Should a passenger transport company bear the liability for work-related injury insurance after illegally issuing a contract?

Source: Procuratorate Daily

　　Basic facts of the case: On April 3, 2015, a passenger transport company in Guizhou Province registered in Sinan County, Tongren City and obtained a business license, and then obtained an organization code certificate and a road transport business license, and through an application, obtained the right to operate a passenger line from Sinan County to Wenzhou City, Zhejiang Province. On December 27, 2016, the passenger transport company, as Party A, signed the "Passenger Vehicle Contracting and Operation Contract" with Liu, as Party B, and contracted the passenger lines and buses it enjoyed to Liu for operation, and the contract period was from January 1, 2017 to December 31, 2017. The contract stipulates that Party B shall pay the vehicle contracting fee to Party A on a monthly basis, and Party A shall have the right to audit the drivers hired by Party B and provide necessary safety knowledge education, and Party B shall be responsible for its own profits and losses in business activities. On September 9, 2017, Mr. Liu signed a labor contract with Mr. Li, hired Mr. Li as the driver of the passenger line, and Mr. Liu paid Mr. Li's salary.

　　On October 12, 2017, Li Moumou drove a passenger car in a traffic accident on the way back to Sinan from Wenzhou, and Li Moumou died on the spot. The traffic management department determined that Li Moumou was not responsible for the accident. On November 2 of the same year, Li's family submitted an application for work-related injury recognition to the Tongren Municipal Human Resources and Social Security Bureau. On January 14, 2018, the Tongren Municipal Human Resources and Social Security Bureau issued the "Decision on Determination of Work-related Injury", determining that a passenger transport company should bear the work-related injury insurance liability of Li. Dissatisfied, the passenger transport company filed an administrative lawsuit. After trial, a court in Tongren City revoked the decision to determine the work-related injury on the grounds that the law was wrongly applied. On February 26, 2019, the Tongren Municipal Human Resources and Social Security Bureau re-issued the "Decision on Determination of Work-related Injury", determining that a passenger transport company illegally contracted the right to operate passenger lines to individuals who did not have passenger transport qualifications, and the passenger transport company should bear the work-related injury insurance liability of Li. Still dissatisfied, the passenger transport company filed an administrative lawsuit, and the court of first instance rejected the passenger transport company's claim. After the passenger transport company appealed, the court of second instance ruled that the passenger transport company was not liable for work-related injury insurance. After the family of the deceased applied for a retrial, the retrial court held that the "Decision on Determination of Work-related Injury" re-issued by the Human Resources and Social Security Bureau had applied the law correctly and the procedure was lawful, and supported it, so it changed the judgment and revoked the second-instance judgment and upheld the first-instance judgment. The passenger transport company then applied to the Tongren Municipal Procuratorate for supervision.

　　In this case, there are two views on whether a passenger transport company should bear the work-related injury insurance liability to Li.

　　The first view is that the liability for the work-related injury insurance should not be borne by the passenger transport company. According to the provisions of the Guizhou Provincial Road Transport Regulations, "if the passenger line is contracted for operation, the contract issuing party shall sign a written contract with the contractor ......", the passenger transport company can contract the passenger line to the outside world, and there is no qualification restriction on the contracting object. A passenger transport company's contracting of passenger lines to Liu conforms to the provisions of local laws and regulations, and Li is employed by Liu to work as a driver, and the liability for work-related injury insurance shall be borne by Liu, and the passenger transport company is not responsible. The Human Resources and Social Security Bureau's determination that the passenger transport company bears the liability for work-related injury insurance is an error in the application of law, and the procuratorate shall perform its supervisory duties.

　　The second view is that the liability for the work-related injury insurance should be borne by the passenger transport company. First, the passenger transport company contracts its passenger line to Liu, a natural person who does not have the qualifications to engage in passenger transport operations, and Liu does not have the qualifications to be an employing entity, with reference to Article 3, Paragraph 1, Item 4 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance", "Where the social insurance administrative department determines that the following units are units that bear the responsibility for work-related injury insurance, the people's court shall support them: ...... (4) Where an employing unit violates laws or regulations by subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the employee hired by the organization or natural person is injured or injured while engaged in the contracting business, the employing unit shall be the unit that bears the liability for work-related injury insurance", and the passenger transport company shall bear the work-related injury insurance liability. Second, the passenger transport company's contracting of the passenger line is only an adjustment of the internal management model, and the passenger transport company is still the main body of responsibility for the passenger line, and the driver's work-related injury insurance liability should be borne by the passenger transport company. The people's court's judgment upholding the Human Resources and Social Security Bureau's determination of work-related injury insurance liability is not improper, and the procuratorate shall make a decision not to support the applicant's application for supervision.

