ABSTRACT:
Separation of management and supervisory roles are the principle of corporate governance, particularly State-ownedenterprise (SOE) governance. This particular factor comes from the complexity of the agent issue and the risk of having more serious consequence than the private sector. Transparent supervision in SOE governance benefits the pablie. Moreover, by ensuring accurate and timely information that the State can become more effective. The people the real owners also can exercise easily their supervisory powers over their capital in SOEs.
Keywords: State-ownedenterprise, corporate governance, management
Prior to the establishment of the Enterprise Law in 2014, the transparency and monitoring requirements of SOEs were relatively low. There is no law regulating SOE governancing, which explicitly regulates the disclosure of information as well as the regime for monitoring the 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 the Government on the pilot establishment operation and management of state economic groups; Decree No. 25/2010/ND-CP dated March 19, 2010 of the Government on converting state companies into one-member limited liability companies and managing one-member limited liability companies owned by the State... However, the provisions in the above documents are not strict enough and not compatible with international practice.
The 2014 Enterprise Law set up a separate chapter for SOEs with regulations on organizational structure of management and operation such as SOEs organized in the form of one-member limited liability companies and decided by representative of owner offices; the management apparatus of the SOEs shall be composed of: the chairman of the company or the members' council, the director or general director, controllers... In addition, the 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 the overall evolution of SOEs.
At present, Enterprise Law 2014 has been three applied for 3 years, it is undeniable the efforts of enterprises as well as state management agencies in the implementation of good governance mechanism including transparency and supervision obligations in SOEs. It is also necessary to take into account the fruits of the determination to build a modern corporate governance system in line with international business governance standards through the introduction of the "Voting Guidelines" for representatives of the State and "Code of Corporate Governance" applied at State-owned companies of SCIC in the past.
However, objectively, the transparency and monitoring requirements for SOEs remain weak, with few signs of improvement showing the expected changing. One of the most pressing issues facing SOEs management today is the lack of transparency and transparency of the most basic information such as financial status, asset amount or cash flow in the past to the information. It is intended, the future development plan of the business, the specific information about the benefits of the 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 the 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 the most pressing issues facing SOEs management today is the lack of transparency of the most basic information such as financial status, asset amount or cash flow in the past to the future development plan of the business, the specific information about the benefits of the manager. Ownership, regulatory authorities, and investors are almost unaware of this type of information, even it is necessary for them to assess and analyze the 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 the authenticity of the information disclosed therein. In addition, a financial report usually focuses on statistical indicators and financial indicators; while issues related to the progress, future of projects, the representative of the owner, the situation of executing the decision, the performance of the state owners objectives... have not been mentioned or remain concerned meager. Therefore, if using such public information, the assessment and supervision is actually focused on state-owned enterprises, but not enough data to focus on monitoring SOEs in the process of implementing the functions of state as owners. State owner. In addition, the 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 the ability to fully and accurately meet the reporting requirements of SOEs is reduced significantly. It does not take into account the problem that the ministries themselves have not coordinated or agreed on the clarity standard or regulations for the evaluation and supervision SOEs. This is also one of the important reasons for the financial lost from working in the high risk industry, investment outside key sectors, financial investment, real estate, banking... of the SOEs.
Thus, although the legal framework for transparency and basic monitoring has been much improved over the time before the Enterprise Law 2014 was applied, the real application has not met the expectations of the quality and frequency of information disclosure. This problem leads to difficulties and limitations on monitoring the 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, the achieved effectiveness is not significant because the transparency standard of both financial and non-financial information of our country is still low compared with other countries in the world.
Regarding to the transparency, in Korea, an open information system for SOEs was introduced on the Internet more than a decade ago. SOEs will have to "disclose" their business data in accordance to the standardized levels of the system, and of course, the public will be able to access these information. As the demand for information disclosure is expanding, in 2012, the Government of Korea requires the list of 33 categories of information that is needed to be transparent, including information on subsidiaries, number of current and former employees, the number of business units, the main activity index, the average wage for employees, remuneration, long-term and short-term debt, consumer satisfaction survey results…
Regarding to the surveillance, the South Korean government actively expressed the desire to strengthen the position of government in the business council of SOEs, and the appointed SOE President is a member of the board. In addition, Korean law obliges all commercial SOEs to set up independent audit committees.
