“I am currently a civil servant. I have just been prosecuted by the district police. So let me ask, during the time I am prosecuted, investigated, prosecuted or tried, will I receive a salary? Will I be disciplined? Ask the lawyer to answer.”
A civil servant is a person who receives a salary from the state budget. A number of civil servants were prosecuted by the investigating agency; some cases are still detained; detention. So during the time they are detained or detained, they cannot come to work at the agency, will they receive a salary? What are the provisions of the law on regimes and policies for them? To answer this problem, Lawyer X would like to introduce the article “Does the prosecuted civil servant receive salary”. Please read the same reference to answer the above question.
Legal grounds
Law on Cadres and Civil servants 2008
Decree 112/2020/ND-CP
Who are civil servants?
Pursuant to Clause 2, Article 4 of the Law on Cadres and Civil servants in 2008 revised in 2019; civil servants are Vietnamese citizens, recruited and appointed to ranks, positions and titles in:
– An agency of the Communist Party of Vietnam; The State, socio-political organizations at the central, provincial and district levels;
– Agencies and units of the People’s Army that are not officers; Professional military personnel; national defense workers
– Agencies and units of the People’s Public Security who are not officers; non-commissioned officers serving under the professional regime; public security workers, on the payroll and receiving salaries from the state budget.
Thus, according to this regulation, the criteria for determining civil servants are associated with the mechanism of recruitment and appointment to ranks, positions and titles.
Will civil servants be disciplined?
According to Clause 4, Article 3 of Decree 112/2020/ND-CP; regulations for cases that have not been considered for disciplinary action:
Cadres, civil servants and public employees who are being prosecuted, held in custody or temporarily detained pending the conclusion of a competent agency to investigate, prosecute or adjudicate violations of the law, except for cases pursuant to a decision of the competent authority.”
Therefore, in case of being prosecuted, it is necessary to wait until there is a conclusion of a competent authority on the violation before considering disciplinary action against them; unless there is a decision of a competent authority on handling of violators.
However, in this case, the violating civil servant may be temporarily suspended from work depending on the management agency.
According to Article 81 of the Law on Cadres and Civil servants:
Agencies, organizations and units that manage cadres and civil servants may issue decisions to temporarily suspend work during the period of consideration and discipline of cadres and civil servants, if they let such cadres or civil servants Continuing to work may make it difficult to review, process…. if a cadre or public servant is held in custody or temporary detention to serve investigation, prosecution or trial, the time of custody or temporary detention shall be counted as the time off work for reasons; At the end of the period of temporary suspension from work, if the cadre or civil servant is not disciplined, he or she may continue to be arranged to work in the old position.”
Regulations on salary payment during the time of being held in custody, temporary detention, work suspension or temporary suspension of positions
According to Article 41 of Decree 112/2020/ND-CP stipulating:
“Article 41. Regimes and policies for cases in custody, temporary detention, work suspension or temporary suspension of positions
Cadres, civil servants and public employees who are in custody, temporary detention, temporary suspension from work or temporary suspension of positions but have not yet been disciplined, shall apply the following regimes:
1. During the time of custody, temporary detention or being released on bail, but applying the measure of prohibiting leaving the place of residence, they cannot continue to work in service of investigation, prosecution, adjudication or temporary suspension. Those who only work but have not been considered for disciplinary action are entitled to 50% of their current salary, plus allowances for leadership positions, allowances for overtime, seniority allowances and insurance differential coefficients. salary (if any).
In case cadres, civil servants and public employees holding leadership or management positions are temporarily suspended from their positions, they are not entitled to allowances for leading or managerial positions.
2. In case a cadre, civil servant or public employee is not disciplined or is concluded to be unjust or wrong, the remaining 50% of the charge shall be refunded as prescribed in Clause 1 of this Article.
3. In case a cadre, public servant or public employee is disciplined or declared guilty by a court, he/she is not entitled to arrears the remaining 50% specified in Clause 1 of this Article.”
So, is the civil servant being prosecuted to receive a salary?
If your case is not suspended or detained; If you are detained, you will still work normally at the agency. Therefore, you will automatically receive a salary during this working time.
However, in the case of work suspension; detained or detained; Based on the above provisions, even if prosecuted, civil servants will still receive salaries. Specifically, to receive 50% of the current salary, plus the allowance for leadership positions, the seniority allowance beyond the bracket, the seniority allowance, and the salary reserve difference coefficient (if any); If holding a leadership or managerial position is temporarily suspended from his/her position, he/she is not entitled to the allowance for the leading or managerial position.
And after the decision of the competent authority on disciplinary action or conviction; it depends on whether or not to be dealt with; civil servants will be repaid the remaining 50% or not.
Related article:
- In Vietnam, can employees who are detained or held in custody be paid by the company?
- In Vietnam, can public employees establish a business?
Frequently asked questions
According to current legal regulations, the probationary period for class C civil servants is 12 months; Class D civil servant is 6 months (Clause 2, Article 20 of Decree 138/2020/ND-CP). However, it should be noted:
The probationary period is not included in the time off of public employees on maternity leave according to the social insurance regime; sick leave or being detained, detained or temporarily suspended from work.
According to Decree 112/2020/ND-CP, the form of removal from office only applies to elected officials; does not apply to civil servants. Therefore, the civil servant cannot be dismissed.
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