Research articles on the provisions of the Law on social insurance, healthinsurance and unemployment insurance and the handling of violations in the field ofsocial insurance, health insu
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The global trend emphasizes the development of insurance policies to enhance social security across nations Countries prioritize social insurance as a fundamental component of their social security systems, and Vietnam is no exception to this worldwide movement.
The Party and the State prioritize the Social Insurance Policy, continuously adapting it to align with the evolving socio-economic landscape and national development.
Under the Law on Social Insurance, both employees and employers are mandated to participate in various types of insurance, as outlined in Clause 1, Article 186 of the Labor Code.
"Employers and employees must participate in compulsory social insurance and enjoy the regimes prescribed by the law on social insurance.
Insurance law violations can be addressed either administratively or through criminal prosecution However, the complexities of these violations, including issues like property corruption and fraud, often require a more nuanced approach than standard criminal law provides, as they pertain specifically to social security policies.
The amendment and enhancement of insurance crime legislation is essential to fulfill the objectives outlined in Resolution 49-NQ/TW by the Ministry of Politics, which aims to reform the judiciary by 2020 This includes the critical goal of refining criminal and civil laws to align with the principles of a socialist-oriented market economy.
The existing legal framework for social insurance is largely sufficient, governed by the Law on Social Insurance This framework aims to support the Party's policy of expanding social insurance coverage for all employees and enhancing health insurance for the entire population, ultimately striving towards the goal of national social security.
In recent years, despite significant efforts to enhance the management of social insurance, there remain numerous weaknesses and challenges that necessitate effective solutions to further improve its efficiency and effectiveness.
To enhance the effectiveness of social insurance, it is essential to conduct thorough studies and practical applications of its principles Based on this foundation, it is important to propose solutions that will strengthen state management of social insurance and improve the handling of violations within the insurance sector in the current context.
The People's Courts serve as state adjudicating agencies responsible for handling various criminal, civil, and administrative cases, including those related to insurance law violations and disputes To effectively evaluate the trial and settlement functions of the People's Court in addressing insurance-related issues, it is essential to identify existing problems and limitations in legal provisions and their practical application This assessment will help propose recommendations aimed at enhancing the effectiveness of combating crimes, violations, and disputes within the insurance sector.
Bac Ninh province plays a crucial role in the economic development of Vietnam, hosting numerous large industrial parks and various enterprises These organizations actively contribute to the local economy and comply with legal obligations by participating in social insurance for their employees The province is committed to effectively implementing social insurance laws to ensure the welfare of its workforce.
Many enterprises, particularly state-owned and private ones, fail to comply with social insurance regulations, leading to significant debts and delayed payments that adversely affect workers' rights While some businesses focus solely on productivity and profit optimization, they often neglect their legal obligations regarding social insurance, resulting in widespread violations Despite efforts by state management agencies to monitor and address these infractions, challenges and limitations persist in effectively managing the social insurance sector.
To enhance the effectiveness of addressing violations in social insurance and improve state management in Bac Ninh province, this study focuses on "Handling Violations in the Field of Social Insurance in Bac Ninh Province - Current Situation and Solutions." This research is essential to meet the urgent need for effective legal guidance in managing insurance-related issues.
2 Overview of the research situation
Regarding the topic of research on issues to handle violations in the field of social insurance, there have been many research works on this topic such as:
+ Tran Thi Thu Trang, Master's Thesis (2013), "Practice of handling violations of the law on social insurance in Phu Tho province".
The rise in violations of social insurance laws has led to significant economic and social repercussions To effectively address these infractions, it is essential for ministries, departments, and agencies to collaborate closely, ensuring a coordinated approach that maximizes efficiency in enforcement and compliance.
Addressing the urgent need for solutions to finalize regulations on sanctioning violations of the social insurance law is essential for ensuring that all participants can engage in social insurance This includes facilitating both compulsory and voluntary participation for all employees in society By establishing a precise process and timeline for each employee's involvement in social insurance, we can create a fair and accurate system that adheres to the principles of "paid, received" and "paid a lot, paid less," ultimately enhancing the integrity of social insurance regimes.
