Nghị định 97/1998/NĐ-CP về xử lý kỷ luật và trách nhiệm vật chất đối với công chức

DECREE 

ON THE DISCIPLINING AND MATERIAL RESPONSIBILITIES OF PUBLIC EMPLOYEES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Ordinance on Public Employees of February 26, 1998;
At the proposal of the Minister-Chairman of the Government Commission for Organization and Personnel,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- The disciplining of public employees is aimed to educate them and at the same time help to prevent, combat and strictly deal with the law violations by public employees.

Article 2.-

1. Public employees prescribed in this Decree are persons on the State payroll who get paid from the State budget, including:

a/ The persons defined in Clause 3, Article 1 of the Ordinance on Public Employees;

b/ The persons defined in Clause 5, Article 1 of the Ordinance on Public Employees;

For persons defined in Point b, Clause 1 of this Article, in addition to the provisions of this Decree, the management and command regulations of the People’s Army and People’s Police shall also apply;

c/ Public employees sent to work for economic organizations, social organizations, socio-professional organizations, which have been given personnel quotas by the competent agency(ies).

2. For contractual employees within the personnel quotas of State agencies, organizations or units, if they breach the discipline, they shall be handled according to the provisions of the Labor Code.

Article 3.- 

1. Public employees shall be disciplined only when they violate the provisions of Article 6, Article 7, Article 8 and Articles of Chapter III of the Ordinance on Public Employees as well as the provisions of other legal documents, but not to the extent of being examined for penal liability.

2. The disciplining must be effected by the competent person(s) in strict compliance with the procedures stipulated in this Decree.

3. The disciplining must be considered on the basis of the nature and seriousness of violations as well as the working seniority of public employees.

4. The disciplining shall not be imposed on public employees who breach discipline when they are affected by mental or other diseases that make them incapable of being aware of their acts; or when they execute decisions of their superiors as stipulated in Article 8 of the Ordinance on Public Employees.

Article 4.- Public employees who cause losses or damage to equipment and/or devices or who commit other acts of causing damage to the State’s properties shall have to make compensation therefor in accordance with the provisions of law. In cases where a loss is caused by a public employee due to force majeure, the compensation shall not be made.

Article 5.- 

1. When a public employee is scrutinized for discipline, a Disciplinary Council must be set up.

2. When the Disciplinary Council meets, the involved public employee must be present. In case of his/her absence, the plausible reasons must be given. If the involved public employee is twice absent though having been summoned, the Disciplinary Council shall still meet to consider the case and propose form of discipline.

3. The statute of limitations for the handling of a breach of discipline shall be 3 months at most, after the breach is detected; for a breach involving complicated factors that require time for investigation and verification, the above-said time-limit may be longer but must not exceed 6 months (except for cases stipulated in Clause 4, Article 9 of this Decree).

Article 6.-

1. For public employees who are subject to such forms of discipline as reprimand, warning or removal from office, their wage increase and appointment to higher position shall comply with the provisions of Article 43 of the Ordinance on Public Employees.

2. If within 12 months after the disciplinary decision is issued, the disciplined public employee neither repeats his/her breach nor commit other violations which are not serious to the extent of being disciplined, the competent agency or unit shall issue a decision terminating the effect of the discipline imposed on such public employee.

3. The reinstatement and/or rank and wage scale rearrangement (for public employees subject to removal from office, demotion or wage reduction) shall be considered and decided by the concerned agency or unit or by the competent agency at the proposal of the concerned agency or unit on a case-by-case basis.

Article 7.- 

1. For a public employee who has been disciplined or examined for penal liability but such discipline or examination is wrong upon the conclusion of a competent agency or organization as stipulated in Article 45 of the Ordinance on Public Employees, the head of the agency or organization where such public employee is working shall, within 30 days after the conclusion is made, have to organize the announcement of such conclusion.

2. The above-said public employee shall have his/her honor restored, be given a suitable job and entitled to a wage equivalent to his/her pre-discipline wage level, have his/her period under the discipline counted for wage increase, and be compensated for any damage caused in accordance with the provisions of Decree No.47/CP of May 3, 1997 of the Government on the settlement of compensation for damage caused by State officials, employees or competent persons of the legal proceedings agencies.

Article 8.-

1. If a disciplined public employee does not satisfy with the disciplinary decision, he/she shall have the right to lodge a complaint thereabout to the competent agency or organization in accordance with the provisions of the legislation on complaints and denunciations.

2. Agencies and organizations that receive complaints from public employees shall have to consider them and reply the complainants within the time-limit prescribed by law.

