Tiếng ViệtThe case of loaning insurance records usually occurs mainly because the employee is not old enough to work but wants to join the labor force, so he borrowed the records of his relatives who are old enough to go to work. two people working together will be duplicated due to using the same (personal) information.
Currently, in order to resolve this overlapping insurance case, insurance agencies still have to wait for more specific instructions from the managing agency of Vietnam Social Insurance or from the Ministry of Labor, War Invalids and Social Affairs. However, there are a number of official documents that are still valid and the handling instructions you can refer to as below:
According to Official Letter 3663/BHXH-THU of Ho Chi Minh City 2014, in case of duplicate insurance due to lending/borrowing labor records, the instructions for handling are as follows:
8. Employees who have used other people’s records to participate in social insurance and enjoy social insurance benefits, if there is still a process that has not been enjoyed, after the unit (or employee) submits an adjustment file according to regulations, the agency will The social insurance agency shall adjust the profile of the correct identity and notify the places that have settled the correct identity update regime through the Social Insurance Benefits Department.
– In Clause 7, Section II, the official dispatch provides:
7. Procedures for handling dossiers of consolidation of social insurance books when employees borrow or lend dossiers of participation in social insurance:
7.1. The collection department, when processing dossiers of consolidation, if it is discovered that the employee has the same period of participation in social insurance due to borrowing or lending the dossier, it shall guide the employee to adjust his/her personal identity according to the instructions in Official Dispatch No. 2609/BHXH dated 25/25/03. 7/2013, on coordination in handling of administrative violations in the field of management of social insurance books.
After receiving the sanctioning decision of the Inspector of the Department of Labor, War Invalids and Social Affairs (LOLISA) and having paid the fine in accordance with regulations, the employee shall submit a dossier for settlement according to the Receipt and Receipt Form (PGNHS) to adjust his or her personal identity due to the following regulations: borrowed name (303/…/SO).
7.2. If the lender cannot contact the borrower, then:
– The file lender must write an Application Form (Form D01-TS) clearly stating the reason for loaning the dossier to another person, but because it cannot be contacted and commits not to acknowledge the process of the social insurance book that the borrower borrows the dossier. participated in social insurance.
– Submit the dossier for settlement according to PGNHS combined book (304/…/SO).
– The part of income from the process of participating in social insurance is managed by another place but the employee does not recognize it (if any).
– The division that issues the card book locks the process of participating in social insurance on the data according to the KB and KT plan and makes a record of canceling the employee’s book, which is not acknowledged in the section “Cancellation of many books”. If the book does not acknowledge receipt of a one-time allowance or unemployment benefit, then lock the plan CT and TT and make a record of canceling the number of unrecognized books in the section “Cancellation of many books”.
7.3. In case the employee borrows the dossier for participation in social insurance and has enjoyed all the benefits in the name-borrowing book (false profile), now submits the dossier to settle the personal adjustment, there is a sanction decision… according to (PGNHS303/. ../SO), then do:
– The department that issues the card book locks the process of participating in social insurance on the data according to the plan CT, TT and makes a record of book withdrawal in the section “Revoking the policy settlement book”. In case the book is no longer available due to withdrawal by the social insurance agency or it is lost after enjoying the full benefit, only the process of participating in social insurance will be locked on the data according to the plan CT, TT.
7.4. In case two social insurance book numbers are exactly the same in terms of personal identity, and the employee is processing the dossier, there is a written commitment not to lend the dossier to others (due to being abused by others):
– If the social insurance book number is misused and the employee is still working at another unit, the employee shall be invited to verify and serve as a basis for settlement.
– If the social insurance book number is misused and the employee who has quit his job cannot be contacted, he/she shall guide the employee who is processing the dossier, carry out the application procedures and settle it as in Section 7.2 above “In the case of the person who lends the records”. The borrower cannot be contacted.
Thus, the steps are:
Step 1. The borrower/lender pays the administrative penalty. After completing the payment of the fine, go to the insurance agency to ask for the adjustment of the personal profile to match.
Step 2: Social insurance will verify and carry out procedures to readjust personal information for employees.
In case the borrower cannot be contacted, the lender will:
– Write an Application Form (Form D01-TS) clearly stating the reason for letting others borrow the application, but because it is impossible to contact
– Commitment not to accept the process of social insurance books that the borrower has participated in social insurance.
After that, the insurance agency will handle and lock the process of participating in social insurance, making a record of book cancellation.
In case of borrowing dossiers of participation in social insurance and enjoying all benefits of one-time social insurance and unemployment insurance:
The insurance agency will lock the process of participating in social insurance, make a record of book cancellation (if any).
