Decree No. 35/2005/ND-CP On Disciplinary Sanctions for Civil Servants

DECREE

On Disciplinary Measures for Civil Servants

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;
Pursuant to the Civil Servant Law dated February 26, 1998; the Law Amending and Supplementing Certain Provisions of the Civil Servant Law dated April 28, 2000; and the Law Amending and Supplementing Certain Provisions of the Civil Servant Law dated April 29, 2003;
At the request of the Minister of Home Affairs,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope and regulated subjects

1. This Decree stipulates disciplinary measures for civil servants who violate legal provisions.

2. The subjects regulated by this Decree include civil servants as defined in points b, c, d, đ, and e of Clause 1, Article 1 of the Law Amending and Supplementing Certain Provisions of the Civil Servant Law dated April 29, 2003 (hereinafter referred to collectively as the Civil Servant Law 2003).

3. In cases where civil servants violate the law while being transferred to work at economic organizations, social organizations, or occupational social organizations; during their leave awaiting retirement procedures; or after being transferred to other agencies, organizations, or units and their violations are discovered, they shall be disciplined according to the provisions of this Decree.

Article 2. Cases Subject to Disciplinary Measures

1. Violations of the duties of civil servants as prescribed in Articles 6, 7, and 8 of the Civil Servant Law 2003 while performing official duties.

2. Violations of prohibitions on actions that civil servants are not allowed to perform as prescribed in Articles 15, 16, 17, 19, and 20 of the Civil Servant Law 2003.

3. Violations of the law declared guilty by the Court or concluded by a competent authority in writing regarding the violation of the law.

Article 3. Cases Not Subject to Disciplinary Consideration for Civil Servants

1. During vacation, leave under regulations, or personal leave granted by the head of the agency, organization, or unit.

2. Undergoing treatment in hospitals.

3. Under temporary detention or arrest pending investigation, verification, and conclusion by a competent authority regarding the violation of the law.

Female civil servants on maternity leave.

Article 4. Cases Not Subject to Disciplinary Measures Prescribed in This Decree

1. Violations of the law when losing capacity for civil acts as concluded by a competent health authority.

2. Must execute decisions of superiors as prescribed in Article 8 of the Civil Servant Law.

3. Violations of discipline in situations of force majeure while performing official duties and confirmed by a competent authority.

Article 5. Principles for Considering Disciplinary Measures for Civil Servants

1. Objectivity, fairness, strictness, and compliance with time limits prescribed.

2. When imposing disciplinary measures on civil servants, a Disciplinary Committee must be established, except in cases where civil servants commit crimes and are sentenced to imprisonment without probation.

3. Decisions on disciplinary measures must be signed by the competent authority in accordance with the provisions of this Decree.

4. Each violation shall only be subject to one form of disciplinary measure. If a civil servant commits multiple violations, they shall be disciplined for each violation and shall bear a higher level of disciplinary measure.

5. It is prohibited to infringe upon the physical body, reputation, and dignity of civil servants during the process of considering disciplinary measures; it is also prohibited to apply fines as a substitute for disciplinary measures.

6. The measure of dismissal from service shall not be applied to female civil servants during pregnancy or to civil servants caring for children under 12 months old.

Article 6. Appeals and Lawsuits

1. If a civil servant disagrees with the decision on disciplinary measures, they have the right to appeal to the competent agency, organization, or unit in accordance with the law.

2. Civil servants holding positions from Deputy Director and equivalent or lower, who are dismissed from service, may file an administrative lawsuit at the Court if they still face dismissal after appealing, in accordance with the law.

3. Agencies, organizations, and units receiving appeals from civil servants must responsibly examine and respond to the appellant within the scope of their authority and within the time limit prescribed by law.

Article 7. Resolving Appeal Conclusions

1. If the decision on disciplinary measures against a civil servant made by a competent agency, organization, or unit or by the Court is found to be erroneous, the head of the agency, organization, or unit where the civil servant works must publicly announce the conclusion or judgment within thirty days from the date of the conclusion or the effective date of the Court's decision, and must also take responsibility for compensating the civil servant's legitimate rights in accordance with the law.

2. If the competent authority resolving appeals and complaints concludes that the disciplinary measures against civil servants were conducted improperly in terms of content, form, or procedure, the person authorized to sign the disciplinary decision must issue a decision to revoke the disciplinary decision and instruct the head of the agency, organization, or unit managing the civil servant to re-examine the disciplinary measures in accordance with the regulations.

Chapter II

DISCIPLINARY MEASURES

PART I. FORMS AND TIME LIMITS FOR DISCIPLINARY ACTION

Article 8. Forms of Disciplinary Action

Civil servants who violate legal provisions must bear one of the following forms of disciplinary action:

1. Reprimand;

2. Warning;

3. Reduction in pay grade;

4. Demotion;

5. Dismissal from position;

6. Compulsory resignation.

Article 9. Time Limit for Disciplinary Action

1. The time limit for disciplinary action is the period prescribed for examining and imposing disciplinary action on civil servants, calculated from the date when the competent authority determines that a civil servant has committed a disciplinary violation until the date the Disciplinary Council convenes.

2. The time limit for disciplinary action is three months.

3. In cases where the circumstances are complex and require additional investigation and verification, the time limit for disciplinary action may be extended but shall not exceed six months. Beyond this time limit, the examination of disciplinary action against civil servants will cease.

4. Where a civil servant is involved in a case under investigation, prosecution, or trial by judicial authorities, the time limit for examining and imposing disciplinary action starts from the effective date of the court's judgment regarding the civil servant's violation.

5. Where it is necessary to review the disciplinary action against a civil servant as stipulated in Clause 2, Article 7 of this Decree, the time limit for examining and imposing disciplinary action begins upon receipt of the conclusion of the competent authority resolving the complaint.

6. The period during which disciplinary action is temporarily suspended for cases specified in Article 3 of this Decree does not count towards the time limit for examining and imposing disciplinary action. For such cases, the time limit for examining and imposing disciplinary action starts from the date the civil servant resumes normal work.

The person authorized to impose disciplinary action on civil servants shall be responsible for failing to impose disciplinary action on civil servants who have violated discipline within the prescribed time limit.

Article 10. Suspension from Work for Civil Servants Who Have Violated Discipline

1. During the period of being considered for disciplinary action, a civil servant may be subject to a decision by the competent authority to suspend them from work if it is deemed that their continued work could hinder the investigation or lead to further violations.

2. The duration of suspension from work shall not exceed fifteen days. In special cases with complex circumstances requiring clarification, it may be extended but shall not exceed three months.

3. Upon expiration of the suspension period, if the civil servant has not been disciplined, the competent authority must return the civil servant to their original position or assign appropriate work.

4. During the suspension period, the civil servant receives fifty percent of their salary and allowances (if applicable). After examination by the competent authority, if the civil servant is not disciplined, they are entitled to back pay for the remaining portion of their salary and allowances (if applicable) during the suspension period, and the suspension period counts toward the time for promotion. If the civil servant is disciplined, they are not entitled to back pay for the remaining portion of their salary and allowances, and the suspension period up to the date of the disciplinary decision does not count toward the time for promotion.

Section 2: DISCIPLINARY BOARD

Article 11. Disciplinary Board

1. The Disciplinary Board shall be established by the head of the agency, organization, or unit with the authority to perform the task of advising the competent authority on the appropriate disciplinary measures for violations committed by civil servants. The Disciplinary Board operates in accordance with the provisions of this Decree and dissolves itself upon completion of its tasks.

2. The number of members of the Disciplinary Board is five, including the following specific components:

a) The Chairman of the Board is the head or deputy head of the agency, organization, or unit.

b) One member of the Board is a representative of the Trade Union Executive Committee at the same level of the agency, organization, or unit.

c) One member of the Board is a representative of the civil servants from the department where the violator works (elected by the collective of civil servants in that department).

d) One member of the Board is the person directly managing the administrative and professional activities of the violator.

đ) One member of the Board is the person responsible for personnel management in the agency, organization, or unit where the violator is located.

3. In cases where the head or deputy head of the agency, organization, or unit violates discipline, the head of the superior agency, organization, or unit shall decide to establish the Disciplinary Board to consider and handle the matter. In such cases, the composition of the Disciplinary Board includes:

a) The Chairman of the Board is the head or deputy head of the superior agency, organization, or unit.

b) One member is a representative of the Party Committee of the superior agency, organization, or unit.

c) One member is a representative of the Trade Union Executive Committee of the agency, organization, or unit where the violating civil servant is located.

4. When establishing the Disciplinary Board, it is not allowed to appoint persons who have familial relationships such as parents, spouse, children, siblings, or half-siblings of the violating civil servant to be members of the Disciplinary Board.

Article 12. Principles of Operation of the Disciplinary Board

1. Objectivity, transparency, democracy, and compliance with current regulations.

2. The Disciplinary Board shall convene only when all members are present.

3. Recommendations for applying disciplinary measures are made through secret ballot voting and according to the principle of majority rule.

4. Meetings of the Disciplinary Board must have minutes, which must be approved by the Board before being signed by the Chairman of the Board.

Article 13. Components Invited to Attend Meetings of the Disciplinary Board

1. The Disciplinary Board may invite representatives of political organizations and social-political organizations where the violating civil servants are members to attend meetings.

2. The components specified in Clause 1 of this Article, when attending meetings of the Disciplinary Board, may participate in expressing opinions and proposing levels of disciplinary action but do not have the right to vote on the form of disciplinary action.

Article 14. Secretary of the Disciplinary Board

1. The Secretary of the Disciplinary Board is a civil servant from the personnel management department of the agency, organization, or unit, appointed by the Chairman of the Board.

2. The Secretary of the Disciplinary Board is responsible for preparing relevant documents and files related to disciplinary actions and recording the minutes of the Board's meetings.

SECTION 3: PROCEDURE FOR CONSIDERING AND HANDLING DISCIPLINARY ACTIONS

Article 15. Preparation for Meetings of the Disciplinary Board

1. Violating civil servants must write a self-criticism report and propose a form of disciplinary action.

2. The head of the agency, organization, or unit using the services of the civil servants has the responsibility to organize a meeting for the violators to criticize themselves before the collective of the agency, organization, or unit. The minutes of the self-criticism meeting include the proposed form of disciplinary action by the agency, organization, or unit.

3. The file submitted to the Disciplinary Board includes: the self-criticism report of the violator; the minutes of the self-criticism meeting of the violator held by the agency, organization, or unit; a summary of the violator's curriculum vitae; and other relevant documents and files related to the handling of disciplinary actions.

4. The Disciplinary Board must send a summons to the violating civil servants seven days prior to the meeting. If the violating civil servants are absent, they must provide a valid reason. If the summons is sent twice and the party still does not attend, or if the violator refuses to write a self-criticism report as required by the personnel management agency, the Disciplinary Board will still convene to consider and recommend a form of disciplinary action.

Article 16. Procedure for Meetings of the Disciplinary Board

1. The Chairman announces the purpose and introduces the attendees.

2. The Secretary presents a summary of the violator's curriculum vitae, files, and other relevant documents.

3. The violator reads their self-criticism report. If the violator is absent, the Secretary reads the report on behalf of the violator.

4. The Secretary reads the minutes of the self-criticism meeting held by the collective of the agency, organization, or unit.

5. Members of the Board and attending representatives express their opinions.

6. The violating civil servant expresses their opinion on the form of disciplinary action before the Board votes secretly.

7. The Board votes secretly to recommend the form of disciplinary action.

8. The recommended form of disciplinary action is announced at the meeting.

Article 17. Time Limit and Responsibility for Issuing Disciplinary Decisions

1. Within five working days from the end of the meeting, the Disciplinary Board must submit a written document (including the minutes, files, and other relevant documents) to the head of the agency, organization, or unit with the authority to manage civil servants.

2. Within fifteen working days from the date of receipt of the document from the Disciplinary Board (along with the files and documents), the head of the agency, organization, or unit with the authority must issue a written disciplinary decision.

3. In cases where the violating civil servant falls under the jurisdiction of a higher-level authority to decide, the time limit for issuing a disciplinary decision is thirty days.

4. In cases where the recommendation of the Disciplinary Board (or the opinion of the agency, organization, or unit requesting it) differs from the opinion of the head of the agency, organization, or unit with the authority and after discussion there is no agreement, the head of the agency, organization, or unit makes the decision and bears responsibility for it.

Article 18. Management of Disciplinary Files

1. All files and documents related to the handling of disciplinary actions and the implementation of disciplinary decisions must be kept in the personnel file of the civil servant.

2. The form of disciplinary action must be recorded in the civil servant's curriculum vitae.

Article 19. Special cases

1. In cases where officials or civil servants violate discipline and are heads or deputies of heads of agencies, organizations, or units, the meeting for criticism and self-criticism shall be organized and chaired by the direct superior leadership. The attendees invited to the meeting shall be officials or civil servants holding leadership positions within the agency, organization, or unit. The determination of the attendees invited to the meeting shall be decided by the direct superior leadership.

2. In cases where officials or civil servants violate discipline during their temporary assignment period, the disciplinary council of the agency, organization, or unit to which they were temporarily assigned shall conduct the examination and disciplinary action. Subsequently, all files and disciplinary decisions shall be sent back to the agency, organization, or unit managing the officials or civil servants for inclusion in their personnel files.

3. In cases where officials or civil servants who are on leave pending retirement procedures are found to have violated discipline during the performance of their duties before taking leave, the competent agency, organization, or unit managing the officials or civil servants shall still proceed with the examination and disciplinary action according to this Decree.

4. In cases where officials or civil servants are found to have violated discipline after being transferred to other agencies, organizations, or units, the previous agency, organization, or unit shall still proceed with the examination and disciplinary action according to this Decree. Subsequently, all files and disciplinary decisions shall be sent back to the current agency, organization, or unit managing the officials or civil servants for inclusion in their personnel files and ongoing management.

SECTION 4: APPLICATION OF DISCIPLINARY MEASURES

Article 20. Reprimand

Applied to officials or civil servants who commit a first-time violation but at a minor level.

Article 21. Warning

Applied to officials or civil servants who have been reprimanded and repeat the offense, or who commit a minor violation but with a recurring nature or although it is a first-time offense, it has a relatively serious nature; a first-time offense related to the qualifications and character of officials or civil servants, affecting the reputation of the agency, organization, or unit; violating the duties of officials or civil servants related to training, study, discipline, and work style; forging records, resumes, and using illegal certificates without causing consequences; committing a minor violation concerning matters that officials or civil servants are not allowed to do under the Civil Servant Ordinance.

Article 22. Reduction in Rank

Applied to officials or civil servants who violate their duties while under warning disciplinary measures and repeat the offense; related to professional ethics and violations of agency, organizational, or unit regulations; forging records, resumes, and using illegal certificates to obtain a salary increase or rank advancement; serious violations of discipline and laws while performing duties; relatively serious violations concerning matters that officials or civil servants are not allowed to do under the Civil Servant Ordinance.

Article 23. Demotion

Applied to officials or civil servants who violate discipline and laws while performing duties and are deemed to lack the moral integrity and professional standards required for their current rank; serious violations concerning matters that officials or civil servants are not allowed to do under the Civil Servant Ordinance.

Article 24. Dismissal from Position

Applied to officials or civil servants holding positions who commit serious violations of discipline and laws that make them unfit to continue in their assigned roles.

Article 25. Compulsory Resignation

1. Applied to officials or civil servants convicted by the Court of imprisonment.

2. The Disciplinary Council may recommend the authority with decision-making power to impose compulsory resignation disciplinary measures in the following cases:

a) Officials or civil servants who are currently serving one of the disciplinary measures of demotion or dismissal from position and repeat the offense or continue to violate discipline;

b) Officials or civil servants who, although they commit a first-time offense, the nature and degree of the violation are extremely serious, making them unworthy to remain in the ranks of officials or civil servants;

c) Officials or civil servants who use illegal certificates to be recruited into state agencies, organizations, or units;

d) Officials or civil servants who are drug addicts;

e) Officials or civil servants who arbitrarily leave their jobs and have been called three times by the agency, organization, or unit but did not show up.

PART 5: TERMINATION OF THE EFFECTIVENESS OF DISCIPLINARY DECISIONS AND RELATED PROVISIONS FOR STAFF MEMBERS WHO ARE DISCIPLINED

Article 26. TERMINATION OF THE EFFECTIVENESS OF DISCIPLINARY DECISIONS

1. After twelve months from the date of the disciplinary decision, if staff members do not reoffend or do not commit violations to the extent that they must be disciplined, the effectiveness of the disciplinary decision shall be terminated automatically.

2. The competent authority issuing the disciplinary decision must include a clause clearly stating the period during which staff members will be subject to disciplinary measures, starting from the issuance of the disciplinary decision until the end of the twelve-month period as prescribed.

Article 27. RELATED PROVISIONS FOR STAFF MEMBERS WHO ARE DISCIPLINED (EXCEPT IN CASES OF COMPULSORY RESIGNATION)

1. Staff members disciplined with a warning, reprimand, or removal from office shall have their salary increment period extended by one year.

2. Staff members disciplined with any form ranging from a warning to removal from office shall not be promoted in rank or appointed to higher positions for at least one year from the date of the disciplinary decision.

3. Staff members disciplined with any form including a warning, reprimand, demotion in rank, or demotion in grade may, depending on the nature and severity of the violation, be reassigned to their previous position or transferred to other work.

4. Disciplined leading staff members removed from office shall be assigned to other work.

5. During the period when staff members are under consideration for disciplinary action, they shall not be transferred, seconded, appointed, or processed for retirement or termination benefits.

6. After the effectiveness of the disciplinary decision has been terminated, the classification of salary, promotion in rank, and appointment to leadership positions for staff members disciplined with demotion in rank, demotion in grade, or removal from office shall be decided by the agency, organization, or unit concerned or proposed to the competent authority for decision in accordance with the provisions of the law.

Article 28. PROVISIONS RELATED TO STAFF MEMBERS WHO ARE DISCIPLINED WITH COMPULSORY RESIGNATION

1. Staff members disciplined with compulsory resignation shall not enjoy the termination benefits prescribed by the state but shall be recognized by the social insurance agency for the time worked and social insurance contributions made to implement social insurance benefits according to the law.

2. The personnel files of staff members disciplined with compulsory resignation shall be kept by the competent authority managing staff members. In cases where staff members need their personnel files after being disciplined with compulsory resignation, the competent authority managing staff members shall provide copies of the files (with confirmation).

3. If staff members are disciplined with compulsory resignation, they may register to reapply for employment as staff members in state agencies, organizations, or units twelve months after the date of the disciplinary decision (but not for positions related to the duties previously held).

Article 29. PROVISIONS FOR STAFF MEMBERS WHO ARE DISCIPLINED UNJUSTLY

In cases where staff members are disciplined or criminally prosecuted and subsequently determined by the competent authority to be innocent or wrongfully accused, in addition to having their reputation restored and damages compensated according to the law, they shall be reassigned to appropriate work and shall receive a salary equivalent to the salary before the disciplinary action; the period of execution of the disciplinary decision, if later determined to be wrongful, shall be counted towards the period for salary increments.

Chapter III

AUTHORITY TO HANDLE DISCIPLINARY ACTIONS

PART 1: REGARDING STATE ADMINISTRATIVE ORGANIZATION EMPLOYEES

Article 30. In the case where the violator is a leading civil servant

1. The Prime Minister shall examine and decide on disciplinary action against leading civil servants holding positions appointed by the Prime Minister.

2. The Minister, Head of a ministry-level agency, or member of the Government shall examine and decide on disciplinary action against leading civil servants holding positions appointed by the Minister, Head of a ministry-level agency, or member of the Government.

3. The Chairman of the People's Committee of a province or centrally governed city shall examine and decide on disciplinary action against leading civil servants holding positions appointed by the Chairman of the People's Committee of a province or centrally governed city.

4. In addition to the cases of leading civil servants specified in Clauses 1, 2, and 3 of this Article, based on the level of management authority, a civil servant holding a position appointed by a higher level if they violate the law shall be examined and disciplined by the head of that level.

5. If a leading civil servant who is subject to disciplinary action in the form of demotion in rank, demotion in grade, or dismissal has their promotion in grade, promotion in rank, or recruitment decided by their immediate superior, then the head of the agency or organization shall examine and propose in writing to the competent authority to issue a disciplinary decision.

Article 31. In the case where the violator is a non-leading civil servant

1. Regarding Ministries, ministry-level agencies, and agencies under the Government (hereinafter referred to collectively as "Ministry"):

a) Civil servants of the Ministry who are subject to disciplinary action shall be examined and disciplined by the Minister, Head of a ministry-level agency, or member of the Government.

b) Civil servants of subordinate agencies, organizations, or units of the Ministry who violate discipline shall be disciplined by the head of the agency, organization, or unit according to the delegated authority. In the case where a civil servant at the specialist level or above is subject to disciplinary action in the form of demotion in rank, demotion in grade, or dismissal, after the Disciplinary Council recommends the form of disciplinary action, based on the delegated authority, the head of the agency, organization, or unit shall issue the decision or propose in writing to the competent authority to issue the disciplinary decision (through the personnel organization department).

2. Regarding Provincial People's Committees and centrally governed city People's Committees (hereinafter referred to collectively as "province"):

a) Civil servants of provincial Departments, Committees, and sectors and municipal People's Committees of districts, counties, towns, and centrally governed cities who are subject to disciplinary action shall be disciplined by the head of the agency according to the delegated authority.

b) Civil servants of subordinate organizations of provincial Departments, Committees, and sectors and subordinate organizations of municipal People's Committees of districts, counties, towns, and centrally governed cities who are subject to disciplinary action shall be disciplined by the head of the organization according to the delegated authority.

c) In the case where a civil servant at the specialist or specialist chief level or above is subject to disciplinary action in the form of demotion in rank, demotion in grade, or dismissal, after the Disciplinary Council recommends the form of disciplinary action, based on the delegated authority, the head of the agencies, organizations, or units shall issue the disciplinary decision or propose in writing to the competent authority to issue the disciplinary decision (through the personnel organization department).

PART 2: REGARDING STATE ENTERPRISES

Article 32. In the case where the violator is a leading civil servant

1. The Prime Minister shall examine and issue a disciplinary decision against officials and civil servants holding positions appointed by the Prime Minister.

2. Officials and civil servants who are heads or deputies of heads of state enterprises appointed or recruited by which level, if they violate discipline, that level shall examine and issue a disciplinary decision.

3. If an official or civil servant holding a leadership position is disciplined with a form of punishment such as demotion in rank, demotion in grade, or forced resignation, and if the promotion in grade, promotion in rank, or recruitment is decided by the direct superior authority, then the head of the agency, organization, or unit shall examine and propose in writing to the competent authority to issue a disciplinary decision.

Article 33. In the case where the violator is a non-leading civil servant

Based on the分级管理国家事业单位的干部和公务员，有权（或被授权）招聘、签订劳动合同、晋升工资档次、任命级别的级别，该级别应审查并作出纪律处分决定，或者以书面形式建议有权限的机关作出纪律处分决定。

Chapter 4:

IMPLEMENTING PROVISIONS

Article 34. Effectiveness

1. This Decree shall take effect fifteen days from the date of publication in the Official Gazette.

2. This Decree replaces Chapter I and Chapter II of Decree No. 97/1998/NĐ-CP dated November 17, 1998 of the Government on disciplinary measures and material responsibility for civil servants.

Article 35. Responsibility for guiding implementation

1. The Minister of Home Affairs shall be responsible for inspecting and guiding the implementation of this Decree.

2. Based on the provisions on discipline in this Decree (excluding the provisions on forms of discipline) and the provisions on discipline for village-level civil servants in Decree No. 114/2003/NĐ-CP dated October 10, 2003 of the Government on village-level cadres and civil servants, the Minister of Home Affairs shall be responsible for guiding the implementation of the disciplinary system for village-level civil servants.

3. The competent authority of political organizations and political-social organizations shall base on the provisions of this Decree to guide the application to officials and civil servants specified in point b, Clause 1, Article 1 of the Ordinance amending and supplementing certain articles of the Ordinance on Cadres and Civil Servants working in agencies and units under political organizations and political-social organizations; officials and civil servants specified in point d, Clause 1, Article 1 of the Ordinance amending and supplementing certain articles of the Ordinance on Cadres and Civil Servants working in state enterprises under political organizations and political-social organizations.

Article 36. Responsibility for Implementation

Ministers, Heads of ministerial-level agencies, Heads of government agencies, and Chairpersons of provincial People's Committees directly under the central government are responsible for implementing this Decree.