DISPUTE AND RESOLUTION OF SOCIAL INSURANCE DISPUTES - THEORETICAL AND PRACTICAL ISSUES

In recent times, theoretical and practical issues related to disputes and dispute resolution in Social Insurance have received the attention and research efforts of scholars from various

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MINISTRY OF EDUCATION AND TRANING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY -

NGUYEN THI PHAN MAI

DISPUTE AND RESOLUTION OF SOCIAL INSURANCE DISPUTES - THEORETICAL AND PRACTICAL ISSUES

Specialization: Economic Law

Code: 9380107

DOCTORAL THESIS IN LAW SUMMARY

Hanoi, 2023

INTRODUCTION

1 The Urgency of the Topic

Social Insurance disputes have been a longstanding issue However, due to the constant changes in socio-economic conditions, disputes related to Social Insurance have become increasingly diverse and complex Therefore, Resolution No 28-NQ/TW

of the Central Committee of the Twelfth Party Congress on Social Insurance policy reform emphasized the need to enhance the system of Social Insurance policies and laws, including provisions for resolving disputes related to Social Insurance Legislation

in the field of Social Insurance has also been gradually improved The Social Insurance Law of 2014, passed by the National Assembly of the Socialist Republic of Vietnam in the Twelfth Legislature, Fourth Session, on November 20, 2014 (replacing the Social Insurance Law No 71/2006/QH11), came into effect on January 1, 2016 It regulates Social Insurance regimes, policies, the rights and responsibilities of employees, participating agencies, organizations, and individuals, Social Insurance organization, Social Insurance funds, procedures for implementing Social Insurance, and state management of Social Insurance Alongside the Social Insurance Law, the state has issued numerous other important legal documents outlining measures to effectively resolve Social Insurance-related issues These include the Civil Procedure Code, Law

on Complaints and Denunciations, Administrative Procedure Law, and detailed implementing regulations These legal foundations are crucial for agencies, organizations, and individuals to implement Social Insurance regimes and policies, reduce disputes related to Social Insurance, and effectively resolve Social Insurance disputes

In addition to the encouraging results mentioned earlier, several shortcomings related to disputes and dispute resolution in the field of Social Insurance still persist From a legal perspective, some regulations in this area lack clarity and transparency Laws regarding jurisdiction and dispute resolution procedures lack consistency, leading

to certain inconsistencies and illogical points that affect the legitimate rights and interests of individuals and organizations Some provisions of the Civil Procedure Code, Labor Code, Administrative Procedure Law, Social Insurance Law, and Complaints Law are not harmonized with each other and with related legal documents, resulting in unresolved issues These issues have had a significant impact on the effectiveness of dispute resolution in this field

In practical terms, there are still many obstacles in the application of the law to resolve social insurance disputes, leading to unresolved disputes The exercise of jurisdiction by the entities responsible for dispute resolution has not truly ensured independence and objectivity This has had a significant impact on safeguarding the

rights and interests of individuals and organizations in the effectiveness of dispute resolution in Social Insurance Therefore, Social Insurance disputes remain prevalent, and the resolution of such disputes has not yet achieved the expected results, failing to meet the increasingly high requirements of judicial reform and the construction of a socialist rule-of-law state by the people, for the people in Vietnam today

In recent times, theoretical and practical issues related to disputes and dispute resolution in Social Insurance have received the attention and research efforts of scholars from various perspectives, but the number of research works in this field remains limited Therefore, there are very few in-depth, comprehensive, and systematic research works on disputes and dispute resolution in Social Insurance

For the reasons mentioned above, the selection and research on the topic of

'Disputes and Dispute Resolution in Social Insurance - Theoretical and Practical Issues' are necessary to meet the requirements of scientific theory, legal principles, and

current practices in our country today

2 Purpose and Research Objectives

The research objective of this dissertation is to clarify certain theoretical issues regarding disputes and dispute resolution in Social Insurance and to analyze the current legal regulations concerning disputes and dispute resolution in Social Insurance in Vietnam Consequently, recommendations will be provided to enhance and improve the effectiveness of implementing the legal framework for disputes and dispute resolution

in Social Insurance in present-day Vietnam

From the aforementioned research objectives, the dissertation focuses on the following tasks:

Firstly, the dissertation provides an overview of relevant research works related

to the topic The author conducts a literature review, gathers documents, and collects scientific works related to the dissertation They study, analyze, assess, and present viewpoints on the issues that have been addressed in previous research works From this, the dissertation identifies the topics and content that have not been covered by previous research to guide the issues that will be addressed in the dissertation

