The widespread phenomenon of wage arrears for migrant workers in China has become a prominent social problem, and exploring the legal protection of migrant workers' legitimate rights and interests has aroused widespread concern. This requires us to think more deeply, how to explore ways to manage the wage arrears of migrant workers according to law, establish a long-term mechanism to prevent wage arrears of migrant workers, and prevent and stop wage arrears of migrant workers from the source through legal means. This article is discussed as follows:
First, the rule of law to control the necessity of wage arrears for migrant workers
The problem of wage arrears for migrant workers has not been cured for many reasons. China implements a dual household registration system that divides urban and rural areas, with oversupply in the labor market, industry violations and imperfect laws and regulations; Weak supervision by law enforcement departments; Safeguards are not in place; Migrant workers' own legal awareness is not strong. However, the current laws and regulations are not perfect, the legislation lacks strong sanctions for wage arrears, the law enforcement departments are weak in supervision, and the safeguard measures are not in place, all of which are very important reasons for wage arrears of migrant workers. Arrears of wages for migrant workers not only harm their legitimate rights and interests, but also affect the lives of migrant workers' families. The consequent harm is that such disputes easily lead to collective petitions and mass incidents of migrant workers; Some even lead to vicious cases, which seriously affect social stability and pose a potential crisis to social security. Solving the problem of wage arrears for migrant workers according to law is related to social fairness and justice and the establishment of a harmonious society. In the past, the wages of migrant workers were mainly paid off by administrative means, but the "stubborn disease" of wage arrears for migrant workers could not be fundamentally solved by administrative means alone. The thorough solution of the problem needs the protection of law, and making full use of legal means is the fundamental way to control the arrears of wages for migrant workers.
Second, protect the legitimate rights and interests of migrant workers through legislation.
Although China has made some achievements in clearing hundreds of millions of migrant workers' unpaid wages through administrative means, the phenomenon of relatively lagging legislation should be reflected. "There are laws to follow" highlights the importance and urgency of legislation in the legal construction of wage arrears for migrant workers. In fact, legislation has always been the focus of the rule of law in China. China's legislation is not enough to protect the wages of migrant workers, mainly based on the departmental regulations of the competent labor department. Although some documents and norms have been issued by relevant departments in the State Council, the legislative level needs to be improved. At present, we should absorb good innovative systems and normative documents from all over the country into national legislation, increase the punishment for malicious wage arrears through legislation, establish a long-term mechanism through legislative means, and improve relevant laws and regulations. From the legal system to curb the source of arrears, in order to solve the problem of wage arrears for migrant workers to provide legal protection. To this end, the following legal measures should be taken:
(1) Formulate legislation on the labor contract law. Due to the particularity of migrant workers, employers and migrant workers generally do not sign labor contracts, which is also the reason why migrant workers' wages are frequently owed and cannot be protected by law. The existing laws and regulations in our country do not clearly and effectively stipulate the legal responsibility of not signing a written labor contract. Therefore, in the actual law enforcement work, it is difficult for the labor inspection department to investigate and deal with it because there is no labor contract basis. In order to standardize the employment behavior and strictly manage the labor contract, the National People's Congress Standing Committee (NPCSC) should formulate the Labor Contract Law, which clearly stipulates that employers and migrant workers must sign written labor contracts according to law, and specifically stipulates that the signing of labor contracts should include labor remuneration and payment standards, payment forms, payment time, and responsibilities for violating labor contracts.
(2) Amend the legal provisions of the Construction Law. To solve the long-standing problem that the construction industry owes wages to migrant workers, it is necessary to amend the Construction Law. Focus on adding and modifying the following clauses: (1) Formulate the clause that "the construction unit shall pay the wage security fund to the administrative department of labor and social security before the start of construction". It is stipulated that before the construction project starts, the construction unit must pay a certain proportion of migrant workers' wage security fund according to the project price, which is managed by the construction administrative department and supervised by the labor security administrative department. If the construction unit fails to pay the wages of migrant workers in full and on time, the construction administrative department has the right to withdraw funds from the wage security fund to advance the wages of migrant workers in arrears. For the construction unit that refuses to pay the security fund, the competent department does not approve its construction; Projects that have already started have the right to order them to suspend construction. It is an effective legal guarantee for enterprises to solve the problem of wage arrears to formulate the wage payment guarantee clause for real estate development projects. (2) It is stipulated that "the Employer and the Contractor shall bear joint and several liability for guarantee". Formulate guarantee clauses focusing on the employer's project guarantee system, requiring the employer and the contractor to jointly provide performance bonds, and both parties shall bear joint liability within the scope of wage arrears for migrant workers. (3) Formulating the clause of "Linkage of Project Establishment and Approval". Where there is a unit in arrears, when going through the formalities of project establishment, planning and construction permit, the unit in arrears must first settle the arrears, and the examination and approval department can go through the relevant formalities. If the completed development and construction projects are in arrears, their new development and construction projects will not be approved. And was downgraded in the annual qualification inspection, and the qualification certificate was cancelled if the circumstances were serious. (4) Increase and refine the punishment of legal responsibility. The current laws and regulations lack the penalty clauses for defaulting on the project payment, so it is difficult to effectively restrict the defaulting behavior. In order to increase the economic penalties for employers' arrears of wages for migrant workers and increase the legal responsibilities of employers' arrears of wages, the provisions on the maximum fine of 300,000 yuan for arrears of wages for migrant workers should be added to the legal responsibilities of the Construction Law.
(3) Formulating a wage payment system. According to the relevant national laws and regulations, wages can be paid at least once a month, and weekly, daily and hourly wages can be paid. According to this regulation, it laid a legal foundation for the implementation of the "weekly salary system". Formulating the Regulations on Wage Payment can stipulate that the monthly salary system should be changed to the weekly salary system. Moreover, it should be stipulated that the employer should be given severe punitive legal responsibility if it defaults on the wages of workers without reason and infringes on the legitimate rights and interests of workers. Formulating the Regulations on Wage Payment is an effective legal measure to solve the problem of wage arrears for migrant workers.
(4) The criminal law defines malicious wage arrears as a criminal act. Some people think that wage arrears for migrant workers are an economic phenomenon and belong to the category of civil legal adjustment. However, due to the frequent occurrence of malicious wage arrears, in order to combat malicious wage arrears, criminal law can be used to deal with the problem of malicious wage arrears in enterprises. Adding a "malicious debt crime" to the criminal law stipulates that if an enterprise maliciously defaults on the wages of its workers, and the amount is huge, the consequences are serious or there are other serious circumstances, the person in charge of the enterprise and other directly responsible personnel who are seriously and viciously in arrears shall be investigated for criminal responsibility, and the relevant arrears, including the wages of migrant workers, shall be severely punished. If there is no need to formulate new charges at present, the original crime of embezzlement in the criminal law can be reasonably amended, and fines can also be considered when modifying the crime of embezzlement. Defining malicious default as a criminal act through criminal law has played a very good role in combating and curbing malicious default.
(5) Strengthen local laws and regulations. Article 63 of China's Legislative Law stipulates: "The people's congresses and their standing committees of larger cities may, according to the specific conditions and actual needs of this city, formulate local regulations on the premise that different constitutions, laws, administrative regulations and local regulations of this province and autonomous region are in conflict, and report them to the standing committees of people's congresses of provinces and autonomous regions for approval before implementation." Therefore, qualified local people's congresses and their standing committees can formulate local laws and regulations according to local conditions. Formulate specific measures to establish a report or early warning system for enterprises' arrears of wages, take the wages paid by enterprises to migrant workers as one of the main criteria for evaluating the integrity level of enterprise labor security, cooperate with the construction administrative department to establish a disciplinary mechanism for construction enterprises and employees' dishonesty, and take measures to clear the local construction market for a few construction enterprises that seriously or maliciously owe wages to migrant workers. Formulate relevant supporting laws and regulations, so that the administrative department for industry and commerce can effectively restrain the employer's wage arrears in industrial and commercial registration and enterprise annual inspection. For employers who are in arrears for a long time, the annual inspection of the enterprise may be suspended until the business license is revoked. In the annual qualification inspection of construction enterprises and real estate development enterprises, whether the wages of migrant workers are in arrears is one of the annual inspection conditions.
