Because all kinds of urban management and control are related to social security, such as buying a house, buying a car and getting a license, and children going to school, they all need to have a certain number of years of social security payment records in the local area, so there have been various social security payment phenomena, such as some flexible employees, paying a certain service fee through intermediaries and obtaining the "employee status" of enterprises to pay social security. These seemingly common phenomena may involve criminal responsibility. Last year, the Chaoyang police in Beijing raided the staff of the Social Security Institute, as follows:
On April 2, 20021,the case was heard. In this case, in the name of employees of the company, the social security agency paid maternity insurance to the Chaoyang District Medical Security Bureau of Beijing for 36 pregnant women who did not meet the insurance requirements, and defrauded the maternity allowance of more than 980,000 yuan. Eight defendants were charged with fraud. The eight defendants are all legal representatives and relevant supervisors or employees of Beijing Pan Bo Enterprise Management Co., Ltd. The company is mainly engaged in human resources services, and paying social security for social workers is one of the company's businesses.
During the trial, Li, the operation manager of Beijing Enterprise Management Co., Ltd., said: "If our behavior is identified as fraud, the whole human resources industry will be turned upside down." According to Song and Li in court, their clients who pay social security include flexible employees and self-employed. These people either don't want to pay social security, or they want to solve the problem of buying a car and a house to send their children to school in Beijing, as well as insurance salesmen and so on. Although they have jobs, they don't pay social security. They can only solve the problem in this way. "This is a social problem, and we are also trying to help these people solve the problem." Song said.
The follow-up results of this case deserve continuous follow-up.
In addition to the above fictional labor relations, there is also social security payment for cross-regional employment by employers. Next, let's analyze this "social security payment":
First, social security agents VS social security contributions
Agency is a common system in civil and commercial activities, so can the employer entrust others to pay wages, social security and provident fund? From the legal point of view, there is definitely no problem, but why does Beijing's new social security policy not allow social security payment in 2020? Let's take a closer look at the legal provisions here. Let's see if the "social security institutions" in the market meet the agency characteristics stipulated in the Civil Code.
Article 162 of the Civil Code stipulates: "A civil juristic act carried out by an agent in the name of the principal within the scope of agency authority is effective for the principal."
Let's see, what is a real "agent"? Real agents should be implemented in the name of "principal". Do all kinds of businesses in the market under the banner of "social security agent" pay social insurance in the name of the agent himself or in the name of the principal? Obviously, the vast majority of social security agents engaged in social security agency pay social insurance for their clients' employees in their own names. Therefore, it is easy to find that the "social security agents" flooding the market are not legal agents. Then I guess everyone is confused again. That's not an agent. What is this? In order to distinguish the compliant "social security agent", we call it "social security payment" for the time being.
By reviewing the basic concept of agency, we can clearly see that the real social security agent should be that both social security account opening and social security payment are carried out in the name of the client (the actual employer), and the agent only helps to run errands (for example, handling account opening procedures and handing over the money given by the employer to the social security collection agency in the name of the employer every month). This is the real social security agent, and the social security agent will charge some errands. In this regard, the employer may say that this is a social security agent, which makes no sense to us. We open a social security account in the name of the company, and pay the fee in the name of the company every month, so that our finances and HR can run errands. And now we all pay online, so we don't need to run errands. My situation is that the company has no registered entity in different places, so it can't open an account. However, in local employment, employees have to pay social security in places where our unit has no registered entity, and they are not willing to pay in places where our unit has a registered entity. This is our request. So we need to find a local social security agency to pay social security for employees in the name of the local social security agency, but the labor contract is signed in the name of our company. Ok, this operation is ok, but it is not a compliant "social security agent", but a non-compliant "social security payment".
Second, the reasons for paying social security
The author believes that the reasons for paying social security are as follows:
The first is to reduce the demand for payment costs. At present, China's social insurance policies vary greatly from place to place, with different payment rates, payment bases and average wages. Some enterprises find social security depressions, and social security will be paid in different places.
The second is the actual demand for employment in different places. Some enterprises are employed in different places and have no local branches, so they can't pay social security locally, and local workers have a strong demand for insurance. After all, social security payment is linked to many social interests, such as children's schooling, housing qualifications, settlement and so on.
The third is to reduce the demand for transactional work. Entrust the payment of social security to other human resources companies to reduce the daily work of human resources management in this enterprise.
Third, the risk of social security payment
In addition to the criminal liability risk of 1 mentioned at the beginning, there are the following eight risks that employers should pay attention to:
1) Economic compensation risk. As mentioned above, if the adjudication organization thinks that the payment of social security is not in compliance with the regulations, it means that the employer has not paid social security for the employee, and the employee can make use of Article 38 of the Labor Contract Law to resign, and then can ask the employer to pay economic compensation. In this regard, Guangzhou has similar regulations and Sichuan has similar precedents. In order to avoid such risks, it is suggested to sign relevant agreements or make corresponding commitments with employees when paying social security.
Summary of Opinions of Guangzhou Labor and Personnel Dispute Arbitration Commission and Civil Trial Chamber of Guangzhou Intermediate People's Court on the Symposium on Labor Dispute Cases (20 15)
12. Is it legal for the employer to sign a labor contract with the employee and establish a labor relationship, but entrust other units to pay social insurance on behalf of the employee in the name of other units? If the employee claims to terminate the labor contract on the grounds that the employer fails to pay social insurance premiums according to law, does the employer need to pay economic compensation to the employee?
In violation of the law, the employer violates the provisions of Article 4 of the Social Insurance Law that "employers and individuals shall pay social insurance premiums according to law" and Article 10 that "employees shall participate in the basic old-age insurance, and the basic old-age insurance premiums shall be paid by both employers and employees". If the laborer claims to terminate the labor contract by force on this ground, the employer shall pay economic compensation to the laborer.
Other provinces and cities have similar understandings and judgments, such as the following cases:
Deyang Intermediate People's Court (20 17)06 Minte 12 1
In this case, Ji Qingjuan requested an arbitration award to terminate the labor contract and pay economic compensation on the grounds that Zheng Sheng Company failed to pay social insurance premiums according to law. Article 38, paragraph 1 (3) and Article 46, paragraph 1 (1) of the Labor Contract Law of People's Republic of China (PRC) stipulate that if the employer fails to pay social insurance premiums for the employee according to law, the employee may terminate the labor contract and request economic compensation. According to the facts ascertained by the arbitration award, in May 20 15, Ji Qingjuan established a labor relationship with the employer Zheng Sheng Company, and Ji Qingjuan's social insurance was handled by Daxi Pharmacy, a Zheng Sheng People's Pharmacy in Jiannan Town, Mianzhu City. Although the operator of Daxi Pharmacy and the legal representative of Zheng Sheng Company are the same person, they belong to different employers after all. This behavior of paying social insurance violates the provisions of Article 4 "Employers and individuals pay social insurance premiums according to law" and Article 10 of People's Republic of China (PRC) Social Insurance Law. It should be recognized that Zheng Sheng Company failed to pay social insurance for Ji Qingjuan according to law, and Ji Qingjuan can terminate the labor contract and claim compensation. His monthly salary is 2700 yuan, and his working time starts from May 2065,438+05 to May 24,2065,438+07. His working experience is two years and he should pay two months' salary, so his economic compensation should be 5400 yuan (2700 yuan × February). The arbitration award that Zheng Sheng Company paid economic compensation of 5,400 yuan was correct.
