Thông tư liên tịch 03/2008/TTLT-BLĐTBXH-BTC-NHNN của Bộ Lao động, Thương binh và Xã hội, Bộ Tài chính và Ngân hàng Nhà nước về việc hướng dẫn thủ tục buộc trích tiền từ tài khoản tiền gửi của người sử dụng lao động để nộp tiền bảo hiểm xã hội chưa đóng, chậm đóng và tiền lãi phát sinh

INTERMINISTERIAL CIRCULAR

PROVIDING GUIDANCE ON THE PROCEDURES OF COMPULSORY DEDUCTION OF MONEY FROM DEPOSIT ACCOUNT OF EMPLOYERS TO MAKE PAYMENT OF UNPAID, DEFERRED SOCIAL INSURANCE PREMIUM AND ARISEN INTERESTS

Pursuant to the provisions in Paragraph 3 Article 138 of the Law on Social Insurance and Decree No. 135/2007/ND-CP dated 16 August 2007 of the Government providing for the punishment of administrative violations in social insurance area (hereinafter referred to as the Decree No. 135/2007/ND-CP), inter-Ministries: Ministry of Labour- War Invalids and Social Affairs, Ministry of Finance and State Bank of Vietnam provide guidance on the procedures of compulsory deduction of money from deposit account of employers to make payment of unpaid, deferred social insurance premium and interests arisen on the unpaid, deferred amount thereof to the social insurance fund (hereinafter referred to as measure of compulsory deduction of money for payment to the social insurance fund) as follows:

I. SUBJECTS OF APPLICATION

1. Employers including the subjects as provided for in Article 3 of the Decree No. 152/2006/ND-CP dated 22 December 2006 of the Government, providing guidance on several articles of the Law on social insurance concerning the compulsory insurance, who fail to voluntarily comply with measures of overcoming the consequences stipulated in point a, b, paragraph 3, Article 7 of the Decree No. 135/2007/ND-CP within the stipulated period according to the decision on punishment of administrative violations in social insurance payment, have deposit account maintained at payment service suppliers in Vietnam.

2. Payment service suppliers including State Bank of Vietnam, banks, State Treasury, other organizations authorized to provide the payment service (hereinafter referred to as bank) where the employers open their payment deposit account (hereinafter referred to as account).

3. Persons who are competent to make decision on the application of measure of compulsory deduction of money for payment to the social insurance fund, including Chairman of People’s Committee of districts, towns, cities subject to the provincial management; Chairman of People’s Committee of provinces, cities under the central Government’s management; Chief Inspector of Department of Labour, Ward Invalids and Social Affairs; Chief Inspector of Ministry of Labour, War Invalids and Social Affairs.

4. Head of social insurance agencies of all levels, including General Director of Social Insurance of Vietnam, Director of Social Insurance agencies of all levels.

II. PROCEDURES OF COMPULSORY DEDUCTION OF MONEY FOR PAYMENT TO SOCIAL INSURANCE FUND

1. Proposal for applying of the measure of compulsory deduction of money for payment to the social insurance fund.

Inspectorate of Department of Labour, War Invalids and Social Affairs shall coordinate with related agencies, organizations to follow up the implementation of the decision on  punishment of administrative violations in social insurance payment in the area of provinces, cities under the central Government’s management. After 30 days since the issuance of the decision on punishment of administrative violations, if the employers fail to voluntarily pay or have paid to the social insurance fund, but the amount of unpaid, deferred social insurance premium and interests arisen on the unpaid, deferred amount thereof has not yet been sufficient in accordance with specific requirements at the decision, the Inspectorate of Department of Labour, War Invalids and Social Affairs shall be responsible to propose the application of the measure of compulsory deduction of money for payment to the social insurance fund to related competent persons.

2. To make decision on the application of measure of compulsory deduction of money for payment to the social insurance fund

a. Within maximum period of 3 working days since the receipt of written proposal of Inspectorate of Department of Labour, War Invalids and Social Affairs, competent persons shall be responsible for verification and making decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund.

