Nghị định 34/2008/NĐ-CP quy định về tuyển dụng và quản lý người nước ngoài làm việc tại Việt Nam

DECREE

ON EMPLOYMENT AND ADMINISTRATION OF FOREIGNERS WORKING IN VIETNAM

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Labour Code dated 23 June 1994 and the Law on Amendment of and Addition to the Labour Code dated 2 April 2002;
Pursuant to the Law on Investment dated 29 November 2005;
On the proposal of the Minister of Labour, War Invalids and Social Affairs ['Minister of Labour"],

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Governing scope and applicable entities

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This Decree applies to foreigners working in Vietnam and to enterprises and organizations in Vietnam which employ foreign employees, specifically as follows:

1. Foreigners working in Vietnam in the following forms:

a/ Pursuant to a labour contract;

b/ Internal transfer within an enterprise which has a commercial presence in Vietnam;

c/ Performance of any of the following types of contract, namely economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational or medical health contracts;

d/ Service providers pursuant to contract;

dd/ People offering services;

e/ Foreigners representing a foreign non-Governmental organization which is permitted to operate pursuant to the law of Vietnam.

2. Enterprises and organizations employing foreign employees, comprising:

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b/ Foreign contractors (head contractors and sub-contractors) awarded with a contract in Vietnam;

c/ Representative offices and branches of economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational, and medical health organizations;

d/ Socio-political, social, socio-occupational and socio-occupational-political organizations; and non-Governmental organizations;

dd/ State professional units;

e/ Medical health, cultural, educational and sporting establishments permitted to be established by the competent body;

g/ Offices of foreign or international projects in Vietnam;

h/ Operating offices of foreign partners pursuant to business co-operation contracts in Vietnam;

i/ Organizations practising law in Vietnam in accordance with the law of Vietnam;

k/ Co-operatives and co-operative groups established and operating pursuant to the Law on Cooperatives.

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Article 2.- Interpretation of terms

In this Decree, the following terms shall be construed as follows:

1. Foreigner means a person without Vietnamese nationality in accordance with the Law on Vietnamese Nationality.

2. Manager [or] executive director means a foreigner directly managing a foreign enterprise which has established a commercial presence in Vietnam, and who is only subject to general supervision or direction by the board of management or shareholders of the enterprise or equivalent level. Management of an enterprise comprises instructing such enterprise or any office, section or subsidiary unit of the commercial presence; supervising and controlling the work of specialized staff, managers or other supervisors; having the right to hire and dismiss or to recommend the hiring and dismissal of or [managing the] activities of other staff. Managers [and] executive directors shall not directly carry out work related to provision of services by the commercial presence.

3. Expert means a foreigner with specialist and highly technical qualifications regarding services; and regarding research, technical knowledge or management of equipment (and includes engineers or people with qualifications equivalent to the level of engineer or higher; and includes artisans in traditional occupations and trades) and [means] people with considerable experience in an occupation or trade, in operating production and business and in managerial work.

4. Foreigner internally transferring within an enterprise comprises any of the above-mentioned managers, executive directors and experts of a foreign enterprise which has already established a commercial presence within the territory of Vietnam who temporarily transfer within the enterprise to the commercial presence within the territory of Vietnam and who have been employed by the foreign enterprise for at least twelve (12) months prior to such transfer.

5. Foreigner offering services means a person who does not live in Vietnam and who does not receive remuneration from any source in Vietnam, and who participates in activities relating to representation of a service supplier in order to negotiate the sale [or consumption] of services of such supplier, on condition that he or she does not directly sell such services to the public and does not directly participate in the provision of services.

6. Service provider pursuant to a contract means a foreigner working in a foreign enterprise which does not have a commercial presence in Vietnam. Such person must have worked for the foreign enterprise without a commercial presence in Vietnam for at least two (2) years, and must satisfy the same conditions which apply to experts as stipulated in clause 3 of this article.

