Prevention and control of legal risks of social security

Prevention and control of legal risks of social security

Ministry of Human Resources and Social Security and the Ministry of Finance jointly promulgated the Measures for Enterprise Annuities (Order No.36 of Ministry of Human Resources and Social Security, hereinafter referred to as the Measures). The Measures are concrete measures to implement the requirements of the CPC Central Committee and the State Council on establishing a multi-level social security system and vigorously developing enterprise annuities. Based on the continuous improvement of China's social security system and the sustainable development of the enterprise annuity market, it is a revision and improvement of the Trial Measures for Enterprise Annuity. These measures will be implemented. According to Article 2 of the Measures, enterprise annuity refers to the supplementary old-age insurance system independently established by enterprises and their employees on the basis of participating in the basic old-age insurance according to law.

The word "independence" shows that annuity, as a supplementary old-age insurance system, is different from the "five insurances and one gold" that is often said. Enterprise annuity is not compulsory insurance, and whether to pay it is up to enterprises and workers to decide independently. "Pension, medical care, work injury, unemployment, maternity insurance" and housing accumulation fund in social security must be paid in full and on time by enterprises or individuals. In order to reduce the labor cost, many enterprises intentionally don't pay or pay less social insurance, and some workers don't realize the importance of social insurance to themselves, and don't actively strive for or even give up.

First, it is clear that social security must be paid, and non-payment, underpayment, late payment or selective payment will bring adverse legal consequences to enterprises.

1. Must pay!

Article 60 of the Social Insurance Law of People's Republic of China (PRC) stipulates: "The employer shall declare on its own and pay social insurance premiums in full and on time, and shall not postpone or reduce the payment except for legal reasons such as force majeure. The social insurance premiums that employees should pay shall be withheld and remitted by the employer, and the employer shall inform me of the details of paying social insurance premiums on a monthly basis. " Article 72 of the Labor Law of People's Republic of China (PRC) stipulates: "Employers and workers must participate in social insurance and pay social insurance premiums according to law."

2. Consequences of non-payment

(1) The employee can terminate the labor contract on this ground and ask the employer to pay economic compensation.

(2) According to Article 100 of the Labor Law, if the employer fails to pay social insurance premiums without reason, the labor administrative department shall order it to pay within a time limit, and if it fails to pay within the time limit, it may impose a late fee.

Second, can workers negotiate with enterprises to give up social security? After giving up, can you claim to terminate the labor contract and ask the enterprise to pay economic compensation on the grounds that the enterprise has not paid social security?

According to the principle of autonomy of will in civil law, a contract can be freely concluded, but whether it is effective or not depends on the content of the contract. Article 52 of the Contract Law of People's Republic of China (PRC) stipulates: "A contract is invalid under any of the following circumstances: (5) Violating the mandatory provisions of laws and administrative regulations." According to the aforementioned Article 72 of the Labor Law, the agreement signed between employees and enterprises to give up social security should be deemed invalid because it violates the mandatory provisions of the law.

As for whether the laborer can claim to terminate the labor contract and ask the enterprise to pay economic compensation on the grounds that the enterprise has not paid social security after giving up social security, it can be based on Article 25 of the Summary of the Symposium on Several Issues Concerning the Trial of Labor and Personnel Dispute Cases by Guangdong Higher People's Court and Guangdong Labor and Personnel Dispute Arbitration Commission: "If the employer and the employee agree that there is no need to go through social insurance procedures or directly pay social insurance premiums to the employee, the employee will repent afterwards. It is clearly required that the employer handle social insurance procedures and pay social insurance premiums. If the employer refuses to handle it within a reasonable period of time, the employee will terminate the labor contract and ask the employer to pay economic compensation on this ground, which should be supported. "

Although in practice, some courts believe that employees are not insured because employees voluntarily give up buying social security according to the principle of good faith, and the employer does not bear the responsibility, so it does not support employees' requests for economic compensation. However, the vast majority of courts still respond flexibly to the demands of workers according to the minutes of the symposium, giving employers a certain time to correct their mistakes.

As for when and how to pay, you can pay attention to the official platform of the local human resources and social security bureau. The purpose of establishing social insurance system is to help and compensate workers who are in old age, illness, work injury, unemployment and childbirth. Participating in social insurance is not only related to the interests of employers and workers, but also related to whether the social insurance system of the whole society and the country can be established and operated effectively. Therefore, it is suggested that both enterprises and workers should not lay a curse because of their greed for near profits. Paying social security funds in full and on time according to law is responsible for themselves and the society.