Circular No. 03/2006/TT-BNV guiding the implementation of certain provisions of Decree No. 35/2005/NĐ-CP dated March 17, 2005 of the Government on disciplinary measures for civil servants and public officials.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 35/2005/NĐ-CP dated March 17, 2005 of the Government on Disciplinary Sanctions for Civil Servants

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Implementing Decree No. 35/2005/NĐ-CP dated March 17, 2005 of the Government on Disciplinary Sanctions for Civil Servants (hereinafter referred to as Decree No. 35/2005/NĐ-CP), the Ministry of Home Affairs provides guidance as follows:

I. GUIDANCE ON GENERAL PROVISIONS

1. The scope and objects regulated shall be implemented as provided for in Article 1 of Decree No. 35/2005/NĐ-CP. Civil servants transferred to work at economic organizations as stipulated in Clause 3, Article 1 of Decree No. 35/2005/NĐ-CP are civil servants transferred to hold positions such as Chairman of the Board of Directors, Member of the Board of Directors, General Director, Deputy General Director, Director, Deputy Director, Chief Accountant, and representatives of state capital in joint stock companies.

2. Cases not falling within the scope of regulation of Decree No. 35/2005/NĐ-CP include those working under labor contracts in state agencies, organizations, units, social organizations, social-professional organizations, and political-social organizations. In cases of violation of discipline, they shall be handled according to the provisions of the Labor Code and guiding documents.

3. Cases subject to disciplinary sanctions:

3.1. Civil servants violating laws as specified in Article 2 of Decree No. 35/2005/NĐ-CP.

3.2. Civil servants committing the following violations also fall under the category of law violations as specified in Article 2 of Decree No. 35/2005/NĐ-CP:

3.2.1. Issuing and using illegal certificates.

3.2.2. Violating training regulations or leaving school without permission from the competent authority managing civil servants during their study or training period.

3.2.3. Violating national regulations on preventing prostitution, drug abuse...

4. Illegal certificates include the following types:

4.1. Certificates made counterfeit.

4.2. Certificates whose contents have been altered without authorization from the competent authority.

4.3. Certificates issued or altered for individuals who do not meet legal conditions or standards, or issued or altered contrary to prescribed procedures or authorities.

5. Civil servants who forge files, resumes, and use illegal certificates but have not caused consequences as specified in Article 21 of Decree No. 35/2005/NĐ-CP are understood as civil servants who forge files, resumes, and use illegal certificates to meet conditions and standards for salary increase, job transfer, or promotion (through examination or assessment); to be sent for training or further education; or to be considered for appointment, but were discovered before the competent authority made a decision.

6. After being officially concluded by the competent authority through a written document about the use or issuance of illegal certificates, civil servants will be processed according to the Education Law and current legal regulations, and simultaneously subjected to disciplinary sanctions according to Decree No. 35/2005/NĐ-CP and the guidelines set forth in this Circular.

7. Competent health authorities include general hospitals and specialized hospitals at district level or higher.

8. Self-discontinuation of work by civil servants is understood as civil servants taking leave without permission from the agency, organization, or unit for one working day or more, or having submitted a leave request but not yet approved.

9. If civil servants commit multiple violations, they will be subject to disciplinary sanctions for each violation, and the total sanctions will be one level higher than the highest sanction for any single violation.

10. If civil servants violate discipline, and the Disciplinary Council has reviewed and recommended sanctions but the competent authority has not yet issued a Disciplinary Decision, and the agency, organization, or unit discovers additional circumstances related to the violation or another violation, the competent authority may return the file to the Disciplinary Council for reconsideration and recommendation of sanctions. In this case, the time limit for reviewing and processing disciplinary sanctions starts from when additional circumstances related to the violation or another violation are discovered.

II. GUIDANCE ON DISCIPLINARY SANCTIONS FOR CIVIL SERVANTS

1. Regarding the implementation of responsibility for disciplinary sanctions: A person authorized to impose disciplinary sanctions on civil servants who violate Clause 7, Article 9 of Decree No. 35/2005/NĐ-CP shall be subject to disciplinary sanctions ranging from reprimand to dismissal.

2. Regarding temporary detention and suspension of duty:

2.1. Civil servants temporarily detained by the competent authority's decision for investigation and handling according to the law without a complete conclusion on the violation shall not proceed with disciplinary review.

2.2. The suspension of duty of civil servants shall only be implemented within the time limit for disciplinary sanctions.

3. Regarding the Disciplinary Council:

3.1. The composition of the Disciplinary Council shall be carried out as stipulated in Clause 2 and Clause 3, Article 11 of Decree No. 35/2005/NĐ-CP.

3.2. Individuals with familial relationships with civil servants who violated discipline as specified in Clause 4, Article 11 of Decree No. 35/2005/NĐ-CP shall not participate as members of the Disciplinary Council including:

3.2.1. Biological parents.

3.2.2. Parents-in-law.

3.2.3. Adoptive parents of spouse recognized by law.

3.2.4. Spouse of the violator.

3.2.5. Siblings, brothers-in-law, sisters-in-law recognized by law.

3.2.6. Biological children, daughters-in-law, sons-in-law, adopted children recognized by law.

3.3. Representatives of political organizations and political-social organizations as specified in Clause 1, Article 13 of Decree No. 35/2005/NĐ-CP invited to participate in disciplinary meetings of civil servants are representatives of these organizations in the agency, organization, or unit where the civil servant violated discipline, including: Communist Party of Vietnam, Ho Chi Minh Communist Youth Union, Vietnam Women's Union, or female worker representative, Vietnam Veterans Association.

4. Regarding the procedure for reviewing and imposing disciplinary sanctions:

4.1. Civil servants who violate discipline shall be notified by the Disciplinary Council seven working days prior to the Disciplinary Council meeting.

4.2. In case civil servants violate discipline and refuse to write a self-criticism report or accept the disciplinary form or fail to attend the self-criticism meeting called by the agency, organization, or unit, the head of the agency, organization, or unit shall still convene a meeting to conduct the self-criticism of the violator before the collective of the agency, organization, or unit.

4.3. For civil servants who arbitrarily absent themselves from work after being summoned three times by the agency but fail to appear, the Disciplinary Council shall still convene a meeting to consider recommending disciplinary measures according to regulations.

4.4. In cases where multiple civil servants in the same unit violate discipline, if the unit has appointed representatives to participate in the Disciplinary Council, the Disciplinary Council may consider and handle these violations in the same session. The minutes of the meeting shall be recorded according to the procedure for considering discipline for each individual violator.

4.5. When agencies, organizations, or units convene meetings to criticize civil servants who have violated discipline, they must analyze and clearly point out the violations with the aim of educating and helping the violators recognize their shortcomings to correct and improve.

5. On the matter of considering the application of disciplinary measures.

The consideration and application of disciplinary measures for civil servants who have violated regulations shall be carried out in accordance with the provisions of Decree No. 35/2005/NĐ-CP. The Ministry of Home Affairs will provide guidance on the application of disciplinary measures as follows:

5.1. The reprimand disciplinary measure shall be applied in the following cases: Civil servants who exhibit arrogant, troublesome, or arbitrary behavior during the performance of their duties and responsibilities, despite having been warned and criticized but failing to correct such behavior; civil servants who are lazy in their work, shirk responsibility, or evade tasks and responsibilities, despite having been warned and criticized but failing to correct such behavior; civil servants who create factions and disrupt unity within the agency, organization, or unit; civil servants who arbitrarily absent themselves from work for the first time but not exceeding three working days; civil servants who make mistakes for the first time due to lack of responsibility in verifying files and certificates that are not legitimate; civil servants responsible for managing files and issuing certificates who intentionally obstruct the verification process of illegitimate certificates.

5.2. The warning disciplinary measure shall be applied in the following cases:

5.2.1. Civil servants who commit violations as stipulated in Article 21 of Decree No. 35/2005/NĐ-CP, including cases where civil servants fail to comply with job assignments made by competent authorities; civil servants who create factions and disrupt unity, affecting the completion of tasks of the agency, organization, or unit; civil servants who violate discipline and arbitrarily absent themselves from work twice (totaling no more than six working days); civil servants who violate ethical standards while performing their duties and responsibilities; civil servants who violate prohibitions set forth in the Ordinance on Civil Servants for the first time without causing serious consequences and showing willingness to correct such behavior;

5.2.2. Civil servants who misuse or improperly use illegitimate certificates to establish false records for admission exams, selection processes, or to upgrade their educational qualifications or professional skills; or to meet the criteria for promotion to leadership positions;

5.2.3. Civil servants responsible for managing files and issuing certificates who, due to lack of responsibility, falsify records to issue certificates to ineligible individuals; or those authorized to verify records but who incorrectly certify documents that do not match the original records regarding certificates;

5.2.4. Civil servants who have previously been disciplined with a reprimand for misusing or improperly using illegitimate certificates and then repeat the offense;

5.2.5. Civil servants who use illegitimate certificates to meet eligibility requirements for further education (secondary, college, university, master's, doctoral programs) at educational institutions.

5.3. The reduction in pay grade disciplinary measure shall be applied in cases where civil servants violate the provisions as stipulated in Article 22 of Decree No. 35/2005/NĐ-CP. Among these cases, the implementation of disciplinary measures related to this form is as follows:

5.3.1. Civil servants who forge records, resumes, and use illegitimate certificates to obtain salary increments or promotions, if the competent authority has issued a decision on salary increment or promotion which is later found to be incorrect, the competent authority must revoke the decision on salary increment or promotion and revert to the previous salary grade and position, while recovering any illegal salary increments received according to regulations. Only then will the disciplinary measure of reducing the pay grade be considered;

5.3.2. Civil servants who forge records, resumes, or use illegitimate certificates to qualify for a promotion exam, if they pass the exam but have not yet been promoted when the violation is discovered, the competent authority shall revoke the exam results and recover any certificates issued. If a promotion decision has already been made, after revoking the exam results, the competent authority shall revoke the promotion decision and revert to the previous salary grade and position, while recovering any illegal salary increments received according to regulations. Only then will the disciplinary measure of reducing the pay grade be considered;

5.4. The demotion disciplinary measure shall be applied in cases where civil servants violate the provisions as stipulated in Article 23 of Decree No. 35/2005/NĐ-CP. Additionally, civil servants who abuse their powers to issue certificates contrary to the law shall also face demotion disciplinary measures.

5.5. The removal from office disciplinary measure shall be applied in cases where civil servants holding positions violate the provisions as stipulated in Article 24 of Decree No. 35/2005/NĐ-CP. Among these, serious violations of the law are manifested in the following offenses:

5.5.1. Using assigned positions and powers to violate prohibitions set forth in the Ordinance on Civil Servants;

5.5.2. Using positions and powers to issue decisions that adversely affect the interests of the state, agency, organization, or unit;

5.5.3. Exploiting one's position or authority to handle matters for personal gain;

5.5.4. Using the assigned position or authority to create division, cause disunity within agencies, organizations, units to a serious extent;

5.5.5. Using illegal diplomas or certificates and including them in personal files to be appointed to leadership positions;

5.5.6. Exploiting one's position or authority to issue illegal diplomas or certificates or decisions to grant diplomas or certificates contrary to the law, resulting in serious consequences;

5.6. The disciplinary measure of compulsory termination of employment applies to cases of civil servants violating Article 25 of Decree No. 35/2005/NĐ-CP. In addition, the following violations also fall under Point b and Point c, Clause 2, Article 25 of Decree No. 35/2005/NĐ-CP:

5.6.1. Civil servants using illegal diplomas to be recruited as civil servants after the Civil Servant Law took effect (after May 1, 1998);

