Methods of handling medical insurance disputes

Medical Insurance Based on the nature of the two types of social insurance disputes mentioned above and the connection between them, social insurance disputes can be handled in three ways, namely, the way of administrative handling, the way of judicial remedies, and the way of social participation and supervision. Since disputes over non-payment, underpayment or late payment of social insurance premiums between workers and employers are the root cause of disputes over social insurance premiums, this article will focus on the advantages and disadvantages of the three remedies for dealing with such disputes. (A) administrative treatment 1, the flaws in the administrative treatment and the reform of the initial exploration in 2001, the Ministry of Labor and Social Security issued the implementation of the "social insurance administrative disputes" (hereinafter referred to as "treatment"), citizens, legal persons or other organizations for the agency did not review the social insurance premiums in accordance with the provisions of the base amount of social insurance premiums, social security treatment, such as failure to approve the approval of the regulations, payment, adjustment and other specific administrative acts If a citizen, legal person or other organization is not satisfied with the decision of the agency to review the base of social insurance premiums, or to approve, pay or adjust social insurance entitlements as required, it may first apply for a review to the agency that performed the specific administrative act; if it is not satisfied with the decision, or if the agency fails to make a decision on the review after the expiration of the time limit, it may apply for administrative reconsideration to the administrative department of the labor security department that directly manages the agency; if it is not satisfied with the decision on the administrative reconsideration, it may bring an administrative action to the people's court. However, the social insurance agency and its audit department does not have the administrative subject qualification, its implementation of the administrative act is not authorized by laws and regulations, but a entrusted, with the authority of the rest of the administrative act, so the administrative reconsideration of the respondent is not the social insurance agency, but the administrative department of labor security; at the same time, even if the "handling methods" defined by the agency responsible for handling social insurance affairs is At the same time, even if the handling of social insurance affairs by the agency, as defined in the Measures for Handling, is an authorized act, according to the provisions of existing laws and regulations in China, the administrative reconsideration organ usually refers to the administrative organ at the higher level of the administrative subject or the people's government to which the administrative reconsideration is applied for. Therefore, if in accordance with the "handling methods" will review the authority of the social security agency, the administrative reconsideration of the authority of the direct management of the agency's administrative department of labor security, contrary to the spirit of the rule of law of the effective separation of law enforcement and supervision powers. Therefore, the author believes that, for the auditing department's administrative law enforcement improper or ineffective behavior, the relative should submit a review application to the administrative department that directly manages the agency, and the administrative department will organize personnel or supervise the agency to conduct a review; for the review decision is not convinced or the administrative department has not made a review decision after the deadline, the applicant can apply for administrative reconsideration on administrative disputes caused by auditing to the people's government at the same level or to the higher level of the administrative department of labor security. 2. The benefits of using administrative methods to deal with disputes over failure to pay social insurance premiums in full and on time (1) Because the collection of social insurance premiums in full and on time is a kind of administrative compulsory collection behavior of a tax nature, dealing with it as a general labor dispute is not only difficult to safeguard the lawful rights and interests of laborers due to the short statute of limitations for arbitration, but also prone to problems such as the use of statute of limitations by the employing unit to evade the legal obligation to pay the premiums. It is also easy to cause the employer to use the statute of limitations to evade the legal obligation to pay contributions and other problems. Although the handling of social insurance is generally the content of the labor contract, but due to the participation of social insurance and its levy object, levy time, levy standard of mandatory, the parties to the labor contract on the social insurance agreement is different from the other terms of the labor contract. In fact, workers and employers do not have any choice on the participation in social insurance and the payment of social insurance premiums, regardless of whether both parties have agreed in the labor contract, the rights and obligations of both parties do not have a substantial impact. In terms of legislative trends, it is inevitable that the collection and payment of social insurance premiums should be entrusted to an administrative organ, and this has already been provided for in the Labour Law and the Provisional Regulations on the Collection and Payment of Social Insurance Premiums. Therefore, the relevant provisions in the Regulations on the Handling of Labor Disputes in Enterprises issued by the State Council prior to this date and the judicial interpretations of the Supreme People's Court should be interpreted in a restrictive manner. (2) Dealing with such disputes through administrative legal channels such as auditing, review and administrative reconsideration is not only procedurally more convenient and effective, but also fully reflects the fact that social security auditing is an exercise of public rights, and that it is not appropriate to set a statute of limitations system based on international practice and the spirit of jurisprudence, and is not subject to time limits for filing complaints. Therefore, the disputes arising from the failure to pay the full amount of fees on time to the administrative law processing category, not only the administrative nature of the fund levy to the original face, but also the management of the social security fund is a long way forward. 