or potentially dangerous to society. When determining a VPPL, socially dangerous behavior is indispensable. Without dangerous human behavior, there can be no VPPL. Such behavior can be expressed in the form of action or inaction of legal subjects. The law does not regulate human thoughts, emotions or other personal characteristics whether it is dangerous to society or not.
The social danger of illegal acts in the field of social insurance is reflected in the damage or threat of damage to social insurance relations through violations of obligations arising from the law related to the relationship of payment, enjoyment and management of social insurance activities, ... The level of damage to social insurance relations caused by illegal acts in the field of social insurance depends mainly on the following groups of factors: The level of damage caused or threatened to cause to the social insurance fund is calculated in money and the level of damage is determined by the number of violation records, the number of employees damaged by the violation, the period of time in which the violation occurs, ...
Second: Illegal acts that violate social relationships established and protected by law.
Not only must the act be dangerous to society, but it must also be illegal, violating social relations established and protected by law. Therefore, acts that are contrary to the regulations of social organizations, customs, ethics and religious beliefs but not contrary to legal regulations are not considered as criminal acts. Illegality is also an indispensable characteristic of criminal acts.
Illegal acts in the field of social insurance, unemployment insurance, and health insurance can be manifested in the following forms: Subjects performing acts prohibited by the law on social insurance, unemployment insurance, and health insurance (for example: Intentionally reporting false information, providing false information, number of people participating in social insurance, unemployment insurance, and health insurance);
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The subject does not perform the obligations that the law requires (for example, not participating in social insurance, unemployment insurance, health insurance for employees as prescribed) or the subject uses power beyond the permitted limits, ... Criminal illegality is understood as a sign whose main content is stipulated in the criminal law; accordingly, crimes in the field of social insurance can only be socially dangerous acts that cause damage or threaten to cause significant damage to the social insurance relationship as stipulated in the Criminal Law.
Third: There is a fault of the subject
Illegal signs are only external signs of illegal acts. To determine illegal acts, it is necessary to consider the subjective aspect of the act, in which the subjective aspect is the fault of the person performing the act. Fault is a subjective element that shows the attitude of the subject towards illegal acts.
Like all acts of VPPL in general, VPPL acts in the field of social insurance also require signs of fault. The fault of a violation in the field of social insurance is the subjective negation of the requirements of the obligations of social insurance law imposed on the parties participating in the social insurance relationship, which can be intentional or unintentional.
Fourth: Subjects with legal capacity and responsibility
Legal responsibility capacity is the ability to bear legal responsibility of the subject as prescribed by the state. Normally, the state only stipulates that those who have the ability to perceive and control their behavior must be responsible for their behavior. For those who have lost the ability to perceive or the ability to choose and control their behavior at the time of performing the behavior, they also do not have the capacity for legal responsibility according to the provisions of law. Accordingly, the subject performing the acts of VPPL in the field of social insurance can be the employee, the employer, the social insurance organization or other related individuals and organizations with the capacity for legal responsibility to perform the behavior.
1.1.2. Components of violations of social insurance laws
The composition of VPPL is the characteristic signs of a specific VPPL. Within the scope of the thesis, the author analyzes in depth the object, objective aspect, subject and subjective aspect of violations in the field of social insurance.
First: The object of VPPL is the social relationship protected by law but violated by illegal acts.
Social relations in the field of social insurance are protected by law and become objects, which are the relations between the subjects: the State, social insurance agencies, employers and employees, ... This relationship is formed, maintained and developed with the aim of ensuring direct benefits for employees, thereby ensuring social stability.
Social relations in the field of social insurance can only be maintained and developed to perform that good social function when the subjects properly perform their responsibilities and obligations. However, the obligations and rights of the parties in the social insurance relationship have led to the risk of subjects not complying with their obligations at different levels. Because of the importance of social security issues to social stability and socio-economic development, relations in the field of social insurance have been considered objects of legal protection.