5.6.2. Civil servants organizing or participating in organizing the printing, circulation of illegal diplomas or certificates;

5.7. For cases where civil servants are sentenced to imprisonment, the head of the agency, organization, or unit shall issue a decision on disciplinary action or prepare a report to the competent authority to issue such a decision without having to establish a Disciplinary Council. The date of compulsory termination of employment is calculated from the date the judgment or decision becomes legally effective;

5.8. For civil servants who are sentenced to suspended imprisonment, corrective training without detention, probation, or reprimand, the Disciplinary Council shall base its recommendation on the severity and nature of the violation and the court's conclusion to apply one of the disciplinary measures ranging from reprimand to compulsory termination of employment;

5.9. Civil servants found to be using narcotics by public security agencies or social evil prevention agencies shall be subject to disciplinary action ranging from reprimand to compulsory termination of employment. Civil servants concluded in writing by authorized health authorities to be addicted to narcotics shall be subject to compulsory termination of employment;

5.10. Civil servants violating regulations on preventing prostitution, such as organizing buying and selling of sexual services, prostitution, purchasing sexual services, or shielding, tolerating, protecting prostitution activities; participating or directly organizing gambling activities reported in writing to their working agencies, organizations, or units shall be subject to disciplinary action ranging from reprimand to compulsory termination of employment;

5.11. Civil servants violating laws on protecting state secrets, in addition to being handled according to the law, shall also be subject to disciplinary action ranging from reprimand to compulsory termination of employment;

5.12. Other cases:

5.12.1. Civil servants at the lowest grade of the civil servant scale receiving a coefficient of 1 if they violate discipline shall be subject to one of the following disciplinary measures: Reprimand, warning, demotion in rank, dismissal, compulsory termination of employment;

5.12.2. Civil servants at the lowest rank within the same type of civil servant (type A, B, C) if they violate discipline shall be subject to one of the following disciplinary measures: Reprimand, warning, demotion in pay grade, dismissal, compulsory termination of employment. The lowest ranks are specialist or equivalent, staff or equivalent, clerk or equivalent;

5.12.3. Civil servants at the highest grade of the scale with additional years beyond the limit if they violate discipline shall be subject to one of the following disciplinary measures: Reprimand, warning, dismissal, compulsory termination of employment;

6. Regarding the implementation of provisions related to civil servants disciplined:

When disciplining civil servants according to Articles 19, 27, 28, and 29 of Decree No. 35/2005/NĐ-CP, the agencies, organizations, or units entrusted with managing civil servants shall implement the guidelines below:

6.1. Civil servants who violate the law and are sentenced to suspended imprisonment, after being disciplined (except in cases of compulsory termination of employment), shall be assigned appropriate work consistent with supervision and education requirements and shall enjoy benefits and policies according to the assigned work. In this case, the agency, organization, or unit is not required to compel the civil servant to transfer jobs themselves and will not process resignation unless the person submits a resignation request;

6.1.1. If a civil servant is serving a suspended sentence during the period of execution and transfers to another place, the agency, organization, or unit responsible for supervision and education must immediately notify the court to proceed with necessary procedures to hand over to the agency, organization, or unit where the suspended sentence holder is transferred to continue supervision and education;

6.1.2. During the period of serving a suspended sentence (including the probation period), civil servants shall not be considered for promotion in rank, promotion in pay grade, or appointment;

6.1.3. Civil servants sentenced to suspended imprisonment by the court shall have the probation period counted towards their service time but not towards salary increase consideration;

6.2. Civil servants on leave awaiting retirement procedures who are discovered to have violated the law during the performance of duties before retiring shall have their retirement procedures temporarily halted until the competent authority completes the disciplinary review process;

6.3. Civil servants disciplined with compulsory termination of employment shall have their agencies, organizations, or units prepare documents requesting the social insurance agency to confirm the time worked and social insurance contributions made.

6.4. Officials and civil servants participating in the examination to advance their rank, who meet the requirements during the examination period but are subject to disciplinary action ranging from reprimand to dismissal shall have the head of the agency, organization, or unit report to the competent authority managing officials and civil servants to temporarily suspend the issuance of the Decision on appointment to the rank being examined. After the effect of the Disciplinary Decision ceases, if the official or civil servant shows progress and does not commit other violations, the head of the agency, organization, or unit shall propose to the competent authority managing officials and civil servants to issue the Decision on appointment to the rank being examined. If the official or civil servant continues to violate discipline during the implementation of the disciplinary action, the competent authority managing officials and civil servants shall prepare a document requesting the competent authority organizing the examination to cancel the examination results for advancing the rank.

7. Guidelines for implementing the ranking and salary grade for officials and civil servants disciplined with a reduction in salary grade or rank:

7.1. For officials and civil servants disciplined with a reduction in salary grade, it shall be implemented as follows: The official or civil servant currently receiving a salary grade at a certain civil service (or public service) rank shall be reduced to the next lower salary grade within that rank. The time for considering an increase in salary in the next review shall be calculated from the date they held the previous salary level before violating the disciplinary rules.

7.2. For officials and civil servants disciplined with a reduction in rank, it shall be implemented as follows: The official or civil servant currently holding a civil service (or public service) rank in a certain sector shall be reduced to the next lower rank within that sector and assigned to the nearest lower pay scale compared to the pay scale of the rank held before being disciplined. The time for considering an increase in salary grade in the next review shall be counted from the day they held the previous salary level before violating the disciplinary rules.

7.3. Handling the increase in salary grade for officials and civil servants disciplined with a reduction in salary grade or rank:

7.3.1. Officials and civil servants disciplined with a reduction in salary grade or rank will not have their eligibility for an increase in salary grade extended by an additional year (12 months), but during the period when the Disciplinary Decision remains in effect, they will not be considered for an increase in salary grade based on seniority. After the effect of the Disciplinary Decision ceases, they may then be considered for an increase in salary grade based on seniority.

7.3.2. For officials and civil servants disciplined with a reduction in salary grade or rank, the time for considering an increase in salary grade in the next review shall be calculated from the date they held the previous salary grade before being disciplined.

8. Regarding the cessation of the effect of the Disciplinary Decision:

After 12 months from the date of the Disciplinary Decision, if the official or civil servant does not repeat the violation or does not commit further violations warranting disciplinary action, the Disciplinary Decision's effect shall cease automatically. The authority issuing the Disciplinary Decision does not need to issue a separate Decision to terminate the effect of the Disciplinary Decision.

III. IMPLEMENTATION

1. The Minister, Head of a Ministry-equivalent Agency, or Head of a Government-affiliated Agency, and the Chairman of the People's Committee of a province or centrally governed city shall implement and supervise the enforcement of disciplinary actions against officials and civil servants based on the authority stipulated in Decree No. 35/2005/ND-CP regarding the handling of disciplinary actions against officials and civil servants.

2. This Circular replaces the section guiding disciplinary actions in Circular No. 05/1999/TT-TCCP dated March 27, 1999, issued by the Government Organizational Cadre Department (now the Ministry of Home Affairs) guiding the implementation of Decree No. 97/1998/ND-CP on disciplinary actions and material responsibility caused by officials and civil servants, and any guidelines inconsistent with this Circular.

3. This Circular replaces the section guiding the handling of officials and civil servants violating the issuance and use of illegal certificates and diplomas in Circular No. 22/2002/TT-BTCCBCP dated April 23, 2002, issued by the Government Organizational-Cadre Department (now the Ministry of Home Affairs) guiding the handling of disciplinary actions against officials and civil servants and state-owned enterprise cadres who violate the issuance and use of illegal certificates and diplomas.

4. This Circular takes effect 15 days after its publication in the Official Gazette.

5. During the implementation process, any difficulties should be reported by ministries, ministry-equivalent agencies, government-affiliated agencies, and provincial people's committees directly under the central government to the Ministry of Home Affairs for study and resolution./.