the Supreme People's Court Research Office
Interpretation of the reply on the applicable legal issues in the case of Wang's labor dispute with a company
Fa Yan [2111] No.31 on March 9, 2111
Gansu Higher People's Court:
Your Institute (2111) Gan Min Shen Zi No.416 "On the labor dispute between Wang and a company" After research, the reply is as follows:
I agree with the first opinion of the Audit Committee of your hospital in principle, that is, according to the relevant provisions of the Labor Law of the People's Republic of China and the Provisional Regulations on the Collection and Payment of Social Insurance Fees, the collection and payment of social insurance fees belongs to the legal responsibility of the social insurance fee collection department and does not belong to the scope of civil cases accepted by the people's courts. In addition, it is suggested that your hospital can issue judicial advice to the relevant social insurance premium collection department in combination with this case, and suggest that it strengthen investigation and study on the insurance premium collection problems involved in the current dispute between employers and workers due to social insurance, properly handle similar problems, and protect the legitimate rights and interests of the parties concerned according to law.
this reply.
Interpretation of the Supreme People's Court Research Office's Reply on Applicable Legal Issues in the Case of Wang's Labor Dispute Dispute with a Company
In October, 2111, Gansu Provincial Higher People's Court asked the Supreme People's Court Research Office whether the people's court should accept the case of unpaid social insurance premiums [Gansu Provincial Higher People's Court's Request on the Case of Wang's Labor Dispute with a Company's Application for Retrial] ([2111] Gan Min Shen Zi No.416), hereinafter referred to as. After careful study and consulting the opinions of relevant departments in the Supreme People's Court, the Supreme People's Court Research Office made the Reply of the Supreme People's Court Research Office on Applicable Legal Issues in the Case of Wang's Application for Retrial of Labor Disputes with a Company on March 9, 2111 (Fa Yan [2111] No.31, hereinafter referred to as the Reply). The origin, relevant considerations and interpretation of the questions involved in the Reply are as follows:
1. Origin of the question
In the case of labor dispute between Wang and Lanzhou Branch of China XXX Co., Ltd. (hereinafter referred to as a company), Wang was originally an employee of a company, but he never went through the pension formalities. In February and October of 2115, a company paid a pension subsidy to Wang in September and October of the same year. On April 31, 2116, both parties signed an agreement to terminate the labor contract. On May 1 of the same year, a company signed a labor dispatch agreement with Gansu Longxing Labor Dispatch Service Center (hereinafter referred to as Labor Center). The labor service center signed a labor contract with Wang and sent him to work in a company. On October 9, 2118, Wang resigned, and on October 27 of the same year, the labor service center made a notice to terminate the labor relationship. Wang filed a complaint with the Lanzhou Labor Dispute Arbitration Commission that month. The arbitration award made by the Arbitration Commission on March 9, 2119 only supported Wang's request for the labor center to reissue the old-age insurance premium procedures and pay unemployment insurance benefits and medical subsidies from April 2116 to October 2118. Wang refused to accept the request and sued. The People's Court of Chengguan District, Lanzhou City held that Wang should have known that his rights had been infringed when he signed the labor contract in April 2116, but it was beyond the limitation of action to apply for arbitration in October 2118. Moreover, according to Article 26 of the Provisional Regulations on the Collection and Payment of Social Insurance Fees, if the payer refuses to pay social insurance premiums or late fees within the time limit, the administrative department of labor security or the tax authorities shall apply to the people's court for compulsory collection according to law. The recovery of social insurance is the responsibility of the administrative department of social insurance, not the scope of civil cases accepted by the people's court. The parties can apply to the administrative department of social insurance for handling, so the judgment rejected Wang's claim. Wang refused to accept the judgment of the first instance and appealed. Lanzhou Intermediate People's Court rejected the appeal and upheld the original judgment. Since then, Wang has applied to the Higher People's Court of Gansu Province for retrial. The Higher People's Court of Gansu Province, in the process of reviewing the retrial application of this case, after discussion by the judicial committee of the court, still had differences on the application of relevant laws in the case, so it asked the Supreme People's Court for instructions.
II. Main Controversy Issues
The main legal issue involved in this case is whether the people's court should accept the case of unpaid social insurance premiums; There has always been controversy in theory and practice, and there are mainly two opinions as follows:
The first opinion is that such cases do not belong to the scope of civil cases accepted by the people's courts. According to the relevant provisions of Article 111 of the Labor Law and Article 26 of the Provisional Regulations on the Collection and Payment of Social Insurance Fees, it is the responsibility of the collection and payment department of social insurance fees to recover social insurance fees, and this problem is a problem arising in the enterprise restructuring in the social transformation stage, involving a wide range and being complicated, and it is difficult for the people's courts to deal with such problems. This is a tendentious opinion.
the second opinion is that the people's court should accept this according to law. The reasons are as follows: (1) According to Articles 2, 5, 47 and 48 of the Labor Dispute Mediation and Arbitration Law, workers can apply to the Labor Dispute Arbitration Committee for arbitration for labor disputes arising from social insurance; If he refuses to accept the arbitration award, he has the right to bring a lawsuit to the people's court. Therefore, the people's court should accept this lawsuit. The dispute that the laborer asks the employer to pay the social insurance premium belongs to the category of labor disputes arising from social insurance. After applying for arbitration, the laborer refuses to accept the arbitration award and brings a lawsuit in the people's court within the statutory time limit, and the people's court shall accept it. Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (No.14 [2111] of the Law) clearly stipulates: "The following disputes between workers and employers belong to the labor disputes stipulated in Article 2 of the Labor Law, and the parties refuse to accept the ruling made by the Labor Dispute Arbitration Committee and bring a lawsuit to the people's court according to law. The people's court shall accept the following: (1) Disputes between the employee and the employer during the performance of the labor contract ... "No matter whether the employee requests the employer to pay the social insurance premium during the performance of the labor contract or after the termination, it cannot change the fact that the employer's failure to pay the social insurance premium occurred during the performance of the labor contract between the employee and the employer, and the people's court shall accept the disputes arising therefrom, if the parties refuse to accept the arbitration award and bring a lawsuit to the people's court according to law. According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (Fa Shi [2111] No.12), the people's court shall accept any dispute arising from the fact that the employer fails to go through the social insurance formalities for the employee and the social insurance agency can't make up for it, which makes him unable to enjoy the social insurance benefits. It can be seen that the people's court should accept the case of unpaid insurance premiums. (2) Although the Labor Law and the Provisional Regulations on the Collection and Payment of Social Insurance Fees give the labor administrative department the authority to order employers who fail to pay social insurance fees without reason to pay within a time limit, this is only the basis for administrative law enforcement, and the regulations at this level do not have the normative effect on the matters in charge of civil litigation in the people's courts; The provision of Article 111 of the Labor Law is an administrative way to deal with employers' failure to pay social insurance premiums for no reason, and it is a basis for administrative law enforcement. It should not be the norm to exclude individuals from seeking civil judicial relief for social insurance premiums, and it should not be the basis to exclude people's courts from taking charge of private rights relief. According to the traditional theory of jurisdiction, the court obtains jurisdiction according to its nature and purpose, and no institution can deprive it in any form, the administrative organ can not exclude it by itself, and the court can not refuse the judgment duty by itself. (3) In the case of unpaid insurance premiums, whether there is a contractual relationship between the parties involved, the effectiveness of the labor contract, whether it exceeds the limitation of action and other issues need to be confirmed by the court.
II. Answers and reasons
After careful study and soliciting the opinions of relevant departments in the Supreme People's Court, the Supreme People's Court Research Office believes that according to the relevant provisions of the Labor Law of the People's Republic of China and the Provisional Regulations on the Collection and Payment of Social Insurance Fees, the collection and payment of social insurance fees belongs to the statutory duty of the social insurance fee collection department and does not belong to the scope of civil cases accepted by the people's courts. In addition, it is suggested that the Higher People's Court of Gansu Province can issue judicial suggestions to the relevant social insurance premium collection departments in combination with this case, suggesting that it should strengthen investigation and study on the insurance premium collection issues involved in the current dispute between employers and workers due to social insurance, properly handle similar problems, and protect the legitimate rights and interests of the parties concerned according to law.
The reason why the cases involved in the Request for Instructions should not fall within the scope of accepting civil cases by the people's courts is mainly based on the following considerations:
1. Article 111 of the Labor Law stipulates: "If the employer fails to pay social insurance premiums without reason, the labor administrative department shall order it to pay within a time limit; If you fail to pay within the time limit, you can add a late fee. " Article 26 of the Provisional Regulations on the Collection and Payment of Social Insurance Fees also stipulates: "If the payer refuses to pay social insurance premiums and late fees within the time limit, the administrative department of labor security or the tax authorities shall apply to the people's court for compulsory collection according to law." It can be seen that the recovery of social insurance premiums is the authority of the above-mentioned administrative organs, and the above-mentioned laws and regulations clearly stipulate this. When the social insurance administrative department exercises the above-mentioned functions and powers according to law, it is natural to conduct necessary review on the relevant labor contracts and their effectiveness. Workers can seek relief for the administrative decisions or administrative inaction of the above-mentioned organs through administrative reconsideration and administrative litigation, rather than through civil litigation.
2. Under the background of profound changes in China's current labor and employment system, the disputes between workers and employers caused by social insurance are increasing day by day, involving deep-seated reasons such as enterprise restructuring, and the influence is wide and increasingly complex. In order to adjust the acceptance of social insurance-related disputes by people's courts in different periods and unify the scope of filing, the Supreme People's Court has issued three judicial interpretations on the handling of labor disputes since 2111, and made corresponding provisions. According to the provisions of the relevant judicial interpretation, the dispute over the laborer's request to the employer to pay the social insurance premium is not within the scope of the people's court to accept civil cases. Under the premise that the law clearly stipulates that this is the responsibility of the labor administrative department, the people's court should not overstep its responsibilities.
3. Article 1 of the Interpretation of the Supreme People's Court on the Problems of Applicable Laws in the Trial of Labor Dispute Cases (No.12 [2111] of the Law) stipulates: "The people's court shall accept any dispute arising from the fact that the employer fails to go through the social insurance formalities for the employee and the social insurance agency fails to make up for it, which makes him unable to enjoy the social insurance benefits." Judging from the literal meaning of the above provisions, it is also obvious that it cannot include the situation that workers require employers to pay social insurance premiums. According to the content of this judicial interpretation, the laborer claims the liability for damages from the employer under the condition of meeting the above provisions, rather than asking the employer to pay the social insurance premium.
4. Article 7 of the Civil Procedure Law stipulates: "In trying civil cases, the people's courts must be based on facts and take the law as the criterion." In the case that there is no legal basis for the people's court to accept the case, even if there is no big dispute between the two parties on the arbitration result, the court of first instance has handled the case appropriately. Moreover, on the premise that the result of the arbitration award at the beginning of this case is relatively fair, this party should apply to the social insurance department for compulsory recovery of the insurance premium owed by the employer.
5. Considering that judicial advice is an important duty entrusted to the people's court by law, it is an important way for the people's court to strengthen and innovate social management, and adhere to active justice, serve the overall situation and serve the people. Over the years, the people's courts have attached great importance to judicial advice. While paying close attention to the top priority of law enforcement and handling cases, they have closely focused on the overall situation of economic and social development, attached great importance to problems involving reform, development, stability and people's livelihood encountered in trial work, and timely put forward many opinions and suggestions to the party Committee, government and relevant departments to solve these problems. Practice has proved that the judicial suggestions put forward by the people's courts are strengthening social management; It has played an important role in maintaining social harmony and stability and promoting the development of economic and social sciences, and achieved good legal and social effects. At the same time, with the deepening of reform and opening up, under the new situation of interaction between international and domestic factors, opportunities and challenges, the causes of social contradictions are more complicated, the difficulty of resolving social contradictions is further increased, and the task of social management is more arduous. The new situation puts forward higher requirements for the judicial advice work of the people's courts. Based on the comprehensive consideration of the active role of judicial suggestions in the current social management innovation work and the specific cases involved in the Request for Instructions, and in the spirit of giving full play to the judicial active role of the people's courts, it is suggested that the Higher People's Court of Gansu Province issue judicial suggestions to the relevant social insurance premium collection departments, and suggest that the departments handle such cases according to law and recover the insurance premiums owed from the employing units.