My old-age insurance was transferred by the staff of Qinghai Social Security Bureau, but it was omitted for one year due to negligence. Now I can't make it up. What should I do?

Two Notices on Group Tongzi [2006] No.41and Ministry of Labor and Social Welfare [1999] No.8.

Provisions on determining the date of birth and submitting proposals for illegal examination

The NPC Standing Committee:

According to Article 4 1 of the Constitution and Article 90 of the Legislative Law, we have sent letters to the Central Organization Department, the former Ministry of Personnel, the Ministry of Public Security (Z.T.Z. [2006] No.41) and the former Ministry of Labor (Notice on Stopping and Correcting Issues Related to Handling Early Retirement of Enterprise Employees in Violation of State Regulations).

First, the "Two Notices on Determining the Time of Birth" is in conflict with national laws.

The notice No.41[2006] of Group Tongzi stipulates: "If the date of birth of individual cadres is inconsistent with the household registration, the date of birth first recorded in the cadre files and household registration files shall prevail" and "the date of birth of cadres will not be changed for approval in the future".

Notice No.8 issued by the Ministry of Labor and Social Security [1999] stipulates: "The identification of the birth time of employees shall be carried out by combining the resident ID card with the employee file. When the birth time recorded in my ID card is inconsistent with that recorded in the file, the birth time recorded in my file shall prevail. "

Article 1 of the Law of the People's Republic of China on Resident Identity Cards stipulates: "This Law is formulated for the purpose of proving the identity of citizens living in People's Republic of China (PRC), safeguarding their legitimate rights and interests, facilitating their social activities and maintaining social order". Article 3: "The items of resident identity card registration include: ... date of birth ... citizenship number is a unique and lifelong identity code for every citizen, which is compiled by the public security organ according to the national standard of citizenship number". Article 11: "If there are errors in the registration items of the resident identity card, the public security organ shall promptly correct them and issue a new one". Article 13: "Citizens who engage in relevant activities and need to prove their identity have the right to prove their identity by using their resident identity cards, and the relevant units and their staff members shall not refuse".

The State Council approved and authorized the Ministry of Public Security to issue: People's Republic of China (PRC) Notice ([89] Gong Fanuo. 15) stipulates: "A resident ID card is a national legal document to prove a citizen's personal ID card ... It involves basic identity contents such as a citizen's name, gender, nationality, date of birth, etc., and the contents registered in the holder's resident ID card shall prevail." "Article 20 of the Detailed Rules for the Implementation of the Regulations on Resident Identity Cards stipulates that resident identity cards are suitable for handling 18 matters involving citizens' rights and interests. The circular of the Ministry of Public Security on implementing the system of using and checking resident identity cards throughout the country reiterated this point. Among them, the eighteenth item is' handling other affairs'. Other affairs mainly include: ... going through resignation and retirement procedures ... "The Notice on Further Strengthening the Verification of the Use of Resident Identity Cards (No.21992) issued by the People's Bank of China, the Civil Aviation Administration of China, the National Tourism Administration and the State Administration for Industry and Commerce reiterated the above provisions.

The Ministry of Labor also issued the Notice on the Use of Citizenship Numbers in the Labor and Social Insurance Management Information System. Department of Labor and Social Security [1999]66], which clearly stipulates: "In all kinds of information of the labor and social security department,' citizen ID number' is the only personal code name, ……". "In the process of system construction and use, if the information of citizen ID number (original resident ID number) is found to be wrong, such as duplicate number, multiple number and wrong number, etc. Please communicate with the local public security department in time and correct it. "

Article 58 of the Social Insurance Law of People's Republic of China (PRC) stipulates: "The state establishes a national unified personal social security number. The personal social security number is the citizenship number. "

Obviously, the "two birth date confirmation notices" directly conflict with the legislative spirit stipulated in Article 1 of the Identity Card Law. According to the national legislation, the identity card is a legal document to prove the citizenship, and its purpose is to protect the legitimate rights and interests of citizens. It is bound to violate the legitimate rights and interests of citizens if it is not based on the identity card; It directly conflicts with the uniqueness of the citizenship number stipulated in Article 3; It directly conflicts with the provisions of article 1 1, depriving citizens of the right to correct their nationality; It directly conflicts with the provisions of Article 13, depriving citizens of the right to use resident ID cards to prove their identity; It also directly conflicts with the State Council's approval to authorize the Ministry of Public Security to interpret the legal application of the ID card law. "Two notices of birth date" has gone beyond the legal effect of the ID card law.