Third, law enforcement should ensure the effective implementation of relevant laws.
The administrative law enforcement departments are not strong enough to enforce the law, the law enforcement means are insufficient, and the processing procedure is too long, which directly affects the law enforcement effect of wage arrears for migrant workers. As a result, enterprises and operators who owe wages to migrant workers are not punished by law, which makes the phenomenon of wage arrears to migrant workers more common and serious. Legally speaking, for the problem of wage arrears for migrant workers, even in China.
After gradually improving the legislation, the key lies in how to implement it. Law enforcement should also establish a long-term mechanism to effectively implement laws, policies and measures to protect the rights and interests of migrant workers. The rule of law is the guarantee and supervision is the key to the implementation of the general plan of governing the country according to law. Justice in law enforcement needs not only the justice of law enforcers, but also a perfect and multi-level supervision network. Law enforcement departments should carry out special inspections on labor and employment law enforcement and arrears of wages for migrant workers according to law. In law enforcement, we should also establish and improve the wage payment, monitoring and security system for migrant workers, promptly correct and investigate illegal behaviors of wage arrears for migrant workers, and ensure that laws and policies on wage payment are fully implemented. For construction enterprises that have caused adverse effects, the Construction Committee will take safeguard measures such as canceling their business qualifications and expelling them from the construction market according to law. The punishment of administrative law enforcement departments for unpaid wages should not only be economic, but also include a series of demotion and restriction measures such as enterprise credit and industry access. Therefore, making full use of legal means to strengthen law enforcement is an important safeguard measure to safeguard the legitimate rights and interests of migrant workers according to law.
Four, the legal aid mechanism for the protection of farmers' rights and interests
In order to effectively protect the rights and interests of migrant workers, the legal aid system for migrant workers should be established and implemented as soon as possible. All departments should make full use of legal means, actively open up a "green channel" for migrant workers, provide them with legal aid to solve wage arrears, and help them solve disputes over rights protection. When the people's court accepts a case of wage arrears for migrant workers, it shall make a decision to reduce, postpone or waive the legal fees for the parties with real economic difficulties; After accepting a case, shorten the trial time as much as possible, apply summary procedures, and quickly file a case, try it quickly and execute it quickly according to law; Those who meet the conditions can take measures such as first execution; At the time of judgment, direct losses such as lost time, lawyer's fees, travel expenses, and witness's appearance fees should be included in the scope of compensation. After the judgment comes into effect, for those who intentionally fail to perform the obligation of judgment payment, they shall pay the delayed payment at twice the bank loan interest rate for the same period. The judicial administrative department should increase the publicity of popularizing the law and constantly improve the legal awareness of migrant workers' own rights protection. Lawyers should actively lend a helping hand and provide free help to migrant workers who meet the conditions of judicial assistance. The legal aid center should not only provide legal aid for the residents of this city, but also provide rights protection services for migrant workers. Notary organs should actively provide legal services for migrant workers, and can jointly implement the labor contract notarization system for migrant workers with the construction administrative department. For the units that are in arrears with the wages of migrant workers, the units in arrears and migrant workers shall sign compulsory documents with compulsory enforcement effect for notarization. After the arrears expire, migrant workers can directly apply to the court for compulsory appropriation from the project funds.
In a word, to thoroughly control the problem of wage arrears of migrant workers according to law, it is necessary to organically combine the corresponding legislation, law enforcement and the establishment of legal aid mechanism for the protection of farmers' rights and interests, prevent and stop wage arrears of migrant workers from the source, truly plug the loopholes in wage arrears of migrant workers, and better safeguard the most basic rights and interests of migrant workers, which is of great practical significance for promoting social harmony and healthy economic development.