Laborers take the initiative to request not to pay social insurance

The Labor Contract Law stipulates that if an employer fails to pay social insurance premiums for a worker in accordance with the law, the worker may terminate the labor contract and claim economic compensation for the termination of the labor contract. After signing the labor contract with the employer, the worker proposed in writing to the employer that he did not want to pay social insurance premiums, and the employer did not pay social insurance premiums for the worker, but paid them for all other workers in accordance with the law. Later, the employee had a conflict with the employer and resigned on the grounds that the employer had not paid the social insurance premiums in accordance with the law, and demanded that the employer pay the economic compensation for the termination of the labor contract. Should the employer bear the legal responsibility to pay the economic compensation? Viewpoint 1: The employer is not required to pay economic compensation for the termination of the labor contract. Reason Article 72 of the Labor Law stipulates that employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law. Article 17 of the Labor Contract Law stipulates that social insurance is a mandatory provision of the labor contract. The prerequisite for participation in insurance is that the individual and the unit **** the same contributions; if the individual does not contribute, there is no way to record the individual account. Since the worker and the employer have signed a labor contract, both parties should **** together to comply with the fulfillment of the worker, and the worker proposed not to pay social insurance premiums, indicating that the worker first illegal, and the employer did not pay social insurance premiums to the employer, although also illegal, but the two violations of the law have a causal relationship. If the employee can get compensation, there is a suspicion of blackmail, at most, each of them will be beaten up. Then again, if the employee is compensated, the employer is really vulnerable. The fact that the employer has paid social security contributions to other employees in accordance with the law shows that the employer is more standardized and law-abiding in the management of labor relations. The fact that a worker submits in writing to the employer that he/she does not wish to pay social insurance premiums is a true indication of his/her true intention and shows that he/she voluntarily gives up this right. It would be inappropriate and unfair to place the responsibility for non-payment of social insurance premiums on the employer. The employee voluntarily does not pay social insurance premiums, giving up this right in the first place, the responsibility does not lie with the employer, and now claim economic compensation from the employer on this ground, which is inconsistent with the situation and reason. In the enterprise, individuals voluntarily do not pay contributions for a variety of reasons, such as the enterprise hired migrant workers, some have participated in the new rural insurance, policy convergence is not perfect. Due to the mobility of this part of the people, can't transfer the social insurance relationship is bound to affect the orderly flow of employees, in this case, I do not want to participate in non-enterprise behavior, can't claim the termination of the contract indemnity. Fairness, the employer should resolve the conflict with the workers, make up for the social insurance premiums during the period of time the workers work in their units. Lawyers comment that the above opinion ignores two characteristics of social security contributions in labor relations (completely different from individual contributions such as flexible employment personnel). First, it is a mandatory legal obligation, which cannot be violated by any unit or its employees, and even if the employee proposes not to pay the contributions, there is no reason for the employer to violate the law. Secondly, the initiative to pay contributions lies entirely with the employer, and even if the employee has the will to not pay contributions in violation of the law, he or she is powerless to carry it out, and the formation of the fact of non-payment of contributions in violation of the law is entirely a matter of the employer's choice and decision. There is no legal causal relationship between a worker's voluntary non-payment of contributions and the employer's eventual non-payment of contributions. This is true in all mandatory legal relationships, such as when a worker requests not to pay personal income tax, and if the employer really does not withhold personal income tax, it is the employer, not the worker, who bears the legal responsibility. In other words, the worker is not responsible for the offense of not paying. Viewpoint 2 The employer should pay economic compensation for termination of labor contract. Reason After the worker and the employer sign the contract, according to the Labor Contract Law, both parties must participate in the social insurance in accordance with the law and fulfill the obligation to pay contributions within their respective scope. After the implementation of the Social Insurance Law, it is clear from the legal level that both parties *** with the payment of social security contributions, and the unit does not handle social insurance in accordance with the law to give specific penalties. This shows that, once the labor contract is established, both parties must participate in social insurance in accordance with the provisions of the law, *** with the payment of social insurance premiums. The fundamental responsibility remains with the employer. In reality, many enterprises try every