PART 1: SETTLEMENT OF SOCIAL INSURANCE DISPUTES, IN WHICH ADMINISTRATIVE CASE AND CIVIL CASES

I. Some legal issues on social insurance dispute settlement.

From 2006 up to now, on average of every 4 years, Vietnam Social Security issues decisions detailing the reception and complaint settlement in accordance with each period. According to the statistics of Vietnam Social Insurance, at the first 6 months of 2019, the social insurance industry has received 4,926 citizens, the main content is to complain about the settlement of the retirement regime with working time before 1995; applying a transitional clause between the Law on Social Insurance 2006 and the Law on Social Insurance 2014[1]. The efficiency of resolving complaints becomes increasingly, but beside that, there still exist legal problems making the participants confuse in application. This article will outline some of the current regulation of complaint resolution and illuminate those regulations into practical application to have a clearer view on this issue  at the same time

Firstly, For the complaint subject on Social Insurance The Law on Social Insurance [2] refers to two subjects of complaints on social insurance activities: administrative acts, administrative decisions on social insurance and acts, decisions on social insurance. The two subjects of complaint will be regulated by two Order of settlement of complaints issued by Article 119 of the Law on Social Insurance. So, before making a complaint, the complainant has to determine which object infringing upon her/his legitimate rights and interests is the subject of complaints on social insurance so as not to "make wrong process", time, the statute of limitations is not guaranteed while the consequences may become increasingly.

To clarify these two subjects, at Points a and b, Clause 2, Article 2 of Decision No. 378 / QD-BHXH dated March 10 2020 - the latest decision on procedures of citizen reception, complaint settlemenand, denunciation, recommendations and feedbacks of Vietnam Social Security are prescribed as follows:

1. Complain administrative decisions and administrative acts on social insurance, unemployment insurance and health insurance which citizens, agencies or organizations requesting the social insurance agency and competent persons in the social insurance agency to review  and administrative decisions, administrative actions of the social insurance agency, the competent person in the social insurance agency in operation specialized inspection activities on payment of social insurance, unemployment insurance and health insurance premium; Specialized inspection conclusions payment of social insurance, unemployment insurance and health insurance premium; trial decision fines for administrative violations of payment of social insurance premium,unemployment insurance, health insurance and administrative decisions, other administrative acts on social insurance, unemployment insurance and health insurance when there are grounds to believe that the decision or act is illegal, infringes upon their legitimate rights and interests;
2. Complain decision, acts on social insurance, unemployment insurance and health insurance means citizens, agencies or organizations request the social insurance agency and competent persons in the social insurance agency to reconsider their decisions and acts in implementing regimes and policies on social insurance and health insurance, collect unemployment insurance and pay unemployment insurance benefits when there are grounds to believe that the decision or act is unlawful, infringes upon their legitimate rights and interests;

Thus, the basic difference between the two above-mentioned complainants is the scope related to social insurance that the social insurance agencies, the competent persons in the social insurance agency make decisions or acts. The scope of administrative decisions and acts on social insurance is in specialized inspection activities, specialized inspection conclusions, sanctioning decisions on administrative violations of paying social insurance, unemployment insurance and health insurance premiums and decisions. Other administrative acts on social insurance, unemployment insurance and health insurance are carried out by the social insurance agency, the competent person in the social insurance agency. The scope of decisions and acts on social insurance is in implementing regimes and policies on social insurance and health insurance, collecting unemployment insurance and paying unemployment insurance benefits. The two scopes of social insurance of the two complainants are completely different. Complainants need to have proper preparation and determination to avoid confusion in the complaint implementation process, accidentally making their rights as legitimate interests prolonged infringement..

Secondly, for process on about social insurance complaints settlement

Complaints Settlement in general and complaint settlement in social insurance  are regulated by specific processes. The law stipulates the order of settling complaints about Social Insurance into two cases corresponding to two complainants (Image)

Considering  order of complaints settlement specified in Article 119 of the Law on Social Insurance summarized by the above-mentioned diagram, many people asked what is the difference on order of settlement of complaints between these two objects and at the reason for dividing like that? For personal view, the nature of the complaint procedures between  two subjects of the complaint mentioned in the previous section is not different, only the settlement authority need to be determined.

