Interpretation of the Regulations on Work-related Injury Insurance: Article 41 [Responsibility of Employers for Work-related Injury Insurance under Several Special Situations]

Interpretation of the Regulations on Work-related Injury Insurance: Article 41 The employer's responsibility for work-related injury insurance under several special circumstances.

Article 41? Where the employing unit is divided, merged or transferred, the successor unit shall bear the industrial injury insurance liability of the original employing unit; If the original employer has participated in work-related injury insurance, the successor unit shall go to the local agency to register the change of work-related injury insurance.

Where the employing unit conducts contracted operation, the responsibility for work-related injury insurance shall be borne by the unit where the employee's labor relations are located.

If an employee is injured by an industrial accident during the secondment period, the original employer shall bear the responsibility of industrial injury insurance, but the original employer and the secondment unit may agree on compensation measures.

Where an enterprise goes bankrupt, during the period of bankruptcy liquidation, priority should be given to the industrial injury insurance benefits that the unit should pay according to law.

Explain that this article is about the work-related injury insurance liability of the unit under several special circumstances.

1. Division, merger and transfer of units.

Division and merger are changes in the organizational structure of employers. The division of the employing unit means that one unit is divided into two or more units; Merger refers to the merger of two or more units into one unit or the merger of one unit with another or more units.

The separation and merger of employers need to solve various problems, among which the protection of workers' industrial injury insurance rights and interests must be properly solved. In other words, it is an important condition to successfully realize the division and merger of employers, properly arrange workers and safeguard the rights and interests of workers' industrial injury insurance. Paragraph 2 of Article 44 of the General Principles of the Civil Law stipulates that the rights and obligations of an enterprise after division or merger shall be enjoyed and assumed by the changed legal person. For unincorporated enterprise organizations, the Law on Solely Owned Enterprises and other laws also stipulate that the rights and obligations of the original enterprise shall be enjoyed and assumed by the separated or merged enterprise. On the basis of these laws, article 1 of this article stipulates that: if the employing unit is divided, merged or transferred, the successor unit shall bear the industrial injury insurance responsibility of the original employing unit; If the original employer has participated in work-related injury insurance, the successor unit shall go to the local agency to register the change of work-related injury insurance. When the employing unit is divided or merged, it shall reach an agreement on the issue that the original unit shall bear the employee's work-related injury insurance according to the regulations, and bear or bear the responsibility of the original unit's work-related injury insurance respectively, and shall not blindly push the employees to the society and affect social stability. If the original employer has participated in work-related injury insurance, the successor unit shall go to the local agency to register the change of name and domicile, continue to pay work-related injury insurance premiums for employees, handle work-related injury identification and pay related work-related injury benefits; The original employer did not participate in the work-related injury insurance, and the employees suffered work-related injuries. The successor unit shall pay the expenses according to the treatment items and standards of work-related injury insurance stipulated in the Regulations.

Inheritance of rights and obligations does not mean invariance. In the relationship between inheritance and change, inheritance is the premise, and change is the change carried out according to law under the premise of inheritance. For example, after the separation and merger of enterprises, the objective situation has changed after all, and it is necessary to regroup institutions and personnel. Therefore, Article 13 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC) stipulates that after the separation and merger of the employing units, the separated and merged employing units may, according to the actual situation and in accordance with the principle of equality, voluntariness and consensus, change the labor contract with the employees of the original employing units. If both parties re-determine the wages of employees in the labor contract, the amount of work-related injury insurance benefits for employees will change accordingly. It should be noted that in this process, the adjustment of rights and obligations of both parties shall not violate the provisions of laws and regulations, and one party shall not take the opportunity to damage the legal rights of the other party.