3. A public employee who holds the post of department-level head or lower post and is forced to discontinue his/her work, shall have the right to initiate an administrative lawsuit at a court prescribed by law, if after having made a complain about the disciplinary decision, he/she is still subject thereto.

Chapter II

DISCIPLINING

Article 9.- The disciplining shall be made according to the following principles:

1. Each breach of discipline shall be subject to only one form of discipline.

If, at one time, a public employee commits more than one acts of breaching discipline, he/she shall be disciplined for every breach and subject to the form of discipline one level higher than that set for the most serious breach.

This regulation shall also apply to public employees who commit more than one acts of violation, each of which is subject to the same form of discipline.

2. Forbidding all acts of infringing upon the body, honor and dignity of the disciplined public employees;

3. Forbidding the application of fines or wage cutting instead of a form of discipline;

4. Public employees shall not be disciplined yet in the following cases where:

a/ They are on annual leave, leave for personal business or leave permitted by the head of the agency; or

b/ They are being hospitalized according to physicians’ prescription; or

c/ They are being detained or subject to other administrative measures such as the placement in education establishments, medical establishments or under administrative probation; or

d/ They are women on maternity leave.

5. The form of discipline as sack shall not apply to public employees who are pregnant women or nursing their children of under 12.

Article 10.- Those public employees who are being examined for penal liability or scrutinized for discipline and suspended from work as prescribed in Article 41 of the Ordinance on Public Employees shall not be mobilized for work and/or permitted to retire or quit their job.

During his/her work suspension, a public employee shall be entitled to an advance of 50% of his/her wage and allowance (if any). If such public employee is not disciplined after the scrutiny by the concerned agency, organization or unit, he/she shall be given the rest of his/her wage and allowance (if any) amount he/she is entitled to during the work suspension period.

Article 11.- Public employees who breach discipline shall, depending on the nature and seriousness of their breaches, be subject to one of the following forms of discipline:

1. Reprimand;

2. Warning;

3. Wage reduction;

4. Demotion;

5. Removal from office;

6. Sack.

Article 12.-

1. The reprimand shall apply to public employees who breach discipline for the first time and the breach is not serious.

2. The warning shall apply to public employees who have been reprimanded but still repeat their breaches; or whose breaches are not serious but regular; or whose breaches, though committed for the first time, are fairly serious.

3. The wage reduction shall apply to public employees who commit serious breaches in the performance of their tasks and/or duties.

4. The demotion shall apply to public employees who commit serious breaches of discipline and are considered no longer qualified morally and professionally for the ranks they are assuming.

5. The removal from office shall apply to public employees who hold high posts but commit serious breaches of discipline and are, therefore, considered unable to continue holding their assigned posts.

6. The sack shall apply to public employees who commit offenses and are put to jail by the court without being entitled to suspended sentence.

7. The Disciplinary Council may consider and propose the sack of a public employee if:

a/ He/she has committed and offense and been put to jail by the court but entitled to the suspended sentence, non-custodial reeducation, probation or warning, provided that the offense is related to the performance of his/her public duty;

b/ He/she has been subject to such forms of discipline as wage reduction, demotion or removal from office but has repeated the offense;

c/ He/she has committed the violation for the first time but such violation is serious.

Article 13.- Heads of agencies, organizations or units may be disciplined if they let their public employees breach the discipline regularly or seriously in the performance of duties of their respective agencies, organizations or units.

Article 14.- Heads of agencies, organizations or units competent to decide forms of discipline to be imposed on their public employees shall have to set up a Disciplinary Council for consideration and proposal of the forms of discipline.

The Disciplinary Council shall be composed of:

1. The Chairman, being the head or a deputy head of the concerned agency, organization or unit;

2. A representative of the Executive Committee of the trade union at the same level;

3. Representative(s) of public employees of the agency, organization or unit where the discipline violator is working (to be appointed by the collective of the unit’s public employees).

In addition to the above-said members, the Disciplinary Council shall invite a representative of the Ladies’ Committee (if the violator is a woman), a representative of the Ho Chi Minh Communist Youth Union organization of the agency, organization or unit (if the violator is a youth) to attend the meeting. The invited representatives shall have the right to raise their opinions at the meeting but not to vote.

In cases where the head of the agency or unit breaches discipline, his/her immediate superior shall decide to set up a Disciplinary Council for consideration and handling of the violation.

Article 15.- The Disciplinary Council shall work in a collective, objective, public and democratic manner and vote by majority with secret ballots. The Disciplinary Council shall meet only when all of its members are present.