+ Nguyen Huu Thanh, Master's Thesis (2018), "Sanctioning of administrative violations in the field of Social Insurance ", Academy of Social Sciences - Vietnam Academy of Social Sciences.
This study analyzes the practical implementation of the law on sanctioning administrative violations in the field of social insurance in Ho Chi Minh City.
Sanctioning administrative violations in social insurance is increasingly recognized as a key strategy for enhancing the enforcement of social insurance policies and strengthening socialist legislation This study aims to clarify the relationship between legal reasoning and practical application regarding the sanctioning of administrative violations in social insurance The findings offer scientific insights that can inform ongoing research and the development of solutions to improve the effectiveness of these sanctions, particularly in Ho Chi Minh City and throughout the country.
PROVISIONS OF LAW ON HANDLING OF VIOLATIONS IN
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Compulsory social insurance has evolved significantly over time, reflecting the unique needs and circumstances of each country The development of social insurance laws globally highlights the importance of these systems in providing financial security and support to individuals.
In 1883, Germany enacted its first social insurance law to support sick workers, setting a precedent that has led to the establishment of compulsory social insurance laws in most countries today Recognizing the importance of social insurance in protecting vulnerable populations, the International Labour Organization (ILO) adopted Convention 102 on June 28, 1952, which outlines nine forms of subsidies and promotes a unified mechanism for social insurance among member countries Compulsory social insurance serves as a framework for state regulations that govern economic and social relations in subsidy distribution, ensuring workers are safeguarded against risks and hardships during their working lives and in old age While the specifics of compulsory social insurance may vary by country, it remains a crucial component of the overall social insurance system, playing a vital role in maintaining national social security and stability.
Voluntary social insurance, as defined by Vietnam Social Insurance (2017), is a state-organized insurance program that enables participants to select their payment rates and methods based on their income levels.
Under Clause 4, Article 2 of the 2014 Law on Social Insurance, Vietnamese citizens aged 15 and older who do not qualify for compulsory social insurance have the option to enroll in voluntary social insurance.
According to the Legal Library (2020), based on the Law on Social Insurance
2014, voluntary social insurance is the type of social insurance organized by the State
Participants have the flexibility to select their payment rate and method based on their income, while the State provides support for social insurance premiums, ensuring access to retirement and death benefits.
1.3 The regimes of compulsory social insurance
Compulsory social insurance is divided into 5 main modes.
Compulsory social insurance benefits, including sickness benefits, occupational accident and disease coverage, maternity leave, unemployment support, retirement pensions, and death benefits, are determined by the salary contributions made for employees' social insurance The eligibility, entitlement, and duration of these benefits are all calculated based on these salary payments.
Employees identified in Points a, b, c, d, dd, and h of Clause 1, Article 2 of the 2014 Law on Social Insurance are eligible for sickness benefits under specific conditions.
When experiencing illness or an accident that is not work-related, it is essential to take leave and obtain certification from an accredited medical examination and treatment facility as mandated by the Ministry of Health.
Employees who take leave due to illness or accidents caused by self-harm, intoxication, or the use of narcotics, as outlined by government regulations, will not qualify for sickness benefits.
(2) Take time off work to care for children under 07 years of age who are sick and have certification of competent medical examination and treatment establishments.
The period of entitlement to sickness benefits shall comply with article 26 of the Law on social insurance 2014.
B Level of enjoyingThe monthly entitlement rate is equal to 75% of the salary paid for social insurance of the month immediately before leaving work.
If an employee has recently started working or if the previous employee paid social insurance premiums but has since interrupted their working time, they are entitled to receive sickness benefits upon returning to work In the first month of their return, the benefit rate is 75% of the salary that is subject to social insurance for that month.
Employees on long-term sick leave for specific diseases, as outlined for 180 days—including public holidays and Tet holidays—are eligible to continue receiving sickness benefits at a reduced rate if they continue their treatment.
+ Equal to 65% of the salary paid for social insurance of the month immediately before taking leave if the social insurance premium has been paid for full 30 years or more;
If an employee has paid social insurance for a duration of at least 15 years but less than 30 years, they are entitled to receive a severance payment equal to 55% of their salary from the month prior to their departure.
+ Equal to 50% of the salary paid for social insurance of the month immediately before taking leave if the social insurance premium has been paid for less than 15 years.
Professional officers and service personnel of the People's Army, as well as officers and technical staff of the People's Police, are entitled to sickness benefits Basic workers receiving salaries equivalent to service personnel will receive benefits calculated at 100% of their salary based on the social insurance contributions for the month prior to their departure from work.
Benefits of rehabilitation and recovery after sickness:
Employees who have utilized their full year of sickness benefits and return to work within 30 days without recovering can receive additional health leave ranging from 5 to 10 days annually.
The rate of health rehabilitation and rehabilitation after sickness one day is equal to 30% of the base salary.
1.3.2 Maternity regime a Conditions for enjoying:
(1) Employees specified at Points a, b, c, d, dd and h, Clause 1, Article 2 of the Law on social insurance 2014 are entitled to maternity benefits in one of the following cases:
+ Female employees who are surrogate mothers and mothers thanks to surrogate pregnancies;
+ Employees adopting children under 06 months of age;
+ Female employees set contraceptive rings, employees take sterilization measures;
+ Male employees who are paying social insurance with wives giving birth.
Female employees who give birth, surrogate mothers, and those adopting children under six months are required to have paid social insurance premiums for a minimum of six months within the twelve months prior to childbirth or adoption.
Subjects of application of social 1nSUTATC€ 5 S25 3+3 *+skssesreerese 24 1.5 The role of compulsory social insurance .- eee 5 55+ E+eesreeerske 25 II General provisions and provisions of law on violations & handling of
- Resolution No 05/2019/NQ-HDTP of the Judges' Council of the Supreme People's Court on debugging the initiation of lawsuits against social insurance, health insurance and unemployment insurance debts.
- Resolution No 28-NQ/TW of May 23, 2018 of the 12th Central Committee on reform of social insurance policies.
2 Groups of violations, distinguishing administrative violations & crimes in the field of social insurance
2.1 Groups of acts of violating the law on social insurance.
Violations of insurance law can occur at various stages, including the initial declaration, re-issuance of social insurance books, and the recording of working time and social insurance participation These infractions also extend to the collection and payment of social insurance, management of files, and the implementation of social insurance policies The range of violators is broad, encompassing social insurance participants such as employees and employers, beneficiaries like employees, and officials from social insurance and medical establishments.
The implementation of social insurance policies relies heavily on the contributions from both employers and employees, creating potential risks for violations and crimes These risks are particularly evident during the processes of collection, expenditure, policy settlement, and management of the social insurance fund.
2.1.1 Group of acts of violating the obligation to pay social insurance premiums.
- The employer does not participate in social insurance for employees.
Employers who fail to enroll their employees in social insurance, health insurance, and unemployment insurance are neglecting their obligation to pay social insurance premiums for those subject to compulsory coverage This non-participation may also lead to the employer not withholding social insurance premiums from employees' salaries, a practice commonly known as evading social insurance contributions.
The situation of evading payment of social insurance, health insurance and unemployment insurance occurs in most localities with increasing levels, most commonly in state-own enterprises, business households
- Employers pay insufficient number of employees and the amount of money to participate in social insurance.
Employers often fail to pay the correct number of employees and the appropriate amounts for social insurance contributions This occurs when employers enroll their employees in social insurance, health insurance, and unemployment insurance but neglect to remit the deducted premiums to the social insurance agency on time Such actions can lead to significant repercussions for both employees and the employer.
Employers who deduct social insurance premiums from their employees' salaries but fail to remit these payments to the social insurance agency on time are violating their obligations Timely payment of social insurance contributions is crucial for ensuring that employees receive the benefits they are entitled to Delayed payments can lead to significant consequences for both employees and employers, including penalties and legal repercussions It is essential for businesses to prioritize compliance with social insurance regulations to protect their workforce and maintain a positive reputation.
