Bản dịch văn bản 86/2010/NĐ-CP
Decree 86/2010/NĐ-CP
Cơ quan ban hành: Chính phủ
Ngày ban hành: 2010-08-13

DECREE ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE SOCIAL INSURANCE DOMAIN THE GOVERNMENT Pursuant to the December 25, 2001 Law on Organization of the Government; Pursuant to the June 29, 2006 Social Insurance Law; Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations and the April 02, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations; At the proposal of the Minister of Labor, War Invalids and Social Affairs, DECREES: Chapter I GENERAL PROVISIONS Article 1. Scope of regulation 1. This Decree provides administrative violations, sanctioning forms and levels, competence and procedures, and remedies for administrative violations of the social insurance law. An administrative violation in the social insurance domain means an individual's, agency's or organization's act of intentionally or unintentionally violating the social insurance law, which is not a crime and must be administratively sanctioned under law. 2. This Decree docs not apply to violations of the laws on health insurance, savings deposit insurance and other commercial insurance. Article 2. Subjects of application 1. Subject to sanctioning are: a) Agencies, organizations and individuals committing administrative violations in the social insurance domain (below referred to as violators); b) Foreign individuals and organizations committing administrative violations in the social insurance domain within the territory, exclusive economic zone and continental shelf of the Socialist Republic of Vietnam, unless otherwise provided by treaties to which the Socialist Republic of Vietnam is a contracting party. 2. Agencies, organizations and individuals involved in the sanctioning of administrative violations in the social insurance domain. 3. This Decree does not apply to cadres and civil servants who commit violations defined in this Decree when they are performing their assigned official duties. Their violations shall be handled under the law on cadres and civil servants. Article 3. Sanctioning principles, aggravating and extenuating circumstances 1. Principles of sanctioning administrative violations in the social insurance domain comply with Article 3 of the Ordinance on Handling of Administrative Violations and Article 3 of the Government's Decree No. 128/2008/ND-CP of December 16. 2008 detailing a number of articles of the 2002 Ordinance on Handling of Administrative Violations and the 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations (below referred to as Decree No. 128/2008/ND-CP). 2. Aggravating circumstances apply under Article 9 of the Ordinance on Handling of Administrative Violations and Article 6 of Decree No. 128/2008/ND-CP. 3. Extenuating circumstances apply under Clause 1, Article 8 of the Ordinance on Handling of Administrative Violations. Article 4. Sanctions and remedies for administrative violations 1. Principal sanctions: a) Caution; b) Fine. The highest fine on an administrative violation in the social insurance domain is VND 30,000,000. When fine applies, the specific fine level applicable to a violation is the average level of the corresponding fine bracket applicable to that violation set in this Decree. If the violation involves an extenuating circumstance, the fine level may be lower, but not below the lowest level of the prescribed bracket. If the violation involves an aggravating circumstance, the fine level may be higher, but not higher than the highest level of the prescribed bracket. 2. Additional sanctions: Confiscation of material evidences and means used for administrative violations in the social insurance domain. 3. Remedies: Depending on the nature and severity of violations, violators are also subject to remedies defined in Chapter II of this Decree. Article 5. Statute of limitations 1. The statute of limitations for sanctioning administrative violations in the social insurance domain is one (1) year counting from the date of committing an administrative violation. Past this time limit, violators are not subject to sanctioning but are still subject to remedies provided in this Decree. 2. The above statute of limitations is not applicable when a violator commits a new administrative violation in the social insurance domain or deliberately shirks or obstructs the sanctioning within the time limit slated in Clause 1 of this Article. In this case, the statute of limitations for sanctioning administrative violations shall be recounted from the time the new administrative violation is committed or the time the act of shirking or obstructing the sanctioning terminates. 