The situation of businesses violating the obligations to contribute to social, health, and unemployment insurance has affected the rights of workers (Illustrative image)

On August 15, 2019, the Council of Judges of the Supreme People's Court issued Resolution No. 05/2019/NQ-HDTP (Resolution No. 05) guiding the application of Article 214, Article 215, and Article 216 as these are new offenses, first stipulated in the Penal Code to be uniformly applied in practice.

In implementing Resolution No. 05, on January 22, 2020, the Vietnam Social Insurance issued Official Letter No. 239/BHXH-PC guiding provincial and municipal social insurance agencies to receive, process information, compile, and submit proposals for prosecution.

Implementation results

Since the 2015 Penal Code took effect, in many localities, provincial and municipal social security agencies have advised the provincial People's Committees to pay attention to and direct the enhancement of tax collection, development of participants, and reduction of overdue debts of social, health, and unemployment insurance. Since September 2019, when Resolution No. 05 took effect, provincial and municipal social security agencies have actively implemented it, especially after the guidance of VSS on compiling proposals for prosecution.

From 2018 to December 31, 2023, the entire VSS sector has submitted 417 proposals for prosecution to investigating agencies, including 34 proposals under Article 214 on social and unemployment insurance fraud, 4 proposals under Article 215 on health insurance fraud, and 379 proposals under Article 216 on evasion of contributions to social, health, and unemployment insurance. In 2023 alone, the entire sector generated 26 proposals for prosecution (17 under Article 214, 1 under Article 215, 8 under Article 216).

The current status of filing proposals for prosecution in accordance with offenses related to social insurance, health insurance, and unemployment insurance as stipulated in the Penal Code

Illustrative image (VSS)

As of now, there have been 15 cases that have been prosecuted, among which 08 verdicts have become legally effective, requiring individuals and organizations to enforce judgments for the social security agency in the amount of 2,690,508,989 VND. The amount recovered by the social security agency from the enforcement of judgments reached 2,381,982,535 VND (accounting for 88.5% of the amount to be enforced); 220 cases were not prosecuted as they were determined to lack criminal signs, no violations, or were transferred for administrative handling; 23 cases were temporarily suspended for prosecution; 2 cases were temporarily suspended, halted; 103 cases are still under review and resolution.

Challenges, difficulties

During the process of compiling and submitting proposals for prosecution, local social insurance agencies have encountered some specific challenges:

Firstly, the police identified delayed payment behavior as insufficient to constitute a crime due to lack of deceitful elements or other tactics.

Practical implementation of submitting proposals for prosecution shows that most behaviors considered by social security agencies for review and compilation of proposals for prosecution are delayed payments. Accordingly, labor units have fully declared the number of participants in social insurance, the amount to be paid, deductions from workers' salaries for social, insurance, and health insurance but have not paid, which the police have determined lacks deceitful elements or other tactics, thus not satisfying the criminal signs stipulated in Clause 1, Article 216.

Secondly, regarding the sign "being punished for administrative violations but still violating"

- The investigative agency does not accept cases due to decisions on administrative penalties for violations issued by social security agencies, which have been identified for delayed payment behaviors, not meeting the requirements to constitute a crime as stipulated.

- In addition, the minutes on administrative penalties identify the subject as labor units, so pursuing personal liability for individuals lacks a basis.

Illustrative image (VSS)

In addition, there are different interpretations of the sign "punished for administrative violations but still violating": Violating behaviors that have been punished for administrative violations can be understood as the same violation that has been administratively sanctioned, but the labor unit has not paid the fine (satisfying the sign for at least 6 months or more for 10 people or 50 million VND) or as violating behaviors repeated after being administratively sanctioned (where the labor unit has previously paid or not paid the determined fine in the decision on administrative penalties).

Thirdly, regarding delayed payment behaviors where labor units have fully declared the number of participants and the amount to be paid but have not paid (due to claimed difficulties in business operations, without deceitful elements), the investigative agency has the opinion "The unit is indebted due to difficulties, so it is proposed to file civil lawsuits according to legal provisions." However, currently, the process of filing lawsuits by trade union organizations is facing many difficulties, so it is almost impossible to implement in practice due to difficulties in implementing labor's authorization provisions and the practical application of trade union organizations.

As of now, there have been no cases related to Article 216 brought to trial in practice because the police have determined that the violation behavior does not meet the requirements to constitute a crime, lacking conditions for jurisdiction; social security agencies have encountered many difficulties in identifying evasion behaviors for administrative penalties as a basis, a premise for criminal prosecution for evasion of contributions.

Proposals, recommendations

To enhance the effectiveness of law enforcement in social, unemployment, and health insurance contribution obligations, contribute to fulfilling the tasks set out in Resolution No. 28-NQ/TW to ensure the legitimate rights of workers, prevent and strictly handle violations of social, health, and unemployment insurance contribution obligations, it is necessary to study and establish specific regulations related to delayed payments and evasion of social, unemployment, and health insurance contributions in the draft amended Social Insurance Law, Health Insurance Law, and related legal normative documents to ensure consistency with administrative and criminal legal provisions and the practical organizational and implementation situation.