Secondly, it systematically organizes theoretical issues related to disputes and dispute resolution in Social Insurance This includes defining concepts, characteristics, classifications of Social Insurance disputes, defining concepts, characteristics, methods, and measures for resolving Social Insurance disputes It also addresses the legal aspects

of disputes and dispute resolution in Social Insurance, including principles and legal content governing Social Insurance disputes and their resolution

Thirdly, it analyzes and evaluates the current legal regulations in Vietnam regarding Social Insurance disputes and their resolution, as well as the practical

implementation The dissertation draws conclusions about the advantages and shortcomings of the existing legal provisions

Fourthly, it provides an explanation of the necessity to improve and enhance the effectiveness of implementing the legal framework for Social Insurance disputes and their resolution in present-day Vietnam Based on theoretical and legal research findings and the practical situation, recommendations for amending and supplementing legal regulations on Social Insurance disputes and their resolution are proposed These recommendations aim to ensure the alignment of the law with the practical realities of Social Insurance disputes and their resolution in Vietnam

3 Research Object and Scope

Research Subjects and Scope of the Dissertation:

Research Subjects of the Dissertation:

Theoretical issues and legal perspectives on disputes and dispute resolution in Social Insurance

Current legal regulations on Social Insurance disputes and their resolution, specifically the Social Insurance Law of 2014, the Complaints Law of 2011, the Administrative Procedure Law of 2015, the Labor Code of 2019, the Civil Procedure Code of 2015, and related implementing documents

The practical aspects of disputes and dispute resolution in Social Insurance in Vietnam

Scope of the Dissertation:

- Regarding Research Content:

The dissertation focuses on the theoretical foundations and the legal framework

of Social Insurance disputes and their resolution Based on theory and practice, the dissertation proposes solutions to improve the legal framework and enhance the effectiveness of implementing the law on Social Insurance disputes and their resolution

in Vietnam

- Regarding Geographic Scope:

The dissertation primarily investigates theoretical and practical issues related to Social Insurance disputes and their resolution in Vietnam It also draws comparisons and learns from the experiences of some other countries, adapting and supplementing areas where the Vietnamese legal system may have limitations, all within the context and conditions of the research

- Regarding Time Frame:

The dissertation examines the current legal framework and the practical aspects

of Social Insurance disputes and their resolution from the time when the Social Insurance Law of 2016 became effective up to the present day

4 Methodology and Research Methods

The Methodology of the Dissertation:

The dissertation is researched based on the methodology of Marxism-Leninism, which includes dialectical materialism and historical materialism Accordingly, the legal issues concerning disputes and dispute resolution in Social Insurance are studied in a dynamic and developmental state within the inseparable context of historical, political, economic, cultural, and social factors During the research process, the dissertation also relies on the principles and orientations of the Communist Party of Vietnam and the Vietnamese state regarding Social Insurance in the context of the market economy in Vietnam

The Research Methodology of the Dissertation:

The specific research methods used to carry out this dissertation include the following:

- Literature Review Method: This method is employed to gather documents and research works from both domestic and international sources based on different timeframes, legal areas, and legal systems It is used to select and compile relevant materials related to the dissertation topic from various sources This method is especially useful for providing

an overview of the research landscape on the topic and is combined with other methods during the process of exploring theoretical aspects and the legal framework of disputes and dispute resolution in Social Insurance

- Analytical Method: The analytical method is used to analyze and understand theoretical issues, legal regulations, and practical implementation aspects It is applied

to assess the necessity of improving legal regulations and enhancing the effectiveness

of their implementation It also supports the proposal of amendments and additions to certain legal provisions related to Social Insurance disputes and their resolution, in line with the objectives set forth in the dissertation

- Comparative Method: The comparative method is used to compare different viewpoints among scholars in various research works, compare current legal regulations with previous legal provisions, compare existing legal regulations with other related laws concerning disputes and dispute resolution in Social Insurance, and compare Vietnamese legal regulations with those of some other countries around the world

- Evidential Method: The evidential method is utilized to provide evidence such as documents, statistics, and practical cases that clarify the arguments and reasoning within the theoretical content of the dissertation It is particularly valuable in presenting opinions and viewpoints regarding amendments and additions to legal regulations on Social Insurance disputes and their resolution

- Synthesis Method: The synthesis method is primarily employed to draw conclusions, evaluations, and opinions after the analysis of each section and subsection It plays a

significant role in summarizing the chapters and providing a general conclusion for the dissertation