Two, the "birth date announcement twice" is harmful, and it is recommended to abolish it.

Since 1999, it has often been reported that "two notices about determining the date of birth" have caused confusion in determining the date of birth for retirement in the whole country, and public grievances have continued. On the one hand, it has seriously caused the national social security fund and pension to be cheated and lost, on the other hand, it has also seriously violated the legitimate rights and interests of tens of millions of citizens to retire at legal age. Affect the correct implementation of the identity card law, resulting in confusion in the unified management of citizenship by the state (see annex for details).

The fifth and sixth issues of China Social Security magazine 20 10, which Ministry of Human Resources and Social Security is in charge of, have five articles in a row, paying special attention to the determination of retirement age: "The conflict between archives and identity cards about age records is becoming more and more common, and it has reached the time to be resolved" and "the public policy of defining age is in crisis". In this regard, the relevant person in charge of Ministry of Human Resources and Social Security said: "We are communicating with the Ministry of Public Security to prepare a formal document to investigate the inconsistency between the birth dates of ID cards and files. The core is to confirm the real time of birth "(see annex for details). However, 20 10 years have passed, and Ministry of Human Resources and Social Security has not issued any new documents.

National laws must not be deterred by departmental regulations, and it is suggested to abolish the "two notices on the confirmation of birth date". The whole country must ensure the unification of the standards for the confirmation of citizenship, and handle all matters involving the confirmation of citizenship with the ID card law as the standard.

Based on the above facts and reasons, I hereby request the National People's Congress Standing Committee (NPCSC) to conduct an illegal review and give a reply.

Attachment: Provisions on Two Notifications for Confirmation of Date of Birth are harmful and unreasonable, and should be abolished.

Moderator: Zhu Yongzhong, Xie, Feng Yingzhou, Shi, Wu Chaoshu

Hu Chunyang Lanzhen Yan Xiuyu and others.

Ma Fenglan Niu Guilan Yang Zhaofu Huang Xuan Chao Hou

Yang Yukun Wu Feng Qingling Li Gongquan

Xu Qingying Hu Luoying Yuan TanJing

Chen Chen Shu Zhi Zhu Laiwang

Yuan Feng Wang Jingwei Fu Sheng

Wang Xiurong Luo Lingzhi Xu Lian Liu Xijiu Fan Liyi Xia Guo

Geng Longchun

2011March 7th

Attachment: Provisions on Two Notices for Confirmation of Date of Birth are harmful and unreasonable, and should be abolished.

First, the serious harm of "two notices of birth date"

1. The "Provisions on Two Notifications for Determining the Date of Birth" has caused confusion in determining the date of retirement birth in the whole country.

Since 1999, it has often been reported that "two notices about determining the date of birth" have caused confusion in determining the date of birth for retirement in the whole country, and public grievances have continued.

Huang Lanfang of Haimen City, Jiangsu Province lost the case in the first instance and won the appeal. Fortunately, half a year passed (the Supreme People's Court's fourth administrative case "Huang Lanfang v. Haimen Labor Bureau's decision on retirement management" in 2000).

Cai, Miyun County, Beijing, lost the first trial, lost the appeal and won the retrial. The "discussion" lasted for four years (Procuratorial Daily reported on April 24, 2000 that "Retired teachers with incorrect birth dates resort to law").

Yang Bangbi, chongzhou city of Sichuan Province, won the case in the first instance, and the case was accepted by the People's Court of chongzhou city, Sichuan Province for the first time. As the plaintiff is the wife of a judge of chongzhou city People's Court, she was appointed by Chengdu Intermediate People's Court and submitted to Dayi County People's Court for trial. (For China's trial case sponsored by National Judges College and Law School of Renmin University of China, please refer to the case of Yang Bangbi's refusal to go through retirement formalities in chongzhou city Labor and Social Security Bureau. ).

