Enterprise Law 2020: 04 contents expected to be amended

In order to meet the requirements of practice to remove difficulties and obstacles in corporate governance, production and business investment activities, a number of contents of the 2020 enterprise luaath are expected to be revised, As follows:

Regarding the disclosure of information on the mid-year financial statements of state-owned enterprises.

– At Point d, Clause 1, Article 109 of the Enterprise Law 2020 , state-owned enterprises must periodically publish on the company’s website and the owner’s representative agency the following information:

“The report and summary of the mid-year financial statements audited by an independent auditing organization; the publication deadline must be before July 31 every year; including the parent company’s financial statements and the consolidated financial statements (if any).

However, according to the provisions of Article 60 of the Law on Management and use of state capital invested in production and business in enterprises 2014 , Clause 1, Article 33 of the Law on Accounting and Article 37 of the Law on Independent Auditing 2011 , enterprises State-owned enterprises only have to audit their annual financial statements; does not stipulate that enterprises must audit the mid-year financial statements.

– In fact, small-scale state-owned enterprises do not audit their mid-year financial statements, only a few parent companies of State groups and corporations hire independent auditing organizations to audit. mid-year financial statements.

Requiring enterprises to periodically disclose information on their mid-year financial statements audited by an auditing organization in accordance with the provisions of Point d, Clause 1, Article 109 of the Enterprise Law 2020 creates an additional burden on costs. for enterprises in hiring consulting units to audit reports before publication.

With about 1,000 state-owned enterprises having to fulfill the information disclosure obligation under the provisions of the Enterprise Law 2020 , the requirement for enterprises to be specified at Point d, Clause 1, Article 109 of the Enterprise Law 2020 may indirectly reduce annual revenue source for the state budget because the entire business sector can spend many billions of dong to audit the financial statements in the middle of the previous year.

– In the process of developing a draft Decree detailing a number of articles of the Enterprise Law 2020 , the Ministry of Planning and Investment has asked for opinions from Ministries, People’s Committees of provinces, cities and corporations, State-owned corporation and received a lot of feedback about the inadequacies in practical implementation of the provisions at point d, clause 1, Article 109 of the Enterprise Law 2020 .

Accordingly, many agencies representing owners and businesses have proposed not to compulsorily audit the mid-year financial statements of enterprises in order to comply with current regulations and save time and costs for businesses. .

However, because this content has been stipulated in the Law, Decree 47/2021/ND-CP dated April 1, 2021 has inherited the regulations requiring state-owned enterprises to publish financial statements. audited annually in accordance with the provisions of Point d, Clause 1, Article 109 of the Enterprise Law 2020 .

Since the implementation of the above regulations, the Ministry of Planning and Investment has received many recommendations and reflections from enterprises (including large-scale enterprises under the model of parent company – subsidiary company). under the Central Government and local small-scale independent companies) on the overlap and inconsistency in the content of the requirements for enterprises to perform audits of the mid-year financial statements between the Law on Accounting , the Law on Enterprises and the Law on Enterprises . Industry 2020 and Law No. 69/2014/QH13 .

At the same time, the Ministry of Planning and Investment also said that it is required that all state-owned enterprises, including small-scale enterprises, perform public utility tasks, provide irrigation and irrigation services, etc. (mainly non-profit activities) audit of the mid-year financial statements is really unnecessary because the enterprise has to make the annual audit report as prescribed at Point c, Clause 1, Article 109. Enterprise Law 2020 .

Subjects identified as defense and security enterprises

Clause 5, Article 217 of the Enterprise Law 2020 stipulates: “The Government shall detail the organization, management and operation of state-owned enterprises that directly serve national defense and security or combine economic with national defense and security. security”.

The contents of Clause 5, Article 217 above are inherited from the provisions of the Enterprise Law 2014 . Accordingly, an enterprise identified as a defense or security enterprise must first be a state-owned enterprise as prescribed in Article 88 of the Law on Enterprises.

