Bản dịch văn bản 101/2005/NĐ-CP
nghi-dinh-101-2005-nd-cp
Cơ quan ban hành: Chính phủ
Ngày ban hành: 2005-08-03

DECREE On price appraisal THE GOVERNMENT Pursuant to the December 25, 2001 Law on Organization of the Government; Pursuant to the April 26, 2002 Ordinance on Prices; At the proposal of the Finance Minister, DECREES: Chapter I GENERAL PROVISIONS Article 1.- Scope of regulation This Decree provides for price appraising enterprises; price appraisers, the state management over price appraisal; settlement of disputes over price appraisal. Article 2.- Subjects of application This Decree applies to price appraising enterprises; agencies, organizations and individuals that have assets subject to price appraisal and price appraisers. Article 3.- Principles of price appraising activities 1. Complying with Vietnamese law and standards on price appraisal. 2. Being held responsible before law for professional activities and results of price appraisal. 3. Ensuring independence of professional activities and honesty and objectiveness of price appraising activities. 4. Keeping confidential information of units subject to price appraisal, unless otherwise consented by such units or provided for by law. Article 4.- Price appraising methods The Finance Ministry provides for and guide in detail the selection and application of price appraising methods. Article 5.- Assets subject to price appraisal 1. State assets which are subject to price appraisal and defined in Article 15 of the Government's Decree No. 170/2003/ND-CP of December 25, 2003, detailing the implementation of a number of articles of the Ordinance on Prices. 2. Assets of organizations and individuals that wish to have price appraisal thereof. 3. Assets subject to price appraisal defined in Clauses 1 and 2 of this Article include also intellectual property rights according to the provisions of the Civil Code and intellectual property law. Article 6.- Results of price appraisal Results of price appraisal by price-appraising enterprises shall be used: 1. As one of the grounds for competent state agencies to consider and approve expenditures from the State budget, calculate taxes and valuate assets being security for bank loans, purchase of insurance, lease, assignment, sale, capital contribution, equitization and dissolution of enterprises, and for other purposes already stated in price appraisal contracts. 2. For providing consultancy to competent state agencies in deciding on prices of land use rights according to the provisions of land law. 3. As a basis for organizations and individuals with price appraisal demands to use the price appraisal results for the purposes already stated in price appraisal contracts. Article 7.- Price appraisal service charge rates 1. Price appraisal service charge rates shall be determined according to agreements between price-appraising enterprises and their clients. 2. Price appraisal service charge rates applicable to state assets originating from the state budget and covered by the state budget shall be determined by mode of bidding for service provision. The selection of price-appraising enterprises through bidding for the provision of price appraisal services shall comply with the Finance Ministry's regulations. Chapter II PRICE-APPRAISING ENTERPRISES Article 8.- Price-appraising enterprises 1. Price-appraising enterprises, enterprises with an operating function of price appraisal (hereinafter referred collectively to as price-appraising enterprises) are established and operate under the State Enterprise Law, the Enterprise Law or the Law on Foreign Investment in Vietnam. 2. The establishment, organization and management of operation of price-appraising enterprises must comply with the provisions of enterprise law. 3. Upon change of names, relocation of head offices or changes in the list of appraisers, price-appraising enterprises shall, within 10 days after such changes are effected, have to notify the Finance Ministry thereof in writing. Article 9.- Conditions for establishing price-appraising enterprises Organizations and individuals that fully satisfy the following conditions may establish price-appraising enterprises: 1. Having all the conditions for establishing enterprises according to the provisions of law applicable to the type of such enterprises. 2. Having three appraisers or more. For partnerships, all partners must be price appraisers. For other enterprises, their lawful representatives must be price appraisers. For private enterprises, their owners must be price appraisers. Article 10.- Rights of price-appraising enterprises Price-appraising enterprises shall have the rights: 1. To request agencies, organizations and individuals that have entered into price appraisal contracts, agencies and organizations that keep documents relating to assets subject to price appraisal to supply dossiers on, documents and data relating to assets subject to price appraisal (except for secret materials according to the provisions of law). 2. To refuse to provide services of price appraisal of assets of organizations or individuals with price appraisal demands when detecting that such assets have insufficient legal conditions. 3. To collect price appraisal service charges according to the provisions of Article 7 of this Decree. 4. To join professional organizations on price appraisal. 5. Other rights provided for by law. Article 11.- Responsibilities of price-appraising enterprises 1. To comply with the Vietnamese price appraisal standards. Where Vietnam has not yet set out price appraisal standards, international or regional price appraisal standards which are recognized by the Finance Ministry may be applied. 2. To take responsibility before law and their clients for their price appraisal results. Where price appraisal results are incorrect, thus causing damage to the State, organizations and/or individuals, they must pay compensations therefor according to the provisions of law. 3. To purchase professional liability insurance for price appraising activities, or make appropriations for setting up professional risk provisions. Insurance premiums or appropriations for setting professional risk provisions shall be accounted into business expenditures according to the Finance Ministry's regulations. 4. To manage professional activities of price appraisers under their management; to register the quantity and names of price appraisers with, and promptly report any change of price appraisers to, the Finance Ministry. To promptly report to the Finance Ministry on price appraisers who violate provisions of law on price appraisal. 5. To supply price appraisal dossiers and documents at written requests of competent state management agencies. 6. To archive dossiers and documents on price appraisals they have conducted. 7. To fulfill other obligations as provided for by law. Article 12.- Dossiers of assets subject to price appraisal 1. Organizations and individuals with price appraisal demands shall have to send dossiers of assets subject to price appraisal to price-appraising enterprises. 2. A dossier of an asset subject to price appraisal comprises: a/ A written request for price appraisal; b/ Copies of certificate of right to use or ownership right of the asset subject to price appraisal, which are notarized or authenticated by competent state agencies; c/ Technical specifications related to the asset subject to price appraisal; d/ Asset purchase and sale contract or asset purchase invoice (if any); e/ Other documents relating to the value of the asset subject to price appraisal. Article 13.- Prohibited acts of price-appraising enterprises 1. Acting in collusion with units subject to price appraisal to falsify results of price appraisal. 2. Suggesting or receiving benefits in any form other than price appraisal service charges. 3. Using material benefits to put pressure on or to buy off units subject to price appraisal in order to falsify price appraisal results. 4. Other acts in contravention of law. Article 14.- Reports on price appraisal results, price appraisal certificates 1. Price appraisers who are assigned to personally conduct a price appraisal shall, when completing their work, have to make a report on price appraisal results. 2. A report on price appraisal results must be made in an independent, objective and truthful manner, with the signature of the price appraiser who has personally conducted the price appraisal and the director of the price-appraising enterprise or a person authorized in writing by such director. 3. Directors of price-appraising enterprises shall have to notify in writing price appraisal results in the form of price appraisal certificates to organizations or individuals that have entered into price appraisal contracts. 4. Legal validity of price appraisal certificates: a/ They shall be valid for appraised assets only at the time of price appraisal; b/ They shall be valid for organizations or individuals being certificate grantees to achieve the purposes stated in price appraisal contracts; c/ They shall be binding on price-appraising enterprises in terms of price appraisal results and conclusions in price appraisal certificates. Article 15.- Foreign price-appraising organizations 1. Foreign price-appraising organizations may set up their branches in Vietnam according to the provisions of the Commercial Law and other relevant provisions of law to conduct price appraisal. The setting up of Vietnam-based price-appraising branches of foreign price-appraising organizations must be approved by the Finance Ministry. 2. A foreign price-appraising organization which has not yet set up a branch in Vietnam may conduct price appraisal in Vietnam in the following cases: a/ After admitting a price-appraising enterprise established and operating under Vietnamese law as its member, it shall conduct price appraisal under its name and such member's name; b/ Where it cooperates with a price-appraising enterprise established and operating under Vietnamese law in a single price appraisal, its report on price appraisal results must have the signature of the director of such Vietnamese price-appraising enterprise; c/ Where it wishes to independently conduct a price appraisal in Vietnam and circulate a report on its results in Vietnam, it must obtain the Finance Ministry's approval on a case-by-case basis. Chapter II PRICE APPRAISERS Article 16.- Criteria of price appraisers Persons who are recognized as price appraisers must fully satisfy the criteria defined in Article 17 of the Government's Decree No. 170/2003/ND-CP of December 25, 2003, detailing the implementation of a number of articles of the Ordinance on Prices. Article 17.- Conditions for professional practice by price appraisers 1. Vietnamese citizens who fully satisfy the following conditions may register for practicing price appraisal: a/ Holding a price appraiser card; b/ Having entered into a labor contract to work for a price-appraising enterprise established and operating under Vietnamese law, except where they are not subject to labor contracts as provided for by law. 2. Foreign price appraisers, who have price-appraising practitioner certificates granted by competent foreign organizations, satisfy the conditions specified at Point b, Clause 1 of this Article, and are recognized by the Finance Ministry of Vietnam, shall be allowed to register for practicing price appraisal in Vietnam. 3. At a given point of time, a price appraiser may register for practicing the profession at only one price-appraising enterprise. Article 18.- Persons not allowed to register for practicing price appraisal 1. Persons who fail to fully satisfy the conditions specified in Article 17 of this Decree. 2. Public employees under the provisions of law on public employees. 3. Persons who are banned from practicing price appraisal under court judgments or decisions; persons who are examined for penal liability; persons who are serving imprisonment sentences; or persons who had been sentenced for any economic crimes or position-related crimes in the finance-pricing domain and have not yet had their criminal records remitted. 4. Persons who are under administrative probation. 5. Persons whose civil act capacity is restricted or lost. 6. Former convicts for serious or particularly serious economic crimes. 7. Persons who are subject to a disciplining form being caution or a severer discipline for their violations related to price appraisal, price management or economic management. Article 19.