The case of Li Xingtian, an old man in Huludao City, Liaoning Province, lost in the second instance, and the retrial ruled that the original judgment of the second instance was revoked, but Li Laohan's claim was rejected. Re-form a collegial panel for retrial. After eight years of litigation, the elderly still celebrate their birthdays (Xinhua News Agency reported on April 23, 2008 that the elderly still celebrate their birthdays after eight years of litigation).

The fifth and sixth columns of China Social Security magazine 20 10, headed by Ministry of Human Resources and Social Security, published five articles in succession, paying special attention to the determination of retirement age.

"Zhang Laohan's Retirement Dream" specially reports that the file age record of Zhang Hongyin, a blacksmith who plays horseshoes and repairs carriages, is different from the ID card information by 16 years. Petition for nearly ten years, 69 years old this year, still can't retire. Director Guo of the Archives of Shuangcheng Labor Bureau said that the situation is by no means a case. It is very common that the age of ID card in the archives room of Shuangcheng Labor Bureau is inconsistent with the age of archives. At least a quarter of the files have the situation that the age of the ID card does not match the age of the file. "First, the right-wing family members who went to the countryside in those days engaged in a lot of fraud in order to return to the city; Second, the age limit for conscription in that year led to a large number of age frauds. At that time, in order to return to the city to recruit people, there should be a few people who went through the back door to make fakes. " The historical reasons for the inconsistency between the file age and the ID card age are very complicated, but these false file information are actually deposited in the file and have been preserved to this day. However, these false archival information can only be wrong in practice, because there is no corresponding remedy or corrective measures. On the one hand, Zhang Hongyin is running around in vain to seek retirement. On the other hand, the relevant departments are helpless and even hope that the parties can solve the problem through legal proceedings. All this seems to be because the existing regulations are too mechanical, there is no corresponding elastic remedy, and it is unable to solve complex practical problems.

"The Basis for Determining Retirement Age: PK Identity Card in Archives" reported the controversy on determining the date of retirement and birth of Xie, a salesgirl in huangshan district Department Store, Huangshan City, Anhui Province. At the beginning of 200 1, the police changed their household registration books, and the police went door to door, demanding that the Gregorian calendar date of birth be used uniformly. Xie asked the police to register his date of birth as195765438+1October 25th. Later, after investigation, the police confirmed her date of birth in Gregorian calendar, and renewed her new household registration book and ID card accordingly. However, huangshan district Labor Bureau confirmed Xie's birth date according to the Ministry of Labor and Social Welfare [1999] No.8 document and the recruitment form of1956 65438+February. Xie went to court for four years, and labor and social security departments at all levels, courts, procuratorates, and people's congresses rushed around countless times. Xie's purpose is to determine whether the retirement age is applicable to ID cards or file records, and whether the National Identity Card Law or departmental regulations are applicable. Huangshan district Labor Bureau has no objection to the cross-examination of Xie's ID card and household registration book after correcting the date of birth, and the three courts confirmed the authenticity of these two evidences. In view of this problem, Chen, a professor at Anhui University Law School, believes that the judicial organs can completely apply the resident identity card law to determine Xie's date of birth. The vice president of Anhui Lawyers Association said that it was wrong for the courts of first instance in Huangshan City and huangshan district City not to revoke the reply of huangshan district Labor Bureau with the ID card law, and Xie You 100% demanded to change the birth age according to the ID card. However, the final judgment of this case did not adopt the opinions of Xie and experts, but decided to maintain the applicable records of huangshan district Labor Bureau. The reason for its judgment is that "No.8 Document" has not been abolished. Xie certainly can't accept this.

China Social Security magazine 20 10 No.5 and No.6 pointed out: "The conflict between archives and ID cards about age records is becoming more and more common, and it has reached the time when it has to be solved." There is a crisis in the public policy of defining age.

