There are 5 situations in which the employer still bears the responsibility for work-related injury insurance benefits without labor relations!

Author: Chen Minghe

Source: Supreme Jurisprudence

However, in the following five circumstances, when determining a work-related injury, the responsible entity may be required to bear the work-related injury insurance liability.

1. Circumstances of illegal subcontracting - In an illegal subcontracting relationship, the subcontractor does not have the qualifications of the employing entity, and the subcontractor shall bear the work-related injury insurance liability when the employee hired by the subcontractor is injured or injured due to work.

Basis 1: 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 (Fa Shi [2014] No. 9): If an employer violates laws and 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.

Basis 2: Point 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (Ministry of Human Resources and Social Security [2013] No. 34): If a contractor with the qualifications of an employing entity violates the provisions of laws and regulations by subcontracting or subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the worker recruited by the organization or natural person is injured or injured while engaging in the contracting business, the contractor with the qualification of the employing entity shall bear the work-related injury insurance liability that the employer shall bear in accordance with the law.

II. Circumstances of Illegal Subcontracting - The contractor illegally subcontracts the contracting business to a subcontractor who does not have the qualifications of the employing entity, and the contractor shall bear the work-related injury insurance liability when the employee is injured or injured due to work.

Basis: Point 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (Ministry of Human Resources and Social Security [2013] No. 34): If a contractor with the qualifications of an employing entity violates the provisions of laws and regulations by subcontracting or subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the worker recruited by the organization or natural person is injured or injured while engaging in the contracting business, the contractor with the qualification of the employing entity shall bear the work-related injury insurance liability that the employer shall bear in accordance with the law.

Reference Case 1: Administrative Judgment of Lin Jiquan and Chongqing Xingping Construction Labor Co., Ltd. on the Retrial of Labor and Social Security Administration (Labor and Social Security), Case No.: (2018) Zui Gao Fa Xing Zai No. 151.

Key Points of the Adjudication: When there is illegal subcontracting or subcontracting, the employer's liability for work-related injury insurance for employees is not premised on the existence of an employment relationship, and the employer violates laws and regulations by subcontracting or subcontracting the contracted business to an organization or natural person that does not have the qualifications of the employing entity, and the employer shall bear the work-related injury insurance liability when the employee has a work-related injury accident.

Excerpt from the document: "This court held in the retrial that the purpose of the state's establishment of the work-related injury insurance system is to ensure that employees who are injured in accidents or suffer from occupational diseases due to their work receive medical treatment and economic compensation. Employers have the obligation to pay work-related injury insurance premiums for all employees of the employer, and employees have the right to enjoy work-related injury insurance benefits. That is to say, under normal circumstances, the determination of an employee's work-related injury by the social insurance administrative department shall be based on the existence of an employment relationship between the employee and the employer, unless otherwise provided by laws, regulations and judicial interpretations. Paragraph 1 of Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance stipulates that: "Where the social insurance administrative department determines that the following units are responsible for work-related injury insurance, the people's court shall support them...... (4) Where an employing unit violates laws and regulations by subcontracting 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......; In the case of subcontracting, the employer's liability for work-related injury insurance is not premised on the existence of an employment relationship. According to the above-mentioned provisions, if an employer subcontracts or subcontracts the contracted business to an organization or natural person that does not have the qualifications of an employing entity in violation of laws and regulations, and an employee suffers a work-related accident, the employer that illegally subcontracted or subcontracted shall bear the work-related injury insurance liability.

In this case, Chongqing Xingping Company did not dispute the fact that Lin Jiquan was hired by Dong Haier and was injured while laying glazed tiles, but held that it was not an illegal subcontract. Article 9 of the Ministry of Housing and Urban-Rural Development's Administrative Measures for the Identification, Investigation and Handling of Illegal Subcontracting and Other Illegal Acts of Construction Subcontracting (Trial) (Jian Shi [2014] No. 118) clearly stipulates: "If one of the following circumstances exists, it is illegal subcontracting...... (6) The labor subcontractor subcontracts the labor services it has contracted, ...... "This article does not violate the relevant provisions of the Construction Law of the People's Republic of China, and can be used as a reference basis for judging whether Chongqing Xingping Company is an illegal subcontractor." The Fifth Branch of China Railway 25th Bureau Group subcontracted the labor part of the project to Chongqing Xingping Company. Chongqing Xingping Company is an enterprise with construction labor service qualifications, and it should use its own labor workers to complete the labor service projects it undertakes, but it subcontracts the labor services of laying glazed tiles to Dong Haier, a natural person, which is an illegal subcontracting. Therefore, Chongqing Xingping Company's defense opinion cannot be sustained, and this court does not accept it.

