An overview of the discussion at the symposium

The symposium was attended by Vice Chairman of the People’s Committee of Binh Dinh province Nguyen Tuan Thanh; Vice President of the Vietnam General Confederation of Labour (VGCL) Ngo Duy Hieu; and representatives from departments and sections of related ministries and sectors (the Supreme People’s Court, the Supreme People’s Procuracy, the Government Inspectorate, the Justice Ministry, the Ministry of Labour, Invalids and Social Affairs, the Health Ministry, the VGCL, the Vietnam Chamber of Commerce and Industry, the General Department of Taxation, and the Investigation Police Department for Economic and Corruption-related Crimes…). Leading scientists and experts in criminal matters and representatives from some units of the VSS and social insurance agencies of 11 cities and province – Hanoi, Ho Chi Minh City, Da Nang, Hai Phong, Binh Phuoc, Dong Nai, Binh Duong, Nghe An, Thanh Hoa, Quang Ninh and Binh Dinh - were also present at the event.

Criminalising violations of social, health and unemployment insurance regulations: urgent issue

Speaking of the reasons for the criminalisation of violations of social, health  and unemployment regulations in the Penal Code, Tran Van Dung, deputy head of the Department of Criminal and Administrative Legislation under the Justice Ministry, said violations of laws on social, health and unemployment insurance are on the rise in recent years, which has not only seriously affected the rights of labourers and insurance participants, but also caused serious consequences for the stability and development of social welfare policies as well as the Party and State’s policies on attracting investments for national economic development.

Moreover, in the context of Vietnam stepping up industrialization,  modernisation of the market economy and integration, it is essential to ensure the stability and development of social welfare policies and protect the workforce.

Therefore, it was necessary to add to the 2015 Penal Code four crimes relating to this field, which are frauds in insurance business (Article 213); social and unemployment insurance fraud (Article 214); health insurance fraud (Article 215); and evasion of social, health and unemployment premium payment (Article 216.

Tran Van Dung, deputy head of the Department of Criminal and Administrative Legislation under the Justice Ministry, said the addition of four crimes relating to insurance to the 2015 Penal Code is necessary.

Dung said the birth of the 2015 Penal Code marked a breakthrough development of policy and thinking in the field of criminal legislation of the State, as this was the first time in the history of criminal legislation, the Penal Code had stipulated the criminal liability of commercial organisations and legal entities. This has changed the traditional concepts on crimes and punishments, meeting requirements of the combat against crimes committed by commercial legal entities in Vietnam in recent years.

“In particular, legal violations concerning social, health and unemployment insurance by businesses are common in different spheres of the socio-economic life. Such violations have shown signs of rising with increasing severity, directly affecting the life, health and healthy development of people, and threatening the living environment of people. Therefore, with strong measures, the Penal Code will deter and push back violations of social, health and unemployment insurance policies, ensuring healthy, safe and sustainable social development, and enforcing one of the constitutionalised rights of citizens, which is to the right to live in a healthy environment with social welfare ensured,” Dung said.

Echoing the view, Nguyen Chi Cong, Deputy Director of the Department of Legal Aaffairs and Science Management (the Supreme People’s Court), said the criminalization of some violations of legal regulations on insurance reflects that these violations have become so rampant and posed such considerable threats to society that the strictest measures – criminal punishments – are required to deal with them. It also clearly demonstrates the Party and State’s viewpoint and policies on ensuring citizens and labourers’ rights and interests and developing the social security system.

These regulations, along with new stipulations in a number of laws recently approved by the National Assembly (like the Labour Code, the Employment Law, and the Criminal Procedure Code), have created many enforcement mechanisms and methods for handling insurance- and labour-related violations. In fact, they have been producing certain effects.

Nguyen Chi Cong, Deputy Director of the Department of Legal Affairs and Science Management under the Supreme People’s Court, said to effectively implement regulations on crimes in social, health and unemployment insurance in the 2015 Penal Code, the Council of Justices of the Supreme People’s Court needs to issue detailed guidance documents.

However, Cong also said to implement those regulations of the Penal Code consistently in reality, the Council of Justices of the Supreme People’s Court needs to issue detailed guidance documents on some issues. For example, guidance is needed for the consistent interpretation of some concepts and details in several articles (like frauds in social, health and unemployment insurance; evading insurance premium contribution; sophisticated and cunning ruses; and professional violations), and specify the point of time to start investigation of the criminal responsibility of persons or commercial legal entities that have infringed regulations on social, health and unemployment insurance.

On the signs of crimes in the fields of social, health and unemployment insurance, Ho Quang Hung from the Police Department on Economic Crime of the Ministry of Public Security said the specification of these offences is necessary to create a legal foundation for criminally handling the evasion of contributing social, health and unemployment insurance premiums, and violations of people’s right to gain social, health and unemployment benefits.

