Public Interest Law Popularization Bulletin, Issue 31, 2024
On April 18, the "Ask the Law Hunan" column of the red network received a total of 65 replies from lawyers, and the main consulting areas were traffic accidents, labor security, contract performance, consumer rights protection, etc.
The enthusiastic lawyers mainly include: Wang Zhuang of Hunan Tiandiren Law Firm, Huang Chunxiang of Beijing Jingshi (Changsha) Law Firm, Tang Min of Hunan Changyan Law Firm, and Zhang Xixi of Beijing Haotian (Changsha) Law Firm.
Lawyer's Response Featured
directory
1
The other party is fully responsible for the car accident, what compensation can the injured car owner claim?
2
Can I get unemployment benefits if I voluntarily resign, and what procedures do I need to go through by the company?
3
What are the appraisal items in the labor ability appraisal?
4
What should I do if someone buys my crab and doesn't give me money, and I can't find anyone?
5
How to complain if the employer has not paid social security for employees for a long time?
6
If the quality problems of the decoration company are not rectified and the work is suspended, how to protect the rights?
1
Hengyang netizens asked: The other party is fully responsible for the car accident, what losses can the owner of the accident be asked to compensate?
Hunan Changyan Law Firm
Lawyer Tang Min answers: Hello, traffic accident compensation specifically includes compensation for personal injuries (medical expenses, lost work expenses, nursing expenses, transportation expenses, hospital meal subsidies, nutrition expenses; if the victim is disabled, the disability compensation, disability assistive devices and living expenses of the dependents shall also be compensated; if the victim dies, funeral expenses and death compensation shall also be compensated) and property damage compensation (vehicle maintenance costs, property damage expenses carried by the vehicle, loss of business vehicles, etc.). Legal basis: Article 1179 of the Civil Code of the People's Republic of China Where personal injury is caused by infringement of others, compensation shall be made for reasonable expenses incurred for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, and hospital meal subsidies, as well as the loss of income due to lost work. In the case of disability, compensation shall also be made for the cost of assistive devices and disability compensation, and in the case of death, funeral expenses and death compensation shall also be compensated. Article 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents: Where a party requests compensation from the infringer for the following property losses caused by a road traffic accident, the people's court shall support it: (1) the expenses incurred in repairing the damaged vehicle, the loss of the items contained in the vehicle, and the cost of rescuing the vehicle; (2) the cost of replacing the vehicle for the purchase of a vehicle equivalent to the value of the damaged vehicle at the time of the traffic accident due to the loss or inability to repair the vehicle; (3) the transportation of goods in accordance with law; (4) Reasonable expenses incurred by non-commercial vehicles due to the inability to continue to use the vehicles of commercial activities, such as passenger transportation, and (4) reasonable expenses incurred by the usual alternative means of transportation due to the inability of non-commercial vehicles to continue to be used.
2
Zhuzhou netizens asked: I am sick and can't work, and the unit asked me to resign voluntarily, in this case, I want to receive unemployment benefits, what procedures do I need from the company?
Hunan Tiandiren Law Firm
Lawyer Wang Zhuang answers:
Hello, the conditions for applying for unemployment insurance benefits are:
1. The employer and the applicant have paid unemployment insurance premiums for one year before becoming unemployed;
2. Interrupting employment not due to one's own will (the employer needs to submit a consensus to terminate the labor contract, or be dismissed by the unit);
3. Have been registered as unemployed and have job search requirements. The monthly standard of unemployment insurance is determined by 90% of the minimum wage standard of each overall planning area. The number of months of receiving unemployment insurance premiums is calculated according to the cumulative number of years of unemployment insurance premiums paid (cumulative refers to the total number of months of unemployment insurance paid by different insured units, and 12 months is 1 year).
If the employer and the employee have paid contributions for one year but less than five years, the maximum period for receiving unemployment insurance money is 12 months, the maximum period for receiving unemployment insurance money is 18 months for those who have paid contributions for five years but less than 10 years, and the maximum period for receiving unemployment insurance money is 24 months (that is, the maximum period for receiving unemployment insurance money for a single payment is 24 months). During the period of receiving unemployment insurance money, the unemployment insurance fund shall pay the basic medical insurance premiums, and there is no need to rush to pay the flexible employment medical insurance and urban and rural residents' medical insurance.
The unemployment benefit applied for in the current month can only be applied for in the next month, and the bank card used to receive the benefits is our personal social security card by default.
3
Changsha netizens asked: In Changsha, which labor ability appraisal projects should be selected?
Beijing Jingshi (Changsha) Law Firm
Lawyer Huang Chunxiang answers: Hello, when doing the appraisal of work-related injuries, you can choose the level appraisal of the degree of labor dysfunction of the injured employee, the review and appraisal of the working ability, the identification of the self-care disorder, the confirmation of the configuration of assistive devices, the confirmation of the suspension period and extension of the salary period, and the degree of disability or loss of working ability due to illness of the dependent relatives. Relevant legal provisions: Article 21 of the Regulations on Work-related Injury Insurance If an employee suffers a work-related injury and has a disability that affects his or her ability to work after treatment and the injury is relatively stable, he or she shall conduct an appraisal of his or her ability to work. Article 22 The appraisal of labor ability refers to the grade appraisal of the degree of labor dysfunction and the degree of self-care impairment. There are 10 levels of disability for labor dysfunction, with the most severe being level 1 and the least being level 10. There are three levels of self-care disorders: complete inability to take care of oneself, inability to take care of oneself most of one's life, and partial inability to take care of oneself in life. The standards for the appraisal of labor ability shall be formulated by the social insurance administrative department of the State Council in conjunction with the health administrative department of the State Council and other departments. Article 32 An injured worker may be fitted with prostheses, orthoses, eyes, dentures, wheelchairs and other assistive devices due to the needs of daily life or employment, and the required expenses shall be paid from the work-related injury insurance fund in accordance with the standards prescribed by the State. Article 34 Where an injured worker has been assessed for disability and is confirmed by the Labor Ability Appraisal Committee to be in need of living care, he or she shall be paid a monthly living care allowance from the work-related injury insurance fund. The living care allowance is paid according to three different levels: being completely unable to take care of oneself, being unable to take care of oneself for most of one's life, or being unable to take care of oneself partially, and the standard is 50%, 40% or 30% of the average monthly wage of employees in the overall planning area in the previous year.
