the Ministry of Planning and Investment to submit evaluation opinions to the Prime Minister may be prolonged for not more than 10 working days.

2. For the establishment of State companies under decisions of ministers or presidents of the provincial-level People's Committees:

a/ The evaluation councils set up by ministers or presidents of the provincial-level People's Committees shall meet to consider schemes for establishment of State companies. After receiving opinions from the evaluation councils, the ministers or presidents of the provincial-level People's Committees must gather written comments of the Ministry of Planning and Investment, the Ministry of Finance and the branch-managing ministries on the schemes for establishment of State companies which they have proposed, before submitting them to the Prime Minister.

b/ Time limit for evaluation of, and gathering comments on, the schemes:

- Within 30 working days, the evaluation councils must complete the evaluation of schemes for establishment of State companies and report such to the ministers or presidents of the provincial-level People's Committees. The ministers or presidents of the provincial-level People's Committees shall send the schemes together with evaluation opinions to the Ministry of Planning and Investment, the Ministry of Finance and the branch-managing ministries.

- Within 15 working days after receiving the schemes enclosed with evaluation opinions, the Ministry of Planning and Investment, the Ministry of Finance and the branch-managing ministries shall send their written comments to the ministers or presidents of the provincial-level People's Committees. Past this time limit, if the consulted ministries fail to give their written comments, they shall be considered having approved the schemes.

- Within 10 working days after the consultation time limit, the ministers or presidents of the provincial-level People's Committees shall submit the evaluated schemes together with opinions of the consulted ministries to the Prime Minister for consideration and decision.

3. After the schemes have been approved by the Prime Minister, the ministers or presidents of the provincial-level People's Committees shall compile dossiers for establishment of State companies according to the provisions of Clause 4, Article 7 of the State Enterprise Law.

4. Dossiers for establishment of State companies shall each be made in three sets and sent to the persons competent to decide on such establishment, defined in Article 10 of this Decree, within 60 working days as from the date the scheme is approved.

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5. Within 30 working days after receiving complete dossiers for establishment of State companies, the persons competent to decide on the establishment shall decide whether to establish such State companies or not.

Article 10.- Competence to decide on the establishment of State companies

1. The Prime Minister shall decide on the establishment of the following State companies:

a/ State corporations of special importance;

b/ Independent State companies of special importance, at the proposals of ministers or presidents of the provincial-level People's Committees.

2. The ministers or presidents of the provincial-level People's Committees shall decide on the establishment of State companies other than those specified in Clause 1 of this Article.

Article 11.- Decisions on the establishment of State companies

1. A decision on the establishment of a State company must have the following principal contents:

a/ The name of the State company, including the Vietnamese full name, the foreign-language name and abbreviated name (if any);

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c/ The address of the company's head-office;

d/ The production and/or business lines;

e/ The charter capital;

f/ The managerial organization of the company;

g/ The name(s) and address(es) of the company's branch(es) and/or representative office(s) (if any);

h/ The names and addresses of head-offices of the member companies (for State corporations).

2. The decision on the establishment of a State company must go along with the appointment of the Managing Board chairman and members; or the decision on appointment of, or signing of contracts with, the director of the company, for companies without the Management Board.

Article 12.- Independent cost-accounting member companies of corporations invested and established under the State's decision

Ministers or presidents of the provincial-level People's Committees shall decide on the establishment, reorganization or dissolution of independent cost-accounting member companies of State corporations established under their decisions, after getting written approvals from the Prime Minister.

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1. Branches and representative offices are dependent units of State companies.

Branches have the task of performing part of business operations of State companies under the latter's authorization.

Representative offices have the task of representing State companies in promoting, but not conducting business operations.

2. The establishment, reorganization and dissolution of branches and representative offices of State companies shall be decided by the companies themselves. The companies shall register operations of their branches and/or representative offices at the provincial-level business registries of the localities where such branches or representative offices are based, and notify in writing the provincial-level business registries of the localities where the companies are headquartered.

Article 14.- The business commencement time

State companies shall be entitled to conduct business from the date of being granted business registration certificates. For conditional production and/or business lines, State companies may start business from the date of being licensed by the competent State agencies or fully meeting the prescribed business conditions.

Article 15.- Business registry

The business registration sections of the provincial/municipal Planning and Investment Services (referred collectively to as the provincial-level business registries) shall be the agencies making business registration for State companies.

