Is it illegal for the company to entrust a third party to pay social security for employees?

In practice, due to various reasons, many companies may not pay social insurance premiums for employees in their own names, but pay social insurance premiums for employees in the name of third-party companies. Is this legal?

Article 38 of the Labor Contract Law stipulates that if the employer has one of the following circumstances, the employee may terminate the labor contract: (3) failing to pay social insurance premiums for the employee according to law; Article 46 stipulates that in any of the following circumstances, the employer shall pay economic compensation to the employee: (1) the employee terminates the labor contract in accordance with the provisions of Article 38 of this Law; Paying social insurance can be regarded as not paying social insurance premiums according to law. If the employee terminates the labor contract on this ground, the employer will have the legal risk of paying economic compensation.

Does paying social insurance in the name of other companies count as "not paying social insurance premiums for workers according to law"?

According to Article 4 of People's Republic of China (PRC) Social Insurance Law, "Employers and individuals shall pay social insurance premiums according to law" and Article 10, "Employees shall participate in basic old-age insurance, and both employers and employees shall pay basic old-age insurance premiums", it is against the law to pay social insurance in the name of a third-party company, which leads to the separation of labor relations and social insurance relations.

In judicial practice, some judicial organs clearly stipulate that this kind of social security payment is illegal. Guangzhou Labor and Personnel Dispute Arbitration Commission and Civil Trial Chamber of Guangzhou Intermediate People's Court made the following judgment in Article 12 of the Summary of Opinions of the Symposium on Labor Dispute Cases:

12. Is it legal for the employer to sign a labor contract with the employee and establish a labor relationship, but entrust other units to pay social insurance on behalf of the employee in the name of other units? The laborer claims to terminate the labor contract on the grounds that the employer fails to pay social insurance premiums according to law. Does the employer need to pay economic compensation to the workers?

Illegal. The employer violates the provisions of Article 4 of the Social Insurance Law that "employers and individuals shall pay social insurance premiums according to law" and Article 10 that "employees shall participate in basic old-age insurance, and employers and employees shall pay basic old-age insurance premiums". If the laborer claims to terminate the labor contract by force on this ground, the employer shall pay economic compensation to the laborer.

The judgment (20 18) E 0 1 Minzhong No.3245 holds that the social insurance registration is subject to territorial management, and the account opening unit and payment unit should be "employers", that is, employers who have established labor relations with workers, and it is illegal for employers to entrust a third party to pay social insurance for employees. Generally speaking, the prerequisite for workers to enjoy social insurance benefits should be the existence of labor relations with the insured units. However, in the case of social insurance payment, there are inconsistencies between the location of the employer and the place of social insurance payment, and between the subject of social insurance payment and the actual work unit. Payment is to pay social security for employees directly in the name of the social security payment company, not as an agent, but as an alternative.

In the following cases, the court has different views for reference in practice:

Tianjin Higher People's Court

Civil adjudication

(20 19) Shen No.592

Applicant for retrial (defendant of first instance and appellant of second instance): Liu Moulong.

Respondent (plaintiff in the first instance and appellee in the second instance): Zhengmou Premix (Tianjin) Co., Ltd.

The applicant for retrial, Liu Moulong, refused to accept the civil judgment No.4891of Tianjin No.2 Intermediate People's Court (20 18) because of a labor dispute with Zheng premix (Tianjin) Co., Ltd. (hereinafter referred to as Zheng Tianjin Company), and applied for retrial in our hospital. Our college formed a collegial panel according to law to conduct the examination, and the examination has now ended.

Liu Moulong applied for retrial, claiming 1. A company in Tianjin failed to pay Liu Moulong's bonus, allowance and other labor remuneration in full and on time. The evidence submitted by Liu Moulong can prove that a company in Tianjin significantly reduced its labor remuneration without reason. Moreover, according to the third paragraph of Article 6 of the Regulations on Payment of Wages and Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, the employer shall bear the burden of proof in case of wage dispute between the employee and the employer. In this case, Zheng Tianjin Company could not prove that it had paid Liu Moulong's labor remuneration in full, so Zheng Tianjin Company should bear the adverse consequences.

2. The Measures for Sales Bonus of Export Premixed Products 20 17- 1 and the Measures for Subsidies of Sales Staff Travel 20 17- 1 (hereinafter referred to as the "two measures") applied to Liu Moulong violated the system content, formulation procedures and publicity procedures.

