Preface
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1. Are there any qualifications for workers who have reached the statutory retirement age?
In terms of worker qualifications, the first paragraph of Article 15 of the Labor Law of the People's Republic of China prohibits employers from employing minors under the age of 16. This article does not make it mandatory for the upper age limit of employees, that is, as long as they do not violate the prohibitions of laws and regulations, they can become employees in labor relations. This article does not make it mandatory to stipulate the upper age limit of a worker, that is, as long as a person with the ability to work does not violate the prohibitions of laws and regulations, he can become a worker in the labor relationship! However, it is meaningless to talk about qualifications directly regardless of the facts, just like the capacity for rights, this is broad, but the capacity for conduct and power are different concepts.
2. Is there no labor relationship when you reach the statutory retirement age and enjoy pension insurance benefits?
Paragraph 2 of Article 44 of the Labor Contract Law of the People's Republic of China stipulates that the labor contract shall be terminated when the employee begins to enjoy the basic pension insurance benefits in accordance with the law, and Article 21 of the Regulations for the Implementation of the Labor Contract Law stipulates that the labor contract shall be terminated when the employee reaches the statutory retirement age. According to Article 32 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, employment disputes between employees who have reached the statutory retirement age and have already enjoyed pension insurance benefits or pensions in accordance with the law shall be handled according to the employment relationship, and there is no objection at present.
3. Is it a labor relationship issue for those who have reached the statutory retirement age but have not enjoyed pension insurance benefits in accordance with the law?
One view is that as an administrative regulation, the Regulations for the Implementation of the Labor Contract Law have a lower legal level than the Labor Contract Law of the People's Republic of China, and it can only refine the circumstances stipulated in the Labor Contract Law of the People's Republic of China.
Another view is that Article 21 of the Regulations for the Implementation of the Labor Contract Law is a supplementary provision to the Labor Contract Law, which is authorized by Article 44 (6) of the Labor Contract Law of the People's Republic of China, and meets the requirements of "other circumstances stipulated by laws and administrative regulations" in Article 44 (6) of the Labor Contract Law of the People's Republic of China. Second, in practice, after reaching the statutory retirement age, the employee no longer meets the conditions of the relevant provisions of the mainland on the payment of "five insurances and one housing fund", and if the judgment is made in strict accordance with the termination of the labor contract stipulated in the Labor Contract Law of the People's Republic of China, the employer will face the dilemma of difficulty in fulfilling the obligations established by judicial rulings, which is easy to exacerbate social contradictions on the one hand, and undermines the authority of the law on the other hand.
Mainstream view and SPC view: For the legal relationship between a person who has reached the statutory retirement age but has not enjoyed the pension insurance benefits or received a retirement pension and the employer, the age standard of the employee should not only be formally examined, but the reason why the employee cannot enjoy the basic pension insurance benefits should be specifically examined whether the reasons for the employee's inability to enjoy the basic pension insurance benefits are related to the employer. Article 21 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China stipulates that the employee has the right to terminate the labor relationship, and the employee and the employer form a labor relationship at this time. Second, if the employee is unable to enjoy the basic pension insurance benefits due to the employer's reasons, the provisions of Article 21 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China cannot be applied, and the labor relationship between the employee and the employer shall be formed when the employee enjoys the basic pension insurance benefits. (For details, see Case Database of the Supreme People's Court: Urumqi Property Service Co., Ltd. v. Ma Moumou, a labor contract dispute case [(2022) Xin Min Zai No. 229]).
Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that if an employer files a lawsuit with the people's court in the event of an employment dispute with its employees who have already enjoyed pension insurance benefits or received retirement pensions in accordance with the law, the people's court shall handle it in accordance with the labor relationship. The judicial interpretation of the Supreme People's Court also does not regard the employee's attainment of the statutory retirement age as a condition for determining the existence of an employment relationship or a service relationship between the employer and the employee. According to the spirit of the judicial interpretation, for those who have reached the statutory retirement age but have not started to enjoy the basic pension insurance benefits in accordance with the law, the employment relationship with the employer should still be recognized as an employment relationship. (For details, see: Yunnan Lanxuan Cleaning Service Co., Ltd. and Li Jianguo's Civil Ruling on Labor Dispute Retrial Review and Trial Supervision [(2020) Yun Min Shen No. 747]).
Do you have a different opinion? How much do you know about whether labor relations can be established when you reach the statutory retirement age? Welcome to leave a message below, so stay tuned.
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