　　The author agrees with the second point of view for the following reasons:

　　First, the passenger transport company shall bear the liability for work-related injury insurance arising from illegal subcontracting. According to the judicial rules abstracted from Article 3, Paragraph 1, Item 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, the employer must bear the corresponding responsibility for whether the subcontractor has the employment qualifications, that is, when subcontracting to an organization or natural person without employment qualifications, it must bear the liability for work-related injury insurance, so as to urge the employer to legally subcontract and improve the quality of employment.

　　In this case, the passenger transport company's operation of passenger lines is subject to administrative licensing, which is a "contracting business" within the scope of administrative law, so the judicial authorities can handle the case with reference to the above provisions. At the same time, the contractor in this case, Mr. Liu, did not meet the requirements of the corresponding qualifications and conditions for engaging in passenger transport operations as stipulated in Article 8 of the Regulations of the People's Republic of China on Road Transport, and the passenger transport company contracted the passenger line to Mr. Liu under this circumstance, which violated the provisions of Article 3, Paragraph 1, Item 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance.

　　Second, Mr. Li is essentially an employee of a passenger transport company. In this case, although the passenger transport company did not directly sign a labor contract with Mr. Li, it can be seen from the provisions of the Passenger Vehicle Contracting and Operation Contract signed by the passenger transport company and Mr. Liu that the passenger transport company had the obligation to conduct audit and safety knowledge education for the driver hired by Mr. Liu, and Mr. Li registered and signed the "Outbound Registration Form for Passenger Stations" formulated by the passenger transport company. According to the relevant provisions of the "Notice on Matters Concerning the Establishment of Labor Relations" issued by the former Ministry of Labor and Social Security, Li Moumou had an employment relationship with the passenger transport company. If Li dies in an accident during working hours and at the place of work due to work-related reasons, the passenger transport company shall bear the liability for work-related injury insurance. As to whether the passenger transport company can recover from Liu, the contractor of the passenger line, after assuming responsibility, it does not fall within the scope of the legal relationship in this case.

　　Third, the contracting of passenger lines by passenger transport companies does not lead to the transfer of the main body of work-related injury insurance liability. Work-related injury insurance is a right that is mandatory for workers through the state through laws and regulations, and it is a specific obligation that enterprises must undertake. From the analysis of the legal relationship, it is only a change in the internal operation and management mode of the passenger transport company for the passenger line, that is, from the overall operation of the company to the self-financing operation and loss operation after Liu pays a certain contract fee, and this change in the internal management mode does not lead to the transfer of the main body of work-related injury insurance liability. After the passenger line was contracted, Liu still operated and assumed responsibilities in the name of the passenger transport company, such as accepting administrative penalties and signing an entry agreement with the passenger station. According to the provisions of the Regulations on Work-related Injury Insurance, "if the employer implements contracted operation, the work-related injury insurance liability shall be borne by the unit where the employee's labor relationship is located", the only unit that meets the employment conditions in this case is the passenger transport company, so the passenger transport company should bear the work-related injury insurance liability of Mr. Li.

　　Disposition: After review, the procuratorate believes that it is not improper for the court and the Human Resources and Social Security Bureau to determine that a passenger transport company should bear the liability for work-related injury insurance, and should make a decision not to support the supervision application in accordance with the law. In view of the fact that during the period of the procuratorate's handling of the case, the civil case in which Li's family sued the passenger transport company for paying work-related injury insurance premiums had already taken effect, and the procurator actively carried out the substantive resolution of administrative disputes, organized the parties to the case, the transportation bureau, etc., to hold a public hearing, and explained the law to the passenger transport company, and the passenger transport company was finally willing to obey the court's judgment, took the initiative to pay the work-related injury insurance premiums to Li's family, and submitted an application to the procuratorate to withdraw supervision, and the case was substantially resolved. After the procuratorial organs concluded the review in accordance with the law, they issued procuratorial suggestions to the Human Resources and Social Security Bureau in response to the flaws in law enforcement that were vague in the application of the law, so as to promote administration in accordance with the law.

　　(The authors' affiliations are Guizhou Provincial People's Procuratorate and Guizhou Tongren Municipal People's Procuratorate)