Resolution No. 05/2019/NQ-HDTP guiding some Articles of Penal Code

RESOLUTION

Guiding the application of the Penal Code’s Article 214 on the offense of committing frauds on social insurance and unemployment insurance, Article 215 on the offense of committing frauds on health insurance, and Article 216 on the offense of evading payment of social insurance, health insurance and unemployment insurance premiums for employees[1]

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

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

In order to properly and uniformly apply Articles 214, 215 and 216 of Penal Code No. 100/2015/QH13 which had a number of articles amended and supplemented under Law No. 12/2017/QH14; and Criminal Procedure Code No. 101/2015/QH13;

After consulting the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1.Scope of regulation

This Resolution guides the application of some provisions of the Penal Code’s Article 214 on the offense of committing frauds on social insurance and unemployment insurance, Article 215 on the offense of committing frauds on health insurance, and Article 216 on the offense of evading payment of social insurance, health insurance and unemployment insurance premiums for employees.

Article 2.On a number of terms referred to in the guidance on the application of the Penal Code’s Articles 214, 215 and 216

1.Forging dossiersprescribed at Point a, Clause 1, Article 214 of the Penal Code means the act of making social insurance or unemployment insurance dossiers containing forged papers or documents (for example: fictitious papers or documents; papers or documents not issued by competent agencies;  papers and documents issued in contravention of law,ultra vires, or later than the prescribed time limit, etc.) for enjoyment of the regimes of sickness, maternity, labor accidents, occupational diseases, retirement, survivorship or unemployment; employment counseling and placement; job training; and skill training and improvement for job retention; and other regimes in accordance with law.

2.Making fictitious medical recordsprescribed at Point a, Clause 1, Article 215 of the Penal Code means the case of making medical records for health insurance participants who do not receive medical examination and treatment or receive medical examination but do not require medical treatment.

3.Giving fictitious prescriptionsprescribed at Point a, Clause 1, Article 215 of the Penal Code means the act of giving prescriptions to health insurance participants who do not receive medical examination and treatment or receive medical examination but do not use drugs.

4.Inflating the quantity of actually used drugs, medical consumables or technical services or the amount of actually arisen inpatient bedprescribed at Point a, Clause 1, Article 215 of the Penal Code means the act of declaring a quantity of drugs, medical consumables or technical services higher than the quantity actually used by patients, or declaring additional prescriptions, medical consumables or technical services not used by patients; inflating the days of impatient treatment at health establishments; or declaring drugs, medical consumables, types of inpatient bed and other technical services different from those actually used by patients with a view increasing medical examination and treatment costs covered by health insurance funds for health insurance participant who do take medical examination and treatment.

5.Other costsprescribed at Point a, Clause 1, Article 215 of the Penal Code mean costs arisen in the course of medical examination and treatment at health establishments, exclusive of costs of drugs, medical consumables, technical services, and inpatient beds (for example: medical examination charges, patient transport costs, etc.).

6.Forginghealth insurance dossiers and cardsprescribed at Point b, Clause 1, Article 215 of the Penal Code means the act of making and using health insurance dossiers or cards which are not granted by competent agencies or forging others’ health insurance dossiers or cards to illegally enjoy health insurance benefits.

7.Health insurance cards granted to fictitious holdersprescribed at Point b, Clause 1, Article 215 of the Penal Code means health insurance cards granted by state competent agencies to those who do not pay health insurance premiums or are not entitled to have their health insurance premiums paid by other organizations or funds under regulations.

8.Counterfeit health insurance cardsprescribed at Point b, Clause 1, Article 215 of the Penal Code means health insurance cards which are not granted by state competent agencies.

9.Revoked or modified health insurance cardsprescribed at Point b, Clause 1, Article 215 of the Penal Code means health insurance cards which are granted by state competent agencies to health insurance participants but have been revoked under the law on health insurance; and health insurance cards which are modified to falsify the holders’ information.

10.Evading payment of insurance premiumsprescribed in Article 216 of the Penal Code means the case in which an employer is obliged to pay social insurance, health insurance and unemployment insurance premiums for its/his/her employees who must be covered by social insurance, health insurance or unemployment insurance, but commits a deceitful act or employs another trick to evade paying or insufficiently pay the premiums.

11.Committing deceitful acts to evade paying or insufficiently pay social insurance, health insurance or unemployment insurance premiumsprescribed in Clause 1, Article 216 of the Penal Code means the act of deliberately refraining from declaring the payment, or declaring the unreal payment of social insurance, health insurance or unemployment insurance premiums with competent agencies.

