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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No:
12-CP
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Hanoi,
January 26, 1995
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DECREE
ISSUING THE REGULATION ON SOCIAL INSURANCE
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government on the 30th of September 1992;
Pursuant to the Labor Code passed on the 23rd of June 1994;
At the proposal of the Minister of Labor, War Invalids and Social Affairs,
DECREES:
Article 1.-
To issue together with this Decree the Regulation on Social Insurance
applicable to State officials and employees and all other laborers in the form
of compulsory social insurance to be implemented in a uniform way throughout
the country.
Article 2.-
This Decree takes effect as from the 1st of January 1995. All previous
provisions which are contrary to this Decree are now annulled.
Article 3.-
The Ministry of Labor, War Invalids and Social Affairs, the Ministry of Finance
and the Ministry of Health shall provide detailed guidance for the
implementation of this Decree.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Vo Van Kiet
REGULATION
ON SOCIAL INSURANCE
(Issued together with Decree No.12-CP on the 26th of January 1995 of the
Government)
Chapter I
GENERAL PROVISIONS
Article
1.- This Regulation concretizes the provisions on social insurance
stipulated in the Labor Code with a view to ensuring the provision of material
conditions, and contributing to the stability of life of insured individuals
and the families, in case of sickness, maternity, deterioration of labor
ability, expiry of labor age, or death.
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- Sickness allowance;
- Maternity allowance;
- Allowance for labor accident
and occupational disease;
- Pension;
- Death allowance.
Article
3.- The following persons are obliged to join the social insurance policies
stipulated in this Regulation:
- The laborers working at
State-owned enterprises;
- The laborers working at the
enterprises of the non-State sectors, which employ 10 laborers or more;
- The Vietnamese laborers who
work at enterprises with foreign invested capital, in export-processing zones
or industrial parks; or in foreign agencies or organizations or international
organizations in Vietnam, except otherwise provided for by an international
agreement that the Socialist Republic of Vietnam has signed or acceded to;
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- The laborers at enterprises or
service organizations belonging to the armed forces;
- The elected personnel at State
management agencies, or offices of the Party and people's organizations, from
central to district levels;
- The State officials and
employees at the specialized administrative agencies, the employees offices of
the Party and people's organizations, from central to district levels;
The above-stipulated subjects
who are currently in training or practise, or on mission or on convalescence
inside or outside the country while continuing to receive salaries or wages,
are also obliged to join the social insurance scheme.
The above-said subjects are
collectively referred to as the employees.
Article
4.- The employer and the employee must pay social insurance premiums in
furtherance of the social insurance policies for the employees. The employee,
who pays social insurance premiums, is issued a social insurance book by the
social insurance agency, and is entitled to the social insurance policies
stipulated in this Regulation. The employee's right to social insurance may be suspended,
reduced or canceled when he/she violates law.
Article 5.-
The social insurance fund is formed by the revenue from social insurance
premiums and subsidies form the State. This fund is placed under unified
management and used to cover the social insurance policies provided for in this
Regulation, and the activities in service of social insurance.
Chapter II
THE SOCIAL INSURANCE
POLICIES
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Article 6.-
The employee, who takes leave of sickness or accident which is certified by a
health organization under regulation of the Ministry of Health, is entitled to
sickness allowance.
The employee, who takes leave of
sickness which is self-inflicted or due to alcoholism or drug abuse, is not
entitled to sickness allowance.
Article 7.-
The maximum period of time for the employee to take sickness allowance is as
follows:
1. With regard to an employee
working in normal conditions:
- 30 days in a year, if he/she
has paid social insurance premiums for less than 15 years;
- 40 days in a year, if he/she
has paid social insurance premiums for from 15 to less than 30 years;
- 50 days in a year, if he/she
has paid social insurance premiums for 30 years or more;
2. With regard to the employee working
in heavy or hazardous occupations or jobs; or working in areas where the area
allowance is indexed at 0.7 or more:
- 40 days in a year, if he/she
has paid social insurance premiums for less than 15 years;
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- 60 days in a year, if he/she
has paid social insurance premiums for 30 years or more;
The list of heavy or hazardous
occupations and jobs shall be issued by the Ministry of Labor, War Invalids and
Social Affairs, and the Ministry of Health.
