Employees voluntarily give up the social security commitment letter has the force of law

Employees voluntarily give up social security commitment in some cases is legally effective, but the specific circumstances need to be judged according to relevant laws and regulations and judicial interpretations.

A description of the problem

Employees voluntarily give up the social security commitment letter refers to the agreement between the employee and the employer, the employee agrees to give up the participation in social insurance, in exchange for certain benefits or arrangements. In recent years, with the improvement of social insurance awareness, more and more workers begin to pay attention to social security issues, and there are more and more employers require employees to sign a voluntary waiver of social security commitment. So, does this kind of commitment letter have legal effect?

Second, the relevant laws and regulations and judicial interpretations

The People's Republic of China *** and the State Social Insurance Law stipulates that: "Employers shall pay the basic pension insurance premiums in accordance with the proportion of the total wages of the employees of the organization as stipulated by the State, and credited to the Basic Pension Insurance Coordination Fund. Employees shall pay basic pension insurance premiums in accordance with the proportion of their own wages prescribed by the State and credited to their individual accounts." At the same time, the Labor Law of the People's Republic of China*** and the State of China also clearly stipulates that "Workers have the right to social insurance and welfare." It is thus clear that participation in social insurance is a legal obligation of employers and workers, and cannot be waived by agreement.

However, in judicial practice, there are different views on the legal effect of the employee's voluntary waiver of social security commitment. On the one hand, according to the provisions of the "Chinese people's *** and the state contract law", the parties to the contract can agree to give up their rights, but this waiver of rights can not violate the mandatory provisions of laws and regulations and social public *** interests. If the employee's voluntary waiver of social security rights violates the mandatory provisions of laws and regulations and the interests of the social public ****, the undertaking is invalid. On the other hand, if an employee signs a voluntary waiver of social security commitment in the presence of fraud, coercion, or taking advantage of the situation, or the employer fails to pay social insurance costs for workers in accordance with state regulations, the commitment is also invalid.

Three, case study

Assuming that a company requires employees to sign a voluntary waiver of social security commitment, and to give a certain amount of economic compensation. Employees do not understand the significance and importance of social insurance when signing the commitment, and therefore give up the right to social security. Later, the employee was hospitalized due to illness and needed medical expenses, and asked the company to bear the corresponding expenses, but the company refused to bear the expenses on the grounds that the employee had voluntarily given up social security. In this case, if the employee can prove that there was fraud, coercion, or taking advantage of the situation when signing the undertaking, or that the company did not pay the social insurance costs for the worker in accordance with the state regulations, the undertaking will be invalid. Employees can defend their rights and interests through legal channels.

Four, summarize the above

To summarize, the employee voluntarily give up the legal effect of social security commitment there are certain complexity and uncertainty. From the legal principle, to participate in social insurance is the legal obligation of employers and workers, can not be given up by agreement. However, in specific practice, if the employee signs the undertaking in violation of the mandatory provisions of laws and regulations and the interests of the social public ****, fraud, coercion or take advantage of the situation, or the employer fails to pay the social insurance costs of the workers in accordance with national regulations, etc., then the undertaking is invalid. Therefore, workers should fully understand the significance and importance of social insurance and carefully consider their rights and interests and future risks when signing the voluntary waiver of social security commitment. If a worker encounters a similar situation, he or she can file a complaint with the labor inspection department or consult a lawyer for legal assistance.

Legal basis:

Article 2 of the Social Insurance Law of the People's Republic of China*** and the State stipulates, "The State establishes a system of social insurance such as basic old-age insurance, basic medical insurance, work-related injury insurance, unemployment insurance and maternity insurance, and guarantees the citizens' rights to obtain material assistance from the State and the society according to the law in the case of old age, illness, work-related injury, unemployment and maternity. the right to material assistance from the State and society in cases of old age, sickness, work injury, unemployment and childbirth."

Article 72 of the Labor Law of the People's Republic of China*** and the People's Republic of China states, "Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law."