The nature of the complaint process  based on the rights and interests have been violated, the complainant can choose to initiate  lawsuit with a competent court, or file a complaint for the first time to a person who has an administrative act, administrative decisions, acts, decisions on social insurance; If disagreeing with the first-time complaint settlement decision or after the time limit is not settled, file a complaint for the second time shall be made to the higher level, the management agency of the first-time complaint or initiate lawsuit to Competent court. The lawsuit of administrative decisions and  acts on social insurance will be considered as filing an administrative case and adjusted by the Law on Administrative Procedures. As for the lawsuit action, the decision on social insurance will depend on which the decision or act is directed, at this time the petitioner can initiate  lawsuit like a civil case under Point d, Clause 1, Article 32 of Civil Procedure Code 2015. Thus, the intention of the lawmaker to establish a process for two different complainants is to understand how the jurisdiction of each object is different, thereby avoiding the phenomenon of "wrong application" to individuals and agencies that have no authority to resolve. However, whether such legal provisions are effective or not, still depends on the practical application.

Thirdly, The relationship of  employee-business-social insurance agency

Employees are responsible for paying social insurance premiums, complying with regulations on paying social insurance premiums, and preserving social insurance book. Employers, on the other hand, have the responsibility to compile dossiers for the employees to be issued with social insurance books, to pay and enjoy social insurance, to coordinate with the social insurance management agency; pay social insurance as prescribed; to coordinate with the social insurance agency in paying benefits and certifying the employees' time of paying social insurance premiums; provide documentary information on the payment and entitlement of social insurance in case of being required,…. After receiving information dossiers and requests from employers, social insurance agencies implement and settle the social insurance benefits. It can be said that employee’s rights and responsibilities towards social insurance must be settled through their employers. Thus, the employee's interests are guaranteed only if the social insurance record management system of enterprise is operated smoothly, accurately, publicly and transparently; Social insurance agency must verify information, carefully review, inspect and handle any violation. If the enterprise only has mistakes in statistics data or the social insurance agency implement superficially, the employee or the employer may be affected the right to settle their the social insurance regime. Your associations or government agencies may suffer a budget deficit. While the subject of the complaint  is the employee, the person receiving the monthly pension or social insurance allowance, the employees reserving the time of social insurance payment, the employer, in case complaint occurs, the coordination between these three links is extremely important.

II. Practical application of regulations on social insurance dispute settlement

Case[3]:

Mrs. X is an employee of Bank A. On September 29, 1993, Bank A issued Decision No. 07 / QĐ on allowing Ms. X to retire from her retirement benefits from October 1, 1993. However, on May 3, 1997, the HG Provincial Social Insurance Agency received Document No. 29 / NHNo of Bank A requesting to stop paying benefits to Ms. Nguyen Thi X.

On May 29, 1997, the Social Insurance of HG province issued Decision No. 120 / BHXH-CĐCS (Decision No. 120) on revoking her social insurance book and requesting Ms. X to refund the amount paid. received from the retirement (from October 1993 to May 31, 1997) for the provincial social insurance agency HG.

On September 24, 2012, the HG Provincial Social Insurance Agency received an application from Ms. X asking the HG provincial social insurance agency to answer the reason why she did not continue to receive her pension. On October 4, 2012, the HG Provincial Social Insurance Agency issued Official Letter No. 600 / BHXH-KT (Official Letter 600) replying that Ms. Nguyen Thi X had resigned and was entitled to a lump-sum allowance.

After receiving an inadequate response, Ms. X sued the administrative case and requested the cancellation of Decision No. 120; Official Dispatch No. 600; at the same time requesting HG provincial social insurance agency to compensate for the unpaid pension from June 1997 up to now. However, at the first instance trial on December 10, 2019, the HG Provincial People's Court issued a decision to suspend the resolution of the administrative case because Official Letter No. 600 of the HG Provincial Social Insurance Agency is a normal administrative document, not subject to lawsuit administrative cases. After that, the first-instance verdict was appealed. The High-Level People's Court in Hanoi accepted Ms. X's appeal, declared the cancellation of the first-instance decision above and requested the first instance Court to resolve it again.