3. In the labor contract, Liu Moulong and Zheng Mou Tianjin Company agreed that Zheng Mou Tianjin Company would entrust its customer service centers set up in various places to pay social insurance for Liu Moulong, but in fact Zheng Mou Tianjin Company paid social insurance for Liu Moulong in the name of Qianjin Network Information Technology (Shanghai) Co., Ltd. (hereinafter referred to as Qianjin Company), which obviously violated the contract. Liu Moulong agreed to Qianjin Company to handle social insurance on his behalf, but did not agree to pay social insurance in the name of the company. First, the court of second instance found that a company in Tianjin did not pay social insurance to Liu Moulong, and the facts were unclear. Because a company in Tianjin has the above-mentioned illegal situation of not paying labor remuneration in full and not paying social insurance premiums for workers in accordance with the law, which violates the provisions of laws and regulations and damages the rights and interests of workers, Liu Moulong advocates that a company in Tianjin should pay economic compensation for the termination of labor contracts in accordance with the provisions of Article 38 of the People's Republic of China (PRC) Labor Contract Law (hereinafter referred to as the Labor Contract Law), which is in line with the law. First, the court of second instance did not support Liu Moulong's claim, found that the facts lacked evidence and applied legal errors. To sum up, Liu Moulong applied for a retrial in accordance with the provisions of Item 2 and Item 6 of Article 200 of the Civil Procedure Law of People's Republic of China (PRC).

A company in Tianjin submitted an opinion that Liu Moulong's retrial application lacked factual and legal basis and requested to be rejected.

After examination, our hospital believes that this case belongs to a labor dispute. The focus of the dispute is whether Liu Moulong advocates that a company in Tianjin should pay economic compensation for the termination of the labor contract according to Article 38 of the Labor Contract Law. Article 38 of the Labor Contract Law stipulates that if the employer fails to pay the labor remuneration in full and on time, fails to pay social insurance for the employee according to law, and the rules and regulations violate the laws and regulations to damage the rights and interests of the employee, the employee may terminate the labor contract. Article 46 of the Labor Contract Law stipulates that if an employee terminates the labor contract in accordance with the provisions of Article 38 of the Law, the employer shall pay economic compensation to the employee.

In this case, Liu Moulong claimed that a company in Tianjin did not pay its labor remuneration in full, but the specific calculation basis of the wage difference he claimed was not clear, and the objective fact that a company in Tianjin did not pay its wages in full was not fully proved, so Liu Moulong claimed that a company in Tianjin did not pay its labor remuneration in full, and the basis was insufficient.

Liu Moulong claimed that the "two measures" applied by a company in Tianjin violated the provisions of laws and regulations and harmed its legitimate rights and interests. Because the above-mentioned "Two Measures" were formulated by the superior group company of a company in Tianjin, a company in Tianjin failed to pay Liu Moulong bonuses and allowances according to the provisions of the "Two Measures", and Liu Moulong could not submit evidence to prove that a company in Tianjin applied the "Two Measures" to pay him bonuses and travel allowances, so his claim that the "Two Measures" harmed his legitimate rights and interests lacked factual basis.

Liu Moulong claimed that a company in Tianjin paid social insurance in the name of Qianjin Company, an outsider of a company in Tianjin, which violated the contract and failed to pay social insurance premiums for it according to law. After investigation, Zheng Tianjin Company and Qianjin Company signed the "Worry-free Personnel Outsourcing Service Agreement", and made an agreement on matters such as keeping employee personnel relations, paying social security and paying provident fund for Zheng Tianjin Company. Liu Moulong also signed a written letter of commitment to confirm the insurance coverage and recognized Qianjin Company as its agent for social security. A company in Tianjin entrusted Qianjin Company to pay insurance for Liu Moulong according to the agreement, which did not violate the law and did not infringe on Liu Moulong's legitimate rights and interests. Therefore, Liu Moulong claimed that a company in Tianjin failed to pay social insurance premiums according to law, and the basis was insufficient.

Because Liu Moulong could not prove that a company in Tianjin did not pay enough labor remuneration, failed to pay social insurance premiums according to law, and violated laws and regulations to harm the rights and interests of workers, Liu Moulong advocated that a company in Tianjin should pay economic compensation according to the provisions of Articles 38 and 46 of the Labor Contract Law. There is nothing wrong with not supporting the original judgment on the basis of insufficient evidence.

To sum up, Liu Moulong's application for retrial does not conform to the provisions of Article 200 of the Civil Procedure Law of People's Republic of China (PRC). In accordance with the provisions of the first paragraph of Article 204 of the Civil Procedure Law of People's Republic of China (PRC) and the second paragraph of Article 395 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China (PRC), the ruling is as follows:

Rejected Liu Moulong's retrial application.

Presiding Judge: Yu Yang

Judge: Yan Hao.

Judge: Duan Haobo

20130 May, 9