- Scientific Forecasting Method: The scientific forecasting method is used to make assessments based on the analysis of cases and data from competent authorities and organizations responsible for resolving Social Insurance disputes This method is mainly used when the author presents recommendations for improving and enhancing the

effectiveness of legal regulations in this field

5 The New Contributions of the Dissertation

As a specialized research work on disputes and their resolution related to Social Insurance, the dissertation provides the following new contributions:

- The dissertation clarifies theoretical issues surrounding disputes and their resolution regarding Social Insurance It introduces and elucidates the definitions and legal framework of Social Insurance disputes and their resolution Previously, disputes related

to Social Insurance lacked specific and clear regulations in legal documents This led to the occurrence of disputes and, when resolving them, authorities and individuals entrusted with the authority to resolve disputes often faced confusion regarding procedures and legal basis for resolution Therefore, the clarification of theoretical issues regarding Social Insurance disputes and their resolution is of utmost importance

- The dissertation provides a relatively comprehensive analysis, commentary, and evaluation of the legal framework for Social Insurance disputes and their resolution in Vietnam, as well as the implementation of these regulations from various aspects This includes defining disputes, determining the competent authorities for resolution, outlining the procedures, requirements, and timeframes for resolving Social Insurance disputes Consequently, it offers insights into both the achievements and shortcomings

or infeasibilities within the legal framework for Social Insurance disputes and their resolution

- Through analysis and referencing content related to the dissertation from several countries, it highlights the necessity of improving the legal framework for Social Insurance disputes and their resolution Additionally, the dissertation proposes recommendations for amending and supplementing legal provisions concerning Social Insurance disputes and their resolution

6 The structure of the dissertation

In addition to the introduction, conclusion, bibliography, and appendices, the main content of the dissertation is structured as follows:

Chapter 1: Overview of the Research Topic

Chapter 2: Some Theoretical and Legal Issues Related to Disputes and Resolution of Social Insurance Disputes

Chapter 3: The Current Legal Situation of Social Insurance Disputes and Resolution in Vietnam

Chapter 4: Improving the Legal Framework and Enhancing the Efficiency of Resolving Social Insurance Disputes in Vietnam

CHAPTER 1: OVERVIEW OF RESEARCH TOPIC

1.1 The situation of research related to the topic

1.1.1 Research works on social insurance

In order to identify the theoretical issues regarding disputes and dispute resolution in social insurance, analyzing fundamental aspects of social insurance relationships, such as definitions, subjects, characteristics, and content of social insurance, is of utmost importance This is because disputes in social insurance arise from these relationships Over the years, both in Vietnam and abroad, there have been numerous research works related to social insurance in general, along with several independent studies on social insurance

- These research works have provided the author with research results on the social insurance relationship, helping identify the disputing parties, the dispute content, and the dispute resolution mechanisms in Vietnam as well as in some other countries around the world

- Furthermore, these research works have also given the author a general insight into theoretical aspects of disputes and dispute resolution in social insurance, such as definitions and dispute characteristics, principles, and mechanisms for resolving disputes, as addressed in various scientific studies

- Research in both Vietnam and foreign countries has provided the author with a comprehensive picture of the current legal framework governing dispute resolution in Vietnam This knowledge, primarily derived from legal research works abroad and from international research, forms the foundation for the author's comparative legal analysis

of Vietnam's social insurance disputes and dispute resolution framework By drawing

on this knowledge, the author aims to identify advantages, lessons learned, and experiences in resolving these disputes Consequently, this research contributes to the theoretical enhancement and further improvement of legal regulations on social insurance disputes and their resolution in Vietnam

1.1.2 Research works on social insurance dispute resolution

- One of the significant and essential research studies for the author is that the aforementioned research works have provided a fairly comprehensive overview of the practical legal aspects and the implementation of certain contents regarding disputes and their resolution in social insurance This is an important scientific basis that allows the author to evaluate the current legal framework and the practice of implementing legal provisions in this field

- Both domestic and international research studies have analyzed and indicated that due

to various socio-economic conditions, different political systems, and legal regimes, the legal provisions for resolving social insurance disputes differ among different countries Based on these research studies, the author inherited and further developed the analysis and interpretation of the practical legal situation and the implementation of laws regarding disputes and their resolution in social insurance in Vietnam

- The assessments of the current situation in the field of social insurance and, in particular, the resolution of social insurance disputes in these research works have allowed the author to analyze the achieved results, point out difficulties, obstacles, and the causes of these difficulties and obstacles in social insurance, and the resolution of social insurance disputes for each type of dispute This information serves as vital scientific resources for the thesis to consolidate, compare, and clarify the limitations and drawbacks of the dispute resolution mechanism in social insurance in Vietnam

