ABSTRACT:
Separation of management and supervisory roles are tải w88 principle of corporate governance, particularly State-ownedenterprise (SOE) governance. This particular factor comes from tải w88 complexity of tải w88 agent issue and tải w88 risk of having more serious consequence than tải w88 private sector. Transparent supervision in SOE governance benefits tải w88 pablie. Moreover, by ensuring accurate and timely information that tải w88 State can become more effective. tải w88 people tải w88 real owners also can exercise easily their supervisory powers over their capital in SOEs.
Keywords: State-ownedenterprise, corporate governance, management
Prior to tải w88 establishment of tải w88 Enterprise Law in 2014, tải w88 transparency and monitoring requirements of SOEs were relatively low. There is no law regulating SOE governancing, which explicitly regulates tải w88 disclosure of information as well as tải w88 regime for monitoring tải w88 quality of information disclosed. We only have found a number of regulations scattered in other sub-law documents, such as: Decree No. 101/2009/ND-CP dated 5 November 2009 of tải w88 Government on tải w88 pilot establishment operation and management of state economic groups; Decree No. 25/2010/ND-CP dated March 19, 2010 of tải w88 Government on converting state companies into one-member limited liability companies and managing one-member limited liability companies owned by tải w88 State... However, tải w88 provisions in tải w88 above documents are not strict enough and not compatible with international practice.
tải w88 2014 Enterprise Law set up a separate chapter for SOEs with regulations on organizational structure of management and operation such as SOEs organized in tải w88 form of one-member limited liability companies and decided by representative of owner offices; tải w88 management apparatus of tải w88 SOEs shall be composed of: tải w88 chairman of tải w88 company or tải w88 members' council, tải w88 director or general director, controllers... In addition, tải w88 completely new regulations on transparency of information in this chapter is expected to contribute to a strong breakthrough in SOE governance in particular as well as to tải w88 overall evolution of SOEs.
At present, Enterprise Law 2014 has been three applied for 3 years, it is undeniable tải w88 efforts of enterprises as well as state management agencies in tải w88 implementation of good governance mechanism including transparency and supervision obligations in SOEs. It is also necessary to take into account tải w88 fruits of tải w88 determination to build a modern corporate governance system in line with international business governance standards through tải w88 introduction of tải w88 "Voting Guidelines" for representatives of tải w88 State and "Code of Corporate Governance" applied at State-owned companies of SCIC in tải w88 past.
However, objectively, tải w88 transparency and monitoring requirements for SOEs remain weak, with few signs of improvement showing tải w88 expected changing. One of tải w88 most pressing issues facing SOEs management today is tải w88 lack of transparency and transparency of tải w88 most basic information such as financial status, asset amount or cash flow in tải w88 past to tải w88 information. It is intended, tải w88 future development plan of tải w88 business, tải w88 specific information about tải w88 benefits of tải w88 manager. Ownership, regulatory authorities, and investors are almost unaware of this type of information, even if it is necessary for them to assess and analyze tải w88 situation. Business according to its actual value. Consequently, having or receiving information that is accurate or not directly related to enterprise monitoring, is particularly important for SOEs.
One of tải w88 most pressing issues facing SOEs management today is tải w88 lack of transparency of tải w88 most basic information such as financial status, asset amount or cash flow in tải w88 past to tải w88 future development plan of tải w88 business, tải w88 specific information about tải w88 benefits of tải w88 manager. Ownership, regulatory authorities, and investors are almost unaware of this type of information, even it is necessary for them to assess and analyze tải w88 situation of business to its actual values. Consequently, having or receiving accurate information related directly to enterprise monitoring, is particularly for SOEs.
Consequently, having or receiving accurate information that is directly related to enterprise monitoring, particularly important for SOEs.
At present, SOE monitoring is still heavily replied on publicly available financial statements that we almost bypass tải w88 authenticity of tải w88 information disclosed therein. In addition, a financial report usually focuses on statistical indicators and financial indicators; while issues related to tải w88 progress, future of projects, tải w88 representative of tải w88 owner, tải w88 situation of executing tải w88 decision, tải w88 performance of tải w88 state owners objectives... have not been mentioned or remain concerned meager. Therefore, if using such public information, tải w88 assessment and supervision is actually focused on state-owned enterprises, but not enough data to focus on monitoring SOEs in tải w88 process of implementing tải w88 functions of state as owners. State owner. In addition, tải w88 assignment of regulatory authorities (ministries) to oversee SOE operations in different professional areas can be considered as a relatively scientific assignment. However, many overlapping requirements are very easy to create a significant administrative burden on compliance obligations of SOEs, so that tải w88 ability to fully and accurately meet tải w88 reporting requirements of SOEs is reduced significantly. It does not take into account tải w88 problem that tải w88 ministries themselves have not coordinated or agreed on tải w88 clarity standard or regulations for tải w88 evaluation and supervision SOEs. This is also one of tải w88 important reasons for tải w88 financial lost from working in tải w88 high risk industry, investment outside key sectors, financial investment, real estate, banking... of tải w88 SOEs.