7. Vietnamese parly comprises:

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b/ The representative of a foreign enterprise or organization which has already established a commercial presence within the territory of Vietnam in accordance with the law of Vietnam.

8. Commercial presence means a service provider bearing the nationality of any one country who goes to a second country and establishes a legal entity within and provides services in such second country. For example, a commercial bank opens a branch overseas.

Chapter II

RECRUITMENT AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM

Article 3.- Foreigners must satisfy all of the following conditions in order to work in Vietnam:

1. Must be eighteen (18) years of age or older.

2. Must be in good health as necessary to satisfy the job requirements.

3. Must be a manager, executive director or an expert as stipulated in clauses 2 and 3 of article 2 of this Decree.

Foreigners applying to work in a private medical or pharmaceutical practice or to directly carry out medical examination and treatment in Vietnam, or to work in the educational and occupational training sectors must satisfy all conditions stipulated by the law of Vietnam in relation to private medical or pharmaceutical practice, or education and occupational training.

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5. Must have a work permit issued by the authorized State body of Vietnam, except in the cases stipulated in article 9.1 of this Decree where a work permit is not required.

Article 4.- Recruitment of foreigners to work in Vietnam pursuant to a labour contract

1. An employer shall be permitted to recruit foreign workers who fully satisfy the conditions stipulated in article 3 of this Decree in order to work as managers, executive directors and experts where Vietnamese workers are not yet able to satisfy such production and business requirements.

2. An application file to register the proposed recruitment of a foreigner: the foreigner shall lodge two sets of an application file with the employer, the employer shall administer one set and the other set shall be retained by the employer to conduct procedures for registration for issuance of a work permit. Each set of the application file shall comprise:

a/ Registration slip regarding the proposed recruitment of the foreigner on the standard form prescribed by the Ministry of Labour.

b/ Legal record issued by the authorized body of the country where the foreigner resided prior to coming to Vietnam. If the foreigner has currently resided in Vietnam for six (6) months or more, then there need only be a legal record issued by the Vietnamese Department of Justice of the locality where the foreigner is residing.

c/ Curriculum vita of the foreigner on the standard form prescribed by the Ministry of Labour.

d/ Health certificate issued overseas or health certificate issued in Vietnam in accordance with the regulations of the Ministry of Health.

dd/ Copies of certificates of specialist lor] highly technical qualifications of the foreigner. A foreigner who is an artisan in a traditional occupation or trade or who has experience in an occupation or trade or in operating production or in managerial work and who does not possess certificates or diplomas must have a document from the authorized body of the country of his or her nationality certifying that he or she has at least five years' experience in an occupation or trade, in operating production or in managerial work.

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3. Any documents prescribed for the above file which are issued, certified or notarized by a foreign body or organization must be consularized in accordance with the law of Vietnam and translated into Vietnamese; and the translations and any copy documents must also be notarized in accordance with the law of Vietnam.

4. Order and procedures for employing foreigners to work in Vietnam:

a/ At least thirty (30) days prior to recruiting employees, the employer must publish its need to recruit employees in a central or local newspaper (in written, oral, pictorial or electronic form) notifying the following matters: the number of employees to be recruited, the work, the specialist qualifications, the salary level, the working conditions and other necessary items which the employer requires.

It shall not be necessary to publish the above-mentioned notice in a central or local newspaper if the employer recruits employees via a recruitment agency.

b/ Employers must provide complete information about the provisions of the law of Vietnam relating to rights and obligations of foreigners entering Vietnam to work; and foreigners must fully research such provisions of the law of Vietnam as supplied by the employer, and at the same time they must prepare the necessary documents and correctly comply with the provisions of this Decree.

c/ A foreigner wishing to work in Vietnam must submit to the employer the application file for registration for recruitment stipulated in clause 2 of this article. An employer shall receive such file if it contains all the documents required by this Decree, and the employer shall then conduct procedures in accordance with this Decree to apply for issuance of a work permit for the foreigner to work in Vietnam.

d/ After issuance of a work permit, the foreigner and the employer must sign a written labour contract in accordance with the labour law of Vietnam, and the employer shall be responsible to forward a copy of the signed labour contract to the body which issued the work permit for such employee. The contents of the labour contract must not be inconsistent with the contents of the issued work permit.

