Experience from an Administrative Case on the Verification of Social Insurance Records and Payment of Retirement Benefits in Vietnam

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Notice 05/TB-VC2-HC dated December 28, 2023 - Notice of Experience: Download

Through the work of supervising the settlement of administrative cases under the appeal procedure, the High People's Procuracy in Da Nang found that the settlement of the administrative case on "Complaint about an administrative decision in the field of social insurance" between the plaintiff Mrs. Hoang Thi A and the defendant Da Nang Social Insurance Agency of the People's Court of Da Nang under Judgment 49/2023/HC-ST dated April 7, 2023 had violations, which need to be announced for experience, specifically as follows:

1. Content of the case

From February 1980 to December 1994, Mrs. Hoang Thi A was recruited to work at the V Coffee Factory. In 1995, the Factory carried out restructuring and reducing staff. Mrs. A asked for unpaid leave to wait for the Factory to arrange a job. At the end of December 2003, the V Coffee Single-Member Limited Liability Company (the former V Coffee Factory) issued a document informing and guiding Mrs. A to pay lump-sum insurance to be eligible for the retirement benefit. Mrs. A agreed and paid VND 19,960,000 (which is the lump-time insurance money for her from 1995 to December 2003) to the social insurance officer. She was given a receipt but she lost it. Mrs. Hoang Thi A was granted the retirement benefit from April 2004 according to Decision 274/QD-BHXH-CDCS dated March 26, 2004 of the Da Nang Social Insurance Agency on the monthly retirement benefit.

On February 16, 2021, the Social Insurance Agency of D province established a specialized inspection team to recover and connect the time of participation in social insurance at the V Coffee V. After that, the inspection team determined that from January 1995 to December 2003, Mrs. A did not pay social insurance to the unit. In addition, the V Coffee Company also did not create a list of participants of social insurance. The Social Insurance Agency of D province also did not collect social insurance for Mrs. A during this time. However, the V Coffee Company and the Social Insurance Agency of D province signed to confirm that from January 1995 to December 2003, Mrs. A had paid social insurance so that Mrs. A could be granted the retirement benefit.

Based on the results of the inspection and verification above, the Social Insurance Agency of D province issued Conclusion 1233/KL-BHXH dated July 6, 2022 to adjust the reduction of the time of calculating social insurance from February 1980 to December 2003 for Mrs. Hoang Thi A. Therefore,  Mrs. A does not meet the conditions to enjoy the retirement benefit according to regulations.

On July 27, 2022, the Social Insurance Agency of D province issued Decision 900/QD-BHXH to terminate the retirement benefit for Mrs. A and recovered the amount of money that Mrs. A had benefited incorrectly, which is VND 587,953,500, to deposit into the social insurance fund.

As Mrs. A appealed the decision, on September 29, 2022, the Social Insurance Agency of D issued Decision 1176/QD-BHXH affirming that Mrs. A's appeal was not a basis for consideration and maintains Decision 900/QD-BHXH dated July 27, 2022. On November 11, 2022, Mrs. A filed a lawsuit requesting the Court to annul Decision 900/QD-BHXH and Decision 1176/QD-BHXH, and compelled the Social Insurance Agency of D to continue to implement the payment of retirement benefits for her in accordance with the law.

2. Trial process of the Court

Judgment 49/2023/HC-ST dated April 7, 2023 of the People's Court of D Province dismissed all of Mrs. A‘s lawsuit.

Appeal: On April 10, 2023, Mrs. Hoang Thi A appealed the entire administrative first-instance judgment. The reason for the appeal: she is a worker of the Coffee Company since 1980; The employer and the Social Insurance Agency had reviewed the dossier, confirmed periods of insurance payment for her, and issued Decisions to pay the Social Insurance for her since 2004; The documents were all stamped with red seals and kept by the Social Insurance; forcing her to prove whether the documents of these agencies are justified or not is unreasonable. She requested the Court of Appeal to accept the appeal, amend the first instance judgment in the direction of accepting the plaintiff's request.

At the appellate hearing, the Appellate Panel agreed with the prosecutor's proposal to accept the appeal of Mrs. Hoang Thi A, and amend the first instance judgment in the direction of accepting the plaintiff's request.

3. Experience to be learned

In this case, the trial court at first instance did not review and assess all the necessary evidence to serve the case settlement, specifically as follows:

In Social Insurance Book No. 4099062211 dated June 10, 1999, Mrs. A was confirmed to have paid social insurance during the period from February 1980 to December 2003; closed the book on February 24, 2004. At the time of 1999, Mrs. A had a Social Insurance Registration Form dated January 21, 1999, signed and stamped by the Employer and Social Insurance. The confirmation of the period of participation in social insurance dated March 16, 2004 of V Coffee Company and Social Insurance confirmed that Mrs. A had a working period with social insurance from February 1980 to December 2003, which is 23 years 11 months. The Social Insurance's certificate of pension and allowance confirmation dated March 26, 2004 also confirmed as above. Mrs. A has the Decision to retire to enjoy the pension No. 182/CT-TCCB/QD dated March 16, 2004 of V Coffee Company and Decision No. 274/QD-BHXH-CĐCS dated March 26, 2004 of D Social Insurance on monthly pension, the decision level was 584,200 VND. All of the above documents and documents were prepared, stamped and archived by staff of the Social Insurance and representatives of the Employer.

Therefore, the social insurance file of Mrs. A had been confirmed and signed by those with the functions, duties and powers to issue, implement tasks, and public services in accordance with regulations at different times in the documents and procedures to issue social insurance benefit decisions. These documents are documents issued by the competent authority at the time the competent authority signed the decision, so they are legal documents and evidence, which are legal recognition, specifically the Social Insurance Agency and the employer - V Coffee Company, implementing procedures, not the confirmation of the individual signer.

The storage of records and the maintenance of the funds of employees and employers who have paid are all done by the Social Insurance Agency. The records at the employer's office were checked at the time of reviewing the issuance of the decision to pay social insurance. Now it has been 20 years, V Coffee Company has had many changes in terms of structure, business management form and people, so in case the records stored at the Company over many years are not complete, the fault is not Mrs. A's. Employees, when they have a Social Insurance Book, a Retirement Decision and a Social Insurance Benefit Decision, no longer have the responsibility and obligation to keep any other documents and documents, and the Social Insurance Book is the basis for settling social insurance benefits (Clause 3 Article 19 and Article 96 of the Law on Social Insurance 2014). Therefore, Decision No. 900/QD-BHXH dated July 27, 2022 of Da Nang Social Insurance mentioned above to terminate the payment of pension for Mrs. A and to recover the amount of money paid to Mrs. A from 2004 to the present is not reasonable, causing damage to the worker.

The trial court at first instance based on the fact that Mrs. A did not provide a receipt for the one-time payment of social insurance and did not find the archived file at V Company, the file for processing the pension benefit of Mrs. A to make the basis for the conclusion that the confirmation and preparation of the file to enjoy the monthly pension of Mrs. A is not correct, from which the decision not to accept the complaint of Mrs. A is not objective, comprehensive, applying the law incorrectly, causing serious harm to the interests of the litigant.

Therefore, at the trial hearing, the appellate court accepted the proposal of the prosecutor, accepted the appeal of the plaintiff, amended the First Instance Administrative Judgment No. 49/2023/HC-ST dated April 7, 2023 of the People's Court of Da Nang Province, accepted the entire complaint of Mrs. Hoang Thi A is justified, lawful.

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