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THE GOVERNMENT
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No. 97/1998/ND-CP
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Hanoi, November 17,
1998
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DECREE
ON THE DISCIPLINING AND MATERIAL RESPONSIBILITIES OF PUBLIC
EMPLOYEES
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Ordinance on Public Employees of February 26, 1998;
At the proposal of the Minister-Chairman of the Government Commission for
Organization and Personnel,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- The
disciplining of public employees is aimed to educate them and at the same time
help to prevent, combat and strictly deal with the law violations by public
employees.
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1. Public employees
prescribed in this Decree are persons on the State payroll who get paid from
the State budget, including:
a/ The persons defined in Clause 3, Article 1 of
the Ordinance on Public Employees;
b/ The persons defined in Clause 5, Article 1 of
the Ordinance on Public Employees;
For persons defined in Point b, Clause 1 of this
Article, in addition to the provisions of this Decree, the management and
command regulations of the People’s Army and People’s Police shall also apply;
c/ Public employees sent to work for economic
organizations, social organizations, socio-professional organizations, which
have been given personnel quotas by the competent agency(ies).
2. For contractual employees within the
personnel quotas of State agencies, organizations or units, if they breach the discipline,
they shall be handled according to the provisions of the Labor Code.
Article 3.-
1. Public employees shall
be disciplined only when they violate the provisions of Article 6, Article 7,
Article 8 and Articles of Chapter III of the Ordinance on Public Employees as
well as the provisions of other legal documents, but not to the extent of being
examined for penal liability.
2. The disciplining must be effected by the
competent person(s) in strict compliance with the procedures stipulated in this
Decree.
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4. The disciplining shall not be imposed on
public employees who breach discipline when they are affected by mental or
other diseases that make them incapable of being aware of their acts; or when
they execute decisions of their superiors as stipulated in Article 8 of the
Ordinance on Public Employees.
Article 4.- Public
employees who cause losses or damage to equipment and/or devices or who commit
other acts of causing damage to the State’s properties shall have to make
compensation therefor in accordance with the provisions of law. In cases where
a loss is caused by a public employee due to force majeure, the compensation
shall not be made.
Article 5.-
1. When a public employee
is scrutinized for discipline, a Disciplinary Council must be set up.
2. When the Disciplinary Council meets, the
involved public employee must be present. In case of his/her absence, the
plausible reasons must be given. If the involved public employee is twice
absent though having been summoned, the Disciplinary Council shall still meet
to consider the case and propose form of discipline.
3. The statute of limitations for the handling
of a breach of discipline shall be 3 months at most, after the breach is
detected; for a breach involving complicated factors that require time for
investigation and verification, the above-said time-limit may be longer but
must not exceed 6 months (except for cases stipulated in Clause 4, Article 9 of
this Decree).
Article 6.-
1. For public employees
who are subject to such forms of discipline as reprimand, warning or removal
from office, their wage increase and appointment to higher position shall comply
with the provisions of Article 43 of the Ordinance on Public Employees.
2. If within 12 months after the disciplinary
decision is issued, the disciplined public employee neither repeats his/her
breach nor commit other violations which are not serious to the extent of being
disciplined, the competent agency or unit shall issue a decision terminating
the effect of the discipline imposed on such public employee.
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Article 7.-
1. For a public employee
who has been disciplined or examined for penal liability but such discipline or
examination is wrong upon the conclusion of a competent agency or organization
as stipulated in Article 45 of the Ordinance on Public Employees, the head of
the agency or organization where such public employee is working shall, within
30 days after the conclusion is made, have to organize the announcement of such
conclusion.
2. The above-said public employee shall have
his/her honor restored, be given a suitable job and entitled to a wage
equivalent to his/her pre-discipline wage level, have his/her period under the
discipline counted for wage increase, and be compensated for any damage caused
in accordance with the provisions of Decree No.47/CP of May 3, 1997 of the
Government on the settlement of compensation for damage caused by State
officials, employees or competent persons of the legal proceedings agencies.
Article 8.-
1. If a disciplined public
employee does not satisfy with the disciplinary decision, he/she shall have the
right to lodge a complaint thereabout to the competent agency or organization
in accordance with the provisions of the legislation on complaints and
denunciations.
2. Agencies and organizations that receive
complaints from public employees shall have to consider them and reply the
complainants within the time-limit prescribed by law.
3. A public employee who holds the post of
department-level head or lower post and is forced to discontinue his/her work,
shall have the right to initiate an administrative lawsuit at a court
prescribed by law, if after having made a complain about the disciplinary
decision, he/she is still subject thereto.
Chapter II
DISCIPLINING
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1. Each breach of discipline shall be subject to
only one form of discipline.
If, at one time, a public employee commits more
than one acts of breaching discipline, he/she shall be disciplined for every
breach and subject to the form of discipline one level higher than that set for
the most serious breach.
This regulation shall also apply to public
employees who commit more than one acts of violation, each of which is subject
to the same form of discipline.
2. Forbidding all acts of infringing upon the
body, honor and dignity of the disciplined public employees;
3. Forbidding the application of fines or wage
cutting instead of a form of discipline;
4. Public employees shall not be disciplined yet
in the following cases where:
a/ They are on annual leave, leave for personal
business or leave permitted by the head of the agency; or
b/ They are being hospitalized according to
physicians’ prescription; or
c/ They are being detained or subject to other
administrative measures such as the placement in education establishments,
medical establishments or under administrative probation; or
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5. The form of discipline as sack shall not
apply to public employees who are pregnant women or nursing their children of
under 12.
Article 10.- Those
public employees who are being examined for penal liability or scrutinized for
discipline and suspended from work as prescribed in Article 41 of the Ordinance
on Public Employees shall not be mobilized for work and/or permitted to retire
or quit their job.
During his/her work suspension, a public
employee shall be entitled to an advance of 50% of his/her wage and allowance
(if any). If such public employee is not disciplined after the scrutiny by the
concerned agency, organization or unit, he/she shall be given the rest of
his/her wage and allowance (if any) amount he/she is entitled to during the
work suspension period.
Article 11.- Public
employees who breach discipline shall, depending on the nature and seriousness
of their breaches, be subject to one of the following forms of discipline:
1. Reprimand;
2. Warning;
3. Wage reduction;
4. Demotion;
5. Removal from office;
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Article 12.-
1. The reprimand shall
apply to public employees who breach discipline for the first time and the
breach is not serious.
2. The warning shall apply to public employees
who have been reprimanded but still repeat their breaches; or whose breaches
are not serious but regular; or whose breaches, though committed for the first
time, are fairly serious.
3. The wage reduction shall apply to public
employees who commit serious breaches in the performance of their tasks and/or
duties.
4. The demotion shall apply to public employees
who commit serious breaches of discipline and are considered no longer
qualified morally and professionally for the ranks they are assuming.
5. The removal from office shall apply to public
employees who hold high posts but commit serious breaches of discipline and
are, therefore, considered unable to continue holding their assigned posts.
6. The sack shall apply to public employees who
commit offenses and are put to jail by the court without being entitled to
suspended sentence.
7. The Disciplinary Council may consider and
propose the sack of a public employee if:
a/ He/she has committed and offense and been put
to jail by the court but entitled to the suspended sentence, non-custodial
reeducation, probation or warning, provided that the offense is related to the
performance of his/her public duty;
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c/ He/she has committed the violation for the
first time but such violation is serious.
Article 13.- Heads of
agencies, organizations or units may be disciplined if they let their public
employees breach the discipline regularly or seriously in the performance of
duties of their respective agencies, organizations or units.
Article 14.- Heads of
agencies, organizations or units competent to decide forms of discipline to be
imposed on their public employees shall have to set up a Disciplinary Council
for consideration and proposal of the forms of discipline.
The Disciplinary Council shall be composed of:
1. The Chairman, being the head or a deputy head
of the concerned agency, organization or unit;
2. A representative of the Executive Committee
of the trade union at the same level;
3. Representative(s) of public employees of the
agency, organization or unit where the discipline violator is working (to be
appointed by the collective of the unit’s public employees).
In addition to the above-said members, the
Disciplinary Council shall invite a representative of the Ladies’ Committee (if
the violator is a woman), a representative of the Ho Chi Minh Communist Youth
Union organization of the agency, organization or unit (if the violator is a
youth) to attend the meeting. The invited representatives shall have the right
to raise their opinions at the meeting but not to vote.
In cases where the head of the agency or unit
breaches discipline, his/her immediate superior shall decide to set up a
Disciplinary Council for consideration and handling of the violation.
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Article 16.- A public
employee, who breaches discipline, shall have to make a self-criticism report.
The head of the agency, organization or unit that employs such public employee
shall have to organize a meeting for the violator to make self-criticism before
the agency, organization or unit. The violator’s self-criticism report and the
minutes of the meeting, with proposal on the form of discipline stated therein
shall be submitted to the head of the agency in charge of the public employee
to present the case before the Disciplinary Council for consideration.
Article 17.- Public
employees, who breach discipline, shall be summoned by the Disciplinary Council
at least 7 days before the Council meets.
Article 18.- The
organization and personnel section of the agency, organization or unit shall
have to prepare documents and dossiers related to the disciplining in order to
present them before the Disciplinary Council; and at the same time have to make
a minutes of the Disciplinary Council’s meeting.
Article 19.- At the
Disciplinary Council’s meeting:
1. The Council’s Chairman shall state the
reasons of the meeting, and introduce the participants;
2. A representative of the organization and
personnel section shall present the dossier and relevant documents;
3. The violator shall give his/her opinions; the
Council’s members and other participants shall take the floor;
4. Before the Council takes counsel before
voting on the form of discipline, the violator shall have the right to suggest
a form of discipline to be imposed on him/her;
5. The Council’s resolution shall be announced
at the meeting.
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Chapter III
MATERIAL RESPONSIBILITY
Article 23.-
1. The compensation for
any damage must be considered and decided on the basis of the fault(s), the
nature of the act of causing damage, the actual extent of damage and with the
actual family situation and personal history of the concerned public employee
taken into account.
2. For a damage valued at under 5 million dong,
a public employee shall, in principle, have to make full compensation therefor
by gradual deduction from his/her wage; if the damage is caused
unintentionally, he/she shall have to pay compensation with his/her three-month
salary at most, which shall be gradually deducted from his/her monthly wage but
the deducted amount must not be lower than 10% or higher than 30% of his/her
total earning from wage and allowance (if any).
Article 24.-
1. The head of the agency
or organization shall have to set up a Council for consideration and settlement
of compensation for damage.
2. The Council shall include:
a/ Its chairman, being the head or a deputy head
of the agency, organization or unit;
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c/ A member being the person in charge of
finance-accountancy section;
d/ A member being the person directly in charge
of the section where the person, who has to make compensation, is working.
e/ A member being an economic-technical
specialist.
3. The Council is tasked to consider and propose
levels and modes of compensation to the head of the agency or organization.
Article 25.- The
Council shall meet to consider and settle compensation according to the
following procedure:
1. The Council’s chairman present the
participants and appoint a secretary;
2. The representative of the finance-accountancy
section briefs the participants on the compensation regime and level;
3. The Council listens to the justification by
the person in question and opinions of the Council’s members;
4. The Council discusses and ballots on the
level of compensation;
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6. The Council shall dissolve after the
fulfillment of its task.
Article 26.- Public
employees who commit acts of the law violation in the performance of their
tasks or duties, thus causing damage to other persons as stipulated in Clause
5, Article 39 of the Ordinance on Public Employees shall have to make
compensation in accordance with the provisions of Decree No.47-CP of May 3,
1997 on settling compensation for damage caused by State officials and
employees and competent persons of the legal proceedings agencies.
Article 27.- If a
public employee subject to compensation for damage does not satisfy with the
decision on compensation, he/she shall have the right to complain about such
decision with the competent agency in accordance with the legislation on
complaints and denunciations.
Chapter IV
IMPLEMENTATION PROVISIONS
Article 28.-
1. This Decree takes
effect 15 days after its signing.
2. This Decree replaces the regulations on
discipline and material responsibilities of public employees in the following
documents:
- Decree No.195/HDCP of December 31, 1964 of the
Government Council promulgating the Regulation on Labor Discipline in State
agencies;
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- Article 25 of Decree No.217/CP of June 8, 1979
of the Government Council, promulgating the Regulation on public employees’ and
State agencies’ responsibilities, disciplines, the protection of public
properties as well as on the service of people.
Article 29.-
1. The Minister-Chairman
of the Government Commission for Organization and Personnel shall have to guide
the implementation of this Decree.
2. The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government, the presidents of the People’s Committees of the provinces and
centrally-run cities shall have to implement this Decree.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai