Comment on the labor dispute case between Wang and a company
Interpretation of "Reply on the Application of Law in Retrial Cases"
20 1 1 No.31[201] on March 9,.
Gansu Provincial Higher People's Court:
Your request for instructions on applying for retrial of a labor dispute between Wang and a company (20 10) has been received. After study, the reply is as follows:
I agree in principle with the first opinion of the Audit Committee of your hospital, that is, according to the relevant provisions of the Labor Law of People's Republic of China (PRC) 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 duties of the collection and payment department of social insurance fees and does not belong to the scope of accepting civil cases by the people's courts. In addition, it is suggested that your hospital can send judicial advice to the relevant social insurance premium collection department in combination with this case, suggesting that it strengthen investigation and study on the insurance premium collection issues involved in the current disputes between employers and workers caused by social insurance, properly handle similar problems, and protect the legitimate rights and interests of the parties according to law.
This reply.
Interpretation of the Supreme People's Court Research Office's Reply on the Application of Law in Wang's Application for Retrial of a Labor Dispute with a Company
20 10 10 Gansu provincial higher people's court asked the the Supreme People's Court research office for instructions on whether the people's court accepted the case of unpaid social insurance premiums [Gansu provincial higher people's court's request for instructions on the case of Wang and a company's labor dispute applying for retrial ([20 10] Gan Zi No.416, hereinafter referred to as "request"). After careful study and soliciting 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 and a Company's Labor Dispute Application for Retrial on March 9, 20 1 1, hereinafter referred to as "Fa Yan [201] No.31". The origin, relevant considerations and explanations of the questions involved in the reply are as follows:
I. The root of the problem
In the case of labor dispute between Wang and Lanzhou Branch of China XXX Co., Ltd. (hereinafter referred to as a company), Wang was an employee of a company, but he never went through the formalities of receiving pension. During the period of 1 1 and 12 in 2005, a company paid old-age allowance to Wang in September and June of the same year. On April 30, 2006, 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, 2008/kloc-0, Wang resigned, and on October 27, 2008/kloc-0, the labor service center issued a notice to terminate the labor relationship. In the same month, Wang lodged a complaint with Lanzhou Labor Dispute Arbitration Commission. The arbitration award made by the Arbitration Commission on March 9, 2009 only supported Wang's request for the labor center to go through the formalities for the old-age insurance premium and pay the unemployment insurance premium and medical subsidy from April 2006 to June 2008. Wang refused to accept and filed a lawsuit. The People's Court of Chengguan District of Lanzhou City held through trial that when Wang signed the labor contract in April 2006, he should have known that his rights had been infringed, but he applied for arbitration in June 5438+ 10, 2008, which exceeded the limitation of action. 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 fees 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. Recovering social insurance money is the responsibility of the social insurance administrative department, not the scope of accepting civil cases by the people's courts. The parties can apply to the social insurance administrative department 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. After that, Wang applied to the Higher People's Court of Gansu Province for retrial. In the process of reviewing the application for retrial of this case, the Higher People's Court of Gansu Province, after discussion by the judicial committee of the court, still had differences on the application of relevant laws in this case, so it asked the Supreme People's Court for instructions.
