Nghị định 01/2003/NĐ-CP của Chính phủ về việc sửa đổi, bổ sung một số điều của Điều lệ bảo hiểm xã hội ban hành kèm theo Nghị định số 12/CP ngày 26/1/1995 của Chính phủ

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE REGULATION ON SOCIAL INSURANCE, ISSUED TOGETHER WITH THE GOVERNMENT’S DECREE No. 12/CP OF JANUARY 26, 1995

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the 1994 Labor Code and the April 2, 2002 Law Amending and Supplementing a Number of Articles of the Labor Code;

At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Article 1.- To amend and supplement a number of articles of the Regulation on Social Insurance, issued together with the Government’s Decree No. 12/CP of January 26, 1995, in accordance with the Law Amending and Supplementing a Number of Articles of the Labor Code, as follows:

1. To amend and supplement Article 3 as follows:

"Article 3.- Subject to compulsory social insurance are:

1. Laborers working under labor contracts of full 3 months or more or indefinite labor contracts in the following enterprises, agencies and organizations:

a/ Enterprises set up and operating under the State Enterprise Law;

b/ Enterprises set up and operating under the Enterprise Law;

c/ Enterprises set up and operating under the Law on Foreign Investment in Vietnam;

d/ Enterprises of political organizations and socio-political organizations;

e/ Individual production and/or business households, cooperative teams;

f/ Administrative and non-business agencies, political organizations, socio-political organizations, socio-political-occupational organizations, socio-occupational organizations and other social organizations, armed forces;

g/ Semi-public, people-founded and private establishments in the cultural, medical, educational, training, scientific and physical training and sport sectors, and other non-business sectors;

h/ Commune, ward and township health stations;

i/ Vietnam-based foreign agencies and organizations or international organizations, except otherwise provided for by the international treaties which the Socialist Republic of Vietnam has signed or acceded to;

j/ Other organizations which employ laborers.

2. Officials, public servants and employees under the Ordinance on Officials and Public Servants.

3. Laborers and cooperative members who work and enjoy wages under labor contracts of full 3 months or more in cooperatives set up and operating under the Cooperative Law.

4. For laborers who work in enterprises, agencies or organizations prescribed in Clauses 1, 3 and 6 of this Article under labor contracts of less than 3 months, if, upon the expiry of their labor contracts, they continue to work or sign new labor contracts with such enterprises, organizations or individuals, they must participate in compulsory social insurance.

5. Laborers prescribed in Clauses 1, 2, 3, 4 and 6 of this Article, who are in training or practice, or on mission or convalescence at home or abroad while continuing to enjoy salaries or wages, shall also be subject to compulsory social insurance.

6. Laborers who work and enjoy salaries or wages under labor contracts of full 3 months or more in agricultural, forestry, fishery or salt-making enterprises.

For laborers working in agricultural, forestry, fishery or salt-making enterprises which have already assigned or contracted land, there shall be separate regulations."

2. To amend and supplement Article 10 as follows:

"Article 10.- Female laborers, who are pregnant and give birth to their children, when taking leave as provided for in Articles 11 and 12 of this Regulation, shall be entitled to maternity allowances."

3. To add the following Article 24a:

"Article 24a.-

1. Laborers who participate in compulsory social insurance shall be entitled to convalescence and health restoration regimes in the following cases:

a/ Having paid social insurance premiums for full 3 years or more in enterprises, agencies or organizations and suffering from health decline;

b/ Having not yet recovered after their hospitalization due to illnesses, labor accidents or occupational diseases;

c/ Being female laborers who suffer from post-natal health decline.

2. The convalescence or health restoration duration shall be between 5 and 10 days a year, depending on the degree of the laborers’ health decline.

The convalescence or health restoration duration shall not be subtracted from the laborers’ annual leaves and laborers shall not be entitled to enjoy salaries, unless otherwise agreed upon between enterprises and laborers.

3. The levels of expenditures for convalescence leave and health restoration shall be prescribed by the Ministry of Labor, War Invalids and Social Affairs after consulting and reaching agreement with the Ministry of Finance and Vietnam Labor Confederation.

Vietnam Social Insurance shall organize the management, allocation and settlement of funding for convalescence leave and health restoration for each enterprise, agency or organization.

4. The funding for convalescence leave and health restoration shall be covered by the social insurance fund as equal to 0.6% of the total salary fund actually paid for social insurance and deducted from the source of 5% of the total salary fund actually paid for social insurance by enterprises, agencies and organizations for sicknesses, maternity and labor accidents as well as occupational diseases. In cases where the deducted funding is not enough to cover one convalescence leave or health restoration ration as prescribed, enterprises, agencies or organizations shall pay the deficit from the welfare fund or transfer the case for implementation in the subsequent year."

4. To amend and supplement Article 27 as follows:

a/ To amend and supplement Point a, Clause 1 of Article 27 as follows:

"a/ Laborers, who have paid social insurance premiums for full 15 years, shall have monthly pensions equal to 45% of the average of monthly salaries which have been used as basis for calculating their social insurance premiums, then, for each additional year covered by social insurance premiums, another 3%, for female laborers, and 2%, for male laborers, shall be added. The maximum monthly pensions shall be equal to 75% of the average of monthly salaries which have been used as basis for calculating their social insurance premiums."

b/ To amend and supplement Point b, Clause 1 of Article 27 as follows:

"b/ For laborers, who enjoy monthly pensions lower than those provided for in Clauses 2 and 3 of Article 26, their pensions shall be calculated according to the provisions at Point a, Clause 1 of Article 27, but for each year of premature retirement as compared to the retirement age stipulated in Clauses 1 and 2 of Article 25, the average of the monthly salaries which have been used as basis for calculating their social insurance premiums shall be reduced by 1%.

Particularly, male laborers aged between full 55 and under 60 years and female laborers aged between full 50 and under 55 years, who have paid social insurance premiums for full 30 years or more, and wish to retire, shall be entitled to pensions calculated by the method prescribed at Point a, Clause 1 of Article 27, but for each year of premature retirement, the average of the monthly salaries which have been used as basis for calculating their social insurance premiums shall not be reduced by 1%."

c/ To amend and supplement Clause 2 of Article 27 as follows:

"2. Apart from the monthly pensions, female laborers who have paid social insurance premiums for over 25 years and male laborers who have paid social insurance premiums for over 30 years, shall, upon their retirement, be entitled to a lump-sum allowance, which is calculated as follows: for each year, from the 26th year on, for female laborers, and the 31st year on, for male laborers, of paying social insurance premiums, they shall be given half (1/2) of the average of the monthly salary which has been used as basis for calculating their social insurance premiums, but the total shall not exceed 5 months."

5. To amend and supplement Article 28 as follows:

"Article 28.-

1. The following cases shall be entitled to lump-sum social insurance allowances, with each year of paying social insurance premiums being given 1 month the average of the monthly salary which has been used as basis for calculating the social insurance premiums:

a/ Laborers, who cease to work and reach the retirement age or whose working capacities have been reduced by 61% or more due to illnesses, accidents or occupational diseases, and have paid social insurance premiums for a period not long enough for enjoyment of monthly pensions as prescribed in Articles 25 and 26 of this Regulation.

b/ Persons who lawfully reside in foreign countries.

2. Laborers, who cease to work when they have not yet reached the retirement age but have paid social insurance premiums for the period long enough as prescribed in Article 25, and Clauses 2 and 3 of Article 26, of this Regulation, may wait until they reach the retirement age to enjoy monthly pensions or have the period of paying social insurance premiums reserved in order to continue paying them later when they have conditions.

3. Laborers, who cease to work when they have not yet reached the retirement age and have paid social insurance premiums for the period not long enough as prescribed in Articles 25 and 26 of this Regulation, shall be granted social insurance books, and have the period of paying social insurance premiums reserved in order to continue paying them later when they have conditions to do so, including the persons on the lists of enterprises, agencies and organizations, who ceased working to wait for jobs before January 1, 1995 and had not yet received lump-sum allowances."

6. To add the following paragraph to the end of Clause 1, Article 29:

"Particularly for laborers who have paid social insurance premiums for full 15 years or more according to salary levels applicable to heavy and hazardous jobs or exceptionally heavy and hazardous jobs, and have been transferred to other jobs with the social insurance premiums paid according to the salary scales and grades set by the State with lower salary levels, when they retire, their rank salary levels of 5 consecutive years of doing heavy or hazardous jobs shall be used for calculating the average level as basis for the calculation of their pensions."

7. To add the following Article 35a:

"Article 35a.- The method for calculating the duration of paying social insurance premiums for settlement of regimes is prescribed as follows: having paid social insurance premiums for between full 3 months and 6 months, half a year (1/2) shall be calculated; from over 6 months shall be rounded up to 1 year."

8. To add Clause 5 to Article 36 as follows:

"5. The fund’s earnings."

9. To add the following Article 36a:

"Article 36a.- A female laborer’s maternity leave taken prenatally and postnatally as prescribed in Clauses 1 and 2 of Article 12 and the duration a laborer ceases working to nurse his/her adopted infant as prescribed in Article 13 of this Regulation shall be counted into the period eligible for social insurance regimes. During such leave, the laborer and employer shall not have to pay social insurance premiums, which shall be paid by the social insurance fund."

Article 2.- This Decree takes implementation effect as from January 1, 2003.

To annul the Government’s Decree No. 93/1998/ND-CP of November 12, 1998 amending and supplementing a number of articles of the Regulation on Social Insurance, issued together with the Government’s Decree No. 12/CP of January 26, 1995, and the Prime Minister’s Decision No. 37/QD-TTg of March 21, 2001 on the convalescence and health restoration regimes for laborers.

The social insurance regime applicable to subjects having enjoyed social insurance before this Decree takes effect shall not be re-calculated.

Article 3.- The Minister of Labor, War Invalids and Social Affairs shall have to guide the implementation of this Decree after consulting with the Ministry of Finance, the Ministry of the Interior and Vietnam Labor Confederation.

Article 4.- The Minister of the Interior shall have to guide the implementation of the social insurance regime for officials working on a full-time basis at communes, wards and townships and laborers in commune, ward and township health stations prescribed in Clause 1, Article 1 of this Decree after consulting with the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Finance.

Article 5.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.