Thus, although tải w88 legal framework for transparency and basic monitoring has been much improved over tải w88 time before tải w88 Enterprise Law 2014 was applied, tải w88 real application has not met tải w88 expectations of tải w88 quality and frequency of information disclosure. This problem leads to difficulties and limitations on monitoring tải w88 effectiveness of management by agencies and SOE owners.
2. International experience on transparency and monitoring of SOE governance
Although there has been progress in establishing a legal framework for information disclosure and monitoring mechanisms, tải w88 achieved effectiveness is not significant because tải w88 transparency standard of both financial and non-financial information of our country is still low compared with other countries in tải w88 world.
Regarding to tải w88 transparency, in Korea, an open information system for SOEs was introduced on tải w88 Internet more than a decade ago. SOEs will have to "disclose" their business data in accordance to tải w88 standardized levels of tải w88 system, and of course, tải w88 public will be able to access these information. As tải w88 demand for information disclosure is expanding, in 2012, tải w88 Government of Korea requires tải w88 list of 33 categories of information that is needed to be transparent, including information on subsidiaries, number of current and former employees, tải w88 number of business units, tải w88 main activity index, tải w88 average wage for employees, remuneration, long-term and short-term debt, consumer satisfaction survey results…
Regarding to tải w88 surveillance, tải w88 South Korean government actively expressed tải w88 desire to strengthen tải w88 position of government in tải w88 business council of SOEs, and tải w88 appointed SOE President is a member of tải w88 board. In addition, Korean law obliges all commercial SOEs to set up independent audit committees.
In Sweden, tải w88 Guidelines for External Reporting apply to SOEs including: annual reports, interim reports, owner reports, internal monitoring reports and sustainability reports. tải w88 requirement for transparency of SOEs' information must be tải w88 same as that of other listed companies. In addition, SOE accountability is required if there are any incompatible or misleading issues in tải w88 reports. Under this guidance, sustainability reports must be publicly available on tải w88 company's website alongside annual reports.
For monitoring, senior SOE executive positions are recruited under tải w88 "Guidelines on Recruitment Terms for Senior Executives in SOEs." All matters related to recruitment as well as remuneration for CEO and senior CEO are detailed in tải w88 recruitment instructions of tải w88 Swedish Government. For any case or activity that is not compatible with tải w88 guidelines, tải w88 reporting responsibility belongs to tải w88 SOE board.
In Germany, tải w88 annual reporting on tải w88 holding and using of state capital is not only tải w88 responsibility of members of tải w88 federal regulator but also tải w88 managers of SOEs (members of tải w88 board of directors ) are also responsible for reporting to tải w88 parliamentary committee under tải w88 Federal Budget Act. In addition, tải w88 rules for supervisory board members are also more stringent than before to ensure these members are not affected by any benefits or conflicts of interest during tải w88 implementation process of monitoring activities.
Some other countries with transition economies, such as Poland and China, have also made some efforts in legislative reform to increase publicity and monitoring in tải w88 SOEs governance.
In Poland, tải w88 "National Owner Supervision System - tải w88 New Corporate Governance in State Companies" is tải w88 pre-eminent legal document for tải w88 establishment of tải w88 nomination committee, which has tải w88 duty to propose candidates for supervisory committees of a number of "big size" state-owned SOEs, and recommend tải w88 dismissal of supervisory board members when unwanted situation arises. tải w88 nomination committee will consist of 10 members appointed by tải w88 Prime Minister based on their knowledge and experience in areas such as economics, public finance, transport, media... and tải w88 President of tải w88 Office. Financial Monitoring. In addition, Polish law, instead of allowing tải w88 State to directly appoint managers in tải w88 important state-owned enterprises, is now required tải w88 selection must be approved by tải w88 Election Commission. This is considered to be a tightening of tải w88 law to strengthen tải w88 monitoring in SOE governance.
In China, tải w88 disclosure and transparency of information of 100% state-owned enterprises also occur a lot of difficulties when tải w88 number of SOEs that do not comply with tải w88 regime of disclosure information is quite significant, which also leads to restrictions on tải w88 supervision of SOEs. However, tải w88 efforts of tải w88 Chinese government to reform tải w88 law, and adjust tải w88 legal framework in order to enhance transparency and monitoring of tải w88 SOE system, are also valuable reference experiences. For example, China government promote tải w88 transparent disclosure of information and supervision by promulgating regulations mandating all SOEs to publish annual reports, encouraging SOEs to list on tải w88 stock market both inside and outside tải w88 country.