3. The statute of limitations applicable to individuals subject to initiation of criminal cases, prosecution or trial according to criminal procedures under decisions whose investigation or criminal cases are later terminated under decisions but their violations show signs of administrative violation in the social insurance domain complies with Clause 2, Article 10 of the Ordinance on Handling of Administrative Violations. Article 6. Time limit for being considered not yet being sanctioned The time limit for being considered not yet being sanctioned for administrative violations in the social insurance domain complies with Article 11 of the Ordinance on Handling of Administrative Violations. Chapter II VIOLATIONS. SANCTIONING FORMS AND LEVELS AND REMEDIES Section 1 FOR EMPLOYERS Article 7. Failing to pay social insurance premiums for all un employees liable to compulsory social insurance and unemployment insurance 1. A fine of: a) Between VND 1.000.000 and VND 5.000,000. for violations against 1 to 10 employees; b) Between VND 5.100.000 and VND 10.000.000, for violations against 11 to 50 employees; c) Between VND 10.100.000 and VND 18,000.000. for violations against 51 to 100 employees; d) Between VND 18.100.000 and VND 24,000.000. for violations against 101 to 500 employees; e) Between VND 24.100.000 and VND 30.000.000, for violations against more than 500 employees. 2. Remedies: a) Forced retrospective payment of social insurance premiums within 30 days after receiving a sanctioning decision: b) Forced payment of interests for unpaid or lately paid social insurance premiums at the interest rate of social insurance fund-invested activities in the year within 30 days after receiving a sanctioning decision. Article 8. Paying social insurance premiums for not all employees liable to compulsory social insurance and unemployment insurance 1. A fine of between VND 300.000 and VND 2.5(X.),000 for a violation against each employee. 2. Remedies: a) Forced retrospective payment of social insurance premiums within 30 days after receiving a sanctioning decision: b) Forced payment of interests for unpaid or lately paid social insurance premiums at the interest rate of social insurance fund-invested activities in the year within 30 days after receiving a sanctioning decision. Article 9. Delaying payment of compulsory social insurance and unemployment insurance premiums 1. A fine equal to 0.05% of the payable level under the social insurance law for each day of delayed payment, which must not exceed VND 30 million. 2. Remedies: a) Forced retrospective payment of social insurance premiums within 30 days after receiving a sanctioning decision; b) Forced payment of interests for unpaid or lately paid social insurance premiums at the interest rate of social insurance fund-invested activities in the year within 30 days after receiving a sanctioning decision. Article 10. Paying compulsory social insurance and unemployment insurance premiums lower than prescribed level 1. A fine of between VND 300.000 and VND 7(X),000 for a violation against each employee. 2. Remedies: a) Forced retrospective payment of social insurance premiums within 30 days after receiving a sanctioning decision; b) Forced payment of interests for unpaid or lately paid social insurance premiums at the interest rate of social insurance fund-invested activities in the year within 30 days after receiving a sanctioning decision. Article 11. Making untruthful lists of employees to enjoy compulsory social insurance benefits (allowances for ailment, maternity, labor accidents and occupational diseases, etc) 1. Caution. 2. A fine of between VND 200,000 and VND 500.000 for a violation against each employee. 3. Remedies: a) Forced refund of improperly received amounts to social insurance institutions within 10 working days after receiving a sanctioning decision; b) Forced correction and submission of untruthfully certified documents within 10 working days after receiving a sanctioning decision. Article 12. Untruthfully certifying working durations and levels of payment of compulsory social insurance and unemployment insurance premiums for employees 1. Caution. 2. A fine of between VND 200.000 and VND 400,000 for a violation against each employee. 3. Remedies: a) Forced refund of improperly received amounts to social insurance institutions within 10 working days after receiving a sanctioning decision; b) Forced correction and submission of untruthfully certified documents within 10 working days after receiving a sanctioning decision. Article 13. Failing to compile dossiers of compulsory social insurance and unemployment insurance within 30 days after concluding a labor, working or recruitment contract 1. A fine of between VND 300.000 and VND 700.000 for a violation against each employee. 2. Remedy: Forced compilation and completion of dossiers and carrying out procedures for employees within 10 working days after receiving a sanctioning decision. Article 14. Failing to carry out formalities (compiling dossiers or documents) to request a social insurance institution to settle pension benefits for an employee 30 days before the time this employee is eligible for retirement on pension or to settle benefits for an employee suffering a labor accident or an occupational disease after receiving complete and valid papers from such employee 1. Caution. 2. A fine of between VND 200,000 and VND 500.000 for a violation against each employee. 