2. It caused a great loss of state pension.

Retirement "is based on the date of birth first recorded in my file", which opens the door for counterfeiters. Is it easier to "fake" citizenship through various units and departments, or through the public security department? 2008126 October, Zhongan Online 165438+ Anhui News "Retired Chief Moved" Secret Shares Home ":"Kidnapped "1000 personnel files for more than ten years, trying to check files, giving gifts and giving money, forging files and defrauding the national social security fund/kloc. In fact, this is by no means an individual phenomenon. This is a very typical and representative example. This was discovered when so many people concentrated on counterfeiting, and it was easy to find. And a large number of personal frauds scattered in various units and departments are more hidden and difficult to be found. The national social security fund and pension were cheated, and the losses were even greater. Retirement "is based on the date of birth recorded in my file for the first time", which has seriously endangered the security of the national social security fund and pension. It is also stipulated that retirement should be based on the earliest files, which just took advantage of those who forged files and defrauded the state pension, and was also ridiculed by these lawless people.

3. Infringed on the legitimate rights and interests of tens of millions of citizens to retire at the legal age.

On the one hand, retirement "is based on the date of birth recorded in my file for the first time", which has seriously caused the national social security fund and pension to be defrauded and suffered great losses; On the other hand, retirement based on the date of birth first recorded in my file has seriously violated the legitimate rights and interests of tens of millions of citizens to retire at the legal age. "The date of birth first recorded in my file shall prevail", no matter whether this time is ahead or behind, it will affect the legitimate rights and interests of citizens.

People's Daily reported in its 2006 edition1October 23rd 10 that "since the establishment and implementation of 1999 China citizenship number system, public security organs have organized many times to clean up and correct mistakes, and more than 20 million duplicate and wrong numbers have been corrected". Do these more than 20 million people have to "take the birth time first recorded in my file as the standard"? This will involve the legitimate rights and interests of more than 20 million people, not including many people who have been corrected later and have not been corrected so far.

The date of birth on the ID card is true, subject to the real date of birth. However, when there is an error in citizenship, the public security household registration organ shall correct it in accordance with legal procedures. No matter in the past, present or future, the public security department can't absolutely guarantee that the ID card registration is error-free, and the archives management department can't guarantee the absolute authenticity and reliability of the archives.

Article 25 of the Regulations on the Openness of Government Information in People's Republic of China (PRC) stipulates: "If citizens, legal persons or other organizations have evidence to prove that the records of government information related to them provided by administrative organs are inaccurate, they have the right to ask administrative organs to correct them. If the administrative organ has no right to correct it, it shall be transferred to the administrative organ that has the right to correct it and inform the applicant. " At any time, the state should protect citizens' right to correct their identity cards according to law.

Most people who misspell the date of birth because of age restrictions such as joining the army and recruiting cadres are forced to live and survive. At that time, people were proud of joining the army and recruiting cadres. Joining the army and recruiting cadres are all for revolutionary work. It is the most glorious thing to take part in revolutionary work. What does it matter if you change your age? Now I have been a revolutionary all my life, and I am old. Who would have thought that I would be punished for filling in the wrong date of birth? At that time, the management department was also responsible for filling in the mistakes. Although this is also wrong, it is just wrong, not guilty and unforgivable.

Besides, those who mistake the lunar calendar for the solar calendar and neglect to fill it in by themselves or others will be even more wronged! Not retiring at the real age infringes on the legitimate rights and interests of citizens to retire at the legal age. This is also incompatible with the call of the party and the country to build a harmonious society and put people first.

4. It affects the correct implementation of the ID card law and causes confusion for the unified management of citizenship by the state.

Age is a natural human right. It can't be ignored in any country's constitution, civil law and criminal law, because it is related to people's capacity for rights, behavior and criminal responsibility. Age is not only a legal issue, but also related to all aspects of human life. Age is an important part of personality right. As the primary feature of personality right, the existence of age is absolute, not relative. "Two Notices of Birth Time Appraisal" has turned absolute right into relative right, which is an infringement on age right. When people's age rights are violated, they should be protected by law.

The Resident Identity Card Law stipulates that the identity card is a legal document to prove citizenship, and the citizenship number is widely used in social management and citizens' participation in various economic and social activities, and plays a role in identifying and confirming citizenship. The nine statutory items of identity card registration include the confirmation of citizens' date of birth.