Article 16.- Business registration dossier

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1. The application for business registration, made according to the form set by the Ministry of Planning and Investment;

2. The decision on the establishment of the State company, issued by the competent person defined in Article 10 of this Decree;

3. The decision on appointment or the contract on hiring of the general director of the company with the Managing Board or the director of the company without the Managing Board;

4. The charter of the State company, already approved by the competent agency;

5. The professional practice certificate of at least one of the persons holding the positions of the Managing Board chairman, the Managing Board member, the general director, for a company with the Managing Board, or the director, for a company without the Managing Board, for cases of dealing in production and/or business lines that require professional practice certificates.

Article 17.- Business registration order and procedures

1. Within 60 working days after its establishment decision takes effect, a State company must register business at the provincial-level business registry of the province where it is headquartered. Past this time limit, if the State company fails to make business registration, the person having decided on its establishment must have written opinion on the extension of this time limit.

2. The State company's representative or person authorized in writing shall submit a dossier set for business registration at the provincial-level business registry. The State company may also send such dossier via e-mail address of the provincial-level business registry; in this case when receiving the business registration certificate, the State company must submit a business registration dossier set (paper dossier) for comparison and archival.

3. Within 15 working days after receiving the complete business registration dossier, the provincial-level business registry shall grant business registration certificate to the State company.

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The business registration certificate of a State company must include the following principal contents:

1. The company's name and head-office address;

2. The serial number and date of issuance of the establishment decision and name of the agency deciding on the establishment of the company;

3. The production and/or business lines;

4. The charter capital;

5. The full name, permanent address, identity card number or passport number of the general director of the State company with the Managing Board or of the director of the State company without the Managing Board;

6. The name and address of the branch or representative office (if any);

7. The names and head-office addresses of member companies of the State corporations.

Article 19.- Registration of changes of business registration contents

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2. The following changes must be approved in writing by the competent persons and the written approval must be submitted together with the dossier at the business registry:

a/ The name of the State company;

b/ The head-office address;

c/ The production and/or business lines;

d/ The charter capital;

e/ The director (general director).

Chapter III

REORGANIZATION, DISSOLUTION OF STATE COMPANIES

Article 20.- Reorganization of State companies

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a/ The merger of State companies;

b/ The consolidation of State companies;

c/ The division of State companies;

d/ The separation of State companies.

2. The reorganization of State companies in other forms is provided for in relevant documents.

Article 21.- Conditions for reorganization of State companies

State companies that fully meet the following conditions shall be reorganized:

1. Their reorganization is compatible with the overall plan on rearrangement and development of State companies, already approved by the Prime Minister; and not subject to the equitization, assignment, sale, business contracting or lease.

2. The reorganized State companies must satisfy the condition on charter capital and other relevant conditions as for the establishment of State companies.

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1. One or a number of State companies (called the merged companies) may be merged with another State company (called the merging company) under decision of the person that has decided on the establishment of the merging company.

The merged company(ies) shall cease to exist; the merging company shall enjoy legitimate interests and take responsibility for unpaid debts and labor contracts as well as other lawful obligations of the merged companies.

2. In case of State enterprise merger among ministries, provinces or centrally-run cities or merger of State companies established by ministries with those established by provinces or centrally-run cities, the agencies having decided on the establishment of the merging companies shall issue merger decisions, based on the written agreements of the agencies having decided on the establishment of the merged companies.

3. Merging companies shall register changes of business registration contents at the provincial-level business registries of the localities where they are headquartered. The merged companies shall return business registration certificates to the provincial-level business registries that have granted them such certificates.

Article 23.- Consolidation of State companies

1. Two or a number of State companies (called consolidated companies) may consolidate with one another into a new one (called consolidating companies) under decisions of the persons having decided on the establishment of consolidated companies.

The consolidated companies shall cease to exist; the consolidating companies shall enjoy legitimate interests and take responsibility for unpaid debts, labor contracts and other lawful obligations of the consolidated companies.

2. In case of State company consolidation among ministries, provinces or centrally-run cities or consolidation between State companies established by ministries and those established by provinces or centrally-run cities, the agreed upon agencies shall exercise the rights and obligations of the owners of the consolidating companies and issue decisions on the consolidation of the companies.

3. Consolidating companies shall register business at the provincial-level business registries of the localities where they are headquartered. Consolidated companies shall return their business registration certificates to the provincial-level business registries that have granted them such certificates.