He added that to do this, firstly, it is necessary to base on concrete signs of violations in terms of the object and subject of the crime, and the objectivity and subjectivity of the crime. Secondly, there must be sufficient evidence of the crime such as evidence of the subject, objectivity and subjectivity of the crime, along with other proofs of criminal liability. Evidences could be material ones; documents and papers; testimonies of witnesses, detainees and defendants; verification conclusions; or search and examination minutes.

To enhance the enforcement of regulations on social, health and unemployment insurance-related crimes, Hung put forth some recommendations. For example, the Ministry of Public Security should take the initiative in coordinating with or actively coordinate, when it is requested, with the Ministry of Justice, the Supreme People’s Procuracy, the Supreme People’s Court and the VSS to soon issue a circular guiding the implementation of laws on crimes in social, health and unemployment insurance and the handling of commercial legal entities offending such crimes to ensure consistent awareness in the settlement of this group of crime. It is also necessary to supplement regulations on criminal measures against other offences relating to the management and implementation of social, health and unemployment insurance, instead of using other articles in the Penal Code to handle those offences like at present.

He also suggested increasing coordination among authorized agencies in managing and fighting crime and infringement of insurance-related regulations through signing and carrying out coordination agreements. Particularly, the VSS and the Police Department on Crime Prevention and Control (the Ministry of Public Security) should promote the effectiveness of their coordination in combating crime and law violations in the fields of social and health insurance.

Ensuring the strictness and justice of law

At the event, participants shared the VSS’s viewpoint that before using penal measures to deal with law violations pertaining to social, health and unemployment insurance, the VSS should push ahead with professional measures such as intensifying solutions to collect insurance premium debt, inspecting businesses with big and prolonged debt, publicizing firms’ social insurance premium debt in the mass media, and stepping up communications campaigns about the insurance-related law violations criminalized in the Penal Code to enhance deterrence.

MA Nguyen Thi Hong Tham from the Legal Department (the Government’s Inspectorate) said inspection work in the social insurance sector has helped protect the rights and legitimate interests of citizens and labourers, and ensure social welfare, order and safety.

Sharing the efforts and outcomes made by the VSS in implementing the function of inspecting the payment of social, unemployment and health insurance premiums, MA Nguyen Thi Hong Tham from the Legal Department of the Government Inspectorate said that over the past time, the transfer of the function of inspection in social, unemployment and health insurance payment to the VSS has helped enhance inspection activities in the insurance sector. Via inspections, many law violations concerning social, unemployment and health insurance have been found, contributing to protecting the legitimate rights and interests of people and workers, ensuring social security and social order and safety, minimizing losses, ensuring balanced social and health insurance funds as well as the strictness of the law, and consolidating the humane goals of the Party and State’s social security policies.

“Especially, amid the increasingly complex abuse of social, unemployment and health insurance policies and the rising overdue premiums, the VSS has strengthened coordination with relevant ministries and agencies in the management of social, unemployment and health insurance. However, insurance-related crime is showing signs of increasing with complicated developments. In addition to the evasion of insurance premium payment and the reoccurrence of social insurance debts, other more complex and sophisticated offences have appeared. Therefore, in the coming time, more effective solutions are needed in performing the inspecting function in order to promptly detect and handle law violations and transfer cases with criminal signs to competent agencies on time and in a right process, contributing to ensuring the stringency of the law and the interests of labourers,” Tham said.

Based on internal and inter-sectoral inspection work conducted by the Ministry of Labour, Invalids and Social Affairs over the past time, Nguyen Anh Tuan, head of the Social Insurance Inspection Division of the ministry’s Inspection Agency, said the inspections had revealed many businesses which evaded the payment of social, unemployment and health insurance premiums by reaching deals with employees to sign under-three-month, one-month and seasonal labour contracts or contracts with collaborators and apprentices to dodge legal regulations. Notably, the signing of these contracts is conducted repeatedly during long durations. Regarding social insurance payment levels, they often pay insurance contribution calculated based on the regional minimum salary or pay for only a part of eligible staff members. In addition, violations in preparing dossiers for enjoying sickness and health recovery benefits are on the rise… Therefore, the inspection taskforce of the Ministry of Labour, Invalids and Social Affairs is working with the VSS and the ministry’s Employment Department to inspect the enforcement of laws relating to social, unemployment and health insurance, in order to further increase the efficiency of labour and social insurance inspections in the time to come.

Vice President of the Vietnam General Confederation of Labour Ngo Duy Hieu said that businesses’ evasion and owing of social, unemployment and health insurance payment will erode workers’ trust in the strictness of the law.

Representing employees who participate in and benefit from social, unemployment and health insurance policies, Vice President of the Vietnam General Confederation of Labour Ngo Duy Hieu said that total unpaid debts in social insurance premiums increased from 6,257 billion VND in 2013 to 7,061 billion VND in 2015. In 2017, the figure slightly decreased to 5,737 billion VND, including 1,667 billion VND of debts deemed difficult to recover and 476 billion VND of bad debts, as firms have been dissolved and gone bankrupt or their foreign owners have run away. These figures show that law violations committed by legal entities that are enterprises have become widespread in different socio-economic areas, and tended to increase in more serious nature and levels. Some cases contain enough factors that constitute a criminal offence in line with the provisions of the Criminal Code.

