With the aging of the population, and the increasing pressure of work, retirement has become a top concern.
Retirement does not mean that you can retire, especially in some institutions and enterprises, the issue of retirement age is particularly concerned. This is because retirement is closely related to age.
However, there are some groups of people whose ID card age is inconsistent with their actual age, so what is the retirement age?
Let's look at a specific case.
Basic information
Murong Bo, male, born on April 29, 1955.
In December 1969, Murong Bo was drafted into the army. Murong Bo's personal file first recorded his date of birth as the date of birth recorded in the "Military Service Registration Form for Conscripted Citizens" and the "Political Review Registration Form", April 29, 1954.
Murong Bo retired from the army in March 1975, arranged to work in a winery in Jiujiang City in June of the same year, and then transferred to the Municipal Radio and Television Bureau and the Municipal TV Station, and was an employee of the Provincial Radio and Television Network Transmission Co., Ltd. before his retirement in 2014.
Murong Bo's "Application for Joining the Group", "Veteran's Certificate", "Letter of Introduction for Resettlement and Settlement", the first and second generation "Resident Identity Cards", "Permanent Population Information", "Household Registration Book" and relevant assessment and evaluation forms are recorded as April 1955 or April 29, 1955. Murong Bo's household registration file materials and birth certificate materials before his conscription into the army were not inquired.
On April 22, 2014, Murong Bo's unit submitted Murong Bo's "Pension Treatment Approval Form for Insured Personnel" to the Provincial Social Insurance Administration Center.
On April 23, 2014, the company submitted Murong Bo's basic pension application form for insured personnel (A4-1) to the relevant department of the Department of Human Resources and Social Security.
On April 28, 2014, Murong Bo received the "Pension Treatment Approval Form for Insured Personnel" and the company's "Retirement Approval Form" and other decisions and notices from the Pension Insurance Department of the Human Resources and Social Security Department.
Murong Bo was not satisfied, believing that he had not yet reached the legal retirement age, and filed an administrative reconsideration with the provincial people's government on June 21, 2014, and the provincial government issued an administrative reconsideration letter on August 19, 2014, upholding the determination of Murong Bo's birth time by the Department of Human Resources and Social Security when handling Murong Bo's retirement and pension, and made the "Pension Treatment Approval Form for Insured Personnel" accordingly.
Murong Bo was dissatisfied with the administrative reconsideration decision and filed an administrative lawsuit with the Nanchang Intermediate Court on December 22, 2014.
Court hearing
Intermediate Court: If the time of birth recorded in the identity card and the file are inconsistent, the retirement age shall be based on the time of birth recorded first in the person's file.
The Nanchang Intermediate People's Court held in the first instance that the Jiangxi Provincial Department of Human Resources and Social Security, as the labor and social security department of the people's government at or above the provincial level, has the administrative authority to make retirement approval decisions.
Although Murong Bo's first generation ID card was dated April 29, 1955, the ID card was issued in October 1987, and Murong Bo's file was formed in December 1969. Referring to the former Ministry of Labor and Social Security's Notice on Stopping and Correcting Issues Related to the Early Retirement of Enterprise Employees in Violation of State Regulations, if the time of birth recorded in the identity card and the file are inconsistent, the time of birth recorded first in the person's file shall prevail. Although the above-mentioned "Circular" is a normative document on issues related to the early retirement of enterprise employees, the relevant provisions of the "Circular" do not violate the prohibitive provisions of the law by analogy, and the "Circular" is still in effect. Therefore, it should not be held that the Department of Human Resources and Social Security erred in applying the law in this retirement approval.
The relevant departments of the Department of Human Resources and Social Security did not standardize the procedures in the examination and approval process, but the approval results were not inappropriate. Murong Bo believed that the specific administrative act procedure was illegal, found that the facts were unclear, the evidence was insufficient, the law was wrong, and the reasons for revocation according to law were insufficient, and they were not accepted. Accordingly, in accordance with Item 4 of Article 56 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China, the court of first instance rendered a first-instance judgment on March 10, 2015: dismissing Murong Bo's claim.
Murong Bo appealed the verdict to the Jiangxi Provincial Higher People's Court.
High Court: The first trial was correct, and the retirement age determined by the Human Resources and Social Security Department is fine.
The Jiangxi Provincial Higher People's Court held in the second instance that the Notice on Stopping and Correcting Issues Related to the Early Retirement of Enterprise Employees in Violation of State Regulations (Ministry of Labor and Social Security Fa [1999] No. 8) is a normative document issued by the former Ministry of Labor and Social Security within the scope of its duties on issues related to the determination of employee retirement, and is a specific application interpretation of the Measures, which does not contradict the superior law, and should be recognized when determining whether the specific administrative act being sued is legal.
During the retirement approval process, the Department of Human Resources and Social Security found that Murong Bo's birth time recorded in his file was inconsistent, and the birth time recorded in the "Military Service Registration Form for Conscripted Citizens" and the "Political Review Registration Form" was April 29, 1954, which was the first time of birth recorded in his file, and the other materials recorded April 29, 1955. According to the "Notice on Stopping and Correcting Issues Related to the Early Retirement of Enterprise Employees in Violation of State Regulations", the Department of Human Resources and Social Security found that it was not inappropriate for Murong Bo's retirement to start on April 29, 1954.
In accordance with the first paragraph of Article 89 of the Administrative Procedure Law of the People's Republic of China, the court of second instance rendered a judgment of second instance on June 16, 2015: dismissing the appeal and upholding the original judgment.
Application for retrial: The determination of my date of birth by the Department of Human Resources and Social Security is seriously inconsistent with the objective facts, and the Supreme Court wants to decide for me!
Murong Bo was dissatisfied with the judgments of the first and second instance and applied to the Supreme Court for a retrial, requesting that the original judgment be revoked, and that the case be retried or remanded for retrial according to law. The main facts and reasons are:
1. The Department of Human Resources and Social Security made an error in the laws and regulations applicable to the determination of my date of birth, violating the first paragraph of Article 1 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (for Trial Implementation): "The time of birth shall be subject to the household registration certificate" for citizens; The first paragraph of Article 1 of the Interim Measures of the State Council on the Retirement and Retirement of Workers (Guo Fa [1978] No. 104) stipulates: "Men who have reached the age of 60, women who have reached the age of 50, and have completed 10 years of continuous service" (statutory retirement age) and other laws and regulations.
2. The determination of my date of birth by the Department of Human Resources and Social Security is seriously inconsistent with the objective facts, and seriously violates legal procedures when applying evidence. Paragraph 2 of Article 63 of Chapter VI "Evidence" of the Civil Procedure Law of the People's Republic of China stipulates: "Evidence must be verified to be true before it can be used as the basis for determining facts". The date of birth first recorded in the file is not filled in by me, does not represent the subjective will of the applicant, and it is obviously unfair for me to bear the responsibility and consequences.
3. The Department of Human Resources and Social Security changed my date of birth in the "Pension Treatment Approval Form for Insured Persons" to change the registration items of the citizen's resident identity card without authorization, exceeding the statutory authority and violating the basic principle of the administrative law on "there is authorization there is administration, and if there is no authorization, there is no administration". The "normal retirement" approval decision made on this basis is an administrative act that violates my legitimate rights and interests.
4. Article 3 of the State Council's Notice on Issues Related to the Clean-up of Rules and Regulations (2010) No. 28 stipulates: "Normative documents that are not included in the catalogue of documents that continue to be valid shall not be used as the basis for administrative management." Document No. 8 issued by the Ministry of Labor and Social Security (1999) is not included in the catalogue of normative documents that continue to be valid published by the Ministry of Human Resources and Social Security, so it can no longer be used as a basis for administrative management.
Supreme Court: If the time of birth recorded in the identity card and the file are inconsistent, the time of retirement shall be determined by the time of birth first recorded in the person's file.
The Supreme Court held that Murong Bo, the applicant for retrial, applied to correct the conflicting record of the date of birth in his file, but according to the Notice of the Ministry of Labor and Social Security on Stopping and Correcting Issues Related to the Early Retirement of Enterprise Employees in Violation of State Regulations (Ministry of Labor and Social Security Fa [1999] No. 8), the method of combining the resident identity card and the employee's file is implemented for determining the time of birth of an employee. If the time of birth recorded in the identity card and the file are inconsistent, the time of birth recorded first in the file shall prevail.
As for the Circular of the State Council on Issues Related to the Clean-up of Rules and Regulations (Guo Ban Fa [2010] No. 28), the clean-up object is regulations, and Document No. 8 of the Ministry of Labor and Social Affairs (1999) is a normative document and does not fall within the scope of the State Council's rules and regulations, Murong Bo believes that the Ministry of Labor and Social Affairs (1999) No. 8 Document has no basis in superior law, and the rules cleaned up by the State Council are invalid and the grounds for applying for retrial cannot be established.
However, the stipulation on the starting time of retirement in Document No. 8 (1999) issued by the Ministry of Labor and Social Affairs is to standardize the determination of the retirement time of employees, and in the special case of inconsistency between the birth time recorded in the identity card and the file, the time of birth recorded first in the person's file is used to determine the retirement time, which is not a confirmation of his identity, which does not contradict the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (for Trial Implementation). Therefore, the Department of Human Resources and Social Security found that Murong Bo's retirement date was April 29, 1954, and it was not improper.
As the labor and social security department of the people's government at or above the provincial level, the Department of Human Resources and Social Security has the administrative authority to make retirement approval decisions. Murong Bo's retirement was reviewed by the Provincial Social Insurance Administration Center and submitted to the Department of Human Resources and Social Security for approval, which complied with the provisions of the employee retirement approval procedures. Therefore, Murong Bo's application for retrial lacked the corresponding factual and legal basis, and the judgments of the courts of first and second instance complied with the law.
In summary, Murong Bo's application for retrial did not comply with the provisions of Article 91 of the Administrative Procedure Law of the People's Republic of China, and this court ruled as follows Article 101 of the Administrative Procedure Law of the People's Republic of China and the first paragraph of Article 204 of the Civil Procedure Law of the People's Republic of China:
Murong Bo's application for retrial was rejected.
Notice of the Ministry of Human Resources and Social Security on the discrepancy between the retirement age and the actual age
Notice on stopping and correcting problems related to the early retirement of enterprise employees in violation of state regulations
Ministry of Labor and Social Affairs Fa [1999] No. 8
2. Standardize retirement approval procedures and improve the approval system
(1) Strengthen the management of the examination and approval of enterprise employees' retirement. All regions should strictly follow the authority for examination and approval of the retirement and retirement of enterprise employees stipulated in the Circular, standardize the examination and approval work of enterprise employees, establish a system for examination and approval work, standardize examination and approval procedures, and strengthen supervision over examination and approval work.
(2) For the determination of the time of birth of employees, the method of combining resident identity cards and employees' files shall be implemented. It is necessary to strengthen the management of resident identity cards and employee files, and it is strictly forbidden to arbitrarily change the time of birth of employees and compile files.
(3) If an employee is completely incapacitated due to illness or non-work-related disability, a hospital at or above the county level designated by the labor and social security department at the prefectural or municipal level shall be responsible for medical diagnosis and issue a certificate. Certificates issued by non-designated hospitals are invalid.