In Sweden, the Guidelines for External Reporting apply to SOEs including: annual reports, interim reports, owner reports, internal monitoring reports and sustainability reports. The requirement for transparency of SOEs' information must be the same as that of other listed companies. In addition, SOE accountability is required if there are any incompatible or misleading issues in the reports. Under this guidance, sustainability reports must be publicly available on the company's website alongside annual reports.
For monitoring, senior SOE executive positions are recruited under the "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 the recruitment instructions of the Swedish Government. For any case or activity that is not compatible with the guidelines, the reporting responsibility belongs to the SOE board.
In Germany, the annual reporting on the holding and using of state capital is not only the responsibility of members of the federal regulator but also the managers of SOEs (members of the board of directors ) are also responsible for reporting to the parliamentary committee under the Federal Budget Act. In addition, the 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 the 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 the SOEs governance.
In Poland, the "National Owner Supervision System - The New Corporate Governance in State Companies" is the pre-eminent legal document for the establishment of the nomination committee, which has the duty to propose candidates for supervisory committees of a number of "big size" state-owned SOEs, and recommend the dismissal of supervisory board members when unwanted situation arises. The nomination committee will consist of 10 members appointed by the Prime Minister based on their knowledge and experience in areas such as economics, public finance, transport, media... and the President of the Office. Financial Monitoring. In addition, Polish law, instead of allowing the State to directly appoint managers in the important state-owned enterprises, is now required the selection must be approved by the Election Commission. This is considered to be a tightening of the law to strengthen the monitoring in SOE governance.
In China, the disclosure and transparency of information of 100% state-owned enterprises also occur a lot of difficulties when the number of SOEs that do not comply with the regime of disclosure information is quite significant, which also leads to restrictions on the supervision of SOEs. However, the efforts of the Chinese government to reform the law, and adjust the legal framework in order to enhance transparency and monitoring of the SOE system, are also valuable reference experiences. For example, China government promote the transparent disclosure of information and supervision by promulgating regulations mandating all SOEs to publish annual reports, encouraging SOEs to list on the stock market both inside and outside the country.
In Greece, the law required for internal auditing must be participated by at least one auditor designated by the owner of the State. Each internal auditor is responsible for reporting to both the accounting team and the 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 the Ministry of Finance. At the same time, the dissemination of SOE information is also established and coordinated under the commitment of the owners.
3. Lessons and some recommendations
Based on the current situation of the law, applying the present law of Vietnam, and the study of the 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 the publicity information categories of all SOEs, requesting SOEs periodically provide timely and accurate information. Transparency can be started from the most basic categories and progressively increased the categories according to the roadmap to avoid overlapping and pressure on SOEs, thus affecting their operational efficiency as well as reporting progress. To implement this content, the law should establish a clear legal framework with specific regulations such as which agencies will directly take responsibility of the focal point instead of currently dividing the reporting and monitoring tasks for many agencies or regulating the responsibility of SOEs to synthesize information to the responsible parties.
Secondly, formulation, modification and supplementation of the current law provisions in the direction of unified management of information transparency and supervision of the SOEs governance. It is needed to avoid dispersal, scattered in various legal documents on SOE governance as it is now.
Third, developing the regulatory standards for the disclosure of financial and non-financial information. Standardization according to the particular form and methods and disclosure these information on the portal so that businesses are easy to find and implement them. At the same time, paying attention to simplifying the list and reporting methods to avoid reporting statistical, cumbersome and not focused information.
Fourth, for the manager of state-owned enterprises, there should be a close management for this position to avoid abuse of power and self-interest. For the non-compliance or improper compliance acts according to the law, regarding to the accuracy and timeliness of the public information of SOEs, it is necessary to strengthen rigid sanctions.
Fifth, the regulation on SOE governance should be redesigned, in which clarifying the role of the owner with the right to make decisions for the business. For public disclosure of SOEs, the purpose is making the public is able to participate in direct monitoring via comments sent to the portal. In addition, for monitoring, the responsibilities of the 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 the owner and the 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.