On June 23, 2020, the High-Level People's Procuracy issued a notice of learning experience  on the above-mentioned settlement of administrative lawsuits as follows:

• Official Dispatch No. 600 is the subject of an administrative lawsuit, the first instance court's suspension of the settling the case is inaccurate. In addition, the Court of First-Instance did not consider the remaining two requests of Ms. X  is to cancel Decision 120 and claim the pension amount from June 1997 to present
• The court did not verify that the HG provincial social insurance agency said it had sent Decision 120 to revoke the social insurance book and asked for pension refund, but Ms. X said that at that time she did not receive and knew about this Decision.

From the content of the above administrative case, there are issues that need to be clarified in social insurance complaint activities in enterprises and state management agencies on social insurance and there should be a mechanism to change.

Firstly, related to the management of social insurance dossiers in the enterprise. On September 29, 1993, Why Bank A issued a decision to allow Ms. X to retire from her retirement regime from October 1, 1993, but until 4 years later, a written request has been submitted to discontinue allowance for Ms. X sent to HG province because she thinks that Ms. X is the subject of resignation, and has received a lump-sum allowance? While dossiers for pension or lump-sum benefits, enterprises prepare and submit them to the insurance agency for review. At the time of Bank A's written request, Ms. X did not receive any notices. Whether the storage and management of the enterprise's social insurance records ensure the benefits of the employee upon retirement or not.

Secondly, before issuing Official Letter No. 600 responding to Ms. X's complaint, it seems that HG's social insurance  only  answer the reason for the agency has made this decision without verifying and clarifying with the Bank - Ms. X's employer on whether Ms X is eligible to retire or resign from her job, or check the previous profile that HG has approved so that Ms X can enjoy her pension. Did the social insurance authority raise the question when, 4 years ago, Ms X was considered for her pension entitlement, now she is the subject of a one-time subsidy, the reason of the mistake originated or not, Which helps reconsider the effectiveness of complaint settlement when the agency or the competent person does not really important to the settlement and only focuses on answering the reason why they have made decisions, behaving like this and without verifying, talking and clarifying the issue.

Thirdly, the Court of first instance has decided to suspend the case because it considers that Official Letter 600 is an ordinary administrative document, not subject to an administrative lawsuit. This was later determined by the Court of Appeal to be inaccurate, declared cancellation of the first-instance judgment and requested a re-resolution. The Supreme People's Procuracy also announced to draw experience for the whole industry, the official letter 600 of the provincial social insurance body HG is the subject of the administrative case. The fact that the Court also incorrectly identifies the subject of the lawsuit in the social insurance complaint process also raises the fact that the probability that the complainant misidentifies the object of the complaint leading to the wrong jurisdiction is much greater. The intentions of lawmakers are effective, helping complainants more convenient when making complaints. Should lawmakers consider adjusting the law on social insurance complaint settlement procedures according to this division of complaints, so that complainants can be satisfactorily resolved without wasting time.

Fourthly, the social insurance agency said that it had sent the decision to withdraw the social insurance and requested to reimburse Ms. X from May 29, 1997, but Ms. X confirmed at that time that she did not receive and knew about this decision. Once again, the question of serving documents of the social insurance agency must be posed to retired employees in particular and employees in general

Thus, many shortcomings still easily find in the settlement of complaints about social insurance. The problem originates from all three important links in the relationship of social insurance are employees - enterprises - social insurance agencies and effectively apply legal regulations into practice. Complaints and complaint settlements are two parallel and indispensable activities in promoting democracy; protect the interests of the State; protect the legitimate rights and interests of individuals and organizations related to administrative decisions and acts of state agencies and competent persons in state agencies. If there are strict and effective laws; compliance, legal updates and coordination of the three important links of social insurance relations with seriousness in receiving and resolving complaints by competent agencies, and resolving complaints of agencies. The state will be more efficient, the rights of the complainant and the state guaranteed./.