Article 16.- A public employee, who breaches discipline, shall have to make a self-criticism report. The head of the agency, organization or unit that employs such public employee shall have to organize a meeting for the violator to make self-criticism before the agency, organization or unit. The violator’s self-criticism report and the minutes of the meeting, with proposal on the form of discipline stated therein shall be submitted to the head of the agency in charge of the public employee to present the case before the Disciplinary Council for consideration.

Article 17.- Public employees, who breach discipline, shall be summoned by the Disciplinary Council at least 7 days before the Council meets.

Article 18.- The organization and personnel section of the agency, organization or unit shall have to prepare documents and dossiers related to the disciplining in order to present them before the Disciplinary Council; and at the same time have to make a minutes of the Disciplinary Council’s meeting.

Article 19.- At the Disciplinary Council’s meeting:

1. The Council’s Chairman shall state the reasons of the meeting, and introduce the participants;

2. A representative of the organization and personnel section shall present the dossier and relevant documents;

3. The violator shall give his/her opinions; the Council’s members and other participants shall take the floor;

4. Before the Council takes counsel before voting on the form of discipline, the violator shall have the right to suggest a form of discipline to be imposed on him/her;

5. The Council’s resolution shall be announced at the meeting.

Article 20.- Within 3 days after the announcement of the Disciplinary Council’s resolution, the Council’s minutes as well as relevant dossiers and documents must be sent to the agency, organization or unit managing the concerned public employee. Within 7 days after receiving the dossier and documents from the Disciplinary Council, the competent head of the concerned agency, organization or unit shall have to issue a disciplinary decision.

Chapter III

MATERIAL RESPONSIBILITY

Article 23.-

1. The compensation for any damage must be considered and decided on the basis of the fault(s), the nature of the act of causing damage, the actual extent of damage and with the actual family situation and personal history of the concerned public employee taken into account.

2. For a damage valued at under 5 million dong, a public employee shall, in principle, have to make full compensation therefor by gradual deduction from his/her wage; if the damage is caused unintentionally, he/she shall have to pay compensation with his/her three-month salary at most, which shall be gradually deducted from his/her monthly wage but the deducted amount must not be lower than 10% or higher than 30% of his/her total earning from wage and allowance (if any).

Article 24.-

1. The head of the agency or organization shall have to set up a Council for consideration and settlement of compensation for damage.

2. The Council shall include:

a/ Its chairman, being the head or a deputy head of the agency, organization or unit;

b/ A member being the leader of the trade union of the same level;

c/ A member being the person in charge of finance-accountancy section;

d/ A member being the person directly in charge of the section where the person, who has to make compensation, is working.

e/ A member being an economic-technical specialist.

3. The Council is tasked to consider and propose levels and modes of compensation to the head of the agency or organization.

Article 25.- The Council shall meet to consider and settle compensation according to the following procedure:

1. The Council’s chairman present the participants and appoint a secretary;

2. The representative of the finance-accountancy section briefs the participants on the compensation regime and level;

3. The Council listens to the justification by the person in question and opinions of the Council’s members;

4. The Council discusses and ballots on the level of compensation;

5. The meeting’s result shall be made into a written proposal to be submitted to the head of the agency or organization for decision according to his/her competence;

6. The Council shall dissolve after the fulfillment of its task.

Article 26.- Public employees who commit acts of the law violation in the performance of their tasks or duties, thus causing damage to other persons as stipulated in Clause 5, Article 39 of the Ordinance on Public Employees shall have to make compensation in accordance with the provisions of Decree No.47-CP of May 3, 1997 on settling compensation for damage caused by State officials and employees and competent persons of the legal proceedings agencies.

Article 27.- If a public employee subject to compensation for damage does not satisfy with the decision on compensation, he/she shall have the right to complain about such decision with the competent agency in accordance with the legislation on complaints and denunciations.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 28.- 

1. This Decree takes effect 15 days after its signing.

2. This Decree replaces the regulations on discipline and material responsibilities of public employees in the following documents:

- Decree No.195/HDCP of December 31, 1964 of the Government Council promulgating the Regulation on Labor Discipline in State agencies;

- Decree No.49-CP of April 9, 1968 of the Government Council promulgating the Regulation on material responsibilities of public employees regarding State’s properties;

- Article 25 of Decree No.217/CP of June 8, 1979 of the Government Council, promulgating the Regulation on public employees’ and State agencies’ responsibilities, disciplines, the protection of public properties as well as on the service of people.

Article 29.-

1. The Minister-Chairman of the Government Commission for Organization and Personnel shall have to guide the implementation of this Decree.

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

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