2) The risk that industrial injury insurance claims cannot be settled. For example, a company in Shanghai entrusted a third party to pay social security in Beijing, and a work-related injury occurred. However, when a work-related injury is identified, the actual employer does not pay social security, and the employer who pays social security is not the employer. In some places, the work-related injury insurance foundation refuses to pay social security benefits, so the work-related injury expenses are still borne by the actual employer. For example, the following two situations:
Chongqing No.1 Intermediate People's Court (20 18) No.01Minte 4 1 1
Article 72 of the Labor Law of People's Republic of China (PRC) stipulates that employers and workers must participate in social insurance and pay social insurance premiums according to law. Article 62 of the Regulations on Work-related Injury Insurance stipulates that if an employee of an employer who should participate in work-related injury insurance according to the regulations suffers from work-related injuries, the employer shall pay the expenses according to the treatment items and standards of work-related injury insurance stipulated in the regulations. According to the above regulations, it is the legal obligation of Xinchao Company to participate in social insurance for Zhu Chunyang according to law, which cannot be fulfilled by other units. Xinchao Company did not provide evidence to prove that it fulfilled the above-mentioned legal obligations in the name of Xinchao Company, so Xinchao Company should bear Zhu Chunyang's various industrial injury insurance benefits according to law. As for the evidence 1 and 2 presented by Xinchao Company, it shows that the outsider Gaodong Company purchased social insurance for Zhu Chunyang and applied for medical expenses. This evidence can't prove that Xinchao Company has fulfilled the corresponding social security payment obligation to Zhu Chunyang, which has nothing to do with this case and is not adopted by our court. Evidence 4 presented by Xinchao Company is related to the outsider, but not to this case, so this court will not accept it.
Wuhan Intermediate People's Court (20 18) E 0 1 Minzhong No.3245
We believe that Article 57 of the Social Insurance Law of People's Republic of China (PRC) stipulates: "The employing unit shall, within 30 days from the date of its establishment, apply to the local social insurance agency for social insurance registration with its business license, registration certificate or unit seal. The social insurance agency shall review and issue the social insurance registration certificate within 15 days from the date of receiving the application. " Article 58 stipulates: "The employing unit shall register social insurance for its employees within 30 days from the date of employment. If the social insurance registration is not handled, the social insurance agency shall verify the social insurance premium that it should pay. " According to the above regulations, it is the legal obligation of the employer to pay social insurance for employees. The employing unit shall register social insurance with the local social insurance agency and pay social insurance for employees to the local social insurance agency. Social insurance registration shall be managed in a territorial manner, and the account opening and payment unit shall be the "employing unit", that is, the employing unit that establishes labor relations with workers. It is illegal for an employer to entrust a third party to pay social insurance for employees. Generally speaking, the prerequisite for workers to enjoy social insurance benefits should be the existence of labor relations with the insured units. However, in the case of social insurance payment, there are inconsistencies between the location of the employer and the place of social insurance payment, and between the subject of social insurance payment and the actual work unit. Payment is to pay social security for employees directly in the name of the social security payment company, not as an agent, but as an alternative. Due to the personal nature of social security, although remittance companies pay social security fees instead of employers, they cannot apply for work-related injury treatment for workers instead of employers. On the account name, it shows that the employer has not paid work-related injury insurance for employees. According to Article 41 of the Social Insurance Law of People's Republic of China (PRC), "If the employer where the employee works fails to pay the work-related injury insurance premium according to law, the employer shall pay the work-related injury insurance benefits", so the employer shall bear the rights due to the employee. As far as this case is concerned, Guodan Company entrusted AIA Company to pay work-related injury insurance for its employee Qiao Wei, but the social security agency where the social security remitting unit (AIA Company) is located failed to pay work-related injury insurance benefits to Qiao Wei, and the loss of work-related injury insurance benefits enjoyed by Qiao Wei was borne by the employer Guodan Company. Guguodan Company shall pay Qiao Wei a one-time disability subsidy of 36,000 yuan (4,000 yuan ×9 months); One-time Medicaid 438 16 yuan (first year 65720? 12 months ×8 months), but Qiao Wei only advocates 4 1244 yuan, and the excess is regarded as Qiao Wei's automatic waiver; One-time disability employment subsidy is 65,724 yuan (65,720 yuan in the first year? 12 months × 12 months).
To sum up, Qiao Wei's appeal is established and supported.
3) Risk of treatment differences. For example, employers in Nanjing pay social security for Xi through a third party. Because the Regulations on Industrial Injury Insurance clearly stipulates that if the actual amount of disability allowance is lower than the local minimum wage, the industrial injury insurance fund will make up the difference. If the actual amount of disability allowance is lower than the local minimum wage, employees can ask to make up the difference, because the minimum wage in Nanjing is higher than that in Xi.
4) Joint and several compensation risks. Entrust a third-party agency to pay social security. If there is a dispute between the three parties, and the employee fails to enjoy retirement benefits because he fails to go through retirement procedures in time, the employer needs to bear joint and several liabilities.