Article 5.- Foreigners entering Vietnam to work in the form of internal transfer within an enterprise

1. Any foreigner working in Vietnam pursuant to article 1.1(b) of this Decree must have a letter from the foreign enterprise appointing him or her to come to Vietnam to work at the commercial presence of such foreign enterprise in the territory of Vietnam, and must satisfy the conditions stipulated in article 3 of this Decree.

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3. The representative of a foreign enterprise which has established a commercial presence within the territory of Vietnam in accordance with the law of Vietnam shall be responsible to provide complete information about the provisions of the law of Vietnam relating to the rights and obligations of foreigners working within the territory of Vietnam, and foreigners must research and fully comply with the provisions of the law of Vietnam as supplied by the employer.

4. Foreigners must prepare all the documents stipulated in sub-clauses (b), (c). (d), (dd) and (e) of article 4.2 of this Decree.

5. The representative of a foreign enterprise which has established a commercial presence within the territory of Vietnam shall conduct procedures requesting issuance of a work permit for a foreigner to work in Vietnam pursuant to this Decree, prior to such foreigner coming to Vietnam to work.

Article 6.- Foreigners entering Vietnam to perform contracts (other than labour contracts)

1. Any foreigner working in Vietnam pursuant to sub-clauses (c) and (d) of article 1.1 of this Decree must satisfy all the conditions stipulated in article 3, and must have a contract signed between the Vietnamese party and the foreign party agreeing on the foreigner coming to Vietnam to work.

2. The Vietnamese party must provide complete information about the provisions of the law of Vietnam relating to rights and obligations of foreigners entering Vietnam to work; and foreigners must research and fully comply with the provisions of the law of Vietnam.

3. Foreigners must prepare all the documents stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article 4.2 of this Decree.

4. The Vietnamese party shall conduct procedures requesting issuance of a work permit for a foreigner to work in Vietnam pursuant to this Decree, prior to such foreigner coming to Vietnam to work.

Article 7.- Foreigners entering Vietnam to work in order to offer services

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Article 8.- Foreigners being representatives of foreign non-Governmental organizations permitted to operate pursuant to the law of Vietnam

1. Any foreigner working in Vietnam pursuant to sub-clause (e) of article 1.1 of this Decree must satisfy all the conditions stipulated in article 3 of this Decree.

2. Foreigners shall be responsible to research and fully comply with the provisions of the law of Vietnam on the rights and obligations of foreigners in Vietnam.

3. Foreigners must prepare all the documents stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article 4.2 of this Decree.

4. The representative of the foreign non-Governmental organization permitted to operate pursuant to the law of Vietnam shall conduct procedures requesting issuance of a work permit for a foreigner to work in Vietnam pursuant to this Decree, prior to such foreigner coming to Vietnam to work.

Article 9.- Issuance of work permits

1. Any foreigner working in Vietnam must have a work permit, except in the following cases:

a/ A foreigner entering Vietnam to work for a period of less than three (3) months.

b/ A foreigner who is a member of a limited liability company with two or more members.

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d/ A foreigner who is a member of the board of management of a shareholding company,

dd/ A foreigner entering Vietnam to offer services.

e/ A foreigner entering Vietnam to work to resolve an emergency situation such as a breakdown or a technically or technologically complex situation arising and affecting, or with the risk of affecting, production [and/or] business and which Vietnamese experts or foreign experts currently in Vietnam are unable to deal with, [but] if for above three months then after working for three months in Vietnam the foreigner must carry out procedures to register for issuance of a work permit in accordance with this Decree.

g/ A foreign lawyer to whom the Ministry of Justice has issued a certificate to practise law in Vietnam in accordance with law.

