Social Insurance Law for Vietnamese workers working abroad in Japan

When Vietnamese workers return home after their contracts expire, they will no longer receive this benefit. This is a disadvantage for workers because they do not participate in Vietnam, so when they return home, they will not receive this benefit. At the same time, Japanese social insurance law is not linked to Vietnamese social insurance law, so this benefit will end when workers return home.

According to the 2014 Law on Social Insurance, the regulations on compulsory social insurance for employees working abroad are quite specific. Most employees working abroad only participate in the compulsory social insurance fund in 02 regimes: retirement and death benefits. For employees who have participated in compulsory social insurance, the monthly contribution is equal to 22% of the employee's monthly salary for social insurance before going to work abroad. For those who have not participated in compulsory social insurance, the contribution is equal to 22% of 2 times the basic salary in Vietnam. Employees can pay 3 months, 6 months, 12 months/time or pay in advance according to the term of the contract to work abroad. Employees pay directly to the social insurance agency where they reside before going to work abroad or pay through the sending enterprise or organization. Enterprises do not have to support social insurance payments for employees but only collect on their behalf. Meanwhile, businesses that send workers to work and are responsible for collecting on their behalf do not know how to collect compulsory social insurance from workers, what the specific collection rate is, and how to handle cases where workers intentionally do not pay?

Currently, most of the people working abroad are young workers who have never worked or paid social insurance in Vietnam. The company has announced and introduced social insurance participation, but most of the workers do not want to participate. They have little understanding of social insurance policies and are only interested in the content and skills when exporting labor and the compulsory insurance payments in the host country. In addition, many workers also expressed concerns about the high collection rate of 22% of the basic salary. Because workers working in low-income markets such as the Middle East and Malaysia pay social insurance like workers in high-income markets such as Japan, Korea, etc., it is not fair.

Currently, there are still a few Vietnamese workers working in Japan who go to work with winning or receiving contractors or organizations or individuals investing abroad and sending workers to work abroad. They are still required to participate in the social insurance regime in Japan as mentioned above, even though they still fully participate in the 5 social insurance regimes in Japan.

Vietnam. Therefore, it can be seen that employees have to pay social insurance twice, once in the country where they are citizens, and twice in the country where they work, which increases the economic burden for employees. In addition, the law also has unclear regulations on procedures for receiving social insurance when employees return home. No matter where employees work, difficulties such as illness, maternity, accidents, occupational diseases, etc. can all occur. Employees will be entitled to social insurance benefits such as sickness, maternity, and occupational accident and disease benefits when they satisfy the conditions for receiving benefits, which are actual events. These events need to be specifically verified by competent authorities in the place where employees actually work. Regarding sickness benefits, it is difficult for the social insurance fund to determine and monitor the actual situation of employees when they work in Japan. Regarding the maternity allowance regime, the unreasonable point is the time of paying social insurance before receiving the allowance, leading to unfairness in the enjoyment, especially in the case of maternity leave allowance. In addition, the one-time allowance at birth for the purpose of compensating the mother is regulated as one month's salary before taking leave to receive the allowance, which is unreasonable because there are people with high salaries and people with low salaries while the events that arise the need are the same. Employees working in Japan often have higher salaries than employees working in the country, so it can cause a deficit in the social insurance fund, especially in the case of maternity leave lasting 6 months. Moreover, it is very difficult to determine whether employees working abroad are eligible for other maternity benefits such as miscarriage, contraceptive measures, etc., leading to difficulties in implementing social insurance payments. Moreover, determining work accidents and occupational diseases is completely difficult. Because national laws have different provisions and each national law is only legally valid within its territory, it is impossible to use Vietnam's Social Insurance Law to determine whether an employee has suffered an occupational accident or occupational disease in the country where the employee works. The determination method according to current regulations is still unclear, especially in the case of an occupational accident on the way from home to work and vice versa. The reasonable distance and time as prescribed by law when an accident occurs is very difficult to determine in the case of an employee working abroad. Or the list of occupational diseases in each country is very different, so it is difficult to determine exactly whether this disease is covered by the Social Insurance Fund or not? Moreover, occupational diseases are long-term issues, so it is possible that the employee returns to the country and develops a clear illness and at a level consistent with the signs of an occupational disease, at which point the employee is no longer covered by social insurance.

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According to the TNLĐ-BNN regime. Because there is still a lack of bilateral legal links between Vietnam and Japan, this is a disadvantage for workers.

The Social Insurance Law and its guiding decrees do not have any conditions that stipulate or bind the responsibility of workers working abroad to participate in social insurance. There are currently no sanctions to force these workers to comply with the regulations on compulsory social insurance participation. Therefore, ensuring that workers participate in social insurance still faces many difficulties in practice. Enterprises as well as authorities always welcome new regulations aimed at social security, ensuring legitimate rights for workers working abroad. However, when the law is implemented, it will encounter many difficulties when workers do not want to participate in social insurance, and enterprises are reluctant to collect on their behalf.

In fact, there are still many shortcomings in the social insurance law for Vietnamese workers working in Japan. This causes a loss of social insurance funds, and moreover, it does not guarantee the social security rights of workers, and does not properly implement the meaning of sharing risks, compensating and replacing income to ensure a stable life for workers when their income from the social insurance fund is reduced or lost.

3.3. Some recommendations to improve the Social Insurance law for Vietnamese workers working under contract in Japan.

The goal of the social insurance system is to build a humane and civilized society, create a source of accumulation from the contributions of workers, increase the national financial resources to protect workers to the maximum, and realize the equal rights of all people of working age and in different economic sectors. Therefore, perfecting the social insurance law is a very necessary task to both protect the rights of workers and ensure revenue for the social insurance fund. On that basis, from studies on social insurance law regulations in Vietnam and the current situation of Vietnamese workers in Japan, the author proposes the following recommendations:

Create opportunities to access all social insurance regimes for Vietnamese workers working abroad.

In the conditions of a market economy, everyone has equal rights in labor and enjoyment, they all have the right to be protected in cases of risks and incidents without distinction of economic class, social status, gender, religion, etc. This is not only a principle of social insurance but also a goal.

The strategic task of social insurance has been clearly stated in the Resolution of the 12th Party Congress: "... step by step, steadily expand the social insurance and social security system, moving towards applying the insurance regime to all workers". In reality, workers working abroad with enterprises providing services to send workers to work abroad, career organizations licensed to send workers to work abroad, workers working abroad in the form of internships to improve their skills with enterprises sending workers to work in the form of internships to improve their skills, workers working abroad with enterprises that win contracts, receive contracts or organizations and individuals investing abroad and sending workers to work abroad, workers working abroad in the form of individual contracts are all workers, so they are all equal in the right to participate in the same social insurance regimes without discrimination. The law needs to adjust the regulations on this issue to suit the current situation of the free market economy. Accordingly, Vietnamese workers abroad, regardless of the type of contract, should be given the opportunity to participate in all social insurance regimes. Such participation will be the basis for them to enjoy related benefits when facing risks, aiming to protect the labor force and income from the labor of this subject.

Building an interaction mechanism between the social insurance systems of Vietnam and Japan

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Currently, workers going to work in Japan still face many difficulties in finding jobs.

Paying social insurance, enjoying current allowances, so it is necessary to amend, supplement and perfect the law. When Vietnamese workers go to work in Japan, they are required to participate in all types of insurance according to Japanese law such as social insurance, health insurance, occupational safety insurance... periodic health check-ups according to regulations of the Japanese government. Meanwhile, workers working abroad are required to participate in retirement and death benefits in Vietnam. Because Japanese social insurance law is only legally effective in Japan, after workers return home, they will no longer enjoy the allowances they participated in in Japan as analyzed above. Therefore, there needs to be a legal connection between the country sending workers to work abroad and the country receiving workers, specifically between Vietnam and Japan, there needs to be agreement on paying social insurance and enjoying allowances. In order to better protect the rights of workers, there should be a conversion of the time of participation in social insurance in the country.

Japan at the time of paying social insurance in Vietnam to avoid interrupting the payment to the social insurance fund of employees, especially for short-term social insurance regimes. However, to do that, the conversion between the social insurance fund of Japan and the social insurance fund of Vietnam needs to have clear regulations that can form a common social insurance fund to pay for Vietnamese employees working in Japan to avoid cases where Vietnamese employees returning home will no longer receive benefits for occupational accidents and diseases. The issue of protecting the rights of employees must be based on long-term interests and for the benefit of the whole society, the whole country, of generations of employees and different groups of employees with the purpose and sustainable development of society, not just on the aspect of protecting the interests of a group. Only then can social insurance activities develop sustainably and effectively.

In fact, many workers working abroad have not participated in compulsory social insurance or have participated in compulsory social insurance but have received one-time social insurance, so they need to receive one-time social insurance benefits when they return home. Currently, refunds are still facing many difficulties because workers are not given specific instructions on how to request a refund or because they have returned home and cannot complete the refund procedures. Therefore, the State needs to specifically regulate the receipt of one-time social insurance benefits and support workers to receive refunds when participating in social insurance regimes. Moreover, because workers are required to participate in short-term social insurance regimes in Japan, health insurance, accident compensation insurance for workers, etc., within 2 years of leaving Japan, they have the right to apply for a refund. However, this refund is completely difficult because the Vietnam Social Security Fund does not pay for these benefits. Therefore, there should be specific legal regulations on this matter.

In addition to the fact that employees only have to participate in two regimes: retirement and death benefits in Vietnam, employees in enterprises that win contracts, receive contracts or organizations and individuals investing abroad and sending employees to work abroad must participate in all five social insurance regimes in Vietnam and still have to participate in the social insurance regime for foreigners working in Japan. This double payment of social insurance is unreasonable because when employees are sick or pregnant, they are only entitled to one social insurance regime, thus causing disadvantages for employees. Moreover, the fact that national laws only apply within the national territory makes it difficult for employees working in Japan to easily enjoy benefits from the social insurance regimes of Vietnam. In order to ensure the rights of

When employees participate in social insurance, Vietnam and Japan need to agree on how to identify sick employees, clearly define cases considered work-related accidents, or supplement the list of occupational diseases by establishing bilateral agreements or multilateral cooperation mechanisms.

