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No.
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Old criteria
under Circular 121/2012
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New criteria
under Decree 71/2017 and the Enterprise Law 2014
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Comments
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1.
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1.1 Being a non-executive Board director
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1.2 Not being a person currently working for the Public JSC;
1.3 Not being a person having worked for the Public JSC for
the last three years
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The new criterion under Decree
71/2017 is stricter than the old criterion since it covers all “persons
working for the Public JSC”. On the other hand, under Circular 121/2012,
non-executive director means a director who is not a Director (General
Director), Deputy Director (Deputy General Director), Chief Accountant and
other managers appointed by the Board.
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2.
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2.1 Not being a related person (người có liên quan) of Director
(General Director), Deputy Director (Deputy General Director), Chief
Accountant and other managers appointed by the Board
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2.2 Not being a person whose spouse, parent, sibling, or
child is a manager of the Public JSC
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The new criterion is similar to
the old criterion despite some minor difference.
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3.
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3.1 Not being a Board director, Director (General Director),
Deputy Director (Deputy General Director) of a company that is a subsidiary,
an affiliate of the Public JSC or a company controlled by the Public JSC;
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3.2 Not being a person currently working for a subsidiary of
the Public JSC;
3.3 Not being a person having worked for a subsidiary of the
Public JSC for the last three years;
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The new criterion excludes a
broader range of persons than the old criterion. However, the new criterion
omits to exclude managers to “affiliates” of the Public JSC from acting as
independent Board director of a Public JSC. This is a major omission.
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4.
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4.1 Not being a major shareholder or representative of a
major shareholder;
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4.2 Not being a person directly or indirectly owning at
least 1% of the total voting shares in the Public JSC;
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The new criterion does not
exclude “representatives” of a major shareholder from acting as an independent
Board director of a Public JSC. This is a major omission. However, the new
criterion lowers the threshold from 5% to 1%.
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5.
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5.1 Not being a related person of a major shareholder of the
Public JSC;
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5.2 Not being a person whose spouse, parent, sibling, or
child is a major shareholder of the Public JSC.
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The new criterion seems to
forget excluding related persons of an institutional major shareholder from
acting as an independent Board director of a Public JSC. This is a major
omission.
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6.
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6.1 Has not worked for law firms or auditing firms of the Public
JSC for the last two years
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6.2 No
equivalent criterion
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7.
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7.1 Not being a major customer/supplier or related person of
a major customer/supplier, who has an annual transaction value with the
Public JSC exceeding 30% of the total revenue or total value of goods and
services purchased by the Public JSC for the last two years.
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7.2 No
equivalent criterion
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8.
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8.1 No
equivalent criterion;
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8.2 Not being a person who is currently entitled to salary
or remuneration from the Public JSC, except for allowances which directors of
the Board are entitled to in accordance with regulations;
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This new criterion seems to be duplicate with criterion 1.2.
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9.
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9.1 No
equivalent criterion.
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9.2 Not being a person who used to be a member of the Board
or the Inspection Committee for the last five years at least.
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