Second: The objective side of VPPL is the signs that manifest in the objective world of VPPL. The objective side of violations in the field of social insurance includes first of all the objective behavior, dangerous consequences for society and the causal relationship between the objective behavior and dangerous consequences for society, besides that, it can also be the violation method, time of violation...
Although the objective acts of violations in the field of social insurance are diverse, they have the same nature of violating obligations arising in the process of implementation.
Implementing the provisions of the law on social insurance may mean not doing it, not doing it correctly as required by the law on social insurance, or doing things that are not permitted by the law on social insurance.
Regarding dangerous consequences for society: The consequences of violations in the field of social insurance are first of all material damages caused to the social insurance fund. This damage is expressed in the form of appropriation, loss of revenue (not collected or not collected enough) or loss. Violations in the field of social insurance can also cause damage to employees, which is the damage that threatens to cause immediate benefits (rights to enjoy sickness, maternity, work accident or occupational disease, health insurance, unemployment insurance) and long-term benefits that employees enjoy when they reach retirement age (rights to receive pension and death benefits).
Third: The subject of VPPL is an individual or organization with legal capacity and has committed an illegal act.
In the field of social insurance, the subject of VPPL is an individual who is usually a person who is subject to social insurance, specifically the subject of compulsory social insurance is regulated as: People working under indefinite-term labor contracts, fixed-term labor contracts, seasonal labor contracts or contracts for a certain job with a term from 03 months to less than 12 months, including labor contracts signed between employers and legal representatives of people under 15 years old according to the provisions of the law on labor; People working under labor contracts with a term from 01 month to less than 03 months; Cadres, civil servants, public employees; .... and voluntary social insurance participants are Vietnamese citizens from 15 years old and above and are not subject to compulsory social insurance.
In addition, there are special subjects of violations in the field of social insurance that can also be people with certain positions and powers in the social insurance system (with
acts of taking advantage of position and power to appropriate property or violating regulations while performing social insurance activities).
Fourth: The subjective aspect of VPPL is the internal psychological state of the subject when committing an illegal act. It includes the following elements: Fault, motive, and purpose of VPPL.
Signs of error in violations in the field of social insurance also include two forms of error: intentional error and unintentional error. However, while the error of the subject in the group of violations of the obligation to pay social insurance is limited to intentional error, in the group of violations related to the management and implementation of social insurance activities, the error of the subject can be intentional or unintentional (in cases where the objective behavior shows the lack of responsibility of those with positions and powers). The purpose of many violations in this group is for personal gain, first of all in the group of violations of the right to receive social insurance as well as in some violations of the obligation to pay social insurance, stemming from the motive of profit or other personal motives, including the motive of a "collective" nature such as to increase the capital of the unit or to increase the income of members in an unjust manner...
1.1.3. Classification of violations of social insurance laws
Based on the nature and level of danger to society of the law violation, violations of the law on social insurance are divided into the following types:
1.1.3.1. Violation of criminal law (crime)
In recent years, violations of the law on social insurance have tended to increase, affecting the rights of employees, typically the situation of late payment, arrears, evasion of payment of social insurance, health insurance, unemployment insurance for employees continues to occur in most provinces and cities across the country. More seriously, many units owe social insurance for a long time or in some cases, units appropriate social insurance contributions of employees, leading to the impact on the rights of hundreds of thousands of employees in enjoying social insurance regimes.
Although there are provisions in the Law on Social Insurance allowing criminal prosecution for violations of the law on social insurance, however, because the 1999 Penal Code does not stipulate specific crimes for acts considered social insurance crimes, in reality they cannot be handled. Therefore, the 2015 Penal Code added 03 crimes related to this field, which are social insurance and unemployment insurance fraud; health insurance fraud and evasion of social insurance, health insurance and unemployment insurance payments for employees [19, Articles 214 - 216].
1.1.3.2. Violation of administrative law
Inspection activities in the insurance sector are specialized inspection activities of competent state agencies in each sector and field for agencies, organizations and individuals in compliance with specialized laws, technical and professional regulations, and management rules in the social insurance sector and field.