3. The employee who suffers from
a disease which requires long treatment under prescriptions of the Ministry of
Health, is entitled to sickness allowance for a maximum of 180 days in a year,
irrespective of the time for which he/she has paid his/her social insurance
premiums.
In the event that the employee
must continue his/her medical treatment after these 180 days, his/her sickness
allowance will be provided for in Item 2, Article 9, of this Regulation.
Article 8.-
1. The
employee, whose first or second child under seven years of age (including
children adopted in accordance with the provisions of the Law on Marriage and
the Family) is sick and whom, at the request of the health organization, he/she
has to take leave to look after, is entitled to social insurance allowance.
2. In case both parents of the
sick child are subscribers to the social insurance policy, only one parent is
entitled to social insurance benefit during his/her leave of absence to take of
the sick child.
3. The maximum period for
allowance for child-caring leave of absence is as follows:
- 20 days in a year, if the
child is under three years of age;
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- 15 days in year, if the child
is from 3 to 7 years of age.
4. The employee, who takes
family-planning measures such as intra-uterus device, abortion and vasectomy
and takes leave of absence as provided for by the Ministry of Health, is
entitled to allowances stipulated in Item 1, Article 9, of this Regulation.
Article 9.-
1. The
allowance for sickness or for leave of absence to take care of a sick child, or
for taking family planning measures, is set at 75% of the salary which is used
as basis to set the payment of social insurance premiums prior to the leave of
absence.
2. In case the employee suffers
from a disease which takes long treatment as stipulated in Item 3, Article 7 of
this Regulation and which requires further treatment after the total period of
180 days, he/she shall be entitled to an allowance of 75% of the salary which
is used as basis to pay his/her social insurance premiums prior to his/her
leave of absence, if he/she has been a subscriber to the social insurance
policy for 30 years or more; or to an allowance of 65% of the salary which is
used as basis to pay his/her social insurance premiums prior to his/her leave
of absence, if he/she has been a subscriber to the social insurance policy for
less than 30 years.
II. MATERNITY
ALLOWANCE
Article
10.- The woman employee, who is pregnant of or gives birth to the first or
second child and takes leave of absence in accordance with the provisions of
Article 11 and 12 of this Regulation, is entitled to maternity allowance.
Article
11.- During her pregnancy, the woman employee is entitled to three leaves
of absence a month for medical examination, one day for each leave.
In case the child-bearing woman
employee, who is working far from a medical institution or who is having an
ailment or whose fetus is abnormal, shall have two days off for each of these
leaves.
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Article
12.-
1. The
maternity leave, which is taken before and after confinement, is defined as
follows:
- Four months for the woman
employee who works in normal conditions;
- Five months for the woman
employee who works in hazardous occupation or on heavy-duty job; on three-shift
duty; or in place which has an area subsidy index from 0.5 to 0.7;
- Six months for the woman
employee who works in a place which has an area subsidy index of 1; who works
in an occupation listed as special by the Ministry of Labor, War Invalids and
Social Affairs.
2. In case of twin or multiple
birth, the woman employee shall have an additional leave of 30 days for each
child from the second.
In case the new-born child dies
before 60 days of age (including still birth), the woman employee is entitled to
a leave of absence of 75 days after child delivery; if the child dies after 60
days of age, the woman employee is entitled to a leave of absence of 15 days
after the death of the child, but not exceeding the time maximum stipulated in
Item 1 of this Article.
3. At the expiry of the
maternity leave as stipulated in Items 1 and 2 of this Article, if the woman
employee has the need, she may take additional leave of absence on condition
that she has the consent of her employer. In this case she shall not be convered
by social insurance.
4. The woman employee may resume
work before the expiry of her maternity leave as stipulated in Item 1 of this
Article, if she has spent 60 days of the leave after date of delivery, has a
doctor's certificate that her early return to work shall not affect her health,
and has notified her employer of her return one week in advance. In this case,
aside from her salary, the woman employee shall continue to enjoy her maternity
allowance till the end of her regulatory maternity leave.
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Article
14.- The social insurance for maternity leave as stipulated in Articles 11,
12 and 13 of this Regulation is equal to 100% of the salary on which the social
insurance premiums is based prior to the leave. In addition, at time of child
delivery, the woman employee is entitled to one-time allowance which represents
one month of the salary on which the social insurance premium is based.
III.
ALLOWANCES FOR LABOR ACCIDENT AND OCCUPATIONAL DISEASE
Article
15.- The employee who suffers from accident in the following cases shall be
entitled to labor accident allowance:
- During the work time, or at
the work place, including overtime work required by the employer;
- Outside the work place while
on assignment by the employer;
- En route to and from place of
work and residence.
Article
16.- The employer shall have to pay all medical expenses and salary for the
victim employee from emergency aid to treatment and stable recovery of his/her
injury.
After his/her stabilization of
injury, his/her employer shall have to assign him/her to a suitable job. The
employee shall be recommended by the social insurance organization to take
evaluation of labor ability at a Medical Evaluation Board according to the
provisions set by the Ministry of Health.
Article
17.- The labor accident allowance for the employee shall depend on the
degree of his/her labor disability and be based on the common minimum wage set
by the Government (hereafter referred to as minimum wage). The allowance is set
as follows:
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Degree of labor disability
One-time allowance
From 5% to 10% 4 months of
minimum wage
From 11% to 20% 8 months of
minimum wage
From 21% to 30% 12 months of
minimum wage
2. For labor disability of 31%
or higher, a monthly allowance shall be given from the date of hospital
checkout:
Degree of labor disability
Monthly allowance
From 31% to 40% 0.4 x minimum
wage
From 41% to 50% 0.6 x minimum
wage
From 51% to 60% 0.8 x minimum
wage
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From 71% to 80% 1.2 x minimum
wage
From 81% to 90% 1.4 x minimum
wage
From 91% to 100% 1.6 x minimum
wage
Article
18.- The beneficiary of monthly allowance for labor accident, who retires
from work, shall be entitled to health insurance covered by the social
insurance fund.
Article
19.- The employee - victim of labor accident, who loses 81% or more of
his/her labor ability, and who also suffers from paralysis of the spinal column
or completely lost his eyesight or amputation of two limbs or a serious mental
disorder, shall be given a monthly helper allowance equal to 80% of the minimum
wage.
Article
20.- The employee, who suffers from a labor accident which damages the
function of his/her legs, hands, ears, eyes, teeth, spinal column, etc., shall
be provided with functional aids to assist him/her in daily life in
compensation for the lost function and for a given number of years.
Article
21.- The employee - victim of labor accident, who is entitled to either
one-time or monthly allowance and who suffers from relapse of injury, shall be
recommended by the social insurance agency for a re-evaluation of the labor
disability caused by the injury.
Article
22.- For the employee who is killed in a labor accident (including during
the first treatment), his/her family shall be given a one-time allowance equal
to 24 months of minimum wage and a death allowance as stipulated in Part V of
this Regulation.
Article
23.- The beneficiary of one-time or monthly allowance for labor accident,
who meets the required conditions, shall be entitled to pension as stipulated
in Part IV of this Regulation.
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IV. PENSION
Article
25.- The employee is entitled to a monthly pension after retirement from
work if he/she has one of the following conditions:
1. Having reached the age of 60
for a man and 55 for a woman, and having paid social insurance premiums for 20
years or more.
2. Having reached the age of 55
for a man and 50 for a woman, and having paid social insurance premiums for 20
years or more, which includes one of the followings:
- A full 15-year period in
heavy-duty or hazardous occupations;
- A full 15-year period in
places which have an area subsidy index of 0.7 or more;
- A full 10-year period working
in southern Vietnam or Laos before the 30th of April 1975, or in Cambodia
before the 31st of August 1989.
Article
26.- The employee is entitled to a monthly pension lower than the pension
stipulated in Article 25 of this Regulation when he/she has one of the
following conditions:
1. Having reached the age of 60
for a man and 55 for a woman, and having paid social insurance premiums for
from full 15 years to less than 20 years.
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3. Having spent at least 15
years working in especially heavy or hazardous job, and having paid social
insurance premiums for full 20 years or more, but having lost 61% or more of
his/her labor ability (whatever the age).
The list of heavy or hazardous
jobs and especially heavy or hazardous jobs shall be issued by the Ministry of
Labor, War Invalids and Social Affairs, and the Ministry of Health.
Article
27.- The employee who is entitled to monthly pension shall enjoy the
following benefits:
1. A monthly pension, which is
based on the number of years covered by social insurance premiums and the average
of the monthly salaries which have been used as basis for computing the level
of his/her social insurance premiums. It is defined as follows:
a) The employee who has
purchased social insurance for full 15 years, shall have a monthly pension
equal to 45% of the average of the monthly salaries which have been used as
basis for computing the level of social insurance premiums. After that, for
each additional year covered by social insurance premiums, another 2% shall be
added. The maximum monthly pension shall be equal to only 75% of the average of
the monthly salaries which have been used as basis for computing the level of
his/her social insurance premiums.
b) The employee, who is entitled
to a monthly pension lower than the pension stipulated in Article 26, shall
have his/her pension calculated as provided for in Pont (a) of this Article.
But for each year of the premature retirement age as stipulated in Items 1 and
2, Article 25 of this Regulation, 2% of the average of the monthly salaries
which have been used as basis for computing the lvel of his/her social
insurance premiums, shall be deducted.
The lowest pension shall be
equal to the minimum wage.
2. Apart from the monthly
pension, the employee who has paid social insurance premiums for over 30 years,
shall, at the time of his/her retirement, be given a one-time allowance which
is calculated as follows: each year (comprising 12 months) from the 31st year
of paying social insurance premiums, shall be paid half the average monthly
salary which has been used as basis for computing the level of his/her social
insurance premiums, but the total shall not exceed five months of this average
salary.
3. The employee, who is entitled
to a monthly pension, shall have the health insurance premises for him/her by
the fund for social insurance.
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Article
28.- The employee, who ceases to work when he/she has not reached the age
required for a monthly pension as stipulated in Articles 25 and 26 of this
Regulation, shall be given a one-time allowance representing a month of the
average monthly salary which has been used as basis for computing his/her level
of social insurance premiums for each year covered by social insurance, or
he/she may wait till he/she reaches the retirement age to enjoy the monthly
pension.
Article
29.- The computing of the average of the monthly salaries which have been
used as basis for computing the level of the social insurance premiums to
determine the monthly pension or the one-time allowance for the retired
employee as stipulated in Article 27, or the one-time allowance stipulated in
Article 28 of this Regulation, is done as follows:
1. For the employee who has paid
social insurance premiums according to his/her monthly salaries as defined in
the wage brackets and scales set by the State, the computing is done on the
basis of the weighted average of his/her monthly salaries which have been used
as basis for computing the level of his/her social insurance premiums in the
five years immediately before his/her retirement.
2. For the employee who has
purchased social insurance according to his/her salaries as defined in the wage
brackets and scales set by the State for one period of time, and not according
to them for another period of time, the computing is done on the basis of the
weighted average of his/her monthly salaries which have been used as basis for
computing the level of his/her social insurance premiums for both periods of
time.
Article
30.- The employee, who is a pensioner and who resides abroad legally, may
mandate his/her relative in the home country to receive his monthly pension,
(the mandate is valid for six months and must be endorsed by the Embassy of the
Socialist Republic of Vietnam in the country where he/she resides).
V. DEATH
ALLOWANCE
Article
31.- For the employee who is working; or who has ceased working and is
waiting for his/her pension to be processed; or who is on monthly pension or
allowance for labor accident or occupational disease, when he/she dies, the
undertaker for his/her burial service shall receive and allowance equal to
eight minimum monthly salaries.
Article
32.- For the employee who has paid social insurance premiums for full 15
years or mor; or who has ceased working and is waiting for his/her monthly
pension to be processed; or who is on monthly pension or allowance for labor
accident or occupational disease; or who suffers from labor accident or
occupational disease, when he/she dies, his/her dependents as stipulated below,
shall be entitled to a monthly allowance for his/her death:
1. Children below 15 years of
age (including the offspring, the legally adopted children, the children born
out of wedlock but recognized by law, and the offspring being conceived by the
wife at the time of the husband's death). If the children age still going to
school, they shall be entitled to this monthly allowance till they reach 18
years of age.
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Article 33.-
1. The
monthly allowance, that each of the dependents of the dead employee as
described in Items 1 and 2, Article 32 of this Regulation is entitled to, is
equal to 40% of the minimum wage. In the event the dependent has no other
source of revenue and no other kin for direct support, this monthly allowance
shall be equal to 70% of the minimum wage.
2. The number of dependents to
be given this month allowance shall not exceed four persons. The allowance
shall start from the date of the death of the employee. Special cases shall be
decided by the Ministry of Labor, War Invalids and Social Affairs.
Article
34.- For the employee who is working; or who has ceased working and is
waiting for his/her pension to be processed; who is on monthly pension or
allowance for labor accident or occupational disease; or who suffers from labor
accident or occupational disease, when he/she dies and has no dependent who is
eligible for the monthly allowance for his/her death, his/her family, shall
receive this allowance in one payment.
Article 35.-
1. For
the employee, who is working, or who has ceased working and is waiting for
his/her pension to be processed, when he/she dies, his/her family shall receive
a one-time allowance based on the period of time under social insurance, with
each year equivalent to a half of the average of the monthly salaries which
have been used as basis for computing the level of his/her social insurance
premiums, according to the provisions of Article 29 of this Regulation, but the
total not exceeding 12 months of the average salary.
2. For the employee who is on
monthly pension or allowance for labor accident or occupational disease, when
he/she dies, his/her family shall receive a one-time allowance based on the
period of time that he/she has taken the pension or allowance. If he/she dies
in the first year of the pension or allowance, it shall be equal to 12 months
of pension or allowance. From the second year on, each year shall be a
deduction of one month of pension or allowance. But the one-time death
allowance shall be at least equal to three months of pension or allowance.
Chapter III
THE SOCIAL INSURANCE
FUND, LEVEL OF PAYMENT AND RESPONSIBILITY IN PAYING SOCIAL INSURANCE
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1. The employer shall pay an amount
equal to 15% of the total salary fund of the social insurance in his/her unit,
of which 10% shall be to cover pension and death allowance, and 5% to cover
expenses according to regimes for sickness, maternity, labor accident and
occupational disease.
2. The employee shall pay 5% of
his/her monthly salary to cover expenses according to regimes for his/her
pension and death allowance.
3. The State shall contribute
and provide other support to ensure the implementation of the social insurance
regimes for the employees.
4. Other sources.
Article
37.- Each month, the employer shall remit the social insurance contribution
stipulated in Item 1, Article 36, and the deduction from the salary of the
employee as described in Item 2, Article 36 of this Regulation, and put them
all at once into the social insurance fund. The monthly salary, which is used
as basis for computing the level of the purchase of social insurance, is
composed of the wages paid on rank, position, contract and the subsidies
indexed on area, dearness, seniority and the reserved differentials (if any).
Article
38.- Each month, the Ministry of Finance shall allocate money from the
State budget to the social insurance fund to adequately cover expenses on
pension and allowance for labor disability, labor accident, occupational
disease, death and health insurance for the social insurance subscribers prior
to the promulgation of this Regulation, and to support the pension for retired
State employees from the effective date of this Regulation.
Article 39.-
The collection of social insurance premiums is to be executed by the Vietnam
Social Insurance organization.
Article
40.- The social insurance fund is managed in a uniform way under the State
financial regime, and shall function on independent accounting and receive
State protection on independent accounting and receive State protection.
The social insurance fund is
allowed to take measures to preserve its value and grow it in accordance with
the Government regulation.
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ORGANIZATION, MANAGEMENT
AND IMPLEMENTATION OF SOCIAL INSURANCE
Article
41.- The Government provides unified State management of social insurance.
The Ministry of Labor, War
Invalids and Social Affairs is the Government agency to exercise State management
function over social insurance: It shall draft and submit for approval laws on
social insurance; issue legal documents on social insurance within its
jurisdiction; and provide guidance for, and control and inspection of, the
implementation of social insurance.
Article
42.- The Government shall set up a unified system of social insurance
organizations to manage the fund, and implement the regimes and policies on
social insurance in accordance with the legal provisions for the employee.
Chapter V
POWERS AND
RESPONSIBILITY OF THE PARTIES TO SOCIAL INSURANCE
Article
43.-
1. The
employee has the right:
- To receive the social
insurance book;
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- To complain to the competent
State authority when his/her employer or the social insurance organization
violates the Regulation of Social Insurance.
2. The employee has the
responsibility:
- To pay the social insurance
premiums as required;
- To implement properly the
provisions on filing for social insurance;
- To maintain and utilize the
social insurance book and file as prescribed.
Article 44.-
1. The
employer has the right:
- To refuse to meet requests
which vary with the provisions of the regulation on Social Insurance.
- To complain to the authorized
State agency when the social insurance organization violates the Regulation on
Social Insurance.
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- To contribute to the social
insurance fund as prescribed;
- To make deduction of the
salary of the employee to pay social insurance premiums as prescribed;
- To submit documents and files,
and provide related information at the request of the social insurance
controller or inspector assigned by the authorized State agency.
Article 45.-
1. The
social insurance agency has the right:
- To submit for issuance by the
Prime Minister, or to issue in accordance with its jurisdiction, the
regulations on the collection and expenditure of social insurance premiums, and
to determine the beneficiaries of social insurance as stipulated in this
Regulation;
- To organize the management of
the social insurance fund to ensure the efficient implementation of the social
insurance regimes;
- To educate and mobilize all
people to take part in social insurance;
- To refuse to pay social
insurance to the beneficiary of social insurance regimes when the authorized
State agency concludes on the fakery of the file.
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- To organize the collection,
management and use of the social insurance fund as prescribed;
- To implement the regimes of
social insurance strictly in accordance with the provisions of this Regulation;
- To organize the payment of pension
and social insurance allowances in time, in full, and with convenience;
- To settle disputes and
complaints over social insurance;
- To issue annual reports on the
implementation of social insurance regimes for the employer and the employee.
Chapter VI
SETTLEMENT OF DISPUTES AND HANDLING OF VIOLATIONS OF
SOCIAL INSURANCE
Article 46.-
1.
Disputes between the employer or employee and the social insurance agency shall
be settled in accordance with the Regulation on Social Insurance.
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Article
47.- The right of the employee to social insurance shall be suspended
during his/her imprisonment. It shall be resumed after the expiry of the
imprisonment term. In case the Court passes an erroneous ruling against
him/her, the employee shall be redeemed the social insurance due for him/her
during the suspension.
Article
48.- The right to social insurance may be reduced or canceled in case of
false filing for social insurance, or unlawful overseas travel or settlement.
Apart from reducing or canceling
the right to social insurance, the holder of false file is obliged to refund in
full the social insurance money that he/she has benefited, and shall, depending
on the extent of the violation, be sanctioned administratively or investigated
for penal liability.
Article
49.- The employer who violates social insurance provisions shall, depending
on the extent of the violation, be served warning, fined or given other
sanctions as stipulated in Article 192 of the Labor Code.
Article
50.- Officials and employees of the social insurance agency who violate
social insurance provisions shall, depending on the extent of the violation, be
disciplined, sanctioned administratively, or investigated for penal liability.
Chapter VII
FINAL PROVISIONS
Article
51.- This Regulation takes effect from the 1st of January 1995. The
previous provisions on social insurance which are contrary to this Regulation
are now annulled.
Article
52.- All beneficiaries of monthly pension or monthly allowances for labor
disability, labor accident, occupational disease or death prior to the
effective date of this Regulation shall continue to enjoy regimes previously
provided for, and shall have their benefit levels adjusted according to the
Government provisions. All expenses on social insurance for these people shall
be covered by the State budget.
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Workers in rubber industry who
are benefiting allowances under Decision No.206-CP on the 30th of May, 1979 of
the Government, shall on their death be entitled to the burial expense
stipulated in Article 31 of this Regulation, to be given to their families.
Article
54.-
1. The
employee, who spent a period of time working in the State sector before the
effective date of this Regulation and has not received the severance allowance
or the one-time allowance of social insurance, shall have that period of time
accounted for in his/her claim for social insurance.
2. The employee, who works
outside the State sector and has for a period of time paid social insurance
premiums in accordance with the State provisions prior to the effective date of
this Regulation and who has not taken the one-time allowance of social
insurance, shall have that period of time accounted for in his/her claim for
social insurance.-