- Rights and obligations of price appraisers 1. Price appraisers shall have the following rights: a/ To be professionally independent; b/ To be fully and promptly supplied by organizations or individuals that have entered into price appraisal contracts with them with documents relating to price appraisal contents; c/ To refuse to conduct price appraisal of assets handed by enterprises if they deem that such assets are not legally qualified for price appraisal; d/ To join professional organizations according to the provisions of law. 2. Price appraisers shall have the following obligations: a/ To comply with the principles of price appraising activities specified in Article 2 of this Decree in the course of price appraisal; b/ To strictly observe terms and clauses of price appraisal contracts; c/ Not to obstruct or intervene in, while performing their tasks, management activities of organizations or individuals with price appraisal demands; d/ To be held responsible before law and directors of price-appraising enterprises for price appraisal results and their comments in reports on price appraisal results; e/ To refuse to provide price appraisal services to units subject to price appraisal to which price appraisers contribute capital, or from which they purchase equities or bonds, and in cases where their parents, spouses, offsprings or siblings are leaders or chief accountants of units subject to price appraisal; f/ To archive dossiers and documents on price appraisals they have conducted; g/ Other obligations as provided for by law. Article 20.- Prohibited acts of price appraisers 1. Receiving any money sums or benefits from organizations or individuals with price appraisal demands outside service charges already agreed upon in contracts. 2. Leasing or lending their price appraiser cards. 3. Disclosing information on units subject to price appraisal they know in the course of practicing their profession, unless so agreed by organizations or individuals with price appraisal demands or so permitted by law. 4. Practicing price appraisal concurrently for two price-appraising enterprises or more. Chapter IV STATE MANAGEMENT OVER PRICE APPRAISAL Article 21.- Contents of state management over price appraisal 1. Promulgating legal documents on price appraisal. 2. Formulating and directing the materialization of the strategy, planning and plans on development of price appraisal in Vietnam. 3. Organizing scientific research, international cooperation, professional training in price appraisal. 4. Conducting inspection, examination and handling of administrative violations in price appraisal. Article 22.- Competence for state management over price appraisal 1. The Government exercises the unified state management over price appraisal. 2. The Finance Ministry is answerable to the Government for performing the state management over price appraisal, having the following tasks: a/ To propose the Government to promulgate or to promulgate according to its competence legal documents on price appraisal; b/ To promulgate, and organize the implementation of, a regulation on professional training in price appraisal and a regulation on grant, use and management of price appraiser cards; c/ To uniformly manage the list of price appraisers and the list of price-appraising enterprises engaged in price appraisal throughout the country; d/ To manage activities of international cooperation on price appraisal; f/ To inspect, examine, settle disputes over price appraisal, and handle administrative violations committed by price appraisers of price-appraising enterprises or organizations having state assets which are subject to price appraisal, and violations of provisions of law on price appraisal. 3. Ministries, ministerial-level agencies and Government-attached agencies shall, within the ambit of their functions, tasks and powers, have to coordinate with the Finance Ministry in performing the state management over price appraisal. 4. Provincial/municipal People's Committees shall, within the ambit of their functions, tasks and powers, organize the implementation of provisions of law on price appraisal in their localities. Chapter V SETTLEMENT OF DISPUTES OVER PRICE APPRAISAL Article 23.- Settlement of disputes over price appraisal 1. Providers of price appraisal services and users of price appraisal results shall be responsible for fulfilling their commitments in contracts. The settlement of disputes arising from price appraisal contracts shall comply with provisions of law on contracts. 2. The involved parties to a dispute over price appraisal results shall carry out procedures for settling such dispute by one of the following modes: a/ Mutual agreement on settlement; b/ Re-appraisal: - In case of non-recognition of price appraisal results of the first-time price appraisal certificates, the price appraisal requester may request another price-appraising enterprise to conduct re-appraisal and shall have to pay price appraisal service charges. - If the results of the price re-appraisal certificate is consistent with those of the first-time price appraisal certificate, the latter shall be the final one to be valid. - If the enterprise which has conducted the first-time price appraisal or the agency, organization or individual that has requested re-appraisal does not recognize the re-appraisal results, they may agree to have the case resolved by arbitration according to the provisions of law on commercial arbitration or by a court according to the provisions of law. Chapter VI IMPLEMENTATION PROVISIONS Article 24.- Implementation effect This Decree takes effect 15 days after its publication in "CONG BAO." Articles 16 and 18 of the Government's Decree No. 170/2003/ND-CP of December 25, 2003, detailing the implementation of a number of articles of the Ordinance on Prices and previous stipulations on price appraising organization and activities which are contrary to this Decree are hereby annulled. Article 25.- Implementation responsibilities 1. The Finance Ministry shall have to guide the implementation of this Decree. 2. Price-appraising centers and centers with the function of conducting price appraisal of all economic sectors, which have been established and operating according to the provisions of law before the effective date of this Decree, must be transformed into one of the enterprise forms specified in Clause 1, Article 8 of this Decree within 2 years after the effective date of this Decree. 3. The ministers, the heads of ministerial-level agencies, the heads of Government-attached agencies, the presidents of provincial/municipal People's Committees, price-appraising enterprises, and organizations and individuals involved in price appraisal shall have to implement this Decree.