Chongqing Xingping Company, as a contractor with the qualifications of an employing entity, illegally subcontracted the business it contracted to Dong Haier, a natural person, and Lin Jiquan, a worker hired by Dong Haier, was injured while laying glazed tiles, and Chongqing Xingping Company should bear the work-related injury insurance liability for Lin Jiquan's accident injuries in accordance with the law. The facts identified in the No. 369 work-related injury determination decision made by the Lanzhou Municipal Human Resources and Social Security Bureau are clear, the law is correctly applied, and the legal procedures are complied with. The Lanzhou Railway Transport Intermediate People's Court rejected Chongqing Xingping's claim in the first instance, which was not improper. The Gansu Provincial High People's Court's second-instance judgment revoked the first-instance judgment of the Lanzhou Railway Transport Intermediate Court and the No. 369 work-related injury determination decision on the grounds that the effective civil judgment had confirmed that there was no labor relationship between Chongqing Xingping Company and Lin Jiquan, which did not comply with Article 3 and other relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance, and was an error in the application of law, and this court corrected it in accordance with law. ”

Reference Case 2: Administrative Judgment of Zhou Zuhua and the People's Government of Dongguan City, Guangdong Province, Case No.: (2020) Zui Gao Fa Xing Zai No. 118.

Key Points of the Adjudication: The relationship between an employee who is injured or injured due to work-related injuries and the contractor who illegally subcontracts or subcontracts is not a typical labor relationship, but a legally simulated relationship between the main responsibility of the employer, and the contractor illegally subcontracts or subcontracts the contracted project to a "contractor foreman" who does not have the qualifications of an employing entity, and an employee hired by the "contractor" is injured while engaged in the contracted project, the contractor who illegally subcontracts or subcontracts shall bear the work-related injury insurance liability.

Excerpt from the document: "After trial, this court held that the second paragraph of Article 2 of the Regulations on Work-related Injury Insurance stipulates that employees of all types of enterprises and employees of individual industrial and commercial households within the territory of the People's Republic of China have the right to enjoy work-related injury insurance benefits in accordance with the provisions of these Regulations. Paragraph 1 of Article 14 stipulates that if an employee is injured in an accident during working hours and in the workplace due to work-related reasons, it shall be deemed to be a work-related injury. Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance stipulates that if an employer violates laws and 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 employed by the organization or natural person is injured or injured while engaged in the contracting business, the people's court shall support the determination by the social insurance administrative department that the employer is the entity that bears the responsibility for work-related injury insurance. The unit that bears the liability for work-related injury insurance shall have the right to recover compensation from the relevant organizations, units and individuals after the unit bears the liability for compensation or the social insurance agency pays the work-related injury insurance benefits from the work-related injury insurance fund. In this case, Dongrui Company subcontracted the contracted "Yicun Villa Banquet Hall" and other projects to Xie Yaokun, who did not have the qualifications of an employing entity, and Zhou Zuhua, who was hired by Xie Yaokun, was injured while engaged in the contracted project, and Zhou Zuhua applied for recognition of work-related injury with Dongrui Company as the employing unit, and the Dongguan Social Security Bureau issued the "Decision on Determination of Work-related Injury", which was in accordance with the law.

Dongrui Company was dissatisfied and applied for administrative reconsideration. The Dongguan Municipal Government claimed that Zhou Zuhua had received compensation for the damages paid by Xie Yaokun

The Decision on Determination of Work-related Injury was revoked on the grounds that he had received medical treatment and economic compensation for the accident injury suffered by his work, and he no longer had the rights protected by the work-related injury determination. The court held that the relationship between Dongrui and Zhou Zuhua was not a typical employment relationship, but a legally simulated relationship between the main responsibility of the employing entity, and that Zhou Zuhua had insufficient understanding of whether he could claim work-related injury insurance compensation when the labor arbitration institution determined that there was no employment relationship with Dongrui Company. Moreover, the civil damages were negotiated between Zhou Zuhua and Xie Yaokun without conducting an appraisal of the disability level, and the amount of compensation may be lower than the amount of work-related injury insurance compensation. It is a legal right enjoyed by workers to enjoy work-related injury insurance benefits in accordance with the law, and the Dongguan Municipal Government's revocation of the Decision on Determination of Work-related Injury on the grounds that Zhou Zuhua signed a mediation agreement and received compensation for damages may harm Zhou Zuhua's statutory rights and should be corrected. It should be noted that after Zhou Zuhua has determined the work-related injury and assessed his working ability, if the actual medical expenses and damages he receives are less than the work-related injury insurance benefits he should enjoy, he has the right to demand that it be made up. ”

III. Circumstances of Affiliated Business - In the case of individual affiliated operation, when the personnel employed by the affiliated person are injured or injured due to work, the affiliated unit shall bear the liability for work-related injury insurance.

Basis: Article 3, Paragraph 1, Item 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance (Fa Shi [2014] No. 9): If an individual is affiliated with another unit for external business, and the personnel employed by it are injured or injured due to work, the affiliated unit shall be the unit that bears the liability for work-related injury insurance.

Reference case: Administrative Ruling on the Retrial of the People's Government of Bishan District of Chongqing Municipality and Daniel Zhang, Case No.: (2018) Supreme Law Xing Shen No. 117.

Main Points of the Adjudication: According to Article 3, Paragraph 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance, if an individual is affiliated with another unit for external business, and the personnel employed by it are injured or injured due to work-related injuries, the affiliated unit shall be the unit that bears the liability for work-related injury insurance. Proceeding from the protection of the legitimate rights and interests of workers, the judicial interpretation deduces a fictitious employment relationship from the affiliated business relationship, and there is no need to confirm the employment relationship separately when determining a work-related injury.

Excerpt from the document: "This court believes that the focus of the dispute in this case is whether Daniel Zhang's injury is a work-related injury. According to Article 3, Paragraph 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, if an individual is affiliated with another unit for external business, and the personnel employed by it are injured or injured due to work-related injuries, the affiliated unit shall be the unit that bears the liability for work-related injury insurance. Based on the protection of the legitimate rights and interests of workers, the judicial interpretation deduces a fictitious employment relationship from the affiliated business relationship, and there is no need to confirm the employment relationship separately when determining a work-related injury. In this case, based on the application form for determination of work-related injury, the driving license of the Chongqing C××××× truck, witness testimony and other evidence, it was sufficient to determine that Li Chengyong, the actual owner of the truck, attached the Chongqing C××××× truck to Hemei Company to engage in cargo transportation business, and Daniel Zhang was the driver hired by Li Chengyong, Daniel Zhang fell and injured himself when closing the roof feed cover of the truck, so Hemei Company should bear the liability for work-related injury insurance. The Bishan District Human Resources and Social Security Bureau determined that Daniel Zhang's accident injury was a work-related injury, which met the requirements of Article 14 (1) of the Regulations on Work-Related Injury Insurance and Article 3 (5) of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance. The Bishan District Government's act of revoking the Decision on Determination of Work-related Injuries issued by the Bishan District Human Resources and Social Security Bureau was improper. The court of first instance upheld the [2016] No. 334 Decision on Determination of Work-related Injuries issued by the Bishan District Human Resources and Social Security Bureau and revoked the Bishan Fu [2016] No. 11 Administrative Reconsideration Decision issued by the Bishan District Government. The Bishan District Government's reasons for applying for a retrial cannot be sustained, and this court does not support it. ”

IV. Circumstances of work-related injuries or injuries of the "contractor foreman" - When the contractor illegally subcontracts or subcontracts the contracted project to the "contractor foreman" who does not have the qualifications of the employing entity, the contractor shall bear the work-related injury insurance liability when the contractor or the employee recruited by the contractor is injured or injured on the job.

Reference case: "Liu Caili and the Administrative Judgment of the People's Government of Yingde City, Guangdong Province", Case No.: (2021) Zui Gao Fa Xing Zai No. 1.

