As we all know, the statute of limitations for arbitration of labor dispute cases is 1 year, and the retroactive statute of limitations for labor inspection is 2 years.
Especially since the "social security tax collection", it is more and more inclined to be recognized
Let's take a look at the reasons why it is not subject to the retroactive statute of limitations.
Grounds not subject to retroactive statute of limitations
(1) The Social Insurance Law does not stipulate that it is subject to the statute of limitations, and clearly stipulates that social insurance premiums shall not be deferred or reduced except for statutory reasons such as force majeure
Paragraph 1 of Article 60 of the Social Insurance Law of the People's Republic of China stipulates that: "Employers shall declare and pay social insurance premiums in full and on time, and shall not defer or reduce or reduce social insurance premiums unless due to force majeure or other statutory reasons." ……”
Paragraph 1 of Article 63 stipulates: "If an employer fails to pay social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay or make up the amount within a time limit." ”
Article 13 of the Interim Regulations on the Collection and Payment of Social Insurance Premiums stipulates that: "If the paying entity fails to pay and withhold social insurance premiums in accordance with the regulations, the labor and social security administrative department or the taxation authority shall order it to pay within a time limit; If the payment is still not made within the time limit, in addition to the amount of the outstanding payment, a late fee of 2/1000 per day will be charged from the date of non-payment. Late fees are incorporated into the Social Insurance Fund. ”
According to the above-mentioned provisions, employers have the legal obligation to participate in social insurance and pay social insurance premiums for their employees, and may not defer or reduce or reduce the payment except for force majeure or other statutory reasons. If an employer fails to pay social insurance premiums in full and on time, the relevant authorities shall order it to pay within a time limit or make up the amount, and there is no time limit.
(2) The payment of social insurance premiums falls within the scope of administrative collection, and the provisions on the statute of limitations for prosecution related to administrative penalties do not apply
Paragraph 2 of Article 4 of the Social Insurance Law of the People's Republic of China stipulates that "an individual shall enjoy social insurance benefits in accordance with the law and shall have the right to supervise the payment of contributions by his or her own unit", and the first paragraph of Article 63 of the Law also 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 for it within a time limit".
Article 29 of the Detailed Rules for the Implementation of the Social Insurance Law stipulates that "the handling of an employer's failure to pay social insurance premiums in full and on time after July 1, 2011 shall be implemented in accordance with the Social Insurance Law and these provisions, and the failure of an employer to pay social insurance premiums on time and in full before July 1, 2011 shall be implemented in accordance with the relevant provisions of the national and local people's governments".
Article 11 of the Regulations on the Supervision of Labor and Social Security stipulates that: "The administrative department of labor and social security shall carry out labor security supervision on the following matters...... (7) The employer's participation in various social insurances and payment of social insurance premiums......"
Article 20 of the Regulations on the Supervision of Labor and Social Security stipulates that: "If the violation of labor security laws, regulations or rules has not been discovered, reported or complained about by the labor security administrative department within two years, the labor and social security administrative department shall not investigate and deal with it." The time limit provided for in the preceding paragraph shall be calculated from the date on which the violation of labor security laws, regulations or rules occurs: if the violation of labor security laws, regulations or rules is continuous or continuous, it shall be calculated from the date on which the act ends".
Article 20 of the Regulations on the Supervision of Labor Security stipulates that the statute of limitations for administrative law enforcement of labor security is divided into two paragraphs, and in law enforcement, the two-year statute of limitations of the first paragraph cannot be followed, but also the provisions of the second paragraph must be combined to determine whether the illegal acts are continuous or continuous, so as to determine the statute of limitations for labor security supervision and law enforcement.
Before the implementation of the Social Insurance Law of the People's Republic of China, neither the Interim Regulations on the Collection and Payment of Social Insurance Premiums nor the Measures for the Auditing of Social Insurance (Decree No. 16 of the Ministry of Labor and Social Security) set a time limit for the settlement of arrears of enterprises. According to the definition of the Interim Regulations on the Collection and Payment of Social Insurance Premiums, the payment of social insurance premiums belongs to the category of administrative collection, which is not the same as the nature of administrative punishment. Therefore, the statute of limitations for the recovery of social insurance premiums does not apply to administrative penalties. The (2019) Yu Xing Shen No. 156 Civil Judgment holds the above view.
In practice, there are different understandings or practices as to whether the handling of complaints requiring employers to pay back social insurance premiums must be handled through the labor security inspection procedure (a two-year investigation and punishment period applies). There is a view that the human resources and social security (labor) department has a statutory two-year time limit for investigating and dealing with violations of labor security laws, regulations or rules, but there is no time limit for ordering employers to pay or make up social insurance premiums (auditing social insurance premiums), which does not fall within the above-mentioned provisions of the investigation and punishment of labor security violations. In the judgment (2017) Yue 71 Xing Zhong No. 193, the judge held this view.