2. Departments of Labour of provinces and cities under central authority shall issue work permits for foreigners to work in Vietnam on the standard form prescribed by the Ministry of Labour.

3. An application file for the issuance of a work permit shall comprise:

a/ Letter from the employer, Vietnamese party or representative of the foreign non-Governmental organization requesting issuance of a work permit, on the standard form prescribed by the Ministry of Labour.

b/ Foreigners recruited pursuant to a labour contract must have all the documents stipulated in sub-clauses (a), (b), (c). (d), (dd) and (e) of article 4.2 of this Decree.

c/ Foreigners transferring internally within an enterprise must have all the documents stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article 4.2 of this Decree and they must also have a written letter from the foreign enterprise appointing them to come to Vietnam to work at the commercial presence of such foreign enterprise within the territory of Vietnam.

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dd/ Foreigners prescribed in sub-clause (e) of article 1.1 of this Decree must have all the documents stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article 4.2 and they must have a certificate proving that the foreign non-Governmental organization is permitted to operate in accordance with the law of Vietnam.

4. Work permit shall be issued for the same duration as the term of the proposed labour contract to be signed or as set out in the decision of the foreign party on appointment to come to work in Vietnam. In the case of a foreigner entering Vietnam to work other than pursuant to a labour contract, then a work permit shall be issued for the same duration as the term of the contract between the Vietnamese party and the foreign party. In the case of a foreigner who will act as representative of a foreign non-Governmental organization, a work permit shall be issued for the same duration as the term specified in the certificate proving that the foreign non-Governmental organization is permitted to operate in accordance with the law of Vietnam.

The duration of a work permit in any of the above-mentioned cases shall be a maximum thirty six (36) months.

5. Order for issuance of work permits:

a/ The employer, the Vietnamese party or the representative of the foreign non-Governmental organization must lodge the application file requesting issuance of a work permit with the local Department of Labour where the foreigner will work on a regular basis, or if the foreigner will not always work in the same one place then with the local Department of Labour where the employer has its head office, at least twenty (20) days prior to the date on which it is proposed that the foreigner will commence working at the enterprise, body or organization in Vietnam.

b/ The Department of Labour shall issue the work permit for the foreigner within a time-limit of fifteen (15) working days from the date of receipt of a complete and valid application file In a case of a refusal, the Department shall provide a written response specifying its reasons.

c/ In the case of a foreigner who has been issued with a work permit which is currently valid and who wishes to sign another labour contract with another employer, then the application file must contain all the documents stipulated in sub-clauses (a) and (dd) of article 4.2 and in article 9.3(a). together with a copy of the currently valid work permit.

6. With respect to foreigners entering Vietnam who do not require a work permit as prescribed in clause 1 of this article, the employer or Vietnamese party must provide a report to the local Department of Labour (where the foreigner will work on a regular basis) seven (7) days prior to the date on which the foreign employees will commence work, namely a spreadsheet stating the names, age, nationality and passport numbers of the foreign employees, their dates of commencing and finishing work, and the work to be undertaken; and must enclose the documents of the foreigners prescribed in sub-clauses (b), (c), (d) and (dd) of article 4.2. and must also ensure satisfaction of the conditions stipulated in clauses 1 to 4 inclusive of article 3 of this Decree. In the case of foreigners prescribed in sub-clause (e) of clause 1 of this article, the spreadsheet with the list of foreign employees must be provided to the Department of Labour within a time- limit of thirty (30) days after the date on which such employees commenced working.

Article 10.- Extension of work permits

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a/ When an employer has a plan and is currently training a Vietnamese worker(s) to replace the foreign employee in the work the latter currently does, but a Vietnamese worker is not yet able to be substituted and the foreigner concerned has not been disciplined pursuant to the provisions in article 84.1(b) or (c) of the Labour Code (Amended).

b/ In the case of foreigners entering Vietnam to work as prescribed in sub-clauses (c) and (d) of article 1.1 of this Decree and the time required for such work exceeds thirty six (36) months.