3, enhance the administrative handling of social insurance premium disputes (1) improve the system of administrative coercive measures in the social security audit, in addition to the existing mandatory checking system should also be added to the mandatory preservation system. For example, the evidence that may prove that the administrative relative is in violation of the law or the size of the responsibility shall be seized; for the evidence that may be lost or difficult to obtain in the future and needs to be preserved shall be registered on the spot, fixed and sealed, and the parties shall be ordered to keep it properly; the deposits of the administrative relative in the bank and other financial institutions or other accounts shall be frozen to prevent the transfer of assets and the evasion of the effective implementation of the administrative coercive measures; and the relative's property shall be seized or impounded to ensure that it has the obligation to pay the contributions. property to ensure the fulfillment of its obligation to pay, etc. (2) Establishing an administrative enforcement system In the current relevant regulations, the auditing department does not have any administrative enforcement power by commission, and even if the auditee refuses to audit or falsifies, fabricates or intentionally destroys the relevant books and materials, or delays in the payment of social insurance premiums, the social security administration agency only has to report to the administrative department of labor protection for punishment in accordance with the law; and the administrative department of labor protection usually resorts to the court to exercise its enforcement power. This system not only seriously weakened the strength of the administrative act of coercion, and in the procedure is too redundant and costly, resulting in unnecessary waste of human and financial resources; coupled with the time delay, will inevitably for the administrative counterparts to circumvent or weaken its legal responsibility to impede or resist the effective implementation of the enforcement of the good offices provided by the opportunity. Therefore, the audit department should be given a certain amount of money within the scope of the enforcement powers. For example, in the bank account set up by the administrative counterparty overdue payment of social insurance premiums in full, the audit department can be authorized or commissioned to notify the depositary bank mandatory transfer; when the administrative counterparty overdue performance of the effective penalty decision, the audit department can be authorized or commissioned to the seizure, the seized property to be mandatory auction, etc.. (3) start the administrative enforcement penalty system in the social security audit, for the violation of the relative have additional late fees, fines, etc., but in practice, in addition to the collection of late fees system in a certain range of trial, additional fines and criminal liability and other mandatory behavior is not effectively implemented, which is the social security fund management is not effective, the social security audit lack of deterrent effect is one of the main reasons. The author believes that the improvement of social security audit compulsory system should draw on the successful experience of tax audit, focusing on the start of the administrative enforcement of the penalty system, so that the social security audit is more powerful, stronger deterrent, so as to effectively punish the employer's illegal behavior, and effectively safeguard the legitimate rights and interests of workers. (ii) Judicial remedies 1. Disputes between workers and employers over non-payment, underpayment or late payment of social insurance premiums are the legal basis for labor disputes. First, an obvious sign to distinguish administrative disputes from labor disputes is whether one party to the dispute is an administrative organ. The two parties to a labor dispute are the worker and the employer, and the two parties to an administrative dispute are the administrative counterpart and the administrative organ, while the two parties to a dispute over non-payment, underpayment or late payment of social insurance premiums are the worker and the employer, excluding the administrative organ, and thus such disputes cannot be administrative disputes, but only labor disputes; secondly, the handling of social insurance is often an important element of an employment contract, and disputes arising between the worker and the employer as a result of such disputes are legal bases for labor disputes. Secondly, the handling of social insurance is often an important element of the labor contract, and disputes between the worker and the employer arising therefrom are clearly labor contract disputes. Article 2 of the Regulations on the Handling of Labor Disputes in Enterprises provides that disputes between enterprises and workers arising from the performance of labor contracts are labor disputes. Thirdly, Article 2(2) of the Regulations on Handling of Labor Disputes in Enterprises also stipulates that disputes arising from the implementation of state regulations on wages, insurance, welfare, training and labor protection are labor disputes. Therefore, even if the labor contract signed between the worker and the employer does not stipulate the content of social insurance, the dispute between the two parties due to the employer's non-payment, underpayment