>>Major principles of the law on social security
Pham Diem
State and Law Institute of Vietnam
Since Vietnam shifted to a market economy, disputes over social security have, for objective and subjective causes, been on the constant rise and diverse. The settlement of social-security issues constitutes a new institution which has been formed and developed in the social-security law system.
Social-security disputes are of profound social nature and related to the socially guaranteed rights of a special and large section of the population. They are directly related to the humanitarian aspect as social-security policies and regimes are closely associated to the purposes of overcoming difficulties and improving and raising the living standards of beneficiaries. Social-security disputes are also related to the nation’s culture and traditions such as the traditions of “thuong nguoi nhu the thuong than” (loving others like loving oneself”) and “uong nuoc nho nguon” (remembering the sources when drinking water).
Social-security disputes are largely related to material interests, such as retirement pension, working capacity loss allowance, labor accident allowance, occupational disease allowance, difficulty allowance and meritorious service allowance, which are provided in cash or kind as vital interests of beneficiaries.
Most social-security disputes are over the implementation of state policies and laws concerning social security.
In Vietnam, social-security disputes arise in the following areas:
a/ Social insurance: Disputes are related to the implementation of social insurance regimes prescribed by the State, which may arise when parties in the social-insurance relations conflict in their social-insurance interests, such as cases where employers decline to implement or improperly implement social-insurance regimes to their employees; or where social-insurance agencies incorrectly apply social-insurance regimes to beneficiaries.
Social-insurance disputes are diverse, but generally focus on matters related to the non-implementation or improper implementation of state regulations on the settlement of insurance benefits for employees and other beneficiaries.
Today, social-insurance disputes are the most common, diverse and complicated social-security disputes in Vietnam.
b/ Social privileges: Disputes over social privileges arise in the course of implementing state regulations to ensure preferential regimes for people with meritorious services to the country. They also cover cases of non-assurance or improper assurance of benefits for eligible persons as provided for by law, or grant of such benefits to ineligible ones. They are very sensitive disputes as beneficiaries are persons with meritorious services to the nation, who the State and the society are obliged to honor and assist.
c/ Social relief: Disputes over social relief occur in the course of implementing regimes on material supply to persons facing with extraordinary or regular difficulties caused by natural calamities or other factors.
Characteristics and classification of social-insurance disputes serve as important bases for their settlement.
Social-security disputes are sensitive as they are related to the implementation of social policies and law and to practical interests of special groups in the society. Hence, their settlement is an important, urgent and regular task. It constitutes a measure to ensure equitable implementation of social policies and the protection of citizens’ rights.
Through the settlement of social-security disputes, the State can not only realize and adjust social-security policies in line with the practical situation in each period, but also detect violations and applies handling measures in time.
Settlement of social-security disputes in Vietnam adheres to the following basic principles:
a/ Law observance: In the settlement of not only social-security disputes but also other disputes, law observance always occupies a primary position. In the settlement of social-security disputes, it demonstrates in two aspects: assurance of correct and proper application of law and strict observance of dispute settlement procedures.
Law observance also covers respect for international practices and laws in the settlement of social-security disputes.
b/ Self-determination rights of disputing parties: The social-security relations involve two parties: The obligee who is obliged to perform acts of ensuring the social-security regimes and the obligor, namely the beneficiary. Upon the occurrence of disputes, disputing parties may decide by themselves matters within the ambit of their respective rights and obligations.
The self-determination rights include:
- The right to request competent state bodies to intervene and settle disputes according to law.
- The right to demand legal assistance from agencies, organizations or individuals in the settlement of disputes.
- The parties involved may agree to decide on modes of dispute settlement.
- The right to participate in the settlement of disputes.
c/ Promptness and timeliness in the settlement of disputes: As social-security disputes are sensitive and related to vital interests and directly affect the daily life of beneficiaries, their settlement must be prompt and timely as manifest in the following aspects:
- Non-prolongation of the processing, investigation and settlement of cases.
- Non-shift of settlement responsibility to one another.
- Settlement of cases at the right time and right moment requested by involved parties.
Social-security disputes can be settled by different modes suitable to specific cases, circumstances and disputing parties.
Formerly, when social security was regulated by different laws, labor disputes, which included social-security disputes (or more concretely, social-insurance disputes), were all settled according to the mechanism of settlement of complaints and denunciations. In other words, they were settled through administrative procedures.
Since the introduction of the Labor Code, the Civil Code, the Civil Procedure Code and the Social Insurance Law, a system of social-security dispute-settling modes has been formed, constantly improved and concretized. Under current law, social-security disputes can be settled by three modes:
a/ Agreement: Negotiations and agreement are considered and used as initial steps. At present, this mode is usually applied to the settlement of social-insurance disputes, specifically disputes between employees or employers and social-insurance agencies, but not to those related to social privilege or health insurance;
b/ Complaint settlement: By this mode, the parties involved in social-security disputes may file complaints with competent state bodies for settlement. Currently, this is a common mode widely applied to various types of social-security disputes.
c/ Legal jurisdiction: By this mode, disputing parties may bring their cases to court for settlement if they fail to reach agreement or are unsatisfied with the complaint settlement by administrative agencies. However, this mode is not yet widely applied as only few cases of social-security disputes have been brought to court for settlement.-