2. An application file for extension of a work permit shall comprise:

a/ In the case of a foreigner working pursuant to a labour contract:

- Request for extension of the work permit on the standard form prescribed by the Ministry of Labour, specifying the reason why it has not been possible to train a Vietnamese worker to replace the foreign employee, the names of the Vietnamese workers who have been trained and who are currently being trained, the costs of the training, the duration of the training, and the location of the training to replace the foreign employee;

- Copy labour contract (certified by the employer);

- Work permit already issued.

b/ In the case of a foreigner working in a form prescribed in sub-clauses (c) or (d) of article 1.1 of this Decree:

- Request by the Vietnamese party for extension of the work permit on the standard form prescribed by the Ministry of Labour;

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- Work permit already issued.

3. Duration of an extension of a work permit:

The duration of an extension of a work permit shall depend on the additional period for which the foreign employee will continue to work for the employer as stipulated in the labour contract or in the letter of the foreign party appointing the foreign employee to work in Vietnam, or [the term of] the contract between the Vietnamese party and the foreign party.

The maximum duration of each extension shall be thirty six (36) months.

4. Order for extension of a work permit:

a/ The employer or the Vietnamese party must lodge the application file for extension of the work permit with the Department of Labour which issued such work permit, at least thirty (30) days prior to the date of expiry of the work permit.

b/ The Department of Labour shall extend a work permit for a foreigner within a time-limit of fifteen (15) working days from the date of receipt of a complete and valid application file. In a case of refusal, the Department shall provide a written response specifying its reasons.

Article 11.- Re-issuance of work permits [which are lost or damaged]

1. A work permit may be re-issued in the following cases:

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b/ The work permit was damaged.

2. The application file for re-issuance of a work permit shall comprise:

a/ Request for re-issuance of the work permit from the foreigner on the standard form prescribed by the Ministry of Labour, explaining how the work permit was lost or damaged.

b./ Request from the employer, the Vietnamese party or the representative of the foreign non-Governmental organization for re-issuance of the work permit.

c/ The work permit, in a case where the work permit was damaged.

3. The contents of any re-issued work permit must be correct in terms of [similar to] the contents in the previously issued work permit.

4. Order for re-issuance of a work permit:

a/ An employee must notify his or her employer, or the Vietnamese party, or the representative of the foreign non-Governmental organization that the work permit was lost or damaged within at least three (3) days of discovering same, in order for the employer, Vietnamese party or such representative to in turn notify the Department of Labour which issued the work permit. The employer, Vietnamese party or such representative must lodge an application filed for reissuance of the work permit with the Department of Labour which issued such work permit, within at least thirty (30) days after the date the work permit was lost or damaged.

b/ The Department of Labour shall re-issue a work permit within a time-limit of fifteen (15) working days from the date of receipt of a complete and valid application file. In a case of refusal, the Department shall provide a written response specifying its reasons.

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1. The work permit expires.

2. The labour contract is terminated.

3. The contents of the labour contract are inconsistent with the contents of the issued work permit.

4. The economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational or medical health contract is terminated.

5. There is notice from the foreign party terminating the appointment of the foreign employee to work in Vietnam.

6. The authorized State body withdraws the work permit for a breach of the law of Vietnam.

7. The enterprise, organization, Vietnamese party or foreign non-Governmental organization in Vietnam terminates its operation.

8. The foreigner is sentenced to prison, dies, or is proclaimed missing by a court.

Article 13.- Use of work permits

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2. Foreigners shall present their work permits when conducting procedures for entry and exit, and on request by a competent State body.

3. If a foreigner goes to work for a period of ten (10) or more consecutive days or for a total of thirty (30) accumulated days within any one year in a province or city under central authority other than the province or city in which the foreigner works on a regular basis, then the employer, the Vietnamese party or the representative of the foreign non-Governmental organization must provide written notice about the foreigner going to work in such location, enclosing a copy of the issued work permit, to the Department of Labour in the place where the foreigner will work, in accordance with regulations of the Ministry of Labour.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 14.- Inspections and dealing with breaches

1. Ministries, ministerial equivalent bodies, Government bodies and people's committees at all levels shall be responsible to check and inspect implementation of the provisions of the Labour Code and of this Decree.