Beijing No.2 Intermediate People's Court (20 17) Jing 02 No.2908
The first paragraph of Article 16 of the Social Insurance Law of People's Republic of China (PRC) stipulates that individuals who participate in the basic old-age insurance will receive the basic old-age pension on a monthly basis when they reach the statutory retirement age and have paid the accumulated contributions for fifteen years. By the time he reached retirement age in Jie Zheng, his accumulated payment period had reached 15 years. Danone and foreign companies claimed that personal reasons, such as Jie Zheng's file problems, led to the failure to go through retirement procedures, but no evidence was submitted to prove it. Our hospital will not accept the above claims of the two companies. Before Zheng Jie reached retirement age, she had a labor relationship with Danone. According to Articles 4 and 58 of People's Republic of China (PRC) Social Insurance Law, Danone, as the employer of Zheng Jie, should pay social insurance for Zheng Jie in the name of its company. However, from June 5438 to February 2065438, Danone entrusted a foreign company to pay endowment insurance for Jie Zheng, which led to the above situation. According to the work record of the court of first instance consulting social insurance agencies, the retirement of workers is generally proposed by their social security payment units, and individual workers cannot directly apply for retirement. Therefore, before Jie Zheng reached the legal retirement age and the first-instance judgment was made, the retirement examination and approval procedures for Jie Zheng had not yet started. Danone Company, as the actual employer, and the foreign company, as the employer registered in the social insurance agency, are all responsible for Zheng Jie's failure to go through the retirement formalities in time, resulting in her inability to enjoy retirement benefits. Because Zheng Jie's retirement pension has not been approved, the court of first instance temporarily ruled that the above two companies jointly paid Zheng Jie's loss of 65,438+005,000 yuan from March 2065,438+04 to August 2065,438+06, which was not improper. After going through the retirement formalities in Jie Zheng, Zheng Jie can apply separately if the above-mentioned standard is different from the approved pension amount. Jie Zheng can also claim for the losses caused by failing to go through the retirement formalities in time after the above-mentioned time limit. Based on the above reasons, the court of first instance ruled that Danone Company and foreign-funded companies jointly reimbursed Jie Zheng for medical expenses of 28,376.79 yuan from April 2065,438+04 to February 2065,438+06, which was not inappropriate.
5) Risk of repeated payment of social security. This kind of risk generally appears in paying social security in different places, establishing labor relations, and not paying social insurance by real employers. When employee complaints or social security audits occur, the social security collection department may order them to pay back. As for the employer looking for a third party to pay in different places, some local social security collection agencies will ignore it and still require the unit to pay social insurance for employees locally.
7) Risk of funds being misappropriated, frozen or swept away. This risk mainly occurs in irregular or weak remittance institutions. The clients I serve have encountered many similar risks. Customers put funds into the account of remittance agencies as scheduled, and remittance agencies failed to pay social insurance for employees, which caused a series of disputes. There are also customers who encounter funds entering the account of the remittance institution, and as a result, the bank account of the remittance institution is frozen by the judicial institution; More unfortunately, customers put the social security funds paid for employees into the account of the payment institution, which led to the payment institution running away and so on.
8) Risk of administrative punishment. Such as the following provisions of Guangdong Province:
Article 61 of the Regulations on the Supervision of Social Insurance Funds in Guangdong Province stipulates that if the social insurance business is handled by means of fraud, forgery of certification materials, fraudulent use of other people's certificates, fictional labor relations, etc., the social insurance administrative department, social insurance premium collection agency and social insurance handling agency will not handle it, and relevant information will be recorded in their credit files; If the circumstances are serious, a fine of not less than one time but not more than three times the amount involved shall be imposed.
Anyone who defrauds social insurance benefits by fraud, forgery of certification materials, fictitious labor relations or other means shall be ordered by the social insurance administrative department to return the defrauded social insurance benefits, and a fine of not less than 2 times but not more than 5 times the amount defrauded shall be imposed.
From the above analysis, it can be seen that all social security payers have certain risks. The last sentence reminds: payment is risky, so the operation needs to be cautious!