The "National Citizenship Information System" grass-roots police station can only input data. If there is any input error, it must be reported to the superior bureau for approval. The superior bureau will enable password modification, and the grassroots police station has no right to modify it. The management of "National Citizenship Information System" is extremely strict and standardized, far higher than the files managed by various units and departments. What is puzzling now is that the credibility of household registration and identity cards managed by state specialized agencies is even lower than that of employee files scattered in various units and departments that are not serious and standardized.

As the saying goes, "If you can catch one, if you can't catch one, you will always miss it because you can't catch it tightly." If there is only one place where the dam may leak water, it will be easy to find and block it; If water leaks everywhere, the dam will eventually collapse.

The state promulgates the Identity Card Law to prove citizens' identity and protect their legitimate rights and interests. When the citizenship information is wrong, citizens have the right to apply for correction according to law. This is a legal right granted to citizens by the National People's Congress Law, and no department, organ or person in the country has the right to deprive it. This is directly related to the correct implementation of the resident identity card law, and it is a serious administrative law enforcement act. The identification of a citizen's date of birth belongs to the identification of citizenship and can only be based on the ID card law. Only the public security department that manages the ID card can authorize it, and no other department has the right to confirm it. If in doubt, you can only apply to the public security department for verification. The public security department shall confirm it in accordance with the statutory verification procedures and the rules for examining and identifying evidence. When necessary, various ways and methods should be adopted for verification. Resident identity cards corrected according to law are protected by law.

Two, "two birth date announcements" are unreasonable and unreasonable, and should be abolished.

According to the Identity Card Law, "an identity card is a legal document to prove citizenship". The State Council's reply authorizes the Ministry of Public Security to explain the legal application of the ID card law "based on the contents of the holder's resident ID card registration" and "applicable to the procedures involving citizens' rights and interests such as divorce and retirement", and the Supreme People's Court's "Implementation Opinions on Several Issues (Trial)" only stipulates that "the birth time is based on the household registration certificate; If there is no household registration certificate, the birth certificate issued by the hospital shall prevail. If there is no hospital certificate, it shall be determined with reference to other relevant certificates. There is no stipulation that "the birth time recorded first in the file shall prevail". Obviously, the provision of "two birth time confirmation notices" is legally unfounded.

The file is recorded first, but it is not necessarily true. Article 25 of the Regulations on the Openness of Government Information in People's Republic of China (PRC) stipulates: "If citizens, legal persons or other organizations have evidence to prove that the records of government information related to them provided by administrative organs are inaccurate, they have the right to ask administrative organs to correct them. If the administrative organ has no right to correct it, it shall be transferred to the administrative organ that has the right to correct it and inform the applicant. " At any time, the state should protect citizens' right to correct their identity cards according to law.

The "Two Notices on Confirming the Date of Birth" ignores national laws, protects citizens' interests to the maximum extent, and ignores many historical reasons for people's wrong date of birth (mistakes in the Gregorian calendar, negligence in filling in by myself or others, damage and loss of files, incorrect filling in the age limit for recruiting cadres to join the army, etc.). ) and punish people with the wrong date of birth for the most unreasonable regulations. Although under the historical conditions at that time, some people made mistakes themselves, the management department was also responsible. Although they are also at fault, they are only at fault, not guilty, and not unforgivable.

Administration can't violate the laws of human nature and give a person two or more birth dates. This is typical of punishing mistakes with mistakes! The root of its mistakes comes from the ancient punitive justice of "an eye for an eye", "a tooth for a tooth" or "blood for blood", which can also be said to be an extreme view of fairness. Punishment in the modern sense does not allow "revenge". This is a kind of revenge justice that is inconsistent with the punishment justice in modern society. Answer blows with blows, and fight evil with evil, which was the western judicial concept hundreds of years ago, has long been spurned by judicial practice and the concept of rule of law.