In Greece, tải w88 law required for internal auditing must be participated by at least one auditor designated by tải w88 owner of tải w88 State. Each internal auditor is responsible for reporting to both tải w88 accounting team and tải w88 owners. There are also regulations requiring departments and boards of SOEs to submit annual and mid-term business plans and long-term strategic plans to tải w88 Ministry of Finance. At tải w88 same time, tải w88 dissemination of SOE information is also established and coordinated under tải w88 commitment of tải w88 owners.
3. Lessons and some recommendations
Based on tải w88 current situation of tải w88 law, applying tải w88 present law of Vietnam, and tải w88 study of tải w88 legal experience of developed, developing countries and nations with transition economies, this study proposes some lessons and recommendations for ensuring transparency and monitoring in SOEs governance in Vietnam include:
Firstly, building a common information portal to publicize tải w88 publicity information categories of all SOEs, requesting SOEs periodically provide timely and accurate information. Transparency can be started from tải w88 most basic categories and progressively increased tải w88 categories according to tải w88 roadmap to avoid overlapping and pressure on SOEs, thus affecting their operational efficiency as well as reporting progress. To implement this content, tải w88 law should establish a clear legal framework with specific regulations such as which agencies will directly take responsibility of tải w88 focal point instead of currently dividing tải w88 reporting and monitoring tasks for many agencies or regulating tải w88 responsibility of SOEs to synthesize information to tải w88 responsible parties.
Secondly, formulation, modification and supplementation of tải w88 current law provisions in tải w88 direction of unified management of information transparency and supervision of tải w88 SOEs governance. It is needed to avoid dispersal, scattered in various legal documents on SOE governance as it is now.
Third, developing tải w88 regulatory standards for tải w88 disclosure of financial and non-financial information. Standardization according to tải w88 particular form and methods and disclosure these information on tải w88 portal so that businesses are easy to find and implement them. At tải w88 same time, paying attention to simplifying tải w88 list and reporting methods to avoid reporting statistical, cumbersome and not focused information.
Fourth, for tải w88 manager of state-owned enterprises, there should be a close management for this position to avoid abuse of power and self-interest. For tải w88 non-compliance or improper compliance acts according to tải w88 law, regarding to tải w88 accuracy and timeliness of tải w88 public information of SOEs, it is necessary to strengthen rigid sanctions.
Fifth, tải w88 regulation on SOE governance should be redesigned, in which clarifying tải w88 role of tải w88 owner with tải w88 right to make decisions for tải w88 business. For public disclosure of SOEs, tải w88 purpose is making tải w88 public is able to participate in direct monitoring via comments sent to tải w88 portal. In addition, for monitoring, tải w88 responsibilities of tải w88 owner's representative, SOEs' leaders, prosecutors should be specific regulated for ensuring transparency of reporting information as well as in accountability, these positions should be responsible before tải w88 owner and tải w88 management agency.
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PHÁP LUẬT VỀ MINH BẠCH, GIÁM SÁT TRONG QUẢN TRỊ DOANH NGHIỆP NHÀ NƯỚC Ở VIỆT NAM VÀ KINH NGHIỆM QUỐC TẾ
ThS. LÊ NA
Khoa luật và Quan hệ quốc tế, Trường Đại học Kinh tế tài chính Thành phố Hồ Chí Minh
TÓM TẮT:
Tách biệt vai trò quản lý điều hành và giám sát thuộc về tính nguyên tắc trong quản trị doanh nghiệp và đặc biệt quan trọng đối với quản trị doanh nghiệp nhà nước. Yếu tố đặc biệt này xuất phát từ đặc thù của vấn đề đại diện phức tạp và nguy cơ để xảy ra hậu quả nghiêm trọng cao hơn so với các doanh nghiệp dân doanh. Minh bạch, giám sát trong quản trị doanh nghiệp nhà nước không chỉ là công khai “để biết”, mà thông qua việc đảm bảo thông tin chính xác, kịp thời, khiến Nhà nước có thể trở thành chủ sở hữu hiệu quả hơn và người dân - chủ sở hữu thực sự cũng dễ dàng thực hiện quyền giám sát của mình đối với đồng vốn của họ tại các doanh nghiệp nhà nước.
Từ khóa: Doanh nghiệp nhà nước, quản trị doanh nghiệp, quản lý điều hành.