The failure to pay social insurance, health insurance, and unemployment insurance for employees is a significant issue, often referred to as the act of not meeting deadlines for these payments Under the Law on Social Insurance and the Law on Health Insurance, employers are required to register employees for social insurance within 30 days of signing a labor contract However, reports from various provinces and cities indicate that late registration and requests for collection of social insurance and health insurance during periods of non-participation remain prevalent.
Many companies intentionally misappropriate employee contributions to social insurance, health insurance, and unemployment insurance They deduct these amounts from employees' salaries but fail to remit them to the respective social insurance agencies, instead diverting the funds for other uses.
- Employers do not pay social insurance premiums in accordance with wages and remunerations as prescribed for employees.
Improper payment of social insurance and health insurance by employers occurs when they report salaries for these premiums that are lower than actual earnings, aiming to reduce costs, or when they pay excessively high premiums to misuse funds for benefits like sickness, maternity, and unemployment insurance Such violations significantly hinder employees' access to necessary benefits, leaving many without entitlements when they are ill, on maternity leave, or approaching retirement due to the employer's failure to pay the required premiums.
Increasing violations of social insurance, health insurance, and unemployment insurance premium payments are severely undermining the benefits for thousands of employees These infractions have led to strikes demanding workers' rights, threatening social order and safety, and hindering the achievement of social security goals Additionally, they create misconceptions about the agencies responsible for implementing social insurance policies, further complicating the situation for employees.
2.1.2 Group of acts of violating the right to enjoy social insurance regimes
Social insurance fraud occurs when individuals or groups intentionally manipulate or falsify employee records to illegally obtain funds from the Social Insurance Fund.
However, there are also cases where these fraudulent acts are deliberately carried out independently by employees in order for themselves to enjoy higher social insurance benefits.
These fraudulent acts will affect employees participating in legal social insurance, in addition to directly affecting the social insurance fund.
Fraudulent organizations engage in deceptive practices by forging documents and manipulating records to unlawfully access social insurance benefits These actions not only involve individual deceit but also include coordinated efforts by groups aiming to exploit the state's social insurance systems for profit.
Intentional fraudulent activities significantly impact the social insurance fund and jeopardize the rights of legally participating employees To address these issues effectively, it is crucial to implement timely interventions and enforce stricter sanctions This approach will enhance deterrence and help prevent the recurrence of such fraudulent acts.
In legal nature, VPHC and crimes in the field of social insurance have many similarities:
Both types of acts disrupt the social relationships inherent in social insurance, affecting the interactions between employees, employers, and the State regarding the establishment and utilization of social insurance funds.
Secondly, both cause damage or threaten to cause material damage to individuals participating in social insurance causing damage to the social insurance fund.
Thirdly, administrative violations and crimes in the field of social insurance have all acted objectively and the faults of similar subject.
Fourthly, administrative violations and crimes in the field of social insurance together directly or indirectly violate the provisions of the law on social insurance.
Crimes and administrative violations in the social insurance sector differ significantly in terms of their societal danger, the legal repercussions faced by those involved, and their representation in the law.
Crimes related to social insurance pose a significant threat to society, as they result in substantial harm to the social insurance fund The severity and scale of these acts highlight their potential danger, emphasizing the need for vigilance and enforcement in protecting these vital resources.
Pursuant to Article 216 of the Criminal Code; Article 56 of the Criminal Procedure Code; Resolution No 05/2019/NQ-HDTP; Joint Circular No. 01/2017/TTLT-BCA-BQP-BTC-OCCUPATIONAL DISEASES&PTNT-
VKSNDTC, Que Vo District Social Insurance proposes the Que Vo District Investigating Agency to:
1 Criminal prosecution of acts of not paying social insurance and unemployment insurance premiums to employees.
2 Request Hitech TD Joint Stock Company — Bac Ninh Branch to pay the amount of administrative sanctioning amount of VND 56,830,444 and pay social insurance, health insurance and unemployment insurance premium with the amount: VND 253,263,922, and the amount in which it must be accumulated until April
2020 to the account of the social insurance agency.