3. Remedy: Forced compilation and completion of formalities to request social insurance institutions to settle social insurance benefits for employees within 10 working days after receiving a sanctioning decision. Article 15. Failing to pay compulsory social insurance allowances to employees (allowances for ailment, maternity, labor accidents, occupational diseases, etc.) 1. A fine of between VND 1.500,000 and VND 2.000.000 for a violation against each employee. 2. Remedy: Forced payment of social insurance allowances to employees within 10 working days after receiving a sanctioning decision. Article 16. Delaying payment of benefits for ailment and maternity, allowances for convalescence and health recovery after ailment or maternity within 3 working days after receiving complete and valid papers from employees; and benefits for labor accidents and occupational diseases with 15 days after receiving a payment decision from a social insurance institution 1. A fine of between VND 200,000 and VND 500,000 for a violation against each employee. 2. Remedy: Forced payment of social insurance indemnities to employees within 10 working days after receiving a sanctioning decision. Article 17. Failing to return social insurance books on time to off-work employees 1. Caution. 2. A fine of between VND 500,000 and VND 1,000,000 for a violation against each employee. 3. Remedy: Forced return of social insurance books to employees within 10 working days after receiving a sanctioning decision. Article 18. Breaching the liability to preserve social insurance books during employees' working duration, leading to their loss, damage, modification or erasure 1. Caution. 2. A fine of between VND 100,000 and VND 200,000 for losing, damaging, modifying or erasing each social insurance book. 3. Remedy: Forced completion of procedures to request competent agencies to re-issue social insurance books within 10 working days after receiving a sanctioning decision. Article 19. Failing to send employees to a medical examination council for examination of their working capacity reduction level for settlement of their social insurance benefits 1. Caution. 2. A fine of between VND 500,000 and VND 700.000 for a violation against each employee. 3. Remedy: Forced sending of employees to a medical examination council for examination of their working capacity reduction level within 10 working days after receiving a sanctioning decision. Article 20. Failing to provide documents and information on compulsory social insurance or unemployment insurance at the request of competent state agencies, employees or trade unions 1. Caution. 2. A fine of between VND 1.000,000 and VND 5.000,000. 3. Remedy: Forced provision of documents and information within 10 working days after receiving a sanctioning decision. Article 21. Untruthfully reporting on or providing untruthful information and statistics on social insurance for competent state agencies and local social insurance institutions 1. Caution. 2. A-fine of between VND 1,000,000 and VND 5,000,000. 3. Remedy: Forced reporting on or provision of truthful information and statistics within 10 working days after receiving a sanctioning decision. Article 22. Using the compulsory social insurance fund for improper purposes 1. A fine of between VND 6.000,000 and VND 10.000.000. 2. Remedies: a) Forced remittance of profits earned from the improper use of the fund; b) Forced refund of all improperly used amounts of the social insurance fund within 10 working days after receiving a sanctioning decision. Section 2 FOR EMPLOYEES Article 23. Reaching agreement with employers not to participate in compulsory social insurance and unemployment insurance 1. Caution. 2. A fine of between VND 100.000 and VND 300,000. 3. Remedies: a) Forced retrospective payment of social and unemployment insurance premiums within 10 working days after receiving a sanctioning decision; b) Forced payment of interests of unpaid or lately paid social or unemployment insurance premiums at the interest rate of social insurance fund-invested activities in the year within 10 working days after receiving a sanctioning decision. Article 24. Untruthfully declaring or modifying or erasing contents related to enjoyment of compulsory and voluntary social insurance and unemployment insurance 1. Caution. 2. A fine of between VND 300.000 and VND 1.000.000. 3. Remedies: a) Forced correction and submission of untruthfully declared documents; b) Forced refund of social insurance indemnities received as a result of violation, including also interests of the received amount, within 10 working days after receiving a sanctioning decision for violators of Clause 1 of this Article. Article 25. Forging dossiers to enjoy compulsory or voluntary social insurance or unemployment insurance benefits, which is not serious enough for penal liability examination 1. A fine of between VND 1.000,000 and VND 5.000.000. 2. Additional sanction: Confiscation of forged dossiers and means and tools used for forging dossiers. 