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1. One State company (called divided company) may be divided into two or a number of new State companies (called dividing companies) under decisions of the person having decided on the establishment of the divided company, provided that the dividing companies meet the conditions prescribed in Article 2 of this Decree.

The rights and obligations of the divided company must be explicitly defined among the dividing companies.

2. The dividing companies shall make business registration at the provincial-level business registries of the localities where they are headquartered. The divided company shall return its business registration certificate to the provincial-level business registry that has granted it such certificate.

Article 25.- Separation of State companies

1. One State company (called separated company) may separate one or a number of its dependent units to establish one or a number of new State companies (called separating companies) under decision of the person having decided on the establishment of the separated company, provided that post-separation company and separating companies meet the conditions prescribed in Article 2 of this Decree.

The rights and obligations of the separated company must be clearly defined among the post-separation company and the separating companies.

2. The separated company shall register changes of the business registration contents at the provincial-level business office where it has registered business. The separating companies shall register business at the provincial-level business registries of the localities where they are headquartered.

Article 26.- Dossier of request for reorganization of State companies

1. Dossiers of request for reorganization of State companies shall be made by the companies and submitted to the persons having decided on the establishment of such companies.

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a/ The written request for reorganization of State company(ies);

b/ The charter(s) of the new State company(ies);

c/ The financial statement(s) of the company(ies) before reorganization;

d/ The scheme on reorganization of the State company(ies);

e/ The written agreements of the persons having decided on the establishment of the State companies, for cases of merger or consolidation prescribed in Clause 2, Article 22 and Clause 2, Article 23 of this Decree;

f/ Other documents related to reorganization of the State companies.

Article 27.- Schemes on reorganization of State companies

A scheme on reorganization of State companies must have the following principal contents:

1. The names and addresses of the State companies before and after reorganization.

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3. The labor arrangement and employment plan.

4. The plan to deal with the rights and obligations of reorganization-related State companies.

5. The duration of reorganization of State companies.

Article 28.- Time limit for examination and handling of dossiers for reorganization of State companies

Within 60 working days after receiving complete dossiers of request for reorganization of State companies, the persons having decided on the establishment of such companies shall decide whether or not to reorganize them. The decisions on reorganization of State companies must explicitly prescribe the inheritance of the rights and obligations of the reorganized State companies.

Article 29.- Dissolution of State companies

1. A State company shall be considered for dissolution in one of the following cases:

a/ Its operation duration inscribed in its establishment decision expires but it does not apply for the extension thereof;

b/ It suffers losses for three consecutive years with accumulated loss amount representing three-fourths (3/4) or more of the State's capital at the company, but it has not yet fallen into bankruptcy;

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d/ The maintenance of the company is no longer necessary.

2. State corporations invested and established under the State's decisions, if failing to achieve targets prescribed in Clause 5, Article 48 of the State Enterprise Law shall have their managerial apparatuses dissolved and their respective member companies converted into independent State companies.

Article 30.- Persons requesting dissolution of State companies

Agencies and organizations (hereinafter called requesters) requesting dissolution of State companies include:

1. State companies themselves;

2. Agencies that have decided on the establishment of the State companies or functional agencies which, while performing their tasks according to their competence, detect that the State companies are in such a state that they must be dissolved.

Article 31.- Competence to decide on dissolution of State companies

1. The persons having decided on the establishment of State companies are the persons to decide on the dissolution of such companies.

2. The ministers and the presidents of the provincial-level People's Committees shall decide on dissolution of State companies and independent cost-accounting member companies of State corporations established under the Prime Minister's decisions, after getting written approval of the Prime Minister.

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1. The persons deciding on dissolution of State companies must set up councils for dissolution of State companies (hereinafter called dissolution councils for short). The dissolution councils have the function of advising the persons deciding on the dissolution on whether to dissolve the companies or not and organize the dissolution of the companies.

2. A dissolution council shall comprise representatives of the following agencies:

a/ The dissolution-deciding agency;

b/ The Finance Ministry, for State companies dissolved under ministers' decisions; the provincial/municipal Finance-Pricing Service, for State companies dissolved under decisions of presidents of the provincial-level People's Committees;

c/ The provincial/municipal Planning and Investment Service, the provincial/municipal Labor, War Invalids and Social Affairs Service, for State companies dissolved under decisions of presidents of the provincial-level People's Committees;

d/ The trade union of the dissolved State company;

e/ The dissolved State company.

