Illustration photo, Internet source

Late payment or evasion of social insurance payment is strictly prohibited behavior

The act of late payment or evasion of social insurance payment is a strictly prohibited act as stipulated at Article 17 of the 2014 Law on Social Insurance, depending on the nature and severity of the violation, it shall be subject to administrative or criminal sanctions. Regarding the Health Insurance Law, as stipulated at Article 11, one of the strictly prohibited acts is not paying or paying insufficiently for health insurance under regulations. There are no regulations on late payment or evasion of payment.

However, the current Social Insurance Law and Health Insurance Law do not have separate regulations and clear definitions for late payment and evasion of social insurance and health insurance payments, leading to difficulties in applying handling measures for each individual. The level of each act according to administrative and criminal sanctions.

Administrative sanctions for evasion of payment have been prescribed in Point a, Clause 7, Article 39 of Decree No. 12/2022/ND-CP and Clause 2, Article 80 of Decree No. 117/2020/ ND-CP, but there is no document clearly defining the concept of evasion of payment, so there is no basis to determine the error factor to punish administrative offices for the act of "evasion of payment" as a basis and premise for enforcement of criminal proceedings.

Therefore, currently, the social insurance agency is facing many difficulties in identifying acts of evasion of payment to punish administrative violations. The facts show that, in the process of sanctioning administrative violations, the social insurance agency can only determine that the number of people participating in social insurance, unemployment insurance, and health insurance is not paid or is not paid enough under to regulation.

In addition, Article 216 of the Criminal Code of Vietnam regulates the act of evading social insurance payments, clearly stating that anyone who has the obligation to pay social insurance for employees who cheats or uses other tricks to not pay or not pay fully as regulated, from 6 months or more. Thus, one of the elements constituting the crime of evading social insurance payments is fraud or other tricks.

Regarding this content, the Council of Judges issued Resolution No. 05/2019/HDTP dated August 15, 2019 guiding the application: "Shirking insurance payments specified in Article 216 of the Criminal Code of Vietnam is an act of employers are obliged to pay social, health, and unemployment insurance for employees but cheat or use other tricks to not pay or not fully pay social, health, and unemployment insurance for employees who are required to participate in social, health, unemployment insurance". However, because there is no clear separation between the acts of late payment and evasion of payment of social, unemployment, and health insurance, there are differences in understanding and determining the behavior, the fault elements and elements constituting crimes between different countries.

From the facts, the social insurance agency currently does not have the tools to determine whether violations of the payment obligation are evasion or not, nor does it have the authority to prove that the person has the obligation to pay social, unemployment and health insurance intentionally and fraudulently and using other tricks under the instructions as regulated at Article 2 of Resolution No. 05/2019/NQ-HDTP of the Council of Judges. In fact, when a business owes social insurance and health insurance, it is not easy to distinguish between "fraud" (or just debt due to objective difficulties), especially in the case of outstanding debt, delayed payment of social, health, and unemployment insurance may be due to general difficulties of the business. Therefore, the situation of delayed payment and evasion of payment of social insurance and health insurance is still complicated and no case has been brought to trial.

It is proposed that there should be separate criminal sanctions

Reporting a number of major problems in the reception, explanation and revision of the Draft Law on Social Insurance (amended), the National Assembly's Social Committee said, in order to overcome the inadequacies of organizing the implementation of the Law. Currently, when dealing with cases of late payment or evasion of social insurance payment, the Draft Law is revised in the direction of clarifying and separating articles on determining late payment, evasion of payment, handling of late payment, handling of evasion of payment, to clearly identify acts of late payment and acts of evasion of social insurance payment, thereby applying appropriate handling measures.

Delegate Nguyen Dai Thang (Hung Yen Delegation). Photo: HL

Agreeing with the above approach, delegate Nguyen Dai Thang (Hung Yen Delegation) said that expanding sanctions as proposed by the Government is appropriate and meets practical requirements. However, to strengthen sanctions to handle violations of late payment or evasion of social insurance payment, and at the same time further enhance the responsibility of employers to pay social insurance, delegates suggested that the Draft Law should supplement the following provisions: Sanctions are intended to increase deterrence in cases where employers deliberately avoid paying or delay paying social insurance, except for objective reasons.

Delegate Nguyen Thi Suu (Thua Thien Hue Delegation) also proposed regulations on not considering participating in bidding for works and projects invested by the state budget for units that use labor with slow payment. Extended social insurance, so that employers strictly comply with legal regulations.

At the same time, in addition to regulations on administrative handling, it is necessary to upgrade handling towards criminal prosecution according to the provisions of law. Because, according to the delegate, Article 216 of the Criminal Code of Vietnam stipulates the crime of late payment of social insurance, but in the current Social Insurance Law there are no regulations on criminal handling of the crime of late payment of social insurance by employers, Therefore, it is necessary to study and supplement this regulation for synchronization and consistency.

Delegate Tran Van Khai (Ha Nam Delegation) analyzed that the draft Law clearly defines two acts of late payment and evasion of compulsory social insurance payment. However, in the draft Law regulating the handling of violations of late payment and evasion of payment of compulsory social insurance, late payment or evasion of payment are handled in the same way.

Illustrative image (internet)

The delegate requested that the drafting agency review and research additional appropriate handling measures for these two violations. At the same time, it is necessary to clearly stipulate how long the delay in payment will be considered evasion of social insurance payment.

According to delegates, it is necessary to regulate the concept of how long and how many times late to pay insurance premiums, and at the same time stipulate administrative and economic sanctions... to handle violations of late payment of social insurance according to the number of violations.

For the act of evading social insurance payments, delegates suggested that it should be developed into a new criminal regulation added to the Criminal Code of Vietnam (such as tax evasion) and have its own criminal sanctions. Only then can we handle the matter properly, accurately, quickly, and in accordance with each level of violation in the responsibility to pay social insurance./.