How should social insurance be borne if the labor relationship between employees and units has not been terminated?

The so-called "two don't find" refers to an irregular phenomenon of labor relations formed in the process of enterprise restructuring during the transition from planned economy to market economy, in which employers and workers retain labor relations, employers don't arrange workers' work, and workers don't receive remuneration.

In the phenomenon of "two don't find", the employer still keeps social security, files and personnel relations for the workers without providing labor and receiving wages. There is a detached relationship between them. What kind of labor relations does this relationship legally belong to? This paper briefly discusses this.

First, "two do not find" was sentenced to social security.

Wu Mou is an employee of a subsidiary company, and has worked in this company for 23 years. 1In August, 993, the enterprise in Wu Mou was cancelled by the administrative department for industry and commerce, so a company, the superior unit of the enterprise, assumed the creditor's rights and debts of the enterprise according to law, and was responsible for the resettlement of the employees of the enterprise from June of the same year. However, Wu Mou did not report to the company within the specified time. Since then, Wu Mou has not contacted the company, and the company has not dealt with Wu Mou. 1995, when a company implemented the labor contract system according to OrderNo. 1 of Beijing Municipal People's Government, it did not inform Wu Mou to sign the labor contract. From 1999 to 10, Wu Mou came to the company to ask for job placement and pay three social insurances, namely, pension, unemployment and medical care, from 1993 to 10+0999. The company thought that there was no labor relationship with Wu Mou, and rejected Wu Mou's request. In the same year, Wu Mou appealed to the Arbitration Commission on1October 20th 10. Because mediation failed, the Arbitration Commission ruled that the company signed an open-ended labor contract with Wu Mou. Pay back the pension, unemployment and medical insurance from June 1993 to June 1999; Pay the living expenses during the arbitration, that is, the living expenses in September 1999 and June 10, and the standard is the minimum living expenses in Beijing.

Second, the causes of the phenomenon of "two don't find"

In the 1990s, due to the sluggish production, some enterprises let employees leave their units to find their own way out without arranging their work, paying their wages and benefits, or giving them economic compensation for terminating their labor contracts. Some of these people leave the enterprise to work temporarily, work and open a shop. After more than ten years of hard work, some of these people have become bosses, while others are still poor. Those who have wandered around the society for many years have not.

Made a fortune. Those workers who have no place to live naturally want to go to work when they are old and weak. Lawyers met many such petitioners when they received letters and visits.

In the 1990s, the restructuring of enterprises caused a large number of laid-off workers, some of whom went through the formalities of leaving their jobs without pay and achieved re-employment. There are still some people who have not signed any agreement with the employer at all. Some of these people have worked in the original unit for more than ten years and have met the conditions for signing open-ended labor contracts. However, the employer did not terminate the labor contract with them, nor did it give them economic compensation, nor did it pay social security for them. At retirement age, workers who don't mix well will come to you, and the enterprise has been restructured and sold. These people turn to the government, which has become a serious social problem.

Third, the harm caused by the lag of the phenomenon of "two non-discoveries"

As a product of the planned economic system, the labor relationship between "two people who have not found a job" is far more difficult to deal with than those who leave their jobs without pay, and it is also easier to change. The phenomenon of "two don't find" is an irregular labor relationship, which is easy to cause labor disputes and harmful to units, workers and social stability.

First of all, "two don't find" brings some potential problems to the employer: first, because "two don't find" is actually a labor relationship between the employer and the employee, the employer should bear the social insurance of the employee, so it is best to leave the job without pay and bear the agreed responsibilities; Second, it is impossible to prove that the "two people who are not looking for" have income, and the employer shall bear their living expenses; Third, workers can't work outside the home. When they come back, they will find a unit, ask for a post or ask for living expenses, and the unit can't help it. At that time, it seemed that the employer did not need to pay compensation for the termination of labor relations because it did not terminate the labor relations with the workers, but the expenses incurred in the future may be even greater.

4. What kind of labor relationship does "two don't find" belong to?

After the implementation of the Labor Contract Law, the establishment, dissolution and termination of labor relations shall be conducted in written form. If the "two non-discoveries" are agreed in writing, the agreement may be followed; If not in written form, what kind of labor relations does it belong to?

In the phenomenon of "two non-discoveries", the laborer did not provide labor, the employer did not pay labor remuneration, and did not terminate or terminate the labor contract with the laborer, that is to say, the labor relationship was not dissolved or terminated through legal procedures. In an uncertain state.

How to characterize this uncertain state in law? Summary of the Seminar of Beijing Higher People's Court of Beijing Municipal Bureau of Labor and Social Security on the Application of Law in Labor Dispute Cases (2009)No. 14. If the laborer fails to provide labor for a long time, the employer fails to terminate the labor relationship with him according to law, and both parties have failed to find it for a long time, it can be concluded that the labor relationship between the two parties is in a state of suspension of performance, and there is no relationship of rights and obligations in the labor law between the employer and the employee during the suspension of performance, which is not included in the working years of the unit. And "two don't look for a job" is not an automatic resignation, but a suspension of labor relations. In this case, one party proposed to terminate the labor relationship, and the other party applied for arbitration because it did not agree to terminate it. If the Labor Arbitration Commission or the people's court considers that the termination is in line with the relevant provisions of the law after examination, it shall confirm the termination. As can be seen from the provisions of Beijing, "two not looking for a job" actually belongs to the suspension of labor relations, that is, labor relations are temporarily at a standstill. In this case, the laborer can ask for work or terminate the labor contract at any time. If the laborer chooses to perform the labor contract, the employer shall arrange his post; If the laborer chooses to terminate the contract, the employer shall give economic compensation.

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