Person who makes decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund shall have the right to request the bank where the employers open their account to supply information of account, account balance of the employers.

Employers shall be responsible to give a notice to the person who is competent to make decision about the bank where they open account, their account number upon request.

Persons who are competent to make decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund shall be responsible for keep secret of information about account of employers if being supplied.

b. Decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund must clearly state the date of issue of the decision, grounds to issue the decision; full name, position, work place of decision maker; name and basic information of the employer; the reason for compulsory deduction of money from the account; amount required to deduct; full name of account holder and account number of the employer; name, address of the bank where the employer opens his account; account number of the social insurance fund; name, address of the payment service supplier where the social insurance fund opens its account; mode of money remittance; responsibility of implementation; the maximum period of implementation shall not be in excess of 30 working days since the date of signing the decision and it must be signed and sealed by the person who is competent to make decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund.

The decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund shall be prepared according to the form issued in conjunction with this Circular. If the decision has more than 1 page, seal should be stamped between pages.

c. The decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund shall be valid and replace the money transfer order of the account holder to deduct money from employer’s account for payment to the social insurance fund.

d. The decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund shall be sent to the bank where the employer maintains his account, the employer, payment service supplier where the social insurance fund maintains its account and Director of Social Insurance agencies in provinces, cities under the central Government’s management within 5 days prior to deduction of money from the account.

3. To implement the decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund:

a. After 5 working days since the receipt of the decision on the compulsory deduction of money, if the account holder fails to voluntarily deduct money for making payment to the social insurance fund, then the bank where the employer opens his account shall be responsible for making money transfer from his account to the account of the social insurance fund upon request at the decision prior to implementing other money transfer orders of the account holder. Any expense related to the money transfer shall be paid by the account holder of the employer in accordance with applicable provisions of payment service suppliers.

In case where the balance of employer’s account is enough to make payment of the entire amount upon request at the decision, but the bank deliberately delays or fails to carry out the deduction of money, the bank shall be subject to the administrative punishment in accordance with the provisions in Article 35 of the Decree No. 202/2004/ND-CP dated 10 December 2004 of the Government on administrative punishment for violation acts in monetary and banking area.

b. In case where the employer’s account has no more balance or its balance is not enough to implement the decision, then, after transferring the available amount to the account of the social insurance fund, the bank must give a written notice to the decision maker for his knowledge and consideration of applying other measures to ensure the full collection of the unpaid, deferred amount and the arisen interests for the social insurance fund in accordance with the provisions in the Decree No. 37/2005/ND-CP dated 18 March 2005 of the Government providing for the procedures of applying of coercive measures for the implementation of the decision on punishment of administrative violations.

4. To give notice of implementation result of the decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund:

a. The bank where the employer maintains his account shall be responsible for timely giving a notice to the person who makes decision on the application of the measure of compulsory deduction of money for payment to the social insurance fund about the result of money transfer upon the request at the decision, at the same time giving a notice to the employer for his knowledge.

b. The bank where the social insurance fund opens its account shall be responsible for timely giving a notice of the result of money receipt to the Director of Social Insurance Agency in province, city under the central Government’s management

c. Social Insurance Agency in provinces, cities under the central Government’s management shall be responsible for making timely report on implementation result to the decision maker.

III. ORGANIZATION OF IMPLEMENTATION

1. People’s Committees of all levels shall be responsible for guiding, inspecting, coordinating with related agencies, organizations and employers in the locality to implement this Circular.

2. Department of Labour, War Invalids and Social Affairs, social insurance agencies of all levels shall be responsible for coordinating with related agencies, organizations in guiding, implementing, supervising and inspecting and making report on the implementation in the locality.

3. This Circular shall be effective after 15 days since its publication in the Official Gazette.

During the implementation, any query that may occur should be reported to Inter-Ministries for timely research, solution.

