Accordingly, the VSS proposes to clarify the subjects in the regulations on administrative sanctions against the individual head or the legal representative.

Accordingly, in Clause 1, Article 3 of Decree No. 28/2020/ND-CP, the VSS recommends that the sanctioning of administrative violations against individuals who are the legal representatives of the labor use units violating the regulations on paying social insurance and unemployment insurance premiums is still undergoing several problems. The reason is the regulated concept of "the employer" participating in compulsory social insurance, according to the provisions of Clause 3, Article 2 of the Law on Social Insurance 2014, including: State agencies, non-business units, people's armed forces units; political organizations, socio-political organizations, socio-political and professional organizations, socio-professional organizations, and other social organizations; foreign agencies, organizations and international organizations operating in the Vietnamese territory; enterprises, cooperatives, individual business households, cooperative groups, other organizations or individuals who hire employees under labor contracts. Therefore, violations of the obligation to pay social insurance premiums are difficult to blame for the individual who is the head of an enterprise or organization.

Illustrative image (source: Internet)

From the situation, VSS proposes that it should be more clearly defined in Article 38 of the Decree on the form of fines, specifically: In addition to fines for violating organizations, it is necessary to clearly specify the concurrent fine of the head or legal representative of such organization to an appropriate level to associate with individual's responsibility in compliance with the law, and at the same time have grounds to consider criminal liability to individuals when constituting a crime specified in Clause 1, Article 216 of the Penal Code on evasion of payment of social insurance, health insurance and unemployment insurance premiums.

Along with that, in Clause 1, Article 3 of Decree 28/2020/ND-CP stipulating the application of the form of warning to be one of the two main penalties for administrative violations in the field of social insurance and the sanctioning competence of the social insurance agency specified in Article 53 of the Decree. The application of this sanctioning form complies with Article 22 on the form of warning sanction and Article 9 on extenuating circumstances in the Law on Handling of Administrative Violations.

However, as the Decree has not yet specified and the application in practice still faces shortcomings, VSS has proposed to specify the cases of applying the form of warning sanctions in the field of social insurance to ensure deterrence as well as create conditions for the unit to overcome the consequences before and during the direct examination and inspection. Simultaneously, the VSS has proposed to study and add a number of contents to Clause 1 of Article 3 and rename Article 3 to: Penalty form, remedial measures and applied principles when sanctioning administrative violations in the field of social insurance for easier law application.