2. Any employer or individual breaching any provision of the Labour Code, this Decree or any other relevant law shall, depending on the nature and seriousness of the breach, be subject to an administrative penalty or criminal prosecution in accordance with the law of Vietnam.

3. Foreigners currently working in Vietnam and who have not yet obtained a work permit must carry out procedures to apply for issuance of a work permit in accordance with this Decree. If after six (6) months working in Vietnam a foreign employee still does not have a work permit, the Department of Labour shall propose that the Minister of Public Security issue a decision on deportation from Vietnam in accordance with law.

Article 15.- Responsibilities of the Ministry of Labour:

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To provide guidelines on implementation of this Decree.

Article 16.- Responsibilities of the Ministry of Health:

To provide guidelines on the prescribed standard form, contents of and issuing body for health certificates, and on the use duration of health certificates for foreigners to work in Vietnam.

Article 17.- Responsibilities of people's councils of provinces and cities under central authority:

To issue decisions on collection of fees for issuance of work permits for foreigners to work in Vietnam in accordance with the law on fees and charges

Article 18.- Responsibilities of Departments of Labour:

1. To receive and archive application files for the issuance, extension and re-issuance of work permits.

2. To issue, extend and re-issue work permits in accordance with the provisions of this Decree.

3. To monitor, collate and provide reports on the status of foreign employees working in enterprises, bodies and organizations within their localities.

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Article 19.- Responsibilities of employers and Vietnamese parties:

1. To correctly implement the labour law of Vietnam and the provisions of other relevant laws of Vietnam.

2. To carry out procedures to apply for issuance, extension and re-issuance of work permits for foreigners to work in Vietnam and to pay the fees for issuance of work permits in accordance with law.

3. To fully perform labour contracts signed with foreigners working in Vietnam.

4. To administer application files for registration to recruit foreigners to work in Vietnam, and to supplement documentation relevant to foreigners working in Vietnam.

5. To administer foreigners working in enterprises or organizations.

6. To report on the status of employment of foreigners working in Vietnam in accordance with regulations of the Ministry of Labour.

Chapter IV

IMPLEMENTING PROVISIONS

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1. Foreigners in Vietnam comprising students, spouses, assistants2 and foreigners not within the definition in article 1.1 of this Decree who wish to work for an enterprise, organization or individual in Vietnam shall not be required to complete an application file and conduct procedures for issuance of a work permit. The enterprise, organization or individual employing such foreigners must provide a report, in accordance with regulations of the Ministry of Labour, to the local Department of Labour where the foreigner will work on a regular basis, seven (7) days prior to the date on which the foreign employees will commence work, namely a spreadsheet stating the names, age, nationality and passport numbers of the foreign employees, their dates of commencing and finishing work, and the work to be undertaken

2. This Decree shall be of full force and effect after fifteen (15) days from the date of its publication in the Official Gazette.

This Decree shall replace Decree 105-2003-ND-CP of the Government dated 17 September 2003 with regulations on implementation of the Labour Code with respect to employment and administration of foreign employees working in Vietnam; and Decree 93-2005-ND-CP of the Government dated 13 July 2005 amending Decree 105-2003-ND-CP. Any provisions contrary to this Decree are also hereby repealed.

In the case of foreign employees who have been issued with work permits which are currently valid up until the date on which this Decree takes effect, such work permits shall remain valid and need not be exchanged for new work permits.

Article 21.- Responsibility for implementation

1. The Ministry of Labour shall provide guidelines for implementation of this Decree.

2. Ministers, heads of ministerial equivalent bodies, heads of Government bodies and chairmen of people's committees of provinces and cities under central authority shall be responsible for implementation of this Decree.

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