2. Unit contracting.

Contract management is a kind of management mode in the process of enterprise reform. It is a management system that determines the relationship between the owner and the enterprise in the form of contract, and promotes the enterprise to operate independently and be responsible for its own profits and losses on the principle of separation of ownership and management rights. According to1Provisional Regulations on the Responsibility System for Contracted Operation of Industrial Enterprises Owned by the Whole People issued by the State Council on February 27th, 988 and1Provisions on the Responsibility System for Contracted Operation of Township Enterprises issued by the Ministry of Agriculture on April 3rd, 990, the contracted operation system should be implemented by public bidding, and the enterprise operators or business groups should be determined through competition. The bidders can be internal employees (commonly known as internal contractors). It can also be an external individual, management group or enterprise legal person (commonly known as outsourcing). After winning the bid, the management group or enterprise legal person shall determine the operator of the enterprise, and the contractor shall have the right to determine the internal organization and staffing of the enterprise, and recruit and dismiss employees according to law. If the employees in the enterprise are contracted, the labor relations of the employees are clear in the enterprise, and the responsibility of the employees' work-related injury insurance shall be borne by the enterprise; In the case of outsourcing, the employee's labor relationship may not be in the enterprise, but in the management group or enterprise legal person that won the bid, so the employee's industrial injury insurance liability will be borne by the management group or enterprise legal person that won the bid.

3. Employees are seconded.

1996 The Trial Measures for Industrial Injury Insurance for Umbrella Workers issued by the former Ministry of Labor (No.266 issued by the Ministry of Labor [1996]) stipulates that if an industrial accident occurs during secondment, the seconded unit shall bear the responsibility for industrial injury insurance. The regulations change this to the responsibility of the original unit, mainly based on the following considerations: (1) The labor relations of the seconded employees are in the original employer, and the original employer should naturally bear the responsibility of paying work-related injury insurance premiums; (2) The files related to work-related injury insurance, such as the wages and resumes of seconded employees, are generally kept by the original employer and are not transferred between seconded units. Seconded units are not clear about seconded employees. When there is a dispute between the two parties, it is not conducive to the parties to provide evidence, nor is it conducive to investigation and evidence collection and timely handling of disputes. In order to better protect the rights and interests of employees' work-related injury insurance, and for the sake of fairness, this article also stipulates that the original employer may reach an agreement with the borrower on the work-related injury insurance for seconded employees before or after secondment, and when the original employer assumes the responsibility of the work-related injury insurance for seconded employees, it may compensate the borrower as agreed.

4. Enterprise goes bankrupt.

Bankruptcy refers to a legal system in which an enterprise as a legal person is declared bankrupt according to the provisions of the Bankruptcy Law, the Civil Procedure Law and other relevant laws, and all its property is fairly repaid to all creditors in the legal liquidation order. The so-called all its property here refers to the bankrupt property, including: (1) all the property managed by the bankrupt enterprise when it is declared bankrupt; (2) Property acquired by the bankrupt from the beginning to the end of the bankruptcy proceedings; (3) Other property rights that should be exercised by the bankrupt; (4) The amount by which the secured property exceeds the secured debt. Since the date when the court declares the enterprise bankrupt, the bankrupt enterprise stops its production and operation, and the court organizes relevant units to set up a liquidation group to take over the bankrupt enterprise and conduct bankruptcy liquidation. The liquidation group is responsible for the custody, cleaning, valuation, disposal and distribution of the bankrupt property of the enterprise. After the liquidation work is completed, the cancellation registration of bankrupt enterprises no longer exists, and the original creditor-debtor relationship with bankrupt enterprises is completely eliminated. The distribution of bankruptcy property is an important step before the end of bankruptcy proceedings. Article 37 of the Enterprise Bankruptcy Law and Article 204 of the General Principles of the Civil Law stipulate that after the bankruptcy expenses are paid first, the bankrupt property shall be paid off in the following order: (1) Wages and labor insurance expenses owed by the bankrupt enterprise. (2) Tax owed by the bankrupt enterprise; (3) Bankruptcy claims. If the bankruptcy property is insufficient to pay off the repayment requirements in the same order, it shall be distributed in proportion. It can be seen that the law gives priority to protecting the social insurance rights and interests of employees of bankrupt enterprises, and the provisions of the fourth paragraph of this article are consistent with those of the law.

Bankrupt enterprises, including those who have participated in industrial injury insurance and those who have not. For bankrupt enterprises that have participated in work-related injury insurance, all kinds of work-related injury insurance benefits should be paid according to regulations, including food subsidies, nursing fees and work-related injury insurance premiums that should be paid on schedule, and paid off in the first order; For bankrupt enterprises that have not participated in industrial injury insurance, except for food subsidies and nursing expenses, other industrial injury insurance benefits stipulated in the regulations shall be paid off by the bankrupt enterprises in advance.