3. Remedies: a) Forced correction and submission of untruthfully declared documents within 10 working days after receiving a sanctioning decision; b) Forced refund of social insurance indemnities received as a result of violation, including also interests of the received amount, within 10 working days after receiving a sanctioning decision. Article 26. Failing to provide information or providing untruthful information for employers, social insurance institutions or state agencies upon request 1. Caution. 2. A fine of between VND 100,000 and VND 400.000. 3. Remedy: Forced reporting on and provision of truthful information and statistics within 10 working days after receiving a sanctioning decision. Section 3 FOR SOCIAL INSURANCE INSTITUTIONS AND OTHER AGENCIES AND ORGANIZATIONS Article 27. Failing to issue social insurance books or close social insurance books on time 1. A fine of between VND 2,000,000 and VND 3,000.000. 2. Remedy: Forced making or closure of social insurance books and issuance of such books to employees within 10 working days after receiving a sanctioning decision. Article 28. Failing to settle compulsory social, unemployment or voluntary insurance benefits on time 1. A fine of between VND 2.000,000 and VND 5,000.000. 2. Remedy: Forced settlement of benefits for employees within 10 working days after receiving a sanctioning decision. Article 29. Improperly settling compulsory social, unemployment or voluntary insurance benefits 1. A fine of between VND 500.000 and VND 1.000,000 for a violation against each employee. 2. Remedy: Forced proper settlement of benefits for employees within 10 working days after receiving a sanctioning decision. Article 30. Paying compulsory social, unemployment or voluntary insurance indemnities at improper levels or not on time 1. A fine of between VND 3,000.000 and VND 6,000,000. 2. Remedy: Forced proper settlement of benefits for employees within 10 working days after receiving a sanctioning decision. Article 31. Causing harassments. difficulties, troubles or obstacles which harm the lawful rights and interests of employees or employers 1. Caution. 2. A fine of between VND 1.000.000 and VND 5.000.000. 3. Remedy: Forced compensation of damage to employees or employers (if any) within 10 working days after receiving a sanctioning decision. Article 32. Managing and using the compulsory social, unemployment or voluntary social insurance fund at variance with regulations 1. A fine of between VND 10,000.000 and VND 15,000,000. 2. Remedies: a) Proposal to competent agencies to confiscate profits earned from the improper use of the fund; b) Forced recovery and refund of the improperly used amounts of the social insurance fund within 10 working days after receiving a sanctioning decision. Article 33. Failing to provide or providing untruthful information and statistics on the management and use of the compulsory social, unemployment or voluntary social insurance fund for competent state agencies 1. Caution. 2. A fine of between VND 5,000.000 and 10.000.000. 3. Remedy: Forced provision or provision of truthful information and statistics within 10 working days after receiving a sanctioning decision. Article 34. Failing to provide and)or fully and promptly provide information on premium payment, rights to enjoy benefits and procedures for social and unemployment insurance at the request of employees, trade unions or employers 1. Caution. 2. A fine of between VND 2.000,000 and VND 5.000.000. 3. Remedy: Forced provision of full information within 10 working days after receiving a sanctioning decision. Article 35. Failing to report or untruthfully reporting on the management and use of the compulsory social, unemployment or voluntary social insurance fund to competent state agencies 1. Caution. 2. A fine of between VND 5.000,000 and VND 10.000,000. 3. Remedy: Forced reporting or truthful reporting within 10 working days after receiving a sanctioning decision. Article 36. Heath establishments failing to grant certificates or granting incorrect certificates or medical examination councils failing to grant or granting incorrect records of examination of working capacity reduction level for employees to enjoy social insurance benefits 1. Caution. 2. A fine of between VND 5.000.000 and VND 8.000.000 for a violation against each employee. 3. Remedy: Forced grant or re-grant of correct certificates within 10 working days after receiving a sanctioning decision. Article 37. Failing to counsel and recommend jobs for those on unemployment allowance 1. Caution. 2. A fine of between VND 2.000.000 and VND 10,000,000. 3. Remedy: Forced appropriate job counseling and recommendation and provision of vocational training for employees on unemployment allowance within 10 working days after receiving a sanctioning decision. Article 38. Failing to provide vocational training or providing inappropriate vocational training for those on unemployment allowance 1. Caution. 2. A fine of between VND 2.000,000 and VND 10.000,000. 