RESOLUTION

GUIDELINES FOR APPLICATION OF ARTICLE 214 ON SOCIAL INSURANCE AND UNEMPLOYMENT INSURANCE FRAUD, ARTICLE 215 ON HEALTH INSURANCE FRAUD AND ARTICLE 216 ON EVADING PAYMENT OF SOCIAL INSURANCE, HEALTH INSURANCE, UNEMPLOYMENT INSURANCE FOR WORKERS OF THE CRIMINAL CODE

COUNCIL OF JUSTICES OF
THE SUPREME PEOPLE’S COURT

Pursuant to the Law on Organization of the People’s Court dated November 24, 2014;

Aiming to consistently and precisely apply regulations of Articles 214, 215, and 216 of the Criminal Code No. 100/2015/QH13 certain articles of which are amended by the Law No. 12/2017/QH14; the Criminal Procedure Code No. 101/2015/QH13;

With the opinions of the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice,

HEREBY RESOLVES:

Article 1. Scope

This Resolution provides guidelines for application of Article 214 on social insurance and unemployment insurance fraud, Article 215 on health insurance fraud and Article 216 on evading payment of social insurance, health insurance, and unemployment insurance for workers of the Criminal Code.

Article 2. Regarding certain terms used in guidelines for application of Articles 214, 215 and 216 of the Criminal Code

1. “forging or falsifying documents” prescribed in Point a Clause 1 Article 214 of the Criminal Code means forging or falsifying social insurance or unemployment insurance documents (for example: unreal documents, documents which are not issued by competent authorities or are issued against the law, ultra vires, or not within the time limit, etc.) to obtain the following benefits: sickness benefit; maternity benefit; occupational accidents and occupational diseases; pension; death benefit; unemployment benefit; job counseling and placement; vocational training support; assistance for advanced training program to improve skills and knowledge for workers and other benefits as per the law.

2. “forging medical records” prescribed in Point a Clause 1 Article 215 of the Criminal Code means that in fact a health insurance participant does not have or has medical examination or treatment and he/she is not required to be treated, but his/her medical record has been still made.

3. “forging prescriptions” prescribed in Point a Clause 1 Article 215 of the Criminal Code means that in fact a health insurance participant does not have or has medical examination or treatment and no drug is prescribed, but his/her prescriptions has been still given.

4. “falsely increase the quantity or types of medicines, medical equipment, services, treatment costs” prescribed in Point a Clause 1 Article 215 of the Criminal Code means that in fact a health insurance participant does not have or has medical examination or treatment but an increased quantity of medicines, medical equipment, services has been prescribed compared to quantity actually used by the patient or additional types of medicines, medical equipment, services have been prescribed which are not used by the patient; an increased quantity of inpatient days at the health facility has been prescribed or incorrect names of medicines, medical equipment, services have been prescribed compared to those actually used by the patient to increase the costs of medical examination and treatment to be covered by the health insurance fund.

5. “other costs” prescribed in Point a Clause 1 Article 215 of the Criminal Code means the costs incurred during the medical examination and treatment process at health facilities, excluding costs of medicines, medical equipment, services and treatment costs (such as: medical examination cost, patient transport cost, etc.).

6. “forging documents, health insurance cards” prescribed in Point b Clause 1 Article 215 of the Criminal Code means prepare and use documents, health insurance cards not issued by competent authorities or falsify documents, health insurance cards of other people in order to illegally obtain health insurance benefits.

7. “fictitious health insurance card” prescribed in Point b Clause 1 Article 215 of the Criminal Code means a health insurance card issued by the competent authority to a person who has not contributed to the health insurance fund or is not entitled to receive contribution to health insurance fund from other organizations or funds as prescribed.

8. “fake health insurance card” prescribed in Point b Clause 1 Article 215 of the Criminal Code means a health insurance card not issued by the competent authority.

9. “revoked, falsified health insurance card” prescribed in Point b Clause 1 Article 215 of the Criminal Code means a health insurance card issued by the competent authority to a person who has contributed to the health insurance fund but it was revoked as per the law and a health insurance card the information about the holder is modified or falsified.

10. “evading payment of insurance” prescribed in Article 216 of the Criminal Code means that an employer who is obliged to pay social insurance, health insurance, unemployment insurance for its workers deceives or uses other tricks to not to pay or pay insufficiently for its workers who are eligible for social insurance, health insurance, and unemployment insurance.

11. “deceive to not to pay or pay insufficiently social insurance, health insurance, and unemployment insurance” prescribed in Clause 1 Article 216 of the Criminal Code means a person who intentionally fails to declare or declare untruthfully the payment of social insurance, health insurance, and unemployment insurance to the competent authorities.

12. “fail to pay social insurance, health insurance and unemployment insurance” prescribed in Clause 1 Article 216 of the Criminal Code means that an employer fails to submit an application for payment of social insurance, health insurance and unemployment insurance for its workers or has submitted such an application and clarify sufficient participants and amounts to be paid, prepare proof and salary statement for workers and corporate income, but fails to pay social insurance, health insurance and unemployment insurance to the social security agency as prescribed.

13. “pay insufficiently" prescribed in Clause 1 Article 216 of the Criminal Code means that an employer has clarified sufficient insurance amounts to be paid, prepare proof and salary statements for workers and corporate income but it has just partly paid the social insurance, health insurance, and unemployment insurance to the social security agency as prescribed.

14. “at least 6 months” prescribed in Clause 1 Article 216 of the Criminal Code means at least 6 consecutive months or 6 cumulative months.

For example: From May 2018 to March 2019, Company A has failed to pay social insurance for 4 months in 2018 (including May, July, September and November) and 2 months in 2019 (January and February), which means it has failed to pay at least 6 cumulative months.

15. Damage caused by social insurance, health insurance and unemployment insurance fraud prescribed in Article 214 and Article 215 of the Criminal Code does not include the sum of social insurance, unemployment insurance and health insurance payout which has been appropriated.

Article 3. Regarding certain circumstances as the basis for determination of sentence bracket

1. “in a professional manner” prescribed in Point b Clause 2 Article 214 and 215 of the Criminal Code means that the offender has committed the social insurance, unemployment insurance and health insurance fraud for at least 5 times (irrespective of whether he/she has been prosecuted for criminal liability or not, if the prescriptive period for criminal prosecution has not expired or the conviction has not been expunged) and the offender regards the illicit earnings from the crime as his/her source of income.

2. “use of deceitful methods” prescribed in Point dd Clause 2 Articles 214 and 215 of the Criminal Code means that the offender uses high technology and colludes with persons holding high positions in regulatory bodies or use other deceitful tricks to destroy evidence, conceal the criminal offenses, and cause prejudice to the detection, investigation, actions against the crime.

3. “committing offense more than once” prescribed in Point a Clause 2 Article 216 of the Criminal Code means that the offender has evaded paying social insurance, health insurance and unemployment insurance for workers at least 2 times but he/she has not been liable to criminal prosecution and the prescriptive period for criminal prosecution has not expired.

4. “fail to pay the insurance collected or deducted from insurance contribution made by workers” prescribed in Point d Clause 2 and Point c Clause 3 Article 216 of the Criminal Code means that the employer has collected or deducted insurance contribution from the salary on which the calculation of contribution is based from workers but fails to pay them to the social security agency.

Article 4. Criminal prosecution in specific circumstances

1. In a case where a person has committed the same offense prescribed in Articles 214 and 215 of the Criminal Code multiple times to appropriate social insurance, health insurance or unemployment insurance payout and he/she has not incurred any penalty for administrative violation and the prescriptive period for criminal prosecution has not expired, if total appropriated sum of insurance payout he/she earned as mentioned above is equal to or greater than the minimum amount for criminal prosecution as prescribed in the Criminal Code, he/she shall face a criminal prosecution for the respective offense according to the said total sum if the offense has been committed continuously and successively in terms of time.

2. In a case where a person has committed the same offense prescribed in Articles 214 and 215 of the Criminal Code multiple times which causes damage to the social insurance, health insurance or unemployment insurance fund and he/she has not incurred any penalty for administrative violation and the prescriptive period for criminal prosecution has not expired, if total sum at which the damage is assessed as mentioned above is equal to or greater than the minimum amount for criminal prosecution as prescribed in the Criminal Code, he/she shall face a criminal prosecution for the respective offense according to the said total sum if the offense has been committed continuously and successively in terms of time.

3. In a case where an offender has both appropriated the social insurance, health insurance or unemployment insurance payout and caused damage, the appropriated sum and the sum at which the damage is assessed are both greater than the minimum amount for criminal prosecution as prescribed in Articles 214 and 215 of the Criminal Code, the following actions shall be taken:

a) If the appropriated sum of insurance payout and the sum at which the damage is assessed fall under the ordinary sentence bracket, the offender shall face a criminal prosecution under the ordinary sentence bracket.

For example: If Nguyen Van A forges social insurance documents to appropriate VND 20,000,000 and causes damage assessed at VND 150,000,000, he shall face a criminal prosecution for the social insurance or unemployment insurance fraud prescribed in Clause 1 Article 214 of the Criminal Code.

b) If the appropriated sum of insurance payout and the sum at which the damage is assessed fall under different sentence brackets, the offender shall face a criminal prosecution under the higher sentence bracket.