However, on May 31, 2022, the Ministry of Labor, War Invalids and Social Affairs issued a new Official Letter No. 1767/LDTBXH-BHXH on the employee’s borrowing of other people’s records to enter into a labor contract. Self-treatment has not been explicitly stated as there are notable entries that are:
1. In case the employee borrows the file of another person to enter into a labor contract, it is a violation of the principle of “honesty” as prescribed in Clause 1, Article 15 of the Labor Code and a breach of the obligation to provide information when entering into a labor contract as prescribed in Clause 2, Article 16 of the Labor Code. Pursuant to the provisions of Point b, Clause 1, Article 49 of the Labor Code, this is the case where the labor contract is completely invalidated.
2. The competence to declare the labor contract invalid and handle the invalid contract shall comply with the provisions of Articles 50 and 51 of the Labor Code and Section 3, Chapter III of the Decree No. 145/2020/ND- The Government’s CP of December 14, 2020 details and guides the implementation of a number of articles of the Labor Code on labor conditions and labor relations. Accordingly, the People’s Court has the right to declare the labor contract invalid. The handling of a labor contract that is completely invalidated due to the person entering into it is not authorized or violates the principles of entering into a labor contract shall comply with the provisions of Clause 2, Article 51 of the Labor Code and Article 10 of the Labor Code. Decree No. 145/2020/ND-CP. Clause 4, Article 10 of Decree No. 145/2020/ND-CP stipulates: “Other issues related to the handling of a labor contract that is completely invalid due to the signator’s incompetence or violation of the principles of labor contract. Rules for entering into labor contracts fall under the jurisdiction of the Court in accordance with the Civil Procedure Code.
– Articles 401 and 402 of the Civil Procedure Code provide for the request to declare a labor contract invalid as follows:
Article 401. Request for declaration of invalid labor contracts or invalid collective bargaining agreements
1. Employees, employers, representative organizations of labor collectives and competent state agencies have the right to request competent courts to declare labor contracts or collective labor agreements. void when there are grounds in accordance with the provisions of the Labor Code.
2. The written request of the employee, the employer, the representative organization of the labor collective, the written request of the competent state agency must contain the contents specified in Clause 2, Article 362 of this Law. This Code.
Article 402. Consideration of request for declaration of invalid labor contract or collective bargaining agreement
1. The time limit for preparing to consider a request for declaration of a labor contract to be invalid is 10 days, and a collective labor agreement to be invalid is 15 days from the date the Court accepts the petition. At the end of this time limit, the Court must issue a decision to open a meeting to consider the petition.
2. After accepting the petition for declaring the labor contract invalid or the collective labor agreement invalid, the Court is responsible for sending a notice of acceptance to the petitioner, the employer, representative organization of the labor collective and the procuracies of the same level.
3. During the time limit for preparing to consider the application or written request, if the requester withdraws his/her request, the court shall issue a decision to terminate the consideration of the application or written request.
4. Within 05 working days from the date of issuing the decision to open the meeting, the Court must open a meeting to consider the request for declaring the labor contract invalid.
Within 10 days from the date of issuance of the decision to open a meeting, the Court must open a meeting to consider the request for declaring the collective bargaining agreement invalid.
5. When considering the petition, the Judge may accept or not accept the request to declare the labor contract invalid, the collective labor agreement invalid.
In case of accepting the request, the judge shall issue a decision declaring the labor contract invalid or the collective labor agreement invalid. In this decision, the Court must deal with the legal consequences of declaring the labor contract invalid, the collective labor agreement invalid.
6. The decision to declare the labor contract invalid or the collective labor agreement invalid must be sent to the applicant or written request, the employer, the representative organization of the labor collective and the agency. State management of labor in the locality where the enterprise’s head office is located, the labor state management agency of the same level in case it is related to an enterprise without its head office in Vietnam.
Therefore, the case of lending labor records to enter into labor contracts and participate in insurance is a violation of the principle of entering into labor contracts according to Clause 1, Article 15 of the Labor Code 2019 “Volunteering, equality and equality”. , good faith, cooperation and honesty”. Thus, having violated it is dishonest in the process of entering into labor contracts.
When violating the principle of entering into a labor contract, that labor contract is completely void. To declare an employment contract null and void, only the court has jurisdiction. Thus, the employee must file a petition to the court to declare the contract invalid and other issues related to the handling of a completely invalid labor contract due to the non-compliance or violation of the contract. the principle of entering into a labor contract falls under the jurisdiction of the Court afterwards.
Therefore, the way to handle and procedures to handle the case where the Employee lends/borrows his/her employment record and then has the same insurance premium payment has not yet been provided with specific instructions. If I ask the court to declare that Labor Contract invalid, how will the insurance process be? Will it be completely canceled or still credited to the employee? If canceling the whole process, will the User get back the amount paid to the employee during that process? In this case, will the borrower/lender be sanctioned for another administrative violation?
These questions are still open, so the cases of duplicate insurance due to borrowing labor records are currently still “suspended” and the insurance agency has not yet had a solution for employees.
Therefore, employees should be careful and attentive, should not lend / borrow documents to go to work to avoid cases that cannot be handled and affect their own legal rights.