1.1.3 Research works on improving and enhancing the effectiveness of the legal framework for dispute resolution in social insurance

- These research works have also proposed various solutions and directions to enhance the effectiveness of implementing laws regarding dispute resolution in social insurance Notably, some of the proposals concern amendments and supplements to the provisions regarding participants in social insurance, entities authorized to resolve social insurance disputes, the process of filing complaints related to social insurance, and the jurisdiction

of the court in resolving labor disputes and administrative cases These are important scientific resources that enable the author to propose appropriate, feasible solutions that contribute to enhancing the effectiveness of social insurance dispute resolution

1.2 Evaluation of the research related to the dissertation and the issues that need further research

1.2.1 Evaluate research results of works related to the topicFirst, the existing

research provides a general theoretical understanding of disputes and dispute resolution

in social insurance, both in the broader context of social insurance disputes and more specifically in the realm of social insurance These studies have started to offer definitions and classifications for social insurance disputes, which require an understanding of the subjects, characteristics, and the nature of social insurance relationships While some studies have presented definitions and procedures for resolving social insurance disputes, they are often explored within the context of broader social insurance disputes

Second, according to research, there are four legal procedures recognized worldwide for resolving social insurance disputes: (i) administrative procedures to reconsider decisions by authorized social insurance organizations, (ii) special judicial procedures (establishing separate bodies with authority to resolve social insurance

disputes), (iii) court litigation procedures, and (iv) hybrid procedures The regulatory mechanisms for this type of dispute resolution differ across countries, depending on their conditions and legislative perspectives Some countries allow the use of alternative dispute resolution (ADR) methods to resolve disputes before resorting to litigation, including social insurance disputes

Third, among these research works, there is a limited number of studies that directly address the legal provisions and mechanisms for resolving social insurance disputes According to the current legal framework in Vietnam, social insurance disputes are handled through various procedures, such as labor dispute resolution or administrative complaints and litigation Research indicates that the existing legal provisions in this field still have various shortcomings These works serve as a valuable database from which the author can draw for in-depth and comprehensive insights into social insurance dispute resolution

Fourth, some of the research works have proposed improvements and measures

to enhance the efficiency of the legal framework for dispute resolution in social insurance These proposals mainly focus on amending and supplementing legal provisions related to participation in social insurance, entities with authority to resolve social insurance disputes, procedures for labor dispute resolution, and administrative complaints Some foreign research studies offer valuable reference points for alternative dispute resolution mechanisms, especially in building specialized courts for resolving social insurance disputes as a means to prevent disputes and efficiently resolve social insurance disputes Overall, these research works provide a foundation for future in-depth and comprehensive studies on dispute resolution and social insurance

Inheriting issues:

The dissertation will build upon the foundations and insights provided by prior research, both in terms of theory and practice Additionally, valuable international experiences regarding social insurance dispute resolution and related fields are available for reference, contributing to the enhancement of the Vietnamese legal framework for dispute resolution in social insurance

Debated or unaddressed issues: While research has provided substantial insights into dispute resolution, there is still a need for a more comprehensive and systematic examination of social insurance dispute resolution, covering definitions, general characteristics of disputes, and dispute resolution mechanisms Limited research has evaluated the current status of social insurance dispute resolution according to the provisions of the current law

1.2.2 Thesis issues need further research

On the basis of inheriting and absorbing the achieved research results, the thesis will focus on systematically and comprehensively researching the following contents:

Third, the thesis will briefly present the concept and legal content of disputes and dispute resolution on social insurance Through researching the laws of some countries around the world on disputes and resolving disputes on social insurance, lessons learned for Vietnam are drawn

1.2.2.2 Regarding the current status of the law

Firstly, the thesis will research and point out the current status of legal regulations

on disputes over social insurance

Second, related to resolving disputes about social insurance, the thesis will research current legal regulations to clearly determine the type of dispute about social insurance, the mechanism for resolving disputes about social insurance and clarify two issues : Firstly, who are the entities competent to resolve disputes about social insurance? Second, how are the order and procedures for resolving disputes about social insurance implemented?

