Viewpoint... Summary of wage provisions during the period of compulsory measures.
Published:
2024-02-04
Can a citizen who has not yet been convicted of a crime by a criminal judgment that has not yet entered into force but has been subject to criminal coercive measures due to the initiation of criminal prosecution proceedings continue to be paid? The author has compiled the relevant legal norms on the wages and treatment of citizens during the period when they are subject to coercive measures, hoping to provide a reference basis for the parties to claim their legitimate rights in accordance with the law and to protect their legitimate sources of income for themselves and their families.
Can a citizen who has not yet been convicted of a crime by a criminal judgment in force but has been subject to criminal coercive measures because of the initiation of criminal prosecution proceedings continue to be paid? In the course of my defense of a criminal case, the parties and their families often have such questions, especially when the parties have not restricted their personal freedom or should not have been held criminally responsible. The process of criminal prosecution is often long, and the period of compulsory measures such as bail pending trial can be up to one year. If you can work normally but cannot get salary during this period, the impact on citizens' families is self-evident. Therefore, the author has sorted out the relevant legal norms of wages and benefits during the period when citizens are taken compulsory measures, hoping to provide a reference basis for the parties to claim their legal rights in accordance with the law, and to protect the legal sources of income for themselves and their families.
1. civil servants, staff of reference civil service management units
If a person who is engaged in the work of a civil servant or refers to a civil servant management unit is suspected of committing a crime, according to Article 14 of the Law on the Administration of Public Officials, there are three situations in which he is directly expelled:
1. Sentenced to public surveillance, criminal detention or fixed-term imprisonment or more (including probation) for intentional crime;
2. Those who have been sentenced to fixed-term imprisonment of more than three years for a negligent crime;
3. Persons who have been deprived of political rights for a crime, either singly or concurrently.
There are two situations for the unit to decide whether to dismiss:
1. A person who is sentenced to public surveillance, criminal detention or fixed-term imprisonment of not more than three years for a negligent crime shall generally be expelled; if the circumstances of the case are special and it is more appropriate to be removed from office, the expulsion may not be allowed, but it shall be reported to the organ at the next higher level for approval.
2. If a public official is fined for a crime, or the crime is minor, and the people's procuratorate makes a decision not to prosecute or the people's court is exempted from criminal punishment according to law, he shall be removed from office; if it causes adverse effects, he shall be dismissed.
In a nutshell, those who have been sentenced to principal punishment or deprived of political rights for a crime shall be expelled in principle. When they have been sentenced to less than three years of free punishment only for a negligent crime, if there are indeed special circumstances and it is not suitable to be expelled, they may not be expelled with the approval of the higher authorities.
If a civil servant has not been found guilty by the effective criminal judgment, he is only put on file for investigation by the public security organ and takes criminal compulsory measures. According to the notice on civil servants being taken compulsory measures and dealing with the salary treatment of administrative criminal punishment published in 2010,During the period when a civil servant is released on bail pending trial, under residential surveillance, under criminal detention and arrest, the living expenses are only calculated at 75% of his original basic salary.If the people's court finally acquits the case and is exempt from criminal punishment, or the public security organ cancels the case, or the people's procuratorate does not prosecute, the salary previously reduced shall be reissued. If he is finally convicted and subject to criminal punishment, the original salary shall be canceled from the date when the judgment of the people's court takes effect, even if he has not been expelled.
2. career editor
If it is a staff member of the establishment of an institution who is found to have committed a crime, according to Article 23 of the regulations on the punishment of staff members of public institutions just promulgated on November 6, 2023, staff members of public institutions who commit crimes under any of the following circumstances shall be expelled:
(I) has been sentenced to public surveillance, criminal detention or fixed-term imprisonment or more (including probation) for an intentional crime;
(II) sentenced to fixed-term imprisonment of more than three years for a negligent crime;
(III) who have been deprived of their political rights for their crimes, either singly or concurrently.
Those who are sentenced to public surveillance, criminal detention or fixed-term imprisonment of not more than three years for a negligent crime shall generally be expelled; if the circumstