Decree No. 46/2010/NĐ-CP on cessation of work and retirement procedures for civil servants

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope and Applicability

1. This Decree stipulates about cessation of employment and retirement procedures for civil servants mentioned in Government Decree No. 06/2010/NĐ-CP dated January 25, 2010, which defines those who are civil servants.

2. Civil servants cease employment and retire due to organizational restructuring carried out in accordance with Government Decree No. 132/2007/NĐ-CP dated August 8, 2007, on policies to streamline staffing.

Article 2. Principles for implementing cessation of employment and retirement

1. Transparency and openness.

2. Compliance with authority and procedures as prescribed by law.

3. Ensuring the right of civil servants to request competent agencies, organizations, or units to examine the legality of decisions on cessation of employment and retirement.

Chapter 2.

PROVISIONS ON CESSION OF EMPLOYMENT

Article 3. Cases where civil servants are entitled to cessation benefits

Civil servants are entitled to cessation benefits as prescribed in this Decree in the following cases:

1. According to their own wishes and with the consent of the competent agency, organization, or unit.

2. Due to failing to complete tasks for two consecutive years as stipulated in Clause 3, Article 58 of the Civil Servants Law.

Article 4. Procedures for handling cessation of employment

1. In case of cessation of employment according to wishes:

a) The civil servant must submit a written application to the competent agency, organization, or unit;

b) Within thirty days from the date of receipt of the application, if agreeing to allow the civil servant to cease employment, the competent agency, organization, or unit shall issue a written decision on cessation of employment; if disagreeing, they shall provide a written response to the civil servant and clearly state the reasons as prescribed in point c of this clause;

c) Reasons for not approving cessation of employment:

The civil servant is currently undergoing job rotation, temporary assignment, or is under disciplinary review or criminal prosecution;

The civil servant has not served the agreed service period with the agency, organization, or unit when being recruited;

The civil servant has not completed the settlement of all financial and property obligations owed to the agency, organization, or unit;

Due to work requirements of the agency, organization, or unit, or because a replacement cannot be arranged.

2. In case of cessation of employment due to failing to complete tasks for two consecutive years:

a) Within thirty days from the date of the classification and evaluation results of the civil servant, the competent agency, organization, or unit shall notify the civil servant in writing about the cessation of employment resolution, except in cases prescribed in Clause 4, Article 59 of the Civil Servants Law.

b) Within thirty days from the date of the written notification, the competent agency, organization, or unit shall issue a decision on cessation of employment.

3. Within thirty days from the date the cessation of employment decision is issued, the competent agency, organization, or unit must pay the cessation allowance to the civil servant.

Article 5. Cessation Allowance

Civil servants ceasing employment are entitled to a cessation allowance as follows: for each year of service, calculated at half (one-half) of the current salary, including: grade and rank salary, leadership position allowance, seniority allowance exceeding the framework, occupational seniority allowance, and salary retention coefficient (if applicable). The minimum allowance is equal to one (one) month's current salary.

Article 6. Period of Service Eligible for Cessation Allowance

1. The period of service eligible for cessation allowance is the total time counted in years during which social insurance contributions have been made (if interrupted, it is accumulated), without having received cessation allowance or demobilization allowance, including:

a) Time working in agencies, organizations, and units of the Communist Party of Vietnam, State, political-social organizations;

b) Time working in the People's Army and Public Security Forces;

c) Time working in state-owned enterprises as prescribed by the Enterprise Law;

d) Time working within the staffing quota assigned by the competent authority in political-social-professional organizations, social organizations, and social-professional organizations;

đ) Time spent on training and development programs organized by agencies, organizations, or units;

e) Time off with pay as prescribed by labor laws;

g) Time off with benefits for illness, maternity, work-related accidents, occupational diseases, recuperation, and health recovery as prescribed by social insurance laws;

h) Time subject to disciplinary action or criminal prosecution that has been concluded by the competent authority as wrongful or erroneous;

i) Time temporarily suspended from duty as prescribed in Article 81 of the Civil Servants Law;

k) Time working while serving a suspended sentence or undergoing non-custodial rehabilitation as prescribed by court judgments or decisions.

2. If there is a fractional year of service as prescribed in Clause 1 of this Article, it will be calculated as follows:

a) Less than three (three) months is not counted;

b) From three (three) to six (six) months is counted as half (one-half) of a year of service;

c) More than six (six) to twelve (twelve) months is counted as one (one) year of service.

Article 7. Sources of funds for severance pay

1. For civil servants in the agencies of the Communist Party of Vietnam, State, political-social organizations at the central level, provincial level, centrally governed cities, district level, urban districts, towns under provinces; in agencies and units under the People's Army and People's Public Security, the source of funds for severance pay shall be allocated from the annual budget for regular operational expenses assigned by the competent authority.

2. For civil servants in the leadership and management bodies of public service units, the source of funds for severance pay shall be implemented as follows:

a) In cases where the public service unit is fully funded by the state budget for regular operational expenses or the public service unit partially self-funds its regular operational expenses: the source of funds for severance pay shall be taken from the regular operational funds allocated annually by the competent authority and from the income generated by the unit’s public services as stipulated by law;

b) In cases where the public service unit fully self-funds its regular operational expenses: the source of funds for severance pay shall be taken from the income generated by the unit’s public services as stipulated by law.

Article 8. Other Provisions

Civil servants who cease their duties shall enjoy severance pay as prescribed in Article 5 of this Decree and social insurance benefits as stipulated by law.

Chapter 3.

PROVISIONS ON RETIREMENT PROCEDURES

Article 9. Determination of Retirement Date

1. The retirement date is the first day of the month immediately following the month in which the civil servant reaches the retirement age as prescribed.

If the birth date of the civil servant is not clearly recorded in the year in the file, the retirement date shall be January 1st of the year immediately following the year in which the civil servant reaches the retirement age as prescribed.

2. The retirement date may be postponed in any of the following cases:

a) Not exceeding one month in the case where the retirement date coincides with the Lunar New Year holiday; the civil servant has a spouse, parent, or child who has passed away or been declared missing by a court; the civil servant and his/her family have suffered losses due to natural disasters, enemy attacks, or fires;

b) Not exceeding three months in the case where the civil servant suffers from a serious illness or has been involved in an accident, with confirmation from a hospital;

c) Not exceeding six months in the case where the civil servant is undergoing treatment for a disease listed in the long-term treatment directory issued by the Ministry of Health, with confirmation from a hospital.

3. If a civil servant qualifies for postponement of the retirement date under multiple cases prescribed in Clause 2 of this Article, they shall only be entitled to the provision applicable to the case allowing the longest postponement period.

4. Agencies, organizations, and units managing civil servants shall decide on the postponement of the retirement date according to the provisions of Clause 2 of this Article, except when the civil servant does not wish to postpone the retirement date.

Article 10. Notification of Retirement

At least six months prior to the retirement date as prescribed in Article 9 of this Decree, the agency, organization, or unit managing the civil servant must issue a written notification regarding the retirement date for the civil servant to be aware and prepare a replacement, using the form attached as Appendix I to this Decree.

Article 11. Decision on retirement

1. Prior to three months from the date of retirement as prescribed in Article 9 of this Decree, the agency, organization, or unit managing civil servants must issue a retirement decision according to the model attached as Appendix II to this Decree.

2. Based on the retirement decision prescribed in Clause 1 of this Article, the agency, organization, or unit managing civil servants shall cooperate with social insurance organizations to carry out procedures as prescribed for the civil servant to enjoy social insurance benefits upon retirement.

3. The civil servant retiring has the responsibility to hand over files and ongoing work to the person assigned to take over before the retirement date recorded in the retirement decision.

4. From the date of retirement recorded in the retirement decision, the retired civil servant shall enjoy retirement benefits as prescribed.

5. For civil servants in public service units who have been trained in their specialized field, when reaching the retirement age as prescribed in Article 9 of this Decree, it shall be implemented as follows:

a) If they wish and meet the criteria and conditions for extending the retirement age for officials, prior to three months from the date of retirement as prescribed in Article 9 of this Decree, the agency, organization, or unit managing civil servants shall issue a decision to cease holding leadership positions to transfer them to the status of officials and implement procedures to extend their working period in accordance with the laws on officials. The date of ceasing to hold management positions shall be from the date they reach the retirement age.

b) If they do not wish to extend their working period when reaching the retirement age, the agency, organization, or unit managing civil servants shall implement the retirement procedures as prescribed in Articles 9 and 10 of this Decree and Clauses 1, 2, 3, and 4 of Article 11 of this Decree.

Chapter 4.

IMPLEMENTATION

Article 12. Effective Date

1. This Decree takes effect from July 1, 2010.

The severance pay prescribed in this Decree shall be calculated from January 1, 2010.

2. This Decree replaces the following provisions:

a) The provisions on termination of employment for civil servants in Decree No. 54/2005/NĐ-CP dated April 19, 2005 of the Government on the regulations on termination of employment and compensation for training costs for cadres and civil servants;

b) The provisions on procedures for implementing retirement for civil servants in Decree No. 143/2007/NĐ-CP dated September 10, 2007 of the Government on the procedures for implementing retirement for cadres and civil servants meeting the retirement conditions.

3. Those who are mobilized or assigned by the Party and State, and those recruited or appointed according to the authorized staffing quota to work in political-social organizations, social organizations, and social-professional organizations shall apply this Decree.

Article 13. Responsibility for Implementation

Ministers, Heads of ministerial-level agencies, Heads of government-attached agencies, Chairpersons of provincial People's Committees under the Central Government, and related agencies, organizations, and individuals are responsible for enforcing this Decree./.