3. Remedy: Forced appropriate job counseling and recommendation and provision of vocational training for employees on unemployment allowance within 10 working days after receiving a sanctioning decision. Article 39. Failing to provide vocational training support for those on unemployment allowance 1. Caution. 2. A fine of between VND 1.000.000 and VND 5.000.000. 3. Remedy: Forced application of measures to support the unemployed in employment generation and vocational training within 10 working days after receiving a sanctioning decision. Article 40. Recommending inappropriate jobs for those on unemployment allowance 1. Caution. 2. A fine of between VND 2.000.000 and VND 10.000.000. 3. Remedy: Forced appropriate job counseling and recommendation and provision of vocational training for employees on unemployment allowance within 10 working days after receiving a sanctioning decision. Chapter III COMPETENCE TO HANDLE AND PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE SOCIAL INSURANCE DOMAIN Article 41. Administrative violation-handling competence of chairpersons People's Committees of different levels 1. Chairpersons of commune-level People's Committees may: a) Impose caution; b) Impose fines of up to VND 2.000.000; c) Confiscate forged dossiers and means and devices used to forge dossiers, which are valued at up to VND 2,000.000. 2. Chairpersons of Peoples Committees of urban districts, rural districts, towns or provincial cities may: a) Impose caution; b) Impose fines of up to VND 30.000,000; c) Confiscate forged dossiers and means and devices used to forge dossiers; d) Force the application of remedies defined in Chapter II of this Decree. 3. Chairpersons of Peoples Committees of provinces or centrally run cities may: a) Impose caution; b) Impose fines of up to VND 30,000,000; c) Confiscate forged dossiers and means and devices used to falsify dossiers; d) Force the application of remedies defined in Chapter II of this Decree. Article 42. Administrative violation-handling competence of labor, war invalids and social affairs inspectors 1. Labor, war invalids and social affairs spectors on official duty may: a) Impose caution; b) Impose fines of up to VND 500,000; c) Confiscate material evidences and means used in administrative violations, which are valued at up to VND 2,000,000; d) Force the application of remedies defined in Chapter 11 of this Decree. 2. Chief inspectors of provincial-level Labor War Invalids and Social Affairs Departments may: a) Impose caution; b) Impose fines of up to VND 30,000,000; c) Confiscate forged dossiers and means and devices used to forge dossiers; d) Force the application of remedies defined in Chapter II of this Decree. 3. The chief inspector of the Ministry of Labor, War Invalids and Social Affairs may: a) Impose caution; b) Impose fines of up to VND 30,000,000: c) Confiscate forged dossiers and means and devices used to forge dossiers; d) Force the application of remedies defined in Chapter II of this Decree. Article 43. Principles for determining competence to sanction administrative violations of social insurance regulations 1. Chairpersons of People's Committees at all levels may sanction administrative violations in the social insurance domain in localities under their management according to their competence defined in Article 41 of this Decree. 2. Inspectors of labor, war invalids and social affairs may sanction administrative violations in the social insurance domain defined in Chapter II of this Decree and other social insurance-related administrative violations provided in the Government's decrees on sanctioning of administrative violations in state management domains according to their competence defined in Article 42 of this Decree. 3. The sanctioning of administrative violations defined in this Decree which fall within the sanctioning competence of various agencies shall be effected by the agency which first receives the cases. 4. In case of sanctioning a violator with multiple administrative violations in the social insurance domain, the sanctioning competence shall be determined under Article 42 of the Ordinance on Handling of Administrative Violations. Article 44. Making records of administrative violations 1. A competent person on official duty shall promptly make records of administrative violations, except cases of imposing caution or fines of up to VND 100,000. Persons competent to make records of administrative violations in the social insurance domain are those having the competence to sanction administrative violations in the social insurance domain and cadres and civil servants of labor, war invalids and social affairs who are performing assigned tasks or official duties on social insurance. 2. Records of administrative violations shall be made under Article 55 of the Ordinance on Handling of Administrative Violations and Article 22 of Decree No. 128/2008/ND-CP. Article 45. Sanctioning decisions 1. Issuance of sanctioning decisions according to simple procedures complies with Article 54 of the Ordinance on Handling of Administrative Violations. 