Depending on each specific case, officials and specialists from other agencies and organizations may also be invited to join the dissolution council.

3. The representative of the dissolution-deciding agency is the chairman of the dissolution council.

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1. To appraise requests for dissolution of State companies and submit them to the persons competent to decide on dissolution.

2. To map out plans for dissolution of State companies and submit them to competent persons for approval.

3. To organize the dissolution of State companies according to the approved plans. In case of auction of assets, to comply with current regulations on asset auction.

4. To use the State companies' seals for dissolution work and handling requests of relevant State agencies that support the asset recovery.

Article 34.- Decisions on dissolution of State companies

1. A decision on dissolution of a State company must have the following main contents:

a/ The name and address of the dissolved State company;

b/ The date of declaration of dissolution of the State company;

c/ The reasons for dissolution.

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a/ The person requesting the dissolution of the State company;

b/ The dissolved State company;

c/ The enterprise finance agency: the Ministry of Finance, for centrally-run companies; or the provincial/municipal Finance-Pricing Services, for locally-run companies;

d/ The planning and investment agency: The Ministry of Planning and Investment, for centrally-run companies; or the provincial/municipal Planning and Investment Services, for locally-run companies;

e/ The tax office directly managing tax collection from the company;

f/ The provincial-level People's Committee, Department of Statistics and business registry of the locality where the dissolved State company is headquartered, and the business registries of the localities where the company's branches or representative offices are based.

Article 35.- Time limit for dissolution of State companies

1. Within 30 working days after receiving a written request for dissolution, the competent person prescribed in Article 31 of this Decree shall issue decision to dissolve the State company and set up a liquidation board to assist the dissolution council. In case of deciding not to dissolve the State company, the agency competent to decide on dissolution must notify such in writing to the requester.

2. The time limit for dissolution of a State company shall not exceed 6 months as from the date the company-dissolution decision takes effect. In special cases, with written approval of the person deciding on dissolution of the company, this time limit may be prolonged for not more than 2 months.

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1. When receiving the dissolution decision, the dissolved State company must publish on central and local dailies for three consecutive issues the following main contents:

a/ The name and address of the dissolved State company;

b/ The serial number and date of the dissolution decision and the dissolution decision-issuing agency;

c/ The date when the State company terminates its operation;

d/ The time when creditors are requested to come to cross-check debts.

2. As from the date the dissolution decision takes effect, the dissolved State company has the responsibility to:

a/ Stop business activities of, paying debts, leasing assets, lending assets or keeping others' assets;

b/ Close accounting books; inventory assets; cross-check receivable and payable debts; make financial statements up to the time the dissolution decision takes effect;

c/ Draw up list of creditors and payable debt amounts (classifying secured debts, partly-secured debts and unsecured debts); and list of debtors and receivable debts (classifying recoverable debts and irrecoverable debts);

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- The financial statement, accounting books and documents related to its dissolution; the lists of its creditors and debtors.

- All assets lawfully owned, managed or used by the company (including assets not yet recovered), assets kept for others, borrowed or leased.

Article 37.- Order of dissolution of State companies

After the dissolution decision has been issued and the dissolution of a State company has been announced on newspapers, the dissolution of the State company shall be conducted through the following main steps:

1. The dissolved State company shall perform the tasks defined in Clause 2, Article 36 of this Decree.

2. The dissolution council shall:

a/ Withdraw the seal of the dissolved State company to serve the dissolution work;

b/ Work out plan for dissolution of the State company and submit it to the competent person for approval;

c/ Organize the dissolution of the State company according to the approved plan;

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Chapter IV

IMPLEMENTATION PROVISIONS

Article 38.- Implementation effect

1. This Decree takes effect 15 days after its publication in the Official Gazette and replaces the Government's Decree No. 50/CP of August 28, 1996 on establishment, reorganization, dissolution and bankruptcy of State enterprises and Decree No. 38/CP of April 28, 1997 amending and supplementing a number of articles of Decree No. 50/CP.

2. State companies that have been granted business registration certificates before the effective date of this Decree shall not have to reregister their business.

3. The Ministry of Finance and the Ministry of Planning and Investment shall have to guide the implementation of this Decree.

4. The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal People's Committees shall have to implement this Decree.

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