or late payment of social insurance premiums is still a labor dispute, and the people's court shall accept it as a civil case. 2. Treating the dispute between the worker and the employer about the non-payment, underpayment or late payment of social insurance premiums as a labor dispute case, i.e., the adoption of the judicial remedies, will have the following disadvantages. The following disadvantages will arise. (1) The result of the judgment is difficult to be clear and specific. The amount of social insurance premiums payable is calculated based on the worker's monthly gross salary, and in recent years, due to the strengthening of the autonomy of enterprises in wage distribution and the uncertainty of workers' overtime wages, the monthly gross salary of workers is always in constant fluctuation, which leads to the difference in social insurance premiums to be paid by the workers and the employers every month. When the people's court decides that the employer should make up for the social insurance for the workers, the main text of the judgment is difficult to specify the types of social insurance and their amounts, as well as the time to make up for them. And the right to approve the amount of social insurance premiums to be paid shall belong to the social insurance agency or the tax authorities. Therefore, in judicial practice, the people's court had to general judgment by the employer for the workers to pay social insurance premiums. I represent a number of labor dispute cases, the people's court in the main text of the judgment are "judgment of a unit for a person to make up for the social insurance from the year and month to the year and month" as the conclusion, without mentioning the specific amount of money should be made up. (2) is not conducive to the execution of the judgment. Generally speaking, the civil judgment is to determine the dispute between the parties to the entity rights and obligations, civil judgment determined by the rights and obligations of the parties to the civil case is limited to the parties to the two parties, that is, one of the parties to the case to the other party to fulfill the obligations. However, in the judgment of non-payment, underpayment or late payment of social insurance premium disputes, due to the special nature of social insurance premiums, the people's court can't award the unpaid or underpaid social insurance premiums directly to the workers, and can only judge the employer to fulfill the obligation to pay the premiums to the social insurance agency or tax authority, which is not a party to this kind of case, and doesn't have the obligation of fulfilling the judgment directly. The social insurance agency or tax authority is not a party to such cases, and does not have the obligation to fulfill the judgment directly, therefore, the legal documents that have entered into force are often not executed in time. The author in 2005 on behalf of a labor dispute case, in the process of applying for the implementation of a court in Yancheng is not clear in the main text of the specific amount of social insurance premiums should be paid and that the implementation of the subject matter is not clear, ruled that the implementation is not implemented. (3) Not conducive to the timely and effective protection of the legitimate rights and interests of workers. Administration relative to the judicial, in the value orientation is different. Administration has the priority of efficiency, speed and effectiveness. National laws and regulations have been stipulated that the employer does not pay social insurance premiums without reason or pay social insurance premiums do not comply with the provisions of the administrative department of labor, the workers in the violation of this right, according to the law to seek a solution to the administrative department, more conducive to the timely protection of their legitimate rights. If a worker seeks judicial redress for a labor dispute, he or she must go through a long process of "one adjudication and two trials," and even if his or her claim is ultimately upheld by the People's Court, the result will still be that the employer will have to pay the social insurance premiums back to the social insurance agency or the tax authorities. If the worker applies directly to the labor administrative department, not only can he avoid the complicated process of "one ruling and two trials", but also when the worker is not satisfied with the handling of the labor administrative department, he can also file an administrative lawsuit to seek judicial relief, which is not detrimental to his legitimate rights. (C) social participation and supervision of social insurance dispute resolution should improve the consultation, hearings, complaints, dispute handling of public opinion supervision system, so that more social organizations and citizens to participate in the dispute resolution process, so that they further clarify the basic orientation of the social security system. The role of the news media should be fully utilized, and the depth and breadth of legal education should be continuously expanded by taking the form of case studies, expert consultation and special audits, as well as symposiums, seminars and special lectures. In conjunction with the focus of labor security work, the implementation of laws and regulations related to the protection of the legitimate rights and interests of employees in the main issues, and actively provide legal advice on labor security to workers and employers. Conditional places can set up labor security regulations and policies consulting website, consulting hotlines and special consulting agencies to provide legal consulting services for employers and workers, so that employers know how to act in accordance with the law, so that workers know how to defend their rights in accordance with the law, which will reduce the emergence of disputes over social insurance from the source. To summarize, we should be "personal health insurance dispute how to solve" the problem has been roughly understood, I hope the above will help you.