Main Points of the Adjudication: There is no essential difference between the work-related injury insurance system and work-related injury insurance liability between the work-related injury and death of the contractor and the work-related injury or death of the construction personnel employed by the contractor;

Excerpt from the document: "First of all, the existence of a legal or de facto labor relationship is not a prerequisite for the existence of a legal or de facto labor relationship for a contractor in the field of construction engineering to bear the work-related injury insurance liability of its employees who are injured or injured due to work-related injuries in illegal subcontracting or subcontracting projects. According to point 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (Ministry of Human Resources and Social Security [2013] No. 34), the existence of a legal labor relationship is no longer a necessary condition for determining the liability of work-related injury insurance or the responsibility of the employer. According to Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance (Fa Shi [2014] No. 9), there is no absolute correspondence between whether a work-related injury can be determined and whether there is an employment relationship. Judging from the above-mentioned provisions, in order to protect the work-related injury insurance benefits of employees employed by organizations or natural persons who do not have the qualifications of the employer in the construction industry, and to strengthen the protection of workers and the punishment of illegal subcontracting and subcontracting units, the current work-related injury insurance system establishes the rule of presumption of the formation of a fictitious labor relationship between an employee who is injured or injured due to work-related injuries and the contractor who illegally subcontracts or subcontracts, that is, the contractor who illegally subcontracts or subcontracts is directly regarded as the employing entity and bears the work-related injury insurance liability. Secondly, the inclusion of "contract foreman" in the scope of work-related injury insurance is in line with the development direction of work-related injury insurance in the field of construction engineering. The "Opinions of the General Office of the State Council on Promoting the Sustainable and Healthy Development of the Construction Industry" (Guo Ban Fa [2017] No. 19) emphasizes the need to "establish and improve the social insurance payment method suitable for the construction industry, and vigorously promote the participation of construction units in work-related injury insurance", and clarifies the policy direction and institutional arrangements for the occupational injury protection of migrant workers in construction projects in the construction industry. Normative documents such as the Notice of the General Office of the Ministry of Human Resources and Social Security on Further Improving the Work of Work-related Injury Insurance in the Construction Industry (Ren She Ting Han [2017] No. 53) also require that the work-related injury insurance participation policy in line with the characteristics of the construction industry be improved, the coverage of work-related injury insurance for construction enterprises should be vigorously expanded, and the work-related injury insurance system for participating in construction projects should be promoted. That is to say, in view of the characteristics of the construction industry, construction enterprises should participate in work-related injury insurance according to the employer for relatively fixed employees, and for construction workers, especially migrant workers, who cannot participate in the insurance of the employer and used in the construction project, they should participate in the work-related injury insurance according to the project. Therefore, it is in line with the development direction of the work-related injury insurance system in the field of construction engineering to participate in work-related injury insurance for all workers, including "contractor foremen", and to expand the coverage of work-related injury insurance for construction enterprises. Thirdly, the inclusion of "contract foreman" in the scope of work-related injury insurance is in line with the legislative purpose of the work-related injury insurance system of "should be guaranteed to the fullest". According to the relevant provisions of the Regulations on Work-related Injury Insurance, the purpose of the work-related injury insurance system is to ensure that employees who are injured by accidents or suffer from occupational diseases at work receive medical treatment and economic compensation, promote work-related injury prevention and vocational rehabilitation, and disperse the work-related injury risk of employers. Article 2 of the Regulations on Work-related Injury Insurance stipulates that: "Enterprises, public institutions, social organizations, private non-enterprise units, foundations, law firms, accounting firms and other organizations within the territory of the People's Republic of China, as well as individual industrial and commercial households with employees, shall participate in work-related injury insurance in accordance with the provisions of these Regulations and pay work-related injury insurance premiums for all employees or employees of their units." Employees of enterprises, public institutions, social organizations, private non-enterprise units, foundations, law firms, accounting firms and other organizations within the territory of the People's Republic of China, as well as employees of individual industrial and commercial households, shall have the right to enjoy work-related injury insurance benefits in accordance with the provisions of these Regulations. Obviously, the emphasis of this article on "all employees or employees of the unit" does not exclude that individual industrial and commercial households, "contract foremen" and other special employers should also participate in work-related injury insurance. In other words, whether it is from the original intention of the establishment of the work-related injury insurance system or from the specific provisions of the work-related injury insurance regulations, there is no and should not exclude the "contractor" from the scope of work-related injury insurance. As a laborer, the "contractor" is at the end of the chain of illegal subcontracting and subcontracting, and participates in and undertakes the specific management of the construction site, and some even directly participates in the specific construction. There is no essential difference between the work-related injury and death of the "contractor foreman" and the work-related injury and death of the construction personnel hired by him in terms of the work-related injury insurance system and work-related injury insurance liability. If the scope of application of the Regulations on Work-related Injury Insurance is artificially limited and "contractors" are not included in the scope of work-related injury insurance, there will be substantial inequalities; The inclusion of special subjects such as "contract foremen" in the scope of work-related injury insurance is conducive to the realization of inclined protection for all workers and demonstrates the superiority of the socialist work-related injury insurance system. Finally, there is no conflict between the legal liability of the "contractor" for illegally contracting the project and his right to participate in social insurance. Article 1 of the Social Insurance Law of the People's Republic of China stipulates: "This Law is enacted in accordance with the Constitution in order to regulate social insurance relations, safeguard the legitimate rights and interests of citizens to participate in social insurance and enjoy social insurance benefits, enable citizens to share the fruits of development, and promote social harmony and stability." Article 33 stipulates: "Employees shall participate in work-related injury insurance, and the employer shall pay work-related injury insurance premiums, and employees shall not pay work-related injury insurance premiums." "As an important part of the social insurance system, work-related injury insurance is enforced by the state through legislation, which is the social responsibility of the state to employees and the basic rights that employees should enjoy. The right to enjoy social insurance cannot be denied to the "contractor" because he has violated the laws and regulations in the construction field by illegally contracting the project. It is in line with the concept of fairness and justice that the contractor contracts the construction project in its own name and qualifications, and the entity that does not have the qualifications and conditions actually carries out the construction, and obtains benefits from illegal subcontracting, subcontracting or affiliation, and bears the corresponding work-related injury insurance liability. Of course, after the contractor assumes the liability for work-related injury insurance in accordance with the law, it may separately require the corresponding responsible entity to bear the corresponding liability in accordance with the law, provided that it complies with the provisions of the law. In short, it is in line with the original intention of the establishment of the work-related injury insurance system to include the "contractor" in the scope of work-related injury insurance, and to protect his right to enjoy work-related injury insurance benefits in the event of work-related injury injury or injury, and for the contractor with the qualifications of the employing entity to bear the work-related injury insurance liability that the employer should bear in accordance with the law, which is in line with the original intention of the establishment of the work-related injury insurance system and the legislative purpose of the Regulations on Work-related Injury Insurance and relevant normative documents. The Yingde Municipal Human Resources and Social Security Bureau's determination that Liang Jinhong died of a sudden illness during working hours and at work, and that Jian'an Company should bear the liability for work-related injury insurance, has a factual and legal basis, and this court supports it. ”

V. Circumstances of reaching the retirement age and continuing to work in the original employer -- if the employee reaches or exceeds the statutory retirement age, fails to go through the retirement formalities or does not enjoy the basic old-age insurance benefits for urban employees in accordance with the law, and continues to be injured in an accident or suffers from an occupational disease while working at the original employer, the employer shall bear the liability for work-related injury insurance in accordance with the law.

Basis: Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (II) (March 28, 2016, Ren She Bu Fa [2016] No. 29) "2. If the employer reaches or exceeds the statutory retirement age, but fails to go through the retirement procedures or does not enjoy the basic old-age insurance benefits for urban employees in accordance with the law, and continues to be injured by an accident or suffers from an occupational disease while working at the original employer, the employer shall bear the work-related injury insurance liability in accordance with the law. If an employer recruits a person who has reached or exceeded the statutory retirement age or has received the basic pension insurance benefits for urban employees, and is injured in an accident or suffers from an occupational disease due to work-related reasons during the employment period, the Regulations on Work-related Injury Insurance shall apply if the employing unit has paid work-related injury insurance premiums for the employee according to the project. ”

Special note: In the above-mentioned circumstances, except for the two situations of "illegal subcontracting" and "affiliated operation", which have judicial interpretations as the basis and can be directly cited and used as the basis for adjudication, the opinions of the Ministry of Human Resources and Social Security are not laws, administrative regulations, or judicial interpretations, and the mainland is not a case law country, and the "reference cases" cited in this article are not guiding cases, so the above-mentioned opinions and cases are not legally binding on the trial and adjudication of specific cases. In judicial practice, the people's court may refer to it when handling similar cases, but it may not refer to it, so the effective judgment documents of the people's court should prevail in the end.

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