From January 01, 2018, Criminal Code No.100/2015/QH13 dated November 27, 2015 and Law No.12/2017/QH14 dated June 20, 2017 amending and supplementing some articles of Criminal Code No.100/2015/QH13 (referred to as the “2015 Criminal Code”) shall come into effect.  Accordingly, some violations of the labor law shall be subject to criminal liability, typically:

Crime of forcing a civil servant or a public employee to resign or dismissing an employee illegally

This crime is provided in Article 162 of the 2015 Criminal Code and applies to the following acts (i) issuing an illegal decision on resignation towards a civil servant or a public employee; (ii) dismissing an employee illegally, or (iii) forcing or threatening a civil servant or public employee causing, an employee to resign.

Any individual committing the above acts for self-seeking purposes or other private motives and causing serious consequences shall be liable for a fine of between VND10 Million to VND100 Million and face a penalty of up to 01 year of community sentence or 03 months to 01 year of imprisonment. In cases where the offence is committed against more than 01 person; a woman whose pregnancy is known by the offender; a woman who is raising a child under 12 months of age; the offence resulting in the suicide of the person who was illegally dismissed or forced to resign; or other very serious or extremely serious consequences, shall be liable for a fine of up to VND200 Million or a penalty of up to 03 years of imprisonment.

Such crime was previously provided in Criminal Code No.15/1999/QH10 dated December 21, 1999 (the “1999 Criminal Code”) but with lower penalties, including a penalty in the form of a warning, a penalty of up to 01 year of community sentence or 03 months to 01 year of imprisonment.

Crimes of fraud and evading contribution of social insurance (“SI”), health insurance (“HI”), or unemployment insurance (“UI”) for employees

These crimes appeared for the first time in the 2015 Criminal Code (they did not exist in the 1999 Criminal Code). They are promulgated in Article 214, 215 and 216 of the 2015 Criminal Code.

The crime of SI, HI, UI fraud:

For SI, UI: This crime is applied to the following acts (i) forging or falsifying SI or UI documents to deceive SI authorities; or (ii) using forged or falsified documents to deceive SI authorities into providing SI or UI benefits.

For HI: This crime is applied to the following acts (i) forging medical records or prescriptions, falsely increasing the quantity or types of medicines, medical equipment, services, treatment costs and other costs that have not been incurred by the patient; or (ii) forging documents, HI cards or using bogus, fake, revoked, falsified HI cards, or HI cards of other people for illegal HI benefit entitlements.

The applicable penalties include:

– A fine ranging from VND20 Million to VND100 Million, 02 years of community sentence or 03 months to 02 years of imprisonment shall be applied in the case of illegally obtaining SI, HI, UI payouts of between VND10 Million to under VND100 Million or causing damages of between VND20 Million to under VND200 Million (except for cases considered as obtaining property by fraud, embezzlement or the abuse of position and power for appropriation of property).

– A fine of up to VND200 Million or 05 years of imprisonment shall be applied in the case of illegally obtaining SI, HI, or UI payouts of between VND100 Million to under VND500 Million.

– A penalty of up to 10 years of imprisonment shall be applied in the case of illegally obtaining SI, HI, UI payouts of over VND500 Million.

The crime of evading payment of SI, HI, UI:

Those who are responsible for paying SI, HI, and UI for their employees but are cheating or using other tricks in order not to pay or has insufficiently paid these amounts for over 06 months, although he/she has incurred an administrative sanction for the same offence, shall be responsible for criminal liability in the following cases:

In the case of (i) evading insurance payments of between VND50 Million to under VND300 Million, or (ii) evading insurance payments for 10 to under 50 employees:

– If the violating party is an individual: a fine of between VND50 Million to VND200 Million, 01 year of community sentence or 03 months up to 01 year of imprisonment shall be applied.

– If the violating party is a corporate legal entity: a fine of between VND200 Million to VND500 Million shall be applied.

In the case of (i) committing the crime 02 times or more; or (ii) evading insurance payments of between VND300 Million to under VND01 Billion; or (iii) evading insurance payments for 50 to under 200 employees; or (iv) not paying the collected or discounted insurance amounts of the employees stated in Item 2.2.(a) above:

– If the violating party is an individual: a fine of between VND200 Million to VND500 Million or 06 months to 03 years of imprisonment shall be applied.

– If the violating party is a corporate legal entity: a fine of between VND500 Million to VND1 Billion shall be applied.

In the case of (i) evading insurance payments amounting to VND1 Billion or more; or (ii) evading insurance payments for 200 employees or more; or (iii) not paying the collected or discounted insurance amounts of the employees stated in Item 2.2.(b) above:

– If the violating party is an individual: a fine of between VND500 Million to VND1 Billion, or 02 years to 07 years of imprisonment shall be applied.

– If the violating party is a corporate legal entity: a fine of between VND1 Billion to VND3 Billion shall be applied.

This insight is quoted from the Vietnam Labor Law Review (November 2017), you can download and read the full file of Vietnam Labor Law Review (November 2017) here.

Author: Stephen Le 

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