To effectively pay social insurance benefits, it is necessary to cooperate in monitoring the situation of workers in Japan to avoid fraud by workers that causes an overpayment of social insurance funds, and at the same time support the State in ensuring fairness between domestic workers and foreign workers. Moreover, to ensure a reasonable balance between revenue and expenditure of the social insurance fund and to reduce the burden on the State budget, at the same time, reduce the contribution from workers to the maximum level while still ensuring the maximum allowable expenditure for workers, helping them overcome difficulties in daily life. To limit workers from evading their social insurance obligations, the State needs to issue reasonable sanctions.

One of the effective ways of legal cooperation between countries in some specialized fields such as social insurance is to sign bilateral agreements or join a multilateral mechanism. Accordingly, Vietnam and Japan can refer to the way of participating and enjoying each social insurance regime to have a reasonable agreement in this field. Specifically, a bilateral agreement can help Vietnamese workers in Japan only have to participate in one social insurance system at a certain time, but their rights will be guaranteed even when they work in Japan or return to Vietnam. From there, the social insurance rights of this subject will be fully protected.

Adjust the retirement age equally between male and female workers.

In addition to participating in short-term social insurance regimes in Japan, employees are required to participate in retirement and death benefits in Vietnam. Regarding retirement, this is the regime with the most shortcomings among the subsidy regimes. Regarding the current retirement age, men who are 60 years old and have paid social insurance for 25 years, and women who are 55 years old and have paid social insurance for 20 years or more are entitled to receive monthly pension benefits. In reality, the difference in retirement age between men and women is too large, not suitable for the psychological and physiological capacity of employees, because according to sociological surveys, the average life expectancy of women is currently higher than that of men. Regarding death benefits, the current subsidy level is low and does not ensure fairness for employees, especially in the

One-time allowance. The State should amend in the following direction: for employees who are working or waiting to receive retirement benefits and die, each year is calculated as 01 month's salary (currently ½ month) of the average salary used as the basis for social insurance contributions, not exceeding 20 months (currently 12 months); for those who are receiving monthly allowances (retirement or monthly occupational accident-disease benefits) and die, the calculation is as above, but for each year of receiving allowances, 02 months of allowances are deducted, with a minimum of 05 months (currently 03 months). Such a regulation will ensure greater fairness for cases of death when they have not yet received retirement benefits or have only received a small amount.

In short, social insurance is an important part of the State's economic and social policy, one of the steps to realize policies and guidelines to solve social problems related to a large class of workers that the State is interested in and issues that stimulate economic development. On the other hand, social insurance is one of the components of the social security system and by looking at the way a country's social insurance system is organized, people can evaluate the civilization and progress of that country, so perfecting the social insurance system as well as perfecting the law is very necessary. Therefore, Vietnam needs to, on the one hand, perfect national legal regulations and, on the other hand, proceed to build bilateral agreements and participate in multilateral mechanisms to protect the legitimate rights of workers working in Japan in particular and workers working abroad in general.

CONCLUDE

Born and developed along with the high development of commodity production economies, forms of commodity production, forms of insurance activities, including social insurance, have been formed for hundreds of years. From the initial need of social insurance activities to ensure stable life for wage earners during temporary loss of working capacity due to illness, maternity or work accidents, etc. Up to now, the forms of operation of social insurance systems in countries around the world have developed very diversely, both in terms of organization and implementation and types of subsidy regimes for workers.

In recent years, Vietnam has achieved remarkable achievements in economic development and social stability, gradually improving the lives of the people. The number of Vietnamese workers working abroad is increasing, especially in the Japanese market, which has become one of the countries that receive the most Vietnamese workers. One of the legitimate rights that these workers are interested in is the right to social insurance. Moreover, at the macro level, the provisions of the Social Insurance Law are both a driving force, promoting economic growth, social progress and a measure of the level of civilization of the country. Currently, we have formed a social insurance system to protect Vietnamese workers working abroad that is completely in accordance with international law.

The issue of perfecting social insurance regimes for Vietnamese workers working abroad is in need of attention from the Party and the State, especially in an integrated economy where the number of migrant workers is increasing rapidly. From there, the study analyzes a number of legal issues that have led to Vietnamese workers abroad not fully enjoying their rights and social insurance. The study also focuses on the group of Vietnamese workers in Japan to detect shortcomings in the implementation of social insurance laws. From there, the thesis makes a number of recommendations to amend the law by perfecting a number of legal provisions and developing bilateral agreements or multilateral mechanisms.

In the process of researching and completing the thesis, it is inevitable that there will be certain errors. Therefore, we sincerely hope to receive comments and contributions from teachers and friends.

Social Insurance Law for Vietnamese workers working abroad in Japan - 8

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