Implementing the guidance of the Enterprise Law 2014 , the Government issued Decree 93/2015/ND-CP dated October 15, 2015 providing for the organization, management and operation of defense and security enterprises. This Decree stipulates that enterprises directly serving national defense and security or combining economic with national defense and security must be enterprises in which 100% charter capital is held by the State under the Ministry of National Defense and the Ministry of Public Security. , excluding enterprises that are subsidiaries of enterprises in which 100% charter capital is held by the State.

However, in practice, a number of enterprises assigned by the Ministry of Defense to perform national defense and security tasks are one-member limited liability companies owned by the parent company of the Group, the Corporation under the Ministry of Defense. own 100% of charter capital. At the time before the Enterprise Law 2014 took effect, these enterprises were recognized as national defense and security enterprises, assigned by the Ministry of Defense to perform defense and security tasks (through the parent company). Group, Corporation).

Since the Law on Enterprises took effect, because they are not classified as defense and security enterprises, these enterprises are not recognized as defense and security enterprises, leading to difficulties. , problems in the implementation of current mechanisms and policies when accounting for the cost of performing defense and security tasks.

Currently, the Ministry of National Defense is arranging enterprises under the Ministry under the direction of the Prime Minister in Official Letter 80/TTg-DMDN dated October 1, 2017 in the direction of reorganizing enterprises under the Ministry to form parent company – subsidiary model; in which the parent company is expected to be an enterprise in which 100% charter capital is held by the State; subsidiaries operate under the model of a one-member limited liability company directly owning and operating production lines of weapons, defense and security equipment and performing national defense and security tasks. security…

It is expected that after completing the enterprise arrangement under this plan, single-member limited liability companies that are subsidiaries of enterprises with 100% charter capital of the State-owned enterprises under the Ministry of National Defense are international enterprises. defense and security will not be subject to the application of mechanisms and policies to support enterprises in performing defense and security tasks according to current regulations.

Therefore, it is necessary to study and amend Clause 5, Article 217 of the Enterprise Law 2020 .

About attending and voting at the General Meeting of Shareholders.

According to the provisions of Article 148 of the Enterprise Law 2020 , the conditions for the resolution of the General Meeting of Shareholders to be adopted are based on the percentage of votes of all shareholders attending the meeting .

The identification of shareholders attending the meeting has not been clearly defined. In fact, there is a case that a shareholder who has registered and attended the General Meeting of Shareholders but leaves midway or does not vote in the ballot box or does not vote online. This leads to problems in determining the number of shareholders attending the meeting to calculate the percentage of votes as prescribed in Article 148 above. Although it is only a technical issue, the above-mentioned problems are causing great obstacles to the adoption of the resolution of the General Meeting of Shareholders. According to information in the National Database on Business Registration, there are 237,679 joint stock companies in operation nationwide and this problem can be encountered in any joint stock company.

Regarding the signing of minutes of meetings of the Board of members/Board of Directors

According to the provisions of Clause 3, Article 60 and Clause 2, Article 158 of the Law on Enterprises 2020 , in case the chairperson and the person taking the minutes refuse to sign the minutes of the meeting of the Members’ Council/Board of Directors, if all other members are allowed to sign the meeting minutes. signed by the Members’ Council/Board of Directors attending the meeting, this minutes shall take effect. Point e, Clause 2, Article 60 of the Law on Enterprises 2020 also stipulates that the minutes of a meeting of the Members’ Council must include the full name, signature and content of opinions of participants who disagree with the approval of the meeting minutes (if any). .

However, in fact, members who do not agree to approve the meeting minutes will often not cooperate, refuse to sign the meeting minutes, leading to the minutes not ensuring the main contents as prescribed by the Law and not being able to sign the meeting minutes. effective. This directly affects the decision-making authority of the Board of Members/Board of Directors in corporate governance and administration. This is a bottleneck that urgently needs to be removed.

For details, see the draft Proposal and the draft Law amending and supplementing a number of articles of the Law on Public Investment, the Law on Investment in the form of public-private partnership, the Law on Investment, the Law on Bidding, the Law on Electricity, the Law on Electricity, and the Law on Investment. Enterprises, Law on Supporting Small and Medium Enterprises, Law on Customs, Law on Special Consumption Tax and Law on Civil Judgment Execution.

Source: Law Library

 

Post Author: Nguyen Thi Tam