3 Handling of criminal liability as prescribed for Hitech TD Joint Stock Company — Bac Ninh Branch.
3.4.2 Prosecution of Phi Kha Northern Trading and Manufacturing Co., Ltd.
Phi Kha Northern Trading and Production Co., Ltd (unit code TD0057D) has been involved in contributing to social insurance, health insurance, and unemployment insurance for its employees in Tien Du district, Bac Ninh province However, the company has failed to adhere to regulations regarding the payment of social and unemployment insurance for its workforce as of June 13.
In 2019, Bac Ninh Social Insurance created a specialized inspection team to conduct unexpected audits on the payment of social insurance, health insurance, and unemployment insurance premiums This initiative was implemented under Decision No 269/ODD-BHXH, which addresses administrative violations by units, resulting in a penalty amounting to VND 75,000,000.
Phi Kha Northern Trading and Production Co., Ltd has been found to be non-compliant with social insurance and unemployment insurance premium payments for its employees, as revealed by a specialized inspection The Bac Ninh social insurance authority has issued decisions sanctioning the company for its late payments of these mandatory insurance contributions.
Table 2.6: Prosecution of Phi Kha Northern Trading and Manufacturing Co., Ltd.
LÌ As of inspection time (May 2019)
Tt Content Social Health Unemployment OCCUPATIONAL Total insurance insurance insurance ACCIDENT INSURANCE
LÌ As of the end of July 2020
Tt Content Social Health | Unemployment OCCUPATIONAL Total ° insurance insurance insurance ACCIDENT INSURANCE
Number of ° months of debt 19 months
(Source: Bac Ninh Social Insurance)
According to Article 216 of the Criminal Code and Article 56 of the Criminal Procedure Code, along with Resolution No 05/2019/NQ-HDTP and Joint Circular No 01/2017/TTLT-BCA-BQP-BTC-OCCUPATIONALDISEASES & PTNT-VKSNDTC, the Tien Du District Social Insurance requests the Tien Du district investigating agency to provide a response.
1 Criminal prosecution of acts of not paying social insurance and unemployment insurance premiums to employees
2 Request Phi Kha Northern Trading and Production Co., Ltd to pay social insurance, health insurance and unemployment insurance premiums with the amount: VND 4,773,135,211 and the amount in which it must be accumulated until July2020 to the account of the social insurance agency.
3 Handling of criminal liability in accordance with regulations for Phi Kha Northern Trading and Manufacturing Co., Ltd.
III Achievements, limitations and problems in handling violations and resolving social insurance cases in Bac Ninh province
1 Achievements in the inspection, inspection and handling of violations of the law on social insurance in Bac Ninh province
From 2018 to 2020, the Inspection and Inspection Department team effectively fulfilled its professional responsibilities, achieving full compliance with Party policies, State laws, and internal regulations The team not only met but exceeded industry targets, successfully executing inspection plans and addressing citizen complaints without any backlog or delays.
1.1 Specialized inspection and inspection of implementation of policies and regime of social insurance, health insurance and unemployment insurance:
The implementation of regulation No 485/QCPH-CAT-BHXH enhances collaboration between the Bac Ninh Police and Bac Ninh Social Insurance in preventing crime and addressing legal violations, thereby improving public safety and compliance with the law.
77 protecting the economic management order and ensuring social insurance at units of the Social Insurance system of Bac Ninh province.
The Bac Ninh provincial Police has instructed the PC46 department to develop and implement a comprehensive plan aimed at enhancing coordination and accountability in crime prevention and law enforcement This initiative has led to significant achievements, including the successful collection of substantial debts related to social, health, and unemployment insurance Additionally, efforts have effectively decreased the incidence of fraudulent sick leave certificates associated with social insurance claims.
