Judicial examination case "Interpretation by Case": The judge teaches you how to defend your rights when you encounter social security disputes.

Judicial examination case "Interpretation by Case": The judge teaches you how to defend your rights when you encounter social security disputes.

By the end of 20 17, 60% of the labor dispute cases accepted by Daxing District Court involved social insurance, including claims for unpaid pension insurance compensation, claims for overdue payment and claims for reimbursement of medical expenses ... How to deal with these claims?

The judge teaches you how to protect your rights when you encounter social security disputes.

Social insurance, as a non-profit social security system that forces most members of society to participate and provides income or compensation for those who have lost their ability to work, are temporarily unemployed or suffer losses due to health reasons, has always been a hot and difficult point in the trial of labor dispute cases because of its strong policy and complicated legal relationship. Recently, the judges of Daxing District Court have interpreted some specific handling rules by sorting out the typical problems of such cases.

Disputes over the payment of social insurance do not fall within the jurisdiction of the court.

Zhang 20 13 joined a property management company. On June 20 16 and 10, due to the company's failure to pay social insurance and frequent arrears of wages, Zhang dissolved the labor relationship with the company, and demanded the company to pay the arrears of wages and economic compensation for the dissolution of the labor relationship through labor arbitration and the court, and at the same time required to pay social insurance premiums from the date of employment.

Both the Arbitration Commission and the court supported Zhang's request to ask the property management company to pay the economic compensation for unpaid wages and termination of labor relations, but his request to pay social security fees was not handled because it did not fall within the scope of accepting labor disputes.

The judge's statement

Article 63 of the Social Insurance Law stipulates that if the employer fails to pay social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay or make up within a time limit. Article 83 stipulates that an employer or individual may apply for administrative reconsideration or bring an administrative lawsuit against the social insurance agency for failing to register social insurance, verify social insurance premiums, pay social insurance benefits, handle social insurance transfer and connection procedures or infringe upon other social insurance rights and interests according to law. Article 84 stipulates that if an employer fails to register for social insurance, the social insurance administrative department shall order it to make corrections within a time limit.

The Provisional Regulations on the Collection and Payment of Social Insurance Fees stipulates that if an employer refuses to pay social insurance premiums and late fees within the time limit, the labor and social security department or the tax authorities shall apply to the court for compulsory payment according to law.

The Measures for Handling Social Insurance Administrative Disputes stipulates that the payment of social insurance benefits or the payment of social insurance benefits is the legal duty of social insurance agencies. If there is a dispute, it should be an administrative case, and the people's court will not treat it as a labor dispute.

To sum up, disputes over the collection and distribution of social insurance do not belong to the scope of accepting labor dispute cases by the people's courts. In the above situation, Zhang should solve the problem of paying social insurance through the labor administrative department.

The agreement between the unit and the employee not to pay social security is invalid.

Wang joined a logistics company on August 20 12, and both parties signed a written agreement, stipulating that Wang would not pay social insurance premiums, with a monthly salary of 4,000 yuan, of which social insurance would compensate 500 yuan.

2065438+June 2007, Wang proposed to terminate the labor relationship on the grounds that the company failed to pay social insurance premiums for him, and asked the company to pay 20,000 yuan of economic compensation for the termination of the labor relationship. The court ruled that the company paid Wang economic compensation for the termination of labor relations 17500 yuan.

The judge's statement

Participating in social insurance and paying social insurance premiums are the legal obligations of employers and workers within the scope of collection, and must be paid in strict accordance with the standards prescribed by law. Employers and workers only have the obligation to participate and pay fees, and have no right to give up.

Therefore, the social insurance premium payable by the laborer shall be withheld and remitted by the employer. The agreement between the employer and the employee that the social insurance premium is included in the salary and not paid to the social insurance agency is invalid. When workers claim economic compensation according to Article 38 of the Labor Contract Law, they should still support it.

However, if the employee requests compensation for the loss of unpaid social insurance premiums, the social insurance premiums that the employer has paid to the employee according to the agreement may be deducted from the compensation amount.

Migrant workers advocate that unpaid pension insurance compensation should be supported as appropriate.

Li, agricultural registered permanent residence, joined a decoration engineering company in September 2007, and the company failed to pay social insurance. On June 20 16, Li proposed to terminate the labor relationship on this ground, and asked the company to pay the unpaid endowment insurance premium of 30,000 yuan and one-time living allowance of 10000 yuan from September 2007 to September 201kloc-0+.

The court ruled that the company paid Li Wei the compensation of 6698.40 yuan for paying the old-age insurance premium, and paid him a one-time living allowance of 1764 yuan for failing to pay the unemployment insurance premium during the above period, supporting his claim for economic compensation for the dissolution of labor relations. Requests for payment of social insurance premiums from 20 1 1 to 20 16 will not be processed.

The judge's statement

Due to the historical reasons of the development of China's social insurance system, there are differences between urban hukou and rural hukou in terms of payment time of social insurance premiums and types of social insurance, which are mainly reflected in labor dispute cases involving disputes over old-age insurance and unemployment insurance.

Before the implementation of the Social Insurance Law, if the employing unit fails to pay the old-age insurance or unemployment insurance for the workers, within the legal age, the employing unit can make up the payment for the workers with urban hukou at the social insurance agency. However, workers with rural hukou cannot make up for it. At this time, the employer can be ordered to compensate the losses of migrant workers in the form of money. The amount of compensation shall be implemented with reference to the Interim Measures of Beijing Municipality for Farmers' Contract Workers to Participate in Pension and Unemployment Insurance and the Interim Measures of Beijing Municipality for Migrant Workers' Pension Insurance.

20 11July1After the implementation of the Social Insurance Law, urban and rural hukou can pay social insurance premiums as long as they are within the legal working age. In principle, such disputes shall be handled by social insurance agencies and labor administrative departments according to law, and the arbitration commission and the court will no longer award compensation for losses.

Units that have not registered their employees as unemployed need to compensate for the losses.

Wang joined a transportation company in July 2009, and the company paid social insurance premiums including unemployment insurance premiums. 2065438+August 2005, the company dissolved the labor relationship with Wang, and went through the formalities of reducing the number of employees in the social insurance account, but did not go through the unemployment registration.

2065438+March 2006, Wang applied for labor arbitration, demanding that the transportation company pay his unemployment insurance loss of 1 1000 yuan.

The arbitration commission refused to accept it, and Wang appealed to the court. The court held that the employer not only has a mandatory statutory obligation to pay social insurance premiums for workers, but also has an incidental obligation to handle the relevant social insurance transfer declaration procedures for workers in time. Wang meets the requirements for applying for unemployment insurance. Because the transportation company failed to provide the unemployment insurance agency with the materials needed for unemployment insurance benefits's examination and approval, and failed to apply for unemployment reduction and unemployment registration, Wang could not receive the unemployment insurance benefits, and the corresponding losses should be compensated by the transportation company. Because Wang's claim is not higher than the legal standard, he supports his claim according to law.

The judge's statement

Article 45 of the Social Insurance Law stipulates that unemployed people who have paid unemployment insurance premiums for one year before unemployment can receive unemployment insurance benefits.

Article 15 of the Regulations on Unemployment Insurance in Beijing stipulates that the employer and the employee shall report the list of unemployed persons to the social insurance agency for filing within 7 days from the date of dissolution of the labor relationship, and transfer the employee's file to the social insurance agency in the district (county) where the employee's household registration is located within 20 days from the date of dissolution of the labor relationship. At the same time, inform employees in writing to enjoy the rights of unemployment insurance benefits in accordance with regulations.

In this case, after the termination of the labor contract with Wang, the transportation company failed to register unemployment with the unemployment insurance agency, which made Wang unable to receive unemployment insurance benefits and should be liable for compensation.

If the compensation amount agreed in the industrial injury compensation agreement is lower than the legal amount, it shall be supplemented.

Liu joined a furniture manufacturing company from 2065438 to May 2006 with a monthly salary of 6000 yuan. The company didn't pay social insurance for him. In September of that year, Liu had an accident at work, resulting in a broken leg.

Since then, both parties have agreed that the company will compensate Liu 50,000 yuan in one lump sum. Liu Hou was identified as a work-related injury, which constituted a nine-level disability.

As a result, Liu filed an arbitration and asked the company to pay his disability subsidy, one-time work-related injury medical subsidy and one-time disability employment subsidy totaling more than 200,000 yuan. The Arbitration Commission ruled that the company paid the above subsidies totaling 139032 yuan, and the compensation paid by the company can be deducted from the above amount.

The company refused to accept the above ruling and appealed to the court. The court rejected the company's claim.

The judge's statement

When the employer and the employee dissolve or terminate the labor contract, the voluntary settlement agreement does not violate the mandatory provisions of laws and administrative regulations. After the performance is completed, if one party reneges and claims that the agreement between the two parties is invalid, it will generally not be supported. However, if the rights and obligations of both parties to the agreement are obviously unbalanced, the arbitration commission or the court may make appropriate adjustments.

In this case, after the agreement reached between the company and Liu on the treatment of work-related injury insurance was fulfilled, Liu asked the company to make up the difference according to the legal standard on the grounds that the payment standard agreed by both parties was lower than the legal standard, which should be supported according to law.

If the unit deducts the maternity allowance for female employees, it shall make up for it according to law.

Sun joined a foreign trade company in September 20 13, and the company paid maternity insurance premium for him. Sun's average monthly salary for 20 14 years is 8 108 yuan.

Maternity leave in Sun Xiu, from February 6, 1965 to June 3, 1965. The company receives the maternity allowance 19533.80 yuan on its behalf, but only pays Sun 134 13.8 yuan. In addition, the company pays the wages of the grandchildren during maternity leave 1800 yuan.

After the labor arbitration, Sun sued the court and asked the company to pay the difference between maternity allowance and salary.

The court held that the company received the maternity allowance approved by the social insurance agency, but failed to pay Sun in full and should make up for it. Although the company paid her salary during the maternity leave in Sun Xiu, but her salary was reduced without reason, the difference should also be made up.

The judge's statement

Article 56 of the Social Insurance Law stipulates that female employees enjoy maternity allowance during their maternity. Maternity allowance is calculated and paid according to the average monthly salary of employees in the previous year of the employer. Article 7 of the Regulations on the Special Protection of Female Workers also stipulates that the maternity allowance for female workers during maternity leave shall be paid by the maternity insurance fund according to the average monthly salary of employees in the previous year. At the same time, Article 18 of the Regulations of Beijing Municipality on Population and Family Planning stipulates that female employees and their spouses may not reduce their wages during their vacations. Article 15 of the Regulations of Beijing Municipality on Maternity Insurance for Enterprise Employees stipulates that the calculation method of maternity allowance is to divide the payment base of female employees in the month of childbirth by 30, and then multiply it by the number of maternity leave days. Maternity allowance is the salary of female employees during maternity leave. If the maternity allowance is lower than my salary standard, the difference will be made up by the enterprise.

To sum up, the foreign trade company paid the maternity insurance premium for Sun, but failed to pay Sun's maternity allowance according to the amount approved by the social insurance agency, which obviously violated the law. Because the salary standard before the grandchildren's maternity leave is higher than the maternity allowance standard, according to the regulations, the company should also make up the salary difference during the grandchildren's maternity leave.

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