12.Failure to pay social insurance, health insurance or unemployment insurance premiumsprescribed in Clause 1, Article 216 of the Penal Code means the case in which an employer who fails to send dossiers of registration for payment of social insurance, health insurance or unemployment insurance premiums for its/his/her employees or has  sent registration dossiers and clearly and sufficiently determined the number of employees subject to payment of insurance premiums or payable premium amounts  and made documents and dossiers for settlement of employees’ salaries and the enterprise’s income, but fails to pay social insurance, health insurance or unemployment insurance premiums to social insurance agencies under regulations.

13.Insufficient paymentprescribed in Clause 1, Article 216 of the Penal Code means the case in which an employer has clearly and sufficiently determined insurance premiums, and made documents and dossiers for settlement of employees’ salaries the enterprise’s income, but only pays part of the social insurance, health insurance or unemployment insurance premium amount to social insurance agencies under regulations.

14.Six months or moreprescribed in Clause 1, Article 216 of the Penal Code means 6 consecutive or accumulated months or more.

For example: In the period from May 2018 through March 2019, enterprise A fails to pay social insurance premiums for 4 months of 2018 (including May, July, September and November), and 2 months of 2019 (January and February), this means that enterprise A fails to pay social insurance premiums for 6 accumulated months or more.

15.Damages caused by committing frauds in social insurance, health insurance or unemployment insuranceprescribed in Articles 214 and 215 of the Penal Code are exclusive of appropriated social insurance or an unemployment insurance premium amounts.

Article 3.Regarding a number of circumstances for determining penalty brackets

1.In a professional mannerprescribed at Point b, Clause 2, Articles 214 and 215 of the Penal Code means the case in which an offender commits frauds in social insurance, health insurance and unemployment insurance for 5 times or more (regardless of whether he/she has been examined for penal liability or not, provided the statute of limitations for penal liability examination has not yet expired or he/she has not had his/her criminal records expunged) and uses unlawful earnings from the offense constitutes as his/her income source.

2.Employing a sophisticated or treacherous trickprescribed at Point dd, Clause 2, Articles 214 and 215 of the Penal Code means the case in which an offender uses high technologies or establishes contact with persons with position and powers in state agencies or employs other deceitful tricks and artifices to destroy evidences, conceal criminal acts and cause difficulties to the detection, investigation and handling of the crime.

3.Committing an offense twice or moreprescribed at Point a, Clause 2, Article 216 of the Penal Code means the case in which an employer has committed the offense of evading payment of social insurance, health insurance or unemployment insurance premiums for its/his/her employees twice or more but not yet been examined for penal liability and the statute of limitations for penal liability examination has not yet expired.

4.Failure to remit insurance premium amounts already collected or deducted from employeesprescribed at Point d, Clause 2, and Point c, Clause 3, Article 216 of the Penal Code means the case in which an employer has collected or deducted insurance premium amounts from its/his/her employees but fail to pay such amounts to insurance agencies.

Article 4.Examination for penal liability in a number of specific cases

1. In case a person repeatedly commits acts of the same type prescribed in Article 214 or 215 of the Penal Code to appropriate social insurance, health insurance, or unemployment insurance premium amounts but has not yet been administratively sanctioned for any of these acts and the statutes of limitations for administrative sanction and penal liability examination have not yet expired, if the total appropriated insurance premium amount is equal to or higher than the minimum level for examination of penal liability prescribed in the Penal Code, such person shall be examined for penal liability for the offense relevant the total appropriated amount, provided such acts are committed continuously and successively.

2. In case a person repeatedly commits acts of the same type prescribed in Article 214 or 215 of the Penal Code, causing loss to the social insurance, health insurance or unemployment insurance fund but has not yet been administratively sanctioned for any of these acts and the statutes of limitations for administrative sanction and penal liability examination have not yet expired, if the total damage is equal to or higher than the minimum level for examination for penal liability prescribed in the Penal Code, such person shall be examined for penal liability for the offense relevant to the total damage, provided such acts are committed continuously and successively.

3. In case a person commits the offense of appropriating social insurance, health insurance or unemployment insurance premiums and concurrently causes damage and the appropriated amount and the damage are both higher than the minimum level for examination of penal liability prescribed in Articles 214 and 215 of the Penal Code, such person shall be handled as follows:

a/ If the appropriated insurance premium amount and the damage fall under the basic penalty bracket, the offender shall be examined for penal liability according to such bracket.

For example: Nguyen Van A commits the act of forging social insurance dossiers,  appropriating VND 20,000,000 and causing a damage of VND 150,000,000. In this case, he shall be examined for penal liability for the offense of committing frauds in social insurance and unemployment insurance under in Clause 1, Article 214 of the Penal Code.

b/ If the appropriated insurance premium amount and the damage fall into different penalty brackets, the offender will be examined for penal liability according to the heavier penalty bracket.