2. Issuance of sanctioning decisions other than the case defined in Clause 1 of this Article complies with Article 56 of the Ordinance on Handling of Administrative Violations and Article 23 of Decree No. 128/2008/ND-CP Article 46. Procedures for imposing, collecting and remitting fines Procedures for imposing, collecting and remitting fines comply with Articles 57 and 58 of the Ordinance on Handling of Administrative Violations. Article 47. Procedures for confiscating and handling material evidences and means of administrative violations Procedures for confiscating and handling material evidences and means of administrative violations comply with Articles 60 and 61 of the Ordinance on Handling of Administrative Violations. Article 48. Compliance with administrative sanctioning decisions, suspension of compliance with fining decisions 1. Within 10 days, sanctioned violators shall abide by sanctioning decisions under Article 64 of the Ordinance on Handling of Administrative Violations and Article 24 of Decree No. 128/ 2008/ND-CP. 2. Individuals who are fined VND 500,000 or more may be allowed to suspend compliance with sanctioning decisions under Article 65 of the Ordinance on Handling of Administrative Violations. Article 49. Enforcement of administrative sanctioning decisions and transfer of administrative sanctioning decisions for enforcement 1. Enforcement of administrative sanctioning decisions complies with Articles 66 and 67 of the Ordinance on Handling of Administrative Violations and the Government's Decree No. 37/2005/ND-CP of March 18. 2005 providing procedures for applying measures to enforce administrative sanctioning decisions. 2. Transfer of administrative sanctioning decisions for enforcement complies with Article 68 of the Ordinance on Handling of Administrative Violations and Article 30 of Decree No. 128/2008/ND-CP. Article 50. Statute of limitations for implementing administrative sanctioning decisions The statute of limitations for implementing a decision to sanction an administrative violation in the social insurance domain is one year after it is issued. Past this period, if this decision has not been implemented, it will be no longer implemented, but remedies specified in the decision still apply. When a sanctioned violator intentionally shirks or delays the implementation of a sanctioning decision, the above statute of limitations will be recounted from the time the act of shirking or delaying terminates. Article 51. Forced deduction of money from savings deposit accounts of employers to pay unpaid or lately paid social or unemployment insurance premiums and interests arising there from to the social or unemployment insurance fund 1. Past ten days after receiving a sanctioning decision, if an employer fails to voluntarily pay or insufficiently pays unpaid or lately paid social insurance premiums and interests arising there from to the social or unemployment insurance fund, a competent person shall force the deduction of money from the employer's savings deposit account to pay such unpaid or lately paid premiums and interests arising there from to the social or unemployment insurance fund. 2. Persons competent to force the deduction of money from employers' savings deposit accounts under Clause 1 of this Article are: a) Chairpersons of provincial-level People's Committees; b) Chairpersons of district-level People's Committees; c) Chief inspectors of provincial-level Labor, War Invalids and Social Affairs Departments; d) The Chief Inspector of the Ministry of Labor. War Invalids and Social Affairs. 3. The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for. and coordinate with the Ministry of Finance and the State Bank in. specifically guiding the order and procedures for forcing the deduction of money from employers" savings deposit accounts under Clauses 1 and 2 of this Article. Article 52. Forms of records and decisions used in the sanctioning of administrative violations in the social insurance domain To this Decree are appendices on forms of records and decisions used in the sanctioning of administrative violations in the social insurance domain (not printed herein). Chapter IV IMPLEMENTATION PROVISIONS Article 53. Effect This Decree takes effect on October 1, 2010, and replaces the Government's Decree No. 135/2007)ND-CP of August 16,2007, on sanctioning of administrative violations in the social insurance domain. Article 54. Responsibilities for guidance and implementation 1. The Minister of Labor, War Invalids and Social Affairs shall guide, organize and examine the implementation of this Decree. 2. The Minister of National Defense or the Minister of Public Security shall guide the handling of administrative violations in the social insurance domain within the Ministry of National Defense or the Ministry of Public Security. 3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of People's Committees at all levels, and concerned agencies, organizations and individuals shall implement this Decree.