1.2 Direct citizen work; receiving and settling complaints and denunciations:
Table 2.7: Direct citizen work; receiving and settling complaints and denunciations:
Regarding the regime of social insurance, health insurance and 5 6 18 1,2 3,0 unemployment insurance
Applicati f transf fpplication for transfer o 0 1 0 00 district-level social insurance
(Source: Bac Ninh Social Insurance)
In 2019, permanent citizens participated in five sessions focused on social insurance, health insurance, and unemployment insurance, where their inquiries were thoroughly addressed in compliance with regulations.
In the past year, we successfully received and addressed a total of 05 applications, all of which were petitions and reflections Notably, there is no backlog of correspondence, and we have adhered to the designated settlement timelines without any overdue complaints or denunciations.
Permanent citizens received six opportunities to inquire about social insurance, health insurance, and unemployment insurance, with all questions answered thoroughly and in accordance with relevant regulations.
In the past year, we processed a total of six applications, including one denunciation, one complaint, and three petitions Among these, there was one request for the transfer of district-level social insurance Notably, we maintained an efficient resolution process, with no backlog of letters or delays beyond the prescribed settlement time, nor any escalated complaints or denunciations.
In 2020, 18 permanent citizens inquired about social insurance, health insurance, and unemployment insurance, and their questions were thoroughly addressed in compliance with regulations.
In the past year, we successfully processed a total of seven applications, including two denunciations, one complaint, and four petitions and reflections Notably, there is no backlog of correspondence, and all cases were resolved within the designated timeframe, with no outstanding over-level complaints or denunciations.
1.3 Handling violations of the law on social insurance:
Table 2.8: Summary of data on sanctioning of administrative violations in the period 2018 - 2020
Number of decisions on application of sanctions
Stt Sanctioned subjects (Decisions) VPHC fines Sanctioning QD
2 Power Rubber Joint Stock Company X
3 Tran Gia Rural Development Joint Stock Company x
4 Quang An 1 Industrial Joint Stock Company
1 Phong Thinh Co., Ltd 5,750,000 QD 77/QD-BHXH
2 HD Trading and Service Company 3,350,000 3,350,000 | QD 77/QD-BHXH
3 Sun Vina Electronics Co., Ltd 15,000,000 QD 77/QD-BHXH
4 Polygen International Co., Ltd X QD 236/QD-BHXH
BLUESTAR Vietnam Nutrition Joint Stock
6 Key Minh Vu Co., Ltd 39,161,000 QD 255/QD-BHXH
7 Tera Tech Vietnam Co., Ltd x QD 296/QD-BHXH
8 Ky Thien Pharmaceutical Joint Stock Company X QD 296/QD-BHXH
Bu Ninh Trading and Tourism Joint Stock x QD 296/QD-BHXH
10 | Northern Non-Kha Death Area Co., Ltd 75,000,000 75,000,000 | QD 298/QD-BHXH
Viet Thanh Manufacturing and Trading Joint Stock x QD 304/QD-BHXH 1I | Company
12 | 3T Electronics Joint Stock Company 24,000,000 24,000,000 | QD 308/QD-BHXH
13 | Yoohan Metal Vina Co., Ltd X QD 319/QD-BHXH
14 | Phuc Hung Joint Stock Company 11,296,000 QD 357/QD-BHXH
15 | Son Ca Education Co., Ltd QD 375/QD-BHXH
16 | Hoang Duong Trading and Service Co., Ltd QD 386/QD-BHXH
17 | Thang Long Paper Joint Stock Company QD 386/QD-BHXH
18 | Bac Viet Steel Structure Joint Stock Company 75,000,000 QD 386/QD-BHXH
Song Dau - Hong Ha Petroleum Joint Stock
20 | Hitech TD Joint Stock Company 56,830,444 56,830,444 | QD 713/QD-BHXH
1 Hoang Phi Company 6,026,400 QD 624/QD-BHXH
2 Duc Linh Construction Joint Stock Company 35,138,675 QD 625Q_D-BHXH
3 Hansew Fashion Co., Ltd 72,201,704 QD 623/QD-BHXH
4 Power Mechanical Company 200,000,000 QD 1874/QD-BHXH
(Source: Bac Ninh Social Insurance)