For example: Nguyen Van A commits the act of forging social insurance dossiers, appropriating VND 20,000,000 and causing a damage of VND 250,000,000. In this case, he shall be examined for penal liability for the offense of committing frauds in social insurance and unemployment insurance under Clause 2, Article 214 of the Penal Code.

c/ If the appropriated insurance premium amount and the damage fall under the same aggravating penalty bracket, the offender will be examined for penal liability according to both penal liability-aggravating circumstances.

For example: Nguyen Van B commits the act of forging social insurance dossiers,  appropriating VND 150,000,000 and causing a damage of VND 250,000,000. In this case, he shall be examined for penal liability for the offense of committing frauds in social insurance and unemployment insurance with the aggravating circumstances prescribed at Points c and d, Clause 2, Article 214 of the Penal Code.

4. A person who commits the act of forging social insurance dossiers, unemployment insurance dossiers, health insurance dossiers or health insurance cards, appropriating social insurance, health insurance and unemployment insurance benefits or causing damage shall, in addition to being examined for penal liability for the relevant offense prescribed in Article 214 or 215 of the Penal Code, be also examined for penal liability for forging seals and documents of agencies or organizations; and using forged seals and documents of agencies or organizations prescribed in Article 341 of the Penal Code if there are sufficient crime-constituting elements.

Article 5.Handling of acts of evading payment of social insurance, health insurance, unemployment insurance premiums for employees which are committed before 00:00 of January 1, 2018

1. Acts of evading payment of social insurance, health insurance, and unemployment insurance premiums which are committed before 00:00 of January 1, 2018 shall not be criminally handled under Article 216 of the Penal Code, but handled as follows:

a/ In case an administrative sanction has not yet been imposed and the statute of limitations for administrative sanctioning has not expired, a competent agency shall consider imposing administrative sanctions.

b/ In case an administrative sanction has been imposed but the individual or organization subject to the sanction deliberately evades or delays the implementation of the administrative sanction imposed on him/her/it, the statute of limitations for implementation of the administrative sanctioning decision shall be determined under Clause 2, Article 74 of the Law on Handling of Administrative Violations. The execution or coerced execution of the decision on sanctioning of administrative violations must comply with the law on execution and enforcement of decisions on sanctioning of administrative violations.

c/ In case of causing damage to employees, social insurance agencies or other organizations and individuals, the damaged party may initiate a lawsuit requesting the violator to make compensation for non-contractual damage in accordance with the criminal procedure law.

2. The sanctioning of administrative violations of evading payment of social insurance, health insurance and unemployment insurance for employees which are committed before 00:00 January 1, 2018 shall not serve as a basis for examination of penal liability under Article 216 of the Penal Code.

Article 6.Determination of the procedure status of social insurance agencies

In criminal cases in which the accused and defendants are examined for penal liability for the offense of committing frauds in social insurance, health insurance  under  Article 214; the offense of  committing frauds in health insurance under Article 215, or the offense of evading payment of social insurance, health insurance and unemployment insurance premiums for employees under Article 216 of the Penal Code, social insurance agencies shall participate in procedure in the capacity as the aggrieved party.

Article 7.Organization of implementation

1. Upon detecting acts showing signs of the offenses prescribed in Articles 214, 215 and 216 of the Penal Code, social insurance agencies shall, within the scope of their tasks and powers, send a written petition for criminal case initiation, enclosed with related evidences and documents, to competent proceeding-conducting bodies for consideration and initiation of a criminal case in accordance with the Criminal Procedure Code.

Trade union organizations, organizations representing employees, and other agencies, organizations and individuals shall, upon detecting acts showing signs of the offenses prescribed in Articles 214, 215 and 216 of the Penal Code, notify competent proceeding-conducting bodies for consideration and initiation of criminal cases in accordance with the Criminal Procedure Code.

2. Upon receiving information about crime or petitions for criminal case initiation enclosed with related evidences or documents, competent proceeding-conducting bodies shall consider and settle such information or petitions in accordance with law.

3. The sending of petitions for criminal case initiation and related evidences and documents to competent proceeding-conducting bodies must comply with the Criminal Procedure Code and Joint Circular No. 01/2017/TTLT-BCA-BQP-BTC-BNNPTNT-VKSNDTC of December 29, 2017, of the Ministry of Public Security, Ministry of National Defense, Ministry of Finance, Ministry of Agriculture and Rural Development and the Supreme People’s Procuracy, on coordination among competent agencies in implementing a number of provisions of the 2015 Criminal Procedure Code regarding receipt and handling of denunciations or reported information about crimes  and petitions for initiation of criminal cases.

Article 8.Effect

This Resolution was adopted by the Judicial Council of the Supreme People’s Court on June 25, 2019, and takes effect on September 1, 2019.-

On the behalf of the Judicial Council of the Supreme People’s Court
Chief Justice
NGUYEN HOA BINH