possible means to find reasons for not applying for social insurance for their workers in order to lighten the burden, reduce production costs and maximize profits. And many laborers, because they work in different places or for short periods of time, are not confident that they can enjoy the benefits after paying social security contributions, and some of them are just earning basic living expenses and are unwilling to pay other expenses. Both parties are reluctant to pay social security contributions, and agree on not paying social security contributions. The organization believes that it can avoid risks and reduce costs, and the laborer believes that he or she can obtain more paychecks. Thus, the laborer takes the initiative to voluntarily give up in writing, or the organization asks the laborer to give up voluntarily in writing, and both parties benefit from each other, each getting what they need, and the end seems to be a happy ending for both parties. In fact, the differences and disputes between the two parties are more prominent in this case. Workers are unable to enjoy unemployment benefits after leaving the organization because the organization has not paid social security contributions, and even if they have not left the organization, because the organization has not paid social security contributions and there are workplace accidents or huge medical expenses, more disputes arise between the organization and the individual, generating deeper conflicts, which is extremely detrimental to the development of a harmonious society. Our original intention and goal in introducing the Labor Contract Law and the Social Insurance Law is to promote social stability by handling social insurance so that everyone can enjoy social security benefits and everyone **** enjoys the fruits of society. Some workers are unwilling to pay social security fees for a variety of reasons, which in itself is contrary to the law, and employers can and must refuse. However, some units have a lucky break, thinking that if a worker gives up or is unwilling to pay social security contributions in writing, the unit can be exempted from the obligation to pay. It is this kind of thinking of the unit that leads to the fact of not participating in the social security, so in essence, the unit is still contrary to the relevant provisions of the law, should also bear the corresponding responsibility. Labor security law is different from civil law, can not fully implement the principle of self-government of equal civil subjects, can not handle the personal rights of the individual at will, but subject to the limitations of the state compulsory law. Essentially, the employer did not pay social security contributions to the employees infringement of the workers' right to social security, regardless of whether the individual worker is willing, regardless of whether the written request, infringement and violation of the fact is objective, the employer in the case of social security can be dealt with did not deal with in line with the provisions of the labor contract law, should bear the responsibility for compensation. Lawyer comment we agree with this opinion. The worker's nonpayment request is illegal, and the employer's nonpayment of illegal behavior does not have an intrinsic causal link between the legal consequences should be borne by the employer. Opinion three should be based on whether the employer is liable and other factors to determine whether the employer should bear the responsibility for the economic compensation for termination of the labor contract. Reason from the legislative purpose, the employer violates the principle of good faith, is subjective malice and not pay the full amount of social security contributions, is the object of the legislation to regulate. For the employer due to subjective bad faith and not pay the full amount of social security contributions, can be used as a reason for workers to terminate the contract, the employer should pay economic compensation. If the company proves that its failure to pay the full amount of social security contributions is not attributable to the company, the worker's request for payment of economic compensation shall not be supported; if it cannot be proved, the worker's request shall be supported. Has participated in the new rural insurance of migrant workers or bankrupt enterprises continue to renew the insurance of the laid-off unemployed, voluntarily not in the current employer to participate in the insurance, the employer to obtain the workers in the social security agency has participated in the certificate, and has paid the social security during the period of labor insurance fees to the workers, should be regarded as the employer has been in accordance with the law for the workers to participate in the insurance and contributions, the workers can not be in accordance with the law to pay social security premiums, the claim of the termination of the contract for the reason of economic compensation. Lawyer comment on the former situation although the law does not provide, but does have some truth. If the employer because of the earthquake, war and other force majeure did not pay social security contributions to the workers in a timely manner, the workers use this to terminate the labor contract and claim economic compensation, should not be supported. The new rural insurance is voluntary, employees must be mandatory to participate in the basic pension insurance, participate in the new rural insurance can not be exempted from the obligation to participate in the basic pension insurance, of course, the most legitimate practice is to interrupt the new rural insurance to participate in the basic pension insurance.

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