For example: If Nguyen Van A forges social insurance documents to appropriate VND 20,000,000 and causes damage assessed at VND 250,000,000, he shall face a criminal prosecution for the social insurance or unemployment insurance fraud prescribed in Point d Clause 2 Article 214 of the Criminal Code.

c) If the appropriated sum of insurance payout, the sum at which the damage is assessed falls under the same aggravating sentence bracket, the offender shall face a criminal prosecution under both aggravating circumstances for criminal prosecution.

For example: If Nguyen Van B forges social insurance documents to appropriate VND 150.000.000 and causes damage assessed at VND 250,000,000, he shall face a criminal prosecution for the social insurance or unemployment insurance fraud with the aggravating circumstances prescribed in Points c, d Clause 2 Article 214 of the Criminal Code.

4. A person who forges social insurance, unemployment insurance, health insurance documents or health insurance cards to appropriate social insurance, unemployment insurance or health insurance payout or causes damage, apart from facing a criminal prosecution for the respective offense prescribed in Articles 214 or 215 of the Criminal Code, the offender also faces a criminal prosecution for forging seals and documents of organizations; using fake seals or documents of organizations as prescribed in Article 341 of the Criminal Code if there are sufficient constituent elements of crime.

Article 5. Actions against evading payment of social insurance, health insurance, and unemployment insurance for workers committed prior to 00:00 on January 1, 2018

1. If a person evades payment of social insurance, health insurance, unemployment insurance for workers prior to 00:00 on January 1, 2018, he/she shall not face a criminal prosecution as prescribed in Article 216 of the Criminal Code but the following actions shall be taken:

a) If he/she has not faced a penalty for administrative violation and the prescriptive period for penalty for administrative violation has not expired, the competent authority may consider imposing an administrative penalty.

b) If he/she has incurred a penalty for administrative violation but he/she knowingly evades and delays the execution, the prescriptive period for execution of the decision on penalty for administrative violation shall be determined as prescribed in Clause 2 Article 74 of the Law on Penalties for Administrative Violations. The execution and coercive execution of such decision on penalty for administrative violation shall conform to law on execution and coercive execution of decisions on penalty for administrative violations.

c) If the act causes damage to workers, social security agencies or other agencies, the injured parties may file a tort claim against the defendant as prescribed in law on civil procedures.

2. The penalties for administrative violations imposed on those who evaded paying social insurance, health insurance or unemployment insurance for workers prior to 00:00 January 1, 2018 shall not be regarded as basis for criminal prosecution as prescribed in Article 216 of the Criminal Code.

Article 6. Determination of legal proceeding positions taken by social security agency

In criminal cases that suspects or defendants face criminal prosecution for social insurance or unemployment insurance fraud as prescribed in Article 214 of the Criminal Code; health insurance fraud prescribed in Article 215 of the Criminal Code; evading payment of social insurance, health insurance and unemployment insurance for workers prescribed in Article 216 of the Criminal Code, social security agencies shall take the legal proceeding position as the aggrieved party.

Article 7. Implementation

1. Upon detecting any sign of offenses prescribed in Articles 214, 215 and 216 of the Criminal Code, within their scope of tasks and powers, the social security agency shall submit a claim for bringing a charge against the offender accompanied by relevant evidence and documents to the competent presiding authority to consider bringing a charge against the offender as prescribed in the Criminal Procedure Code.

If a trade union, labor union or other entity detects any sign of offense prescribed in Articles 214, 215 and 216 of the Criminal Code, they must report it immediately to the competent presiding authority to consider bringing a charge against the offender as prescribed in the Criminal Procedure Code.

2. On receiving such report on crime or the claim for bringing a charge against the offender accompanied by relevant evidence and documents, the competent presiding authority shall consider accepting and settling the case as per the law.

3. The submission of claims for bringing charges against the offenders and relevant evidence and documents to competent presiding authorities shall conform to provisions of the Criminal Procedure Code and Joint Circular No. 01/2017/TTLT-BCA-BQP-BTC-BNN&PTNT-VKSNDTC dated December 29, 2017 of the Ministry of Public Security, the Ministry of National Defense, the Ministry of Finance, the Ministry of Agriculture and Rural Development, the Supreme People’s Procuracy on cooperation between competent authorities in implementation of the Criminal Procedure Code 2015 concerning receipt and settlement of denunciation and report on crime and claims for bringing charges against the offenders.

Article 8. Entry in force

This Resolution is passed by the Council of Justice of the Supreme People’s Court on June 25, 2019 and comes into force as of September 1, 2019.

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