(3) Social insurance has the attributes of basic security
Social insurance is a social security system in which the state compels the majority of members of society to participate in order to prevent and share social risks such as old age and unemployment, which is enough to explain the basic social security attribute of social insurance, which is fully reflected in the general provisions of the Social Insurance Law of the People's Republic of China.
Paragraph 2 of Article 27 of the Implementation Provisions of the Ministry of Human Resources and Social Security <中华人民共和国社会保险法>stipulates that: "If an employee believes that the employer has violated his or her social insurance rights and interests, such as failing to pay social insurance premiums on time and in full, he or she may also request the social insurance administrative department or the social insurance premium collection agency to deal with it in accordance with the law." The social insurance administrative department or the social insurance premium collection agency shall handle the matter in accordance with the relevant provisions of the Social Insurance Law and the Regulations on Labor Security Supervision. ”
This provision clarifies that the laws and regulations applicable to the social insurance department in handling relevant complaints are not only the Regulations on Labor and Social Security Inspection. Accordingly, the social insurance administrative department should make a correct distinction between complaints about infringement of social insurance rights and interests, fully consider the basic protection attributes of social insurance, and accurately apply relevant laws and regulations to handle them. The social insurance department orders the employer to pay or make up the social insurance premiums (social insurance audit), and there is no time limit, which is not a labor security violation.
The opinion of the Supreme People's Court
Minutes of the Professional Conference of Administrative Judges of the Supreme People's Court (VII) (in the field of work-related injury insurance) applies to the two-year statute of limitations for enterprises to pay social insurance premiums
Where the administrative department for labor and social security, in accordance with Article 20 of the "Regulations on the Supervision of Labor and Social Security", does not investigate and deal with the enterprise on the grounds that the enterprise's failure to pay social insurance premiums in accordance with the law has not been discovered within two years, nor has it been reported or complained, the people's court shall not support it; Where a party requests to perform the above-mentioned investigation duties, and can provide relevant materials to preliminarily prove that the enterprise has failed to pay social insurance premiums in accordance with law, the people's court shall make a judgment and order the relevant labor and social security administrative department to perform the corresponding duties.
Views of the Ministry of Human Resources and Social Security
The Ministry of Human Resources and Social Security's reply to the proposal on the recourse period of pension insurance and the independent choice of insurance place Ren She Jian Zi [2017] No. 105
1. On the issue of the time limit for recovery
Article 20 of the Regulations on the Supervision of Labor Security stipulates that the statute of limitations for administrative law enforcement of labor security is formulated in accordance with Article 29 of the Administrative Punishment Law. At the same time, this article is divided into two paragraphs in accordance with the provisions of Article 29 of the Administrative Punishment Law, and in law enforcement practice, it is not only necessary to follow the two-year statute of limitations in the first paragraph, but also to synthesize the provisions of the second paragraph, that is, "the time limit specified in the preceding paragraph shall be calculated from the date of the violation of labor security laws, regulations or rules; Where violations of labor security laws, regulations, or rules are continuous or continuous, it is calculated from the date on which the act ends. "Determine whether the violation is continuous or continuous, and determine the statute of limitations for labor security inspection and enforcement. However, neither the Interim Regulations on the Collection and Payment of Social Insurance Premiums nor the Measures for the Auditing of Social Insurance (Decree No. 16 of the Ministry of Labor and Social Security) set a time limit for the settlement of arrears of enterprises.
Therefore, in the practice of local labor security supervision and law enforcement, the illegal acts of employers failing to handle social insurance and pay social insurance premiums for employees in a timely and full amount are generally recovered and punished in accordance with Article 20 of the Regulations on Labor and Social Security Supervision, while the recovery of historical arrears by local handling agencies does not limit the prosecution period.
We believe that the non-payment of social insurance premiums by enterprises infringes on the rights and interests of the insured, directly weakens the support capacity of the fund, increases the financial burden of the central and local governments, and affects social stability. To this end, we attach great importance to the work of clearing up arrears, and take various measures to guide local governments to do a good job in relevant work and promote the collection of all receivables from the fund.
In order to safeguard the social insurance rights and interests of insured persons and strengthen the work of collecting and paying off arrears, after receiving a complaint that exceeds the two-year prosecution period of the first paragraph of Article 20 of the "Regulations on Labor and Social Security Supervision", the handling agency generally accepts it in accordance with the procedures. For those who can provide supporting materials, try to meet the demands of the insured and solve them, so as to reduce the problem of requiring the enterprise to pay the arrears in full when the employees of the enterprise are about to retire.
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Source: 51 Social Security Network