4
Huaihua netizens asked: I am in aquaculture, others bought my crabs and didn't give money, what should I do if I can't find anyone now?
Hunan Changyan Law Firm
Lawyer Tang Min answers:
Hello, it is recommended that you sort out the clues of docking with the other party, such as phone calls and WeChat records, and then call the police to deal with it, find the real purchaser, and ask him to pay for the goods and compensate for the losses caused thereby, if the other party does not pay, you can sue for processing. Legal basis: Article 626 of the Civil Code of the People's Republic of China The buyer shall pay the price in accordance with the agreed amount and payment method. Where there is no agreement on the amount of the consideration and the method of payment, or the agreement is not clear, the provisions of items 510 and 511 (2) and (5) of this Law apply. Article 584 of the Civil Code of the People's Republic of China: Where one of the parties fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the agreement, causing losses to the other party, the amount of compensation for the losses shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract;
5
Zhuzhou netizens asked: I have worked in the unit for many years, and the employer has not paid social security for the employee, how should I complain?
Hunan Tiandiren Law Firm
Lawyer Wang Zhuang answers:
Hello, according to the relevant regulations, the employer shall apply to the social insurance agency for social insurance registration for its employees within 30 days from the date of employment. The employer shall declare and pay the social insurance premiums in full and on time, and the individual part of the social insurance premiums that the employee shall pay shall be withheld and paid by the employer. If the employer does not pay social security to the employee, the employee can file a complaint with the local labor inspection department. Link to the law: Article 7 of the Labor Contract Law of the People's Republic of China The employer shall establish an employment relationship with the employee from the date of employment. The employer shall establish a roster of employees for future reference. Paragraph 1 of Article 3 of the Labor Law of the People's Republic of China provides that workers enjoy the right to equal employment and choice of occupation, the right to receive remuneration for labor, the right to rest and vacation, the right to labor safety and health protection, the right to receive vocational skills training, the right to enjoy social insurance and welfare, the right to submit labor disputes for settlement, and other labor rights provided for by law. Workers shall complete labor tasks, improve professional skills, implement labor safety and health regulations, and abide by labor discipline and professional ethics. Article 4 Employers shall establish and improve rules and regulations in accordance with law to ensure that workers enjoy labor rights and perform labor obligations. Article 72: The social insurance fund shall determine the source of funds in accordance with the type of insurance, and gradually implement social pooling. Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law.
6
Changsha netizens asked: If the decoration company does not rectify the quality problems and unilaterally suspends the construction, can I ask it to compensate for the losses caused during the shutdown and terminate the contract?
Beijing Jingshi (Changsha) Law Firm
Lawyer Huang Chunxiang answers:
Hello, when the quality of the decoration project is unqualified, you can reasonably choose to request the decoration company to bear the liability for breach of contract such as repair, rework, reduction of remuneration, and compensation for losses. In addition, if the completion time is agreed in the "Decoration Project Construction Contract", the decoration company fails to complete the decoration within the agreed time, which is a breach of contract, even if the contract does not stipulate the liability for breach of contract, according to the law, you still have the right to require the decoration company to bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. If the renovation company cannot renegotiate with you on the completion date, you have the right to terminate the contract, but you shall settle and pay for the completed part.
Links to the law:
Civil Code of the People's Republic of China
Article 563:The parties may terminate the contract under any of the following circumstances:
(1) The purpose of the contract cannot be achieved due to force majeure;
(2) Before the expiration of the performance period, one of the parties clearly indicates or shows by its own conduct that it will not perform the main debt;
(3) One of the parties delays the performance of the main debt and fails to perform it within a reasonable period of time after being reminded;
(4) One of the parties delays the performance of its obligations or has other breaches of contract, resulting in the inability to achieve the purpose of the contract;
(5) Other circumstances provided for by law.
In the case of an indefinite contract with the content of a continuously performed debt, the parties may terminate the contract at any time, provided that they notify the other party before a reasonable period of time.
Article 577:Where one of the parties fails to perform its contractual obligations or its performance does not conform to the agreement, it shall bear liability for breach of contract such as continuing to perform, taking remedial measures, or compensating for losses.
Article 578:Where one of the parties expressly states or shows by its own conduct that it will not perform its contractual obligations, the other party may request that it bear liability for breach of contract before the expiration of the performance period.
Article 781: If the work delivered by the contractor does not meet the quality requirements, the contractor may reasonably choose to request the contractor to bear the liability for breach of contract such as repair, rework, reduction of remuneration, compensation for losses, etc.
Source: Red Network "Ask Hunan" column Editor: He Luyan