Professor Chen, director and professor of the Department of Constitution and Administrative Law of Anhui University, doctor of law and legal adviser of the Anhui provincial government, believes that the legislative law clearly stipulates that rules and regulations shall not contravene the law. Apply the highest law of the country, that is, the legally binding identity card law, to determine the date of birth. Compare the errors recorded in the file with the correct records in the current ID card, and make inferences based on the errors recorded first. In this way, in the process of law enforcement, there are obvious problems, which is essentially equivalent to continuing to use the original mistakes. This is a serious misunderstanding in law enforcement and should be corrected. Because the law needs to restore the truth, but also to pursue the objective truth and restore its true colors. As a national certificate, if someone makes mistakes in the original record and ID card, it is impossible to judge, or the ID card should prevail. Using this national unified and nationally recognized legal certificate to prove the length of service of employees can form a norm and order. Based on the birth time recorded for the first time in my file, whether this time is ahead or behind will have an impact on the interests of employees. To solve this problem, we need to take the ID card law as the basis, so that the cost and price paid in law will be smaller for everyone.

Zhou, an associate professor in the Law Department of China Youth University for Politics, believes that the retirement formalities for workers are, of course, "citizens need to prove their identity when engaging in related activities", which belongs to the scope of application of the Resident Identity Card Law and should not be simply excluded by the labor department. Document No.8 conflicts with the Resident Identity Card Law and should be amended. The phenomenon of different judgments in the same case will have a bad influence on the process of legalization of social security in China, and its core problem still lies in the unification of departmental regulations and basic laws. The standard of determining the age of birth is related to the realization of the insured's pension rights and interests, and the relevant departments should pay enough attention to it.

Wang Youming, a senior prosecutor and "national research talent of procuratorial theory" in the Supreme People's Procuratorate, thinks that the record of ID card is the most authoritative, but in the case of conflict between the original record of labor department and the record of ID card, it is definitely unreasonable to use the original record to express it. Because the ID card is the legal qualification and proof of the national authority, it is obviously wrong to use the original records if the labor department does not abide by it.

1999 Suzhou, Wuhu, Chongqing and Tongling issued documents in 2003, 2004 and 2008 respectively to effectively solve the problem of determining the date of birth in retirement and endowment insurance, and revised and implemented the Two Notices on Determining the Date of Birth.

Xinhuanet reported that the Labor and Social Security Bureau of the 13th Division of Agriculture of Xinjiang Corps issued and formulated the Measures for Determining the Length of Service and Length of Service of the Employees of the 13th Division of Agriculture. Since February 2005, the identification of the age and length of service of employees has been carried out in all regiments, enterprises and institutions of the whole division. The whole division cleared and rectified the employee files 16896, among which 5389 people raised questions and corrected the length of service, age and name 1500 people.

At the beginning of 20 10, Shenzhen Social Security Bureau published: information disclosure on the homepage of Shenzhen Municipal People's Government > in the departmental dynamics, it is suggested that the retirement age of retirees should be determined by the age of ID card.

The legal department of Anhui Provincial Department of Human Resources and Social Security has handled many such cases. A staff member said in an interview with reporters: "It is unfair to simply use files as the basis for determining the date of birth, but we dare not use the information recorded on the ID card. In that case, some people who want to retire according to the time recorded in the file may say that we have not implemented the regulations of our superiors. I hope that the state can introduce specific regulations that are more fair, reasonable and easy to operate. "

In this regard, the relevant person in charge of Ministry of Human Resources and Social Security said: "We are communicating with the Ministry of Public Security to prepare a formal document to investigate the inconsistency between the birth dates of ID cards and files. The core is to confirm the real time of birth. " However, 20 10 years have passed, and Ministry of Human Resources and Social Security has not issued any new documents.

National laws must not be deterred in front of departmental regulations, and the "two notices on confirming the date of birth" should be abolished. The whole country must ensure the unification of the standards for confirming citizenship, and handle all matters involving the confirmation of citizenship with the ID card law as the standard, which will help everyone to abide by the law, restore the objective truth and form a corresponding unity. If we do not solve the problem of determining the date of retirement and birth of citizens according to the ID card law, it will inevitably spread to other fields, and it will also be impossible to administer and handle cases according to law, which will eventually lead to the evil consequences of hindering the process of governing the country according to law in China.

Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.