Nghị định 46/2010/NĐ-CP thủ tục nghỉ hưu đối với công chức

Decree No. 46/2010/ND-CP of April 27, 2010, providing for job discontinuation and retirement procedures applicable to civil servants

DECREE

PROVIDING FOR JOB DISCONTINUATION AND RETIREMENT PROCEDURES APPLICABLE TO CIVIL SERVANTS

THE GOVERNMENT

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

Pursuant to the November 13, 2008 Law on Cadres and Civil Servants;

At the proposal of the Minister of Home Affairs,

DECREES:

Chapter I GENERAL PROVISIONS

Article 1. Scope and subjects of application

1. This Decree provides for job discontinuation and retirement procedures applicable to civil servants stated in the Government's Decree No. 06/2010/ND-CP of January 25, 2010, defining civil servants.

2. Civil servants who resign or retire due to reorganization shall comply with the Government's Decree No. 132/2007/ND-CP of August 8, 2007, on state payroll streamlining policies.

Article 2. Job discontinuation and retirement principles

1.Publicity, transparency.

2. Compliance with the competence, order and procedures prescribed by law.

3. Assurance of civil servants' right to request competent agencies, organizations or units to examine the legality of decisions on job discontinuation or retirement.

Chapter II

PROVISIONS ON JOB DISCONTINUATION

Article 3. Cases in which civil servants are entitled to job discontinuation regime

Civil servants will enjoy the job discontinuation regime prescribed in this Decree in the following cases:

1. At their own aspirations and with the consent of competent agencies, organizations or units.

2. Non-accomplishment of their tasks for two consecutive years as provided for in Clause 3, Article 58 of the Law on Cadres and Civil Servants.

Article 4. Job discontinuation procedures

1. Case of desired job discontinuation:

a/ Civil servants shall send their written applications to competent agencies, organizations or units;

b/ Within 30 days after receiving the applications, competent agencies, organizations or units, if agreeing to permit civil servant to resign, shall issue written job discontinuation decisions; if they disagree to permit civil servants to resign, they shall reply in writing and clearly state the reasons for disagreement as provided for at Point c of this Clause;

c/ Reasons for disallowing job discontinuation:

Civil servants are currently in the period of rotation or secondment, examined for disciplines or penal liability;

Civil servants have not yet finished the service time as committed to their agencies, organizations or units when they were recruited through selection tests;

Civil servants have not yet fulfilled the payment of money amounts or assets under their personal liabilities towards their agencies, organizations or units;

Due to task requirements of their agencies, organizations or units or their replacements have not yet been arranged.

2. Case of job discontinuation due to non-accomplishment of tasks for two consecutive years:

a/ Within 30 days after the results of civil servant categorization are available, competent agencies, organizations or units shall notify the concerned civil servants in writing of their job discontinuation, except the case defined in Clause 4, Article 59 of the Law on Cadres and Civil Servants.

b/ Within 30 days after making the written notices, competent agencies, organizations or units shall issue decisions on job discontinuation.

3. Within 30 days after issuing job discontinuation decisions, competent agencies, organizations or units shall pay job discontinuation allowances to civil servants.

Article 5. Job discontinuation allowance

Civil servants who discontinue their jobs will be entitled to a job discontinuation allowance as follows: For every working year, the allowance is equal to 1/2 (half) of their respective current monthly wages, including the wages paid according to salary ranks and grades, position allowance, extra-seniority allowance, professional seniority allowance and wage reservation difference coefficient (if any). The lowest allowance level is equal to their current 1 (one) month's wage.

Article 6. Working duration used for job discontinuation allowance calculation

1. The working duration used for job discontinuation allowance calculation is the total number of years of social insurance payment or the cumulated number if such working duration is interrupted for which job discontinuation or demobilization allowance has not yet been paid, including:

a/ The duration of working in agencies, organizations or units of the Communist Party of Vietnam, the State or socio-political organizations;

b/ The duration of working in the People's Army and/or the People's Public Security;

c/ The duration of working in state companies under the Enterprise Law;

d/ The duration of working under payroll quotas assigned by competent agencies to socio-politico-professional organizations, social organi­zations or socio-professional organizations;

e/ The duration of training or retraining they attended under decisions of their respective agencies, organizations or units;

f/ The duration of paid leaves under the labor law;

g/ The duration of sickness, maternity, labor accident, occupational disease, health restoration and rehabilitation leaves as prescribed by the law on social insurance;

h/ The duration during which they were disciplined or examined for penal liability, which was concluded as unjust and wrong by competent agencies or organizations;

i/ The duration of suspension from working under Article 81 of the Law on Cadres and Civil Servants;

j/ The duration of working under suspended sentences or non-custody reform judgments or rulings of courts.

2. The working duration defined in Clause 1 of this Article, if having odd months, will be calculated as follows:

a/ Under 3 (three) months will not be counted;

b/ Between full 3 (three) months and full 6 (six) months will be counted as equal to 1/2 (half) of a working year;

c/ Between over 6 (six) months and 12 (twelve) months will be counted as equal to 1 (one) working year.

Article 7. Funding sources for payment of job discontinuation allowances

1. For civil servants working in agencies of the Communist Party of Vietnam, the State, socio-polical organizations at central level, in provinces, centrally run cities, rural districts, urban districts, towns or provincial cities; in agencies or units of the People's Army or the People's Public Security, funding sources for job discontinuation allowance payment will be included in estimates of expenditures for regular operation, assigned annually by competent bodies.

2. For civil servants within leadership or managerial apparatuses of public non-business units, funding sources for job discontinuation allowance payment will be as follows:

a/ For public non-business units having their regular operation expenditures fully or partially covered by state budget funds, funding sources for job discontinuation allowance payment will be channeled from respective regular operation funds assigned annually by competent authorities and from their non-business operation revenues under law;

b/ For public non-business fully financing their regular expenditures, funding sources for job discontinuation allowance payment will come from their non-business operation revenues under law.

Article 8. Other regimes

Civil servants discontinuing their jobs are entitled to job discontinuation allowances prescribed in Article 5 of this Decree and the social insurance regimes prescribed by law.

Chapter III

PROVISIONS ON RETIRMENT PROCEDURES

Article 9. Determination of retirement time

1. The retirement time is the Is' of the month following the month the civil servants reach the prescribed full retirement ages.

If civil servants' files do not clearly state the birth day and month in the year, the retirement time will be January 1st of the year following the year the civil servants reach the prescribed full retirement ages.

2. The retirement time will be postponed in one of the following cases:

a/ For not more than 1 month, in any of these cases: The retirement time coincides with Tet (Lunar New Year) holidays: civil servants' spouses, parents (natural and in-law) or children die or are declared missing by courts; civil servants or their families suffer damage caused by natural disasters, enemy sabotage or fires;

b/ For not more than 3 months, in one of these cases: They suffer from serious illness or accidents as certified in writing by hospitals;

c/ For not more than 6 months, for those who are receiving treatment of diseases on the Health Ministry- promulgated list of diseases requiring prolonged treatment, with written certifications of hospitals.

If a civil servant falls into more than one case of retirement time postponement prescribed in Clause 2 of this Article, only the longest retirement time postponement will apply.

Agencies, organizations or units managing civil servants shall decide on the postponement of retirement time under Clause 2 of this Article, unless civil servants do not wish for postponement their retirement time.

Article 10. Retirement notices

Six months before the retirement time defined in Article 9 of this Decree, agencies, organizations or units managing the civil servants shall issue written notices of retirement time for civil servants to know, made according to the form provided in Appendix 1 to this Decree (not printed herein), and prepare the replacements.

Article 11. Retirement decisions

1. Three months before the retirement time defined in Article 9 of this Decree, agencies, organizations or units managing the civil servants shall issue retirement decisions made according
to the form provided in Appendix II to this Decree (not printed herein).

2. Based on the retirement decisions prescribed in Clause 1 of this Article, agencies, organizations or units managing the civil servants shall coordinate with social insurance organizations in carrying out the procedures according to regulations so that civil servants can enjoy the social insurance regimes when they retire.

3. Retiring civil servants shall hand over dossiers, documents and their current work to persons assigned to accept them before the retirement time stated in the retirement decisions

4. From the retirement time stated in retirement decisions, civil servants may retire and enjoy the prescribed social insurance regimes.

5. For civil servants in public non-business units who possess the specialized training qualifications and reach the retirement time prescribed in Article 9 of this Decree, the following provisions will apply:

a/ If they aspire and meet the standards and conditions on prolongation of retirement ages for civil servants, 3 months before their retirement time prescribed in Article 9 of this Decree, the agencies, organizations or units managing such civil servants shall issue decisions to relieve them from leadership or managerial positions to work as civil servants, then carry out procedures to prolong their working duration under the law on civil servants. The time for relief from managerial positions will begin from the time of reaching the retirement age;

b/ If they do not aspire to prolong their working duration when reaching the retirement age, the agencies, organizations or units managing those civil servants shall carry out the retirement procedures under Articles 9 and 10 and Clauses 1, 2, 3 and 4, Article 11 of this Decree.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 12. Effect

1. This Decree takes effect on July 1, 2010.

The job discontinuation allowances prescri­bed in this Decree apply from January 1, 2010.

2. This Decree replaces:

a/ The provisions on job discontinuation applicable to civil servants in the Government's Decree No. 54/2005/ND-CP of April 19, 2005, on job discontinuation and training cost compensation regimes applicable to cadres and civil servants;

b/ The provisions on retirement procedures applicable to civil servants in the Government's Decree No. 143/2007/ND-CP of September 10, 2007, prescribing the retirement procedures applicable to cadres and civil servants fully meeting the retirement conditions.

3. This Decree also applies to persons who are transferred, assigned by the Party or the State and persons who are recruited or appointed under payroll quotas to work in socio-politico-professional organizations, social organizations or socio-professional organizations.

Article 13. Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People's Committees and concerned agencies, organiza­tions or individuals shall implement this Decree.-

ON BEHALF OF THE GOVERNMENT

PRIME MINISTER

NGUYEN TAN DUNG