The violation of insurance payment requirements by businesses has become increasingly intricate, leading to widespread dissatisfaction among the public. To tackle this issue, the Criminal Code regulations were introduced with the primary objective of establishing a robust legal framework. This framework aims to facilitate the more stringent enforcement of social, health, and unemployment insurance regulations, ensuring that offenders are held accountable for their actions.

Delaying or evading social, health and unemployment insurance payments committed by businesses have affected workers’ rights

On August 15, 2019, the Supreme People’s Court’s Council of Judges announced Resolution No 05/2019/NQ-HĐTP, which provides guidance for the implementation of articles 214, 215 and 216. This is significant because these articles introduce several new offences in the Criminal Code.

On January 22, 2020, the Vietnam Social Security (VSS) took action by sending Official Dispatch No 239/BHXH-PC to local social security offices. The Dispatch serves as a guide for receiving and processing information, as well as preparing and sending dossiers. It plays a crucial role in ensuring the smooth flow of legal procedures.

Implementation results

Since the implementation of the 2015 Criminal Code, social security offices at the provincial and city levels have been advising the local People's Committees to focus on and oversee the collection of debts related to social insurance, health insurance, and unemployment insurance. Their aim is to expand the participant network and reduce outstanding debts in these areas.

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In line with this, local social security offices have implemented Resolution No 05 since September 2019. This has become particularly important since the Vietnam Social Security (VSS) issued guidance on the procedures for prosecuting individuals with outstanding debts.

From 2018 to December 31, 2023, the VSS submitted 417 prosecution petitions to the investigation agency, including 34 criminal complaint dossiers under Article 214; four dossiers recommending prosecution under Article 215; 379 files recommending prosecution under Article 216.

In 2023 alone, 26 dossiers asking prosecution were filed including 17 dossiers under Article 214; one under Article 215 and eight others under Article 216.

Fifteen dossiers have been prosecuted, of which eight judgments have taken legal effect with over VND2.6 billion needed to be retrieved from violating individuals and organisations. More than VND2.3 billion have been so far retrieved.

Meanwhile, 220 dossiers have not been prosecuted because no evidence of crime or breach has been found. In other cases, infractions were transferred for administrative action.

Obstacles

Local social security offices have encountered a number of problems while preparing and sending dossiers asking prosecution.

Firstly, in many cases, the act of evading or delaying social insurance contributions does not have enough elements to constitute a crime because there was no sign of fraud or other tricks.

In practice, in the majority of payment delay situations, companies have completely stated the number of persons enrolled in social insurance, as well as the amount of contributions and deductions from the employee's wage to pay for social, unemployment, and health insurance. However, the insurance contributions have not been made.

The police found that those acts were conducted without fraudulence or other techniques, thus they do not meet the criminal indicators outlined in Clause 1, Article 216.

Secondly, the investigation agency declined to accept the dossier containing repeated administrative violations.

According to the administrative fines issued by the VSS, the act of late insurance payment did not have enough elements to constitute a crime. The minutes of administrative violation punishments designate the perpetrators as labour employment units, leaving no proof to prosecute individuals.

Third, in case employers blamed delaying payment on production and business difficulties and there were no fraudulent tricks found, the investigating agency proposed a civil lawsuit.

However, the trade union encountered significant challenges in filing the lawsuits. In fact, lawsuits cannot be filed due to obstacles in implementing regulations governing employee authorisation.

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In fact, no cases have been so far put on trial under Article 216 because the police determined that the offences lacked the necessary elements to constitute a crime.

The VSS has faced many difficulties in detecting acts of payment evasion in order to apply administrative fines as a foundation for criminal payment evasion prosecution.

On the other hand, Article 216 states that it can only be applied to legal entities; it is difficult to apply to individuals because there are no regulations in place to sanction administrative violations for individuals who are managers, executives, or legal representatives of the employment units.

Proposals made for improvements

According to the VSS, it is necessary to study specific regulations related to late payment and evasion of social insurance, unemployment insurance and health insurance contributions in the draft Law on Social Insurance, the revised Law on Health Insurance and related legal documents.

The goal is to ensure that those laws are relevant with current administrative and criminal regulations, and that they are consistent with organisational and implementation practices.

The VSS proposed issuing instructions on how to collect documents to ensure necessary and sufficient conditions before sending the petition for prosecution to the investigation agency, in order to fully meet the conditions for converting documents and records into evidence for investigation and prosecution of payment evasion under Criminal Code’s Article 216.