Second, the main controversial issues
The main legal issue involved in this case is whether the people's court should accept the case of unpaid social insurance premiums; This has been controversial in theory and practice, and there are two main viewpoints:
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 100 of the Labor Law and Article 26 of the Provisional Regulations on the Collection and Payment of Social Insurance Premium, it is the responsibility of the social insurance premium collection department to recover social insurance premium, which is a problem in the enterprise restructuring during the social transformation period, involving a wide range and complicated situations, 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 it 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 may apply to the Labor Dispute Arbitration Committee for arbitration in case of 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 workers require employers to pay social insurance premiums belongs to the category of labor disputes arising from social insurance. If a laborer refuses to accept the arbitration award after applying for arbitration and brings a lawsuit in a people's court within the statutory time limit, the people's court shall accept it. Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (No.2001]14) clearly stipulates: "The following disputes between workers and employers belong to the labor disputes stipulated in Article 2 of the Labor Law, and if the parties refuse to accept the ruling made by the Labor Dispute Arbitration Commission and bring a lawsuit to the people's court according to law, The people's court shall accept: (1) Disputes arising from the performance of the labor contract between the employee and the employer ... "No matter whether the employee requests the employer to pay social insurance premiums during the performance of the labor contract or after the termination, it cannot change the fact that the employee and the employer failed to pay social insurance premiums during the performance of the labor contract, and the resulting dispute, if the parties refuse to accept the arbitration award and bring a lawsuit to the people's court according to law, the people's court shall accept it. According to the provisions of 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 ZiNo. 10), the people's court shall accept the disputes arising from the failure of the employer to handle social insurance procedures for the workers and the failure of the social insurance agency to make up for them. It can be seen that the people's court should accept cases of unpaid insurance premiums. (2) Although "Labor Law" and "Provisional Regulations on Collection and Payment of Social Insurance Fees" give the labor administrative department the authority to order employers who fail to pay social insurance fees for no reason to pay within a time limit, this is only the basis of administrative law enforcement, and the provisions at this level have no normative effect on the matters in charge of civil litigation of the people's courts; Article 100 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, nor should it be the basis for excluding people's courts from taking charge of private rights relief. The traditional theory of jurisdiction holds that the court obtains jurisdiction according to its nature and purpose, and no institution may deprive it in any form, and the administrative organ may not exclude it by itself, and the court may not refuse to perform its adjudication obligations by itself. (3) If the insurance premium has not been paid, whether there is a contractual relationship between the parties, the effectiveness of the labor contract, and whether it exceeds the limitation of action need to be confirmed by the court.
Second, the reply and its reasons
After careful study and soliciting opinions from 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 People's Republic of China (PRC) 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 duties of the collection and payment department of social insurance fees and does not belong to the scope of accepting civil cases 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, and it is suggested to strengthen investigation and study on the insurance premium collection issues involved in the current disputes between employers and workers caused by social insurance, properly handle similar problems, and protect the legitimate rights and interests of the parties according to law.
The reasons why the cases involved in asking for instructions do not fall within the scope of accepting civil cases by the people's courts are mainly based on the following considerations:
1. Article 100 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 it is overdue, 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 from the administrative decisions or administrative omissions 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, disputes between workers and employers caused by social insurance are increasing, involving deep-seated reasons such as enterprise restructuring, with wide influence and increasing complexity. In order to adjust the acceptance of social insurance-related disputes by people's courts in different periods and unify the scope of filing cases, the Supreme People's Court has issued three judicial interpretations on handling labor dispute cases since 10, and made corresponding provisions. According to the provisions of relevant judicial interpretations, the dispute that the laborer requests the employer to pay social insurance premiums does not belong to the scope of accepting civil cases by the people's court. Under the premise that the law clearly stipulates that this is the responsibility of the labor administrative department, the people's court should not exceed its authority.
3. Article 1 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Labor Dispute Cases (No.3) stipulates: "The people's court shall accept disputes arising from the employer's failure to go through social insurance procedures for the workers and the social insurance agency's failure to make up for them, resulting in their inability to enjoy 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 the 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 social insurance premiums.
Article 7 of the Civil Procedure Law stipulates: "In trying civil cases, the people's courts must take facts as the basis and the law as the criterion." In the case that the people's court has no legal basis 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 properly handled it. Moreover, on the premise that the preliminary result of this case is relatively fair, we should apply to the social insurance department for compulsory recovery of the insurance premium owed by the employer.
5. Considering that judicial consultation 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, 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 closely focused on the overall situation of economic and social development, attached great importance to the problems encountered in the trial involving reform, development and stability of people's livelihood, 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 advice put forward by the people's court is to strengthen 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 the interaction of 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 consultation work of the people's courts. Based on the positive role of judicial advice in the current social management innovation and the comprehensive consideration of the specific cases involved in asking for instructions, and in the spirit of giving full play to the positive role of the people's courts, it is suggested that the Higher People's Court of Gansu Province issue judicial advice 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 by employers.