When employees who commit crimes are sentenced to imprisonment for a certain period of time, can they continue to enjoy the social benefits they have contributed to for many years? Or will those regimes be automatically canceled or suspended when the citizen implements the prison regime in accordance with his/her crime?
If an employee of working age is sentenced to prison, because that employee will no longer be able to continue working in the enterprise, thereby, that employee will not receive a monthly salary anymore.
This is reasonable because the salary system for employees is based on the effort they have contributed to the enterprise. If the employee does not work for the enterprise because of a leave of absence, maternity leave, or for some other reason like being sentenced to prison, etc., then he or she will not be paid a monthly salary from the enterprise.
However, if an employee who has retired and is enjoying a pension, is sentenced to prison, will he or she receive a pension while in prison?
Salary system for retired employees
According to the provisions of Clause 1, Article 64 of the Law on Social Insurance 2014, employees who are enjoying their monthly pension or social insurance allowance are suspended and continue to enjoy their monthly pension or social insurance allowance when in one of the following cases:
- Illegal leave from the country;
- Being declared missing by the Court;
- There are grounds to determine that the enjoyment of social insurance is not in accordance with the provisions of law (fraud).
The Law on Social Insurance 2014 has more provisions in the direction of supporting employees than the Law on Social Insurance 2006.
Specifically, in the past, Article 62 of the Law on Social Insurance in 2006 stipulates that employees who are enjoying monthly pensions and social insurance allowances are temporarily suspended from enjoying their monthly pensions and social insurance benefits when in one of the following cases:
- Serve prison sentences but not enjoy suspended sentences;
- Illegal leave from the country;
- Being declared missing by the court.
Resolution 02/2018/NQ-HDTP clearly defines 'suspended sentence' as follows: "A suspended sentence is a measure of exemption from serving a conditional prison sentence, which is applied by the Court to offenders who are sentenced to imprisonment not exceeding 03 years, based on the offender's identity and extenuating circumstances, it is deemed that there is no need to force them to serve prison sentences."
Accordingly, the suspended sentence is not a penalty but a measure of exemption from serving a conditional prison sentence, applicable to persons sentenced to imprisonment for not more than 3 years.
The suspended sentence allows offenders to be exempted from serving prison sentences to encourage them to reform to become useful citizens of society, while also warning that if they commit a new crime during the probationary period, they will have to accept the suspended sentence of the previous sentence.
Accordingly, according to the Law on Social Insurance 2006, all citizens sentenced to imprisonment for more than 3 years, not serving suspended sentences will not be entitled to the monthly pension and social insurance allowance.
However, from the effective date of the Law on Social Insurance 2014 on January 1, 2016, inmates who are employees who are eligible for the pension scheme serving prison sentences will still be entitled to pension payments monthly.
Accordingly, employees who are sentenced to prison before the effective date of the Law on Social Insurance 2014 will continue to implement the regimes according to the previous regulations, that is, they are not entitled to a pension before the effective date of the Law on Social Insurance 2016.
More specifically, individuals who were sentenced to prison before 2016 will continue to have their pensions suspended until they complete their prison sentences. After serving the prison sentence corresponding to the behavior that the employee has committed which affects society, the employee will continue to receive the monthly pension.
In addition, sentenced employees can also protect their rights by monitoring notifications and actions of competent authorities in accordance with the law.
However, considering the inadequacies and difficulties in accessing and monitoring the actions of the competent authorities while serving the penalty, the sentenced employee can contact a reputable law firm about labor law in Vietnam and internationally to authorize the company to protect their interests.
The purpose and use of receiving wages while serving a sentence
While serving a prison sentence, it is obvious that even if pensioners have access to that money, it will be difficult for them to have the means to use them.
Accordingly, for convenience, inmates who are serving sentences can authorize relatives or friends to receive cash pensions for them and hold on to that amount of money.
If the prisoner registers to receive pension via ATM card, the money will be paid into the account monthly without the need to authorize someone else to receive it.
In the case that an employee who is eligible to receive a pension is temporarily suspended under the provisions of Article 64 of the Law on Social Insurance 2014 and then proves and meets the conditions to receive the pension during that time, the employee can request for arrears of monthly pension based on Article 64 of Law on Social Insurance 2014 and guidance in Article 23 of Circular 59/2015/TT-BLDTBXH.
These cases usually include:
- Employees forget to receive their monthly pension (There is a period of interruption when receiving a pension);
- The employee is declared missing by the Court;
- The employee for some reason does not receive the pension/was decided by the competent authority to suspend pension enjoyment.
In addition, prisoners in general, when performing labor during the execution of the sentence, will also be paid commensurate with their efforts.
These efforts will be collectively referred to as the labor results of the sentenced employee.
According to Article 34 of the Law on Criminal Judgment Execution 2019, which took effect from January 1, 2020, the results of an inmate's labor after deduction of reasonable expenses are used to:
- Supplement and improve food/meals for prisoners.
- Set up a community integration fund to support inmates after serving their sentences.
- Supplement to the welfare and reward fund of the prison.
- Expenses to support reinvestment in prisons in service of labor organization, education and training of inmates, and skill improvement for inmates who are ready to serve their prison sentences.
- Pay part of the labor for inmates who are directly involved in production work, and pay support to inmates who have occupational accidents.
Specifically, the results of labor can be used to support the life in the prison of inmates such as:
- Deduct 14% to supplement food for prisoners:
- Deduct 2% to set up the Community Integration Fund to spend on counseling and support for prisoners when they finish serving their prison sentences. The prison conducts support activities, and organizes civic education, legal education, counseling, job search, and other activities related to community reintegration for prisoners.
- Deduct 12% to pay part of the labor results for inmates who are directly engaged in production work, and to pay support for inmates suffering from occupational accidents.
- Deduct 22% to supplement the prison's welfare and reward fund.
- Deduct 50% of expenses for investment support back to the prison to serve the organization of labor, education, and vocational training for inmates who are about to finish serving their prison sentences.
Originally published September 10, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.