Administrative sanctions are applied to violations that are not serious. For violators who are agencies, organizations, or individuals involved and are not cadres or civil servants, they will be administratively sanctioned according to the provisions of the Law on Handling of Administrative Violations. If damage is caused, compensation must be paid according to the provisions. Therefore, through inspection work, when detecting violations that do not show signs of crime, administrative sanctions will be applied to such violations. In addition, recommendations for economic sanctions and recommendations for handling of responsibilities may be made, and measures prescribed in the Law on Handling of Administrative Violations may be applied [15, Article 46].
1.1.3.3. Violation of State discipline
Disciplinary responsibility is the legal responsibility applied to cadres, civil servants and public employees due to violations of discipline, violations of rules or obligations in public service activities or violations of the law that have not yet reached the level of criminal prosecution.
Through inspection activities in the field of insurance, financial inspection or related specialized inspection, if the violating subject is an official
Ministries, civil servants and public employees will be disciplined according to the Law on Civil Servants [12, Articles 78-79], the Law on Public Employees [14, Article 52]. If causing damage, compensation must be made according to the Law on State Compensation Liability [20] and guiding documents.
1.1.3.4. Civil violations
The number of lawsuits filed against units violating the law in the field of social insurance is still low compared to the number of violating units, besides, the organization of enforcement of judgments is not effective. In fact, in debt collection lawsuits of Vietnam Social Insurance, although the units all admit to debt, debt collection still faces many difficulties.
From January 1, 2016, when the 2014 Social Insurance Law came into effect, trade unions were given the right to file lawsuits in court against violations of the Social Insurance Law that affected the legitimate rights and interests of employees and groups of employees. However, the lawsuits filed by trade unions encountered many difficulties and were not as effective as expected due to the many shortcomings in the regulations on the authorization of employees and the right to file lawsuits by trade unions.
1.2. Handling of violations of social insurance laws
1.2.1. Concept of handling violations of social insurance laws
Handling of VPPL is the consideration and decision to apply forms of legal responsibility to individuals and organizations committing VPPL.
Accordingly, handling of social insurance violations is the work of competent state agencies to consider and decide on the application of legal liability forms to individuals and organizations that commit social insurance violations.
1.2.2. Forms of legal liability for violations of social insurance laws
Forms of legal liability for social insurance agencies
prescribed in the 2015 Penal Code; Law on Handling of Administrative Violations and Decree No. 28/2020/ND-CP dated March 1, 2020 of the Government stipulating sanctions for administrative violations in the fields of labor, social insurance, sending Vietnamese workers to work abroad under contracts; Law on Civil Servants, ...
When detecting illegal acts in the field of social insurance, depending on the nature and severity of the violation, the violator may be subject to administrative sanctions, disciplinary action or criminal prosecution; if causing damage, compensation must be paid according to the provisions of law. Specifically:
First: Administrative responsibility
Forms of administrative sanctions in the field of social insurance include: Warnings and fines, in which: Warnings are applied to individuals and organizations that commit minor administrative violations, have mitigating circumstances and according to regulations are subject to warnings or to all administrative violations committed by minors from 14 to under 16 years old; warnings are decided in writing [15, Article 22]. Regarding fines, the maximum fine in the field of social insurance and health insurance is 75 million VND for individuals, the maximum fine for organizations is 02 times the fine for individuals [15, Article 24, Clause 1, Point d and Clause 2]. Violations, forms of sanctions, fine levels and remedial measures for violations in the field of social insurance are stipulated in relevant documents [6, Articles 38 - 40].
Second: Criminal liability
Criminal prosecution is only initiated when the violation is serious and shows signs of a crime, meaning it has all the elements constituting a crime according to the provisions of the Penal Code.
Violations of social insurance have been mentioned in the 2015 Penal Code, which took effect from January 1, 2018. For the first time, the group of crimes on violations in the fields of social insurance, unemployment insurance, and health insurance has been included.