The Supreme People's Court and the Ministry of Human Resources and Social Security: What should I do if an employee applies for supplementary payment of social security?

Source: Labor law is practiced all over the world

In practice, it is very common for employers to fail to pay social insurance premiums in accordance with the law, especially the phenomenon of underpayment is very prominent. If an employee claims his or her rights through arbitration or litigation and requests the employer to pay back social insurance premiums, what will the adjudication authority do?

1. The Supreme People's Court's reply to the issue of back payment of social insurance premiums in 2011 (Fa Yan [2011] No. 31). The Supreme People's Court held that the collection and payment of social insurance premiums is the statutory duty of the social insurance premium collection department, and does not fall within the scope of civil cases accepted by the people's courts.

See: Reply of the Research Office of the Supreme People's Court on the Application of Law in the Case of Labor Dispute between Wang and a Company (Fa Yan [2011] No. 31)

Gansu Provincial High People's Court:

Your court (2010) Gan Min Shen Zi No. 416 "Request for Instructions on the Application of Law in the Case of Labor Dispute between Wang and a Company for Retrial" has been received. After study, the reply is as follows:

In principle, I agree with the first opinion of the adjudication committee of your court, that is, according to the relevant provisions of the "Labor Law of the People's Republic of China" and the "Interim Regulations on the Collection and Payment of Social Insurance Premiums", the collection and payment of social insurance premiums is the statutory duty of the social insurance premium collection department, and does not fall within the scope of civil cases accepted by the people's courts. In addition, it is suggested that your court may issue a judicial recommendation to the relevant social insurance premium collection department in connection with this case, suggesting that it strengthen investigation and research on the current dispute between the employer and the employee over the collection of insurance premiums, properly handle similar issues, and protect the legitimate rights and interests of the relevant parties in accordance with the law.

This is the case.

2. The reply of the Supreme People's Court on its official website (www.court.gov.cn) on November 23, 2011.

"With regard to Article 1 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 Reported by Netizens: If a dispute arises when a worker requests the employer to compensate for losses on the grounds that the employer has not completed the social insurance formalities for him, and the social insurance agency cannot make up for it, resulting in his inability to enjoy social insurance benefits, the issue that the people's court should accept is actually mainly related to how to correctly understand the scope of social insurance disputes accepted by the people's court. We have made clear provisions on this issue in the Judicial Interpretation on Labor Disputes (III). This issue is mainly related to how to correctly define the judicial duties and powers of the people's courts and the rational division of labor between the administrative powers of the human resources and social security departments. We believe that the provisions of the Interim Regulations on the Collection and Payment of Social Insurance Premiums and the Social Insurance Law should be used as the basis for determining the boundaries of the two. According to the provisions of these two laws and regulations, the mainland social insurance is from registration, payment, If the judicial power is artificially forcibly intervened and intervened, it will not only be detrimental to the normal operation of the increasingly perfect social insurance function, but also will not be conducive to the rational division of the responsibilities of the judicial power and the administrative power, resulting in overlapping and confusion between the powers of the two, and ultimately not conducive to the effective protection of the legitimate rights and interests of laborers. Therefore, only those matters that are not expressly provided for by the Interim Regulations on the Collection and Payment of Social Insurance Premiums and the Social Insurance Law are handled by the social insurance administration department, and therefore have disputes, will be included in the scope of cases accepted by the people's courts.

3. The reply of the Supreme People's Court on its official website (www.court.gov.cn) on December 20, 2011.

The Interim Regulations on the Collection and Payment of Social Insurance Premiums clearly stipulate that the collection and payment of social insurance premiums is the responsibility of the social management department, and employers must handle social insurance for their employees in accordance with the law. If the employer has gone through the social security formalities for the employee, but the employer fails to pay the social insurance premiums for the employee in accordance with the regulations, the social management department may compel the payment of social insurance premiums in accordance with the law, regardless of whether the social insurance premiums are not paid or the social security premiums are refused. This kind of dispute is not simply a social security dispute between the employee and the employer, but belongs to the scope of administrative management.

IV. Adjudication Cases of the Supreme People's Court

The Supreme People's Court held in the (2015) Min Shen Zi No. 3492 Civil Ruling on the Application for Retrial of the Labor Dispute Application of the Bankruptcy Liquidation Group of the Badaohao Coal Mine of Chai Yongge and Fuxin Mining Bureau:

"Fourth, on the issue of whether the payment of basic pension insurance premiums advocated by Chai Yongge should be supported. This court held that, in accordance with the provisions of Article 100 of the Labor Law of the People's Republic of China on "if an employer fails to pay social insurance premiums without reason, the labor administrative department shall order it to pay within a time limit; if it fails to pay within the time limit, it may be subject to a late fee" and the first paragraph of Article 63 of the Social Insurance Law of the People's Republic of China stipulates that "if an employer fails to pay social insurance premiums on time and in full, the social insurance premium collection agency shall order it to pay or make up the amount within the time limit". Social insurance premiums such as basic medical insurance are the statutory functions and powers of the social insurance department.

Accordingly, Chai Yongge's claim in this case falls within the scope of the administrative duties of the relevant administrative organs, and does not fall within the people's court's claim for compensation for losses on the grounds that the employer has not completed the social insurance formalities for him and the social insurance agency cannot make up for it, resulting in the inability to enjoy social insurance benefits, the people's court shall accept the dispute" Therefore, there was no error in the application of law in the original judgment's failure to uphold the case, and Chai Yongge's application for retrial could not be sustained. ”

The Supreme Court held that you can go to the social security department to complain to the company and ask the company to make up the payment, and do not go directly to the court to sue, this is not a matter for the court to manage.

5. On May 26, 2020, the Ministry of Human Resources and Social Security clarified in the notice that the supplementary payment of pension insurance does not fall within the scope of labor arbitration.

Accordingly, the Ministry of Human Resources and Social Security informed the letter-writer or visitor that he or she may report to the local labor and social security supervision department, to the local human resources and social security department for letters and visits, to the local social insurance agency, to handle it through administrative reconsideration, administrative litigation and other statutory channels, and to the relevant people's congress and its standing committee, people's court and people's procuratorate.

VI. Differences in Judicial Practice

However, in judicial practice, the views of different regions are not completely unified, and there are still differences across the country. It is understood that in more than 95% of the regions, labor arbitration commissions and people's courts no longer accept requests for supplementary payment of social insurance, but in some places such as Shaanxi and Zhejiang, labor arbitration commissions and people's courts are still adjudicating and ruling on employers to pay social insurance premiums.

For example, the civil judgment of Ningbo Intermediate People's Court of Zhejiang Province (2023) Zhe 02 Min Zhong No. 595 (April 17, 2023): Cixi Haolong Plush Co., Ltd. shall pay Xu Wei's basic social insurance premiums for the period from June 2019 to August 2021 to the Cixi Social Insurance Collection Department within 10 days from the effective date of this judgment.

Arbitration Award No. 2443 [2022] No. 2443 of the Labor and Personnel Dispute Arbitration Commission of Xi'an City, Shaanxi Province (August 5, 2022): ... Xi'an Rhino Network Technology Co., Ltd. paid the basic endowment insurance, basic medical insurance, work-related injury insurance, unemployment insurance, and maternity insurance for Zhang Xuyang from March 2022 to May 2022... Xi'an Rhino Network Technology Co., Ltd. was dissatisfied with this and applied for revocation of the arbitral award, for which the Intermediate People's Court of Xi'an City, Shaanxi Province (2022) Shaanxi 01 Min Te No. 605 Civil Ruling (October 17, 2022) held that the issue of supplementary payment of social insurance falls within the scope of the case accepted by the Labor Dispute Arbitration Commission.

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