Assessing the corollary of this problem, Hieu said that the increasingly rampant evasion and owing of social, unemployment and health insurance payment among businesses not only prevent labourers from enjoying social, unemployment and health insurance benefits and violate their rights to social insurance participation in immediate and long terms, but also erode workers’ trust in employers. Employees will not want to devote themselves to and work for companies for a long time, thus affecting labour productivity and competitiveness of businesses. This is also one of the reasons of disputes and conflicts between employees and employers, leading to spontaneous and collective strikes that cause social instability. It also erodes workers’ confidence in the stringency of the law and fails to encourage labourers to actively join social, unemployment and health insurance, affecting the consolidation of the country’s social security.

Hieu also briefed participants on the Vietnam General Confederation of Labour (VGCL)’s orientations to protect labourers from criminal actions in social insurance, health insurance and unemployment insurance.

The VGCL will recommend the Ministry of Public Security to consider and begin legal proceedings on several cases related to social insurance, health insurance and unemployment insurance to create deterrence, demonstrate the strictness of the law, while guiding trade unions at all levels in how to make a petition to investigation offices to begin legal proceedings against legal violations regarding social insurance, health insurance and unemployment insurance, Hieu said.

The VGCL will instruct trade unions at all levels to actively coordinate with the police, agencies and local administrations to effectively prevent and deal with violations and crimes in this field; intensify dissemination of legal regulations related to social insurance, health insurance and unemployment insurance for trade union members and labourers so that they can detect and take the initiative in reporting legal violations concerning social insurance, health insurance and unemployment insurance.

Moreover, the VGCL will also coordinate and participate in inspections and supervisions of the enforcement of laws related to social insurance, health insurance and unemployment insurance, and continue taking part in the making, revision and supplementation of policies and laws on social insurance, he added.

Deputy Director General of Vietnam Social Security Tran Dinh Lieu; deputy head of the Justice Ministry’s Criminal and Administrative Legislation Department, Dr Tran Van Dung; and deputy head of the Department of Legal Affairs and Science Management under the Vietnam Supreme People’s Court, Dr Nguyen Chi Cong, chair discussions at the symposium.

During the discussions, delegates exchanged views on and raised numerous issues in the implementation of the Penal Code on crimes related to social insurance, health insurance and unemployment insurance, such as measures to intensify inspections over social insurance, health insurance and unemployment insurance affairs; the authority to impose fine during specialised inspections of the social insurance sector, the responsibility of the insurance sector’s specialized inspectors in handing over signs of offences to investigation offices and suggest them consider and start legal proceedings against crimes in social insurance, health insurance and unemployment insurance.

Participants also clarified the concept of “entrepreneurial legal entity” to make it a foundation to define crimes in this field, while sharing experience in effectively implementing coordination between the police and social insurance agencies to prevent and handle legal violations on social insurance, health insurance and unemployment insurance, as well as lessons drawn from the fight against criminals who conducted defraud acts to appropriate health insurance fund in Hai Phong city.

Most delegates appreciated the role of specialised inspections of payment of social insurance, health insurance and unemployment insurance of the social insurance sector, agreeing that this is an important step towards launching criminal charges against units and individuals violating the Law on Social Insurance and the Law on Health Insurance. Therefore, it is necessary to carry out more effective measures to better exercise the inspection function of the social insurance sector, including completing inspection-related regulations and increasing the quality of inspectors’ conclusions and post-inspection settlement.

Ensuring sustainability of the country’s social security system

VSS Deputy Director General Tran Dinh Lieu affirmed that the diverse and valuable opinions and speeches presented at the event provided the social insurance sector with new documents, proposals and feasible measures, thus helping the sector define its responsibility for and obligations in mapping out orientations for the implementation of the Penal Code in dealing with crimes related to social insurance, health insurance and unemployment insurance in the time to come.

Deputy Director General of Vietnam Social Security Tran Dinh Lieu speaks in conclusion of the symposium

Deputy Director General Lieu assigned the Legal Department to work with the Inspection Department and relevant units to study the ideas contributed by delegates at the event and base on existing legal regulations to draft a document guiding social insurance agencies in provinces and cities in implementing the Penal Code regulations on crimes related to social insurance, health insurance and unemployment insurance.

On behalf of the organizing board, the Deputy General Director acknowledged and thanked scientists, experts and managers for their contributions to the symposium. He added that VSS hopes to continue receiving ideas of delegates to contribute to promoting the sector’s progress and intensifying coordination in not only scientific research but also other work aspects, so as to ensure the sustainability of the country’s social welfare system./.