(a) Consultation refers to the two sides of the contract on the basis of voluntary, mutual understanding, seeking truth from facts, direct communication of disputes, friendly consultation, eliminate disputes, seek common ground while reserving minor differences, to reach agreement on the disputed issues, to resolve disputes by themselves. Negotiation to resolve disputes can not only save time, save money, more importantly, can be in the process of negotiation, improve mutual understanding, strengthen mutual trust between the two sides, is conducive to the successful resolution of disputes, and continue to implement the contract. (ii) Arbitration arbitration refers to the arbitrator of the arbitration institution on both parties to the dispute, dispute mediation, and make a decision. The arbitration decision is made by the state-regulated contract management organization. The application for arbitration must be premised on an arbitration agreement reached by both parties on a voluntary basis. The arbitration agreement can be the arbitration clause stated when the insurance contract is concluded, or the arbitration agreement reached before or during or after the dispute occurs. The arbitration institution mainly refers to the arbitration committee established in accordance with the law, which is a civil organization independent of the state administrative organs, and does not apply the level jurisdiction and territorial jurisdiction. The arbitration committee is chosen by agreement between the parties to the dispute and is not subject to the restrictions of hierarchical and territorial jurisdiction. Arbitral awards have legal effect and must be enforced by the parties. Arbitration adopts the system of "finalization of an award", i.e. the legal effect occurs on the day the award is made; if one party fails to comply with the arbitral award, the other party may apply to the court for the enforcement of the arbitral award in accordance with the relevant provisions of the civil litigation. The parties shall not apply for arbitration again to the same arbitration committee or other arbitration committees for the same dispute, nor shall they file a lawsuit to the court, and the arbitration committee and the court shall not accept the application unless the application is made to set aside the original arbitration award. (iii) Litigation refers to a way for any party to an insurance contract to claim rights and interests against the other party through the court in accordance with legal procedures, and for the people's court to resolve disputes and make rulings in accordance with legal procedures. This is the most intense way to solve the dispute. In China, the insurance contract dispute case belongs to the category of civil litigation law. Unlike arbitration occurs, the court in accepting the case, the implementation of the level of jurisdiction and territorial jurisdiction, exclusive jurisdiction and choice of jurisdiction. Article 26 of the Chinese People's *** and National Civil Procedure Law provides that "Litigation arising from disputes over insurance contracts shall be subject to the jurisdiction of the People's Court of the place where the defendant is domiciled or where the subject matter of the insurance is located." The Opinions of the Supreme People's Court on Certain Issues Concerning the Application of the Chinese People's *** and National Affairs Litigation Law stipulate that "Litigation arising from disputes over insurance contracts shall be under the jurisdiction of the people's court of the place of the defendant's domicile, or of the place where the means of transportation is registered, the place of destination of transportation, or the place of the occurrence of the insurance accident if the subject matter of insurance is the means of transportation or the goods being transported. " Therefore, both parties to the insurance contract can only choose the court that has the right to accept the lawsuit. China's current insurance contract dispute litigation cases and other litigation cases like the implementation of the two-trial system, and the parties do not accept the judgment of the court of first instance, can be appealed to the higher people's court within the statutory appeal period to apply for retrial. The judgment of the second instance is final. Once a judgment of final instance is rendered, it is immediately legally effective and must be carried out by the parties; otherwise, the court has the right to enforce it. If the party concerned is still not satisfied with the judgment of the second instance, it can only go through the complaint and protest procedure. Through the above analysis and explanation, we understand that there are three main ways to deal with insurance contract disputes, including negotiation, arbitration and litigation. The parties need to combine the actual situation to choose the appropriate solution, otherwise not only the dispute can not be successfully resolved, they may also suffer greater damage.