APPENDIX

Sample Decision on the application of measure of compulsory deduction of money from deposit account for payment to the social insurance fund (issued in conjunction with the Inter-ministerial Circular No. 03/2008/TTLT-BLDTBXH-BTC-NHNN dated 18 February 2008)

DECISION

ON THE APPLICATION OF THE MEASURE OF COMPULSORY DEDUCTION OF MONEY FROM DEPOSIT ACCOUNT FOR PAYMENT TO SOCIAL INSURANCE FUND.

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- Pursuant to Article 138 of the Law on Social Insurance dated 29 June 2006;

- Pursuant to Article 66 of the Ordinance on punishment of administrative violations, dated 2 July 2002;

- Pursuant to Article 45 of the Decree No. 135/2007/ND-CP dated 16 August 2007 of the Government providing for punishment of administrative violations in social insurance area;

- Pursuant to the Decision No. ...../QD-...., dated.......... of............ on punishment of administrative violations ...........6;

- In order to ensure the implementation of measures of overcoming consequences concerning the payment of social insurance in accordance with the Decision on punishment of administrative violations mentioned above,

DECIDES:

Article 1.- To apply the measure of compulsory deduction of money from deposit account for payment to the social insurance fund in respect of the employer who is...............................

Address: ...............................................................................................................................

Establishment Decision No.: ................... date of issue.................. place of issue.................

Business Registration Certificate No.................... date of issue........... place of issue............

Registered Social Insurance Code (if any).................................................................................

Full name of the organization’s leader :……………………………………………………………….

Title :…………………………………………………………………………………………………

Reason for compulsory deduction of money from the account: Failure to comply with provisions on implementation of measure of overcoming the consequences of payment of social insurance in accordance with the Decision No. ...../QD-.... mentioned above.

Article 2. To request...................................................................................7 to implement the money transfer of .................................. (amount in number) ……………..…….. (amount in words) for payment to the social insurance fund and the interests arisen from the deposit account number:.............................................8 of the employer mentioned in Article 1 of this Decision.

of which account is held (or jointly held) by the person whose name is mentioned below:

- Full name of account holder:

People Identity Card/Passport Number.............. date of issue........... place of issue……………

Title: ………………………………………………………………………………………………………

- Full name of account holder:

People Identity Card/Passport Number.............. date of issue........... place of issue…………….

Title: ……………………………………………………………………………………………………

into the deposit account number:                                                                                             9

of Social Insurance..................................................................................................................10

at:………………………………………………………………………………………………......... .11

after 5 working days since the receipt of this Decision.

Any expense for money transfer mentioned above shall be paid by the employer stated in Article 1 of this Decision in accordance with provisions of related payment service suppliers.

Article 3. This Decision shall be effective within maximum period of 30 working days since the date of signing this Decision.

Article 4. Mr/Mrs(s)........12 shall be responsible for the implementation of this Decision.

1. Clearly state name of the senior agency, organization (if any)

2. Clearly state agency’s name of the person who is competent to make decision;

3. State the abbreviation of title of the person who is competent to make decision;

4. State administrative place-name of province, city under the central government’s management;

5. Clearly state title of the person who is competent to make decision;

6. Clearly state number, symbol, date of issue, title of the person who is competent to issue the decision and subject of the decision on punishment of administrative violation quoted;

7. Clearly state name, address of the payment service supplier where the employer open his deposit account;

8. Clearly state the number of payment deposit account of the employer maintained at the payment service supplier;

9. Clearly state number of deposit account of related social insurance agency;

10. Clearly state name, address of related social insurance agency;

11. Clearly state name, address of the payment service supplier where the social insurance agency opens its account;

12. Clearly state title of the leader of the payment service supplier where the employer opens his deposit account, the payment service supplier where the social insurance agency opens its deposit account, related employer;

13. Clearly state the title of the person who is competent to make decision.