Third, through analyzing the provisions of Vietnamese law on disputes and dispute resolution on social insurance, based on comparison with the laws of some countries around the world, the thesis will point out the Inadequacies still exist related to determining the type of dispute about social insurance, inadequacies in the subject with authority to resolve the dispute, problems in dispute resolution procedures from there,

it is the basis for building the Solutions to improve the law on disputes and resolve disputes about social insurance

Fourth, regarding disputes and dispute resolution on social insurance, current Vietnamese law stipulates that disputes on social insurance include 02 types: labor disputes on social insurance and administrative complaints or lawsuits on social insurance, There is no regulation on what constitutes a dispute over social insurance The current dispute resolution procedures are not detailed and specific, and the regulations are scattered in many different legal documents

1.2.2.3 Regarding the current status of disputes and the practical implementation of legal regulations

Disputes over social insurance in Vietnam are currently increasing in both quantity and level The law on disputes and dispute resolution is still incomplete, with the subjects of disputes and dispute resolution subjects not mastering the legal

provisions, leading to inadequacies arising in practice such as the situation Disputes are occurring more and more, dispute resolution is not effective these are the issues the PhD student hopes to clarify in the thesis

1.2.2.4 Regarding proposals to improve the law

Based on selective inheritance of published work results, analysis of legal regulations and practical implementation of the law, the thesis will focus on researching perspectives and making appropriate recommendations with the current context in Vietnam and the trend of international integration in order to improve the effectiveness

of disputes and resolve disputes about social insurance based on convincing arguments

1.3 Research Hypothesis and Research Questions:

On the basis of inheriting and absorbing the achieved research results, the thesis will focus on systematically and comprehensively researching the following contents:

Third, the thesis will briefly present the concept and legal content of disputes and dispute resolution on social insurance Through researching the laws of some countries around the world on disputes and resolving disputes on social insurance, lessons learned for Vietnam are drawn

1.2.2.2 Regarding the current status of the law

Firstly, the thesis will research and point out the current status of legal regulations

on disputes over social insurance

Second, related to resolving disputes about social insurance, the thesis will research current legal regulations to clearly determine the type of dispute about social insurance, the mechanism for resolving disputes about social insurance and clarify two issues : Firstly, who are the entities competent to resolve disputes about social insurance? Second, how are the order and procedures for resolving disputes about social insurance implemented?

Third, through analyzing the provisions of Vietnamese law on disputes and dispute resolution on social insurance, based on comparison with the laws of some countries around the world, the thesis will point out the Inadequacies still exist related

to determining the type of dispute about social insurance, inadequacies in the subject with authority to resolve the dispute, problems in dispute resolution procedures from

there, it is the basis for building the Solutions to improve the law on disputes and resolve disputes about social insurance

Fourth, regarding disputes and dispute resolution on social insurance, current Vietnamese law stipulates that disputes on social insurance include 02 types: labor disputes on social insurance and administrative complaints or lawsuits on social insurance, There is no regulation on what constitutes a dispute over social insurance The current dispute resolution procedures are not detailed and specific, and the regulations are scattered in many different legal documents

1.2.2.3 Regarding the current status of disputes and the practical implementation of legal regulations

Disputes over social insurance in Vietnam are currently increasing in both quantity and level The law on disputes and dispute resolution is still incomplete, with the subjects of disputes and dispute resolution subjects not mastering the legal provisions, leading to inadequacies arising in practice such as the situation Disputes are occurring more and more, dispute resolution is not effective these are the issues the PhD student hopes to clarify in the thesis

1.2.2.4 Regarding proposals to improve the law

Based on selective inheritance of published work results, analysis of legal regulations and practical implementation of the law, the thesis will focus on researching perspectives and making appropriate recommendations with the current context in Vietnam and the trend of international integration in order to improve the effectiveness

of disputes and resolve disputes about social insurance based on convincing arguments

CHAPTER 2: SOME THEORETICAL ISSUES IN SOCIAL INSURANCE DISPUTES AND RESOLUTION INSURANCE DISPUTES 2.1 Some Theoretical Issues in Social Insurance Disputes

2.1.1 Definition of Social Insurance Disputes

Social insurance disputes refer to conflicts and disagreements among the parties involved in social insurance relationships regarding their rights and obligations, which are brought forward for resolution

2.1.2 Characteristics of Social Insurance Disputes

- Social insurance disputes are complex and involve various parties, often having a relatively broad scope

- These disputes primarily concern the material benefits of beneficiaries

- Social insurance disputes have both economic and social dimensions

- They attract significant attention from various societal groups

- Social insurance disputes are often interconnected with other social welfare disputes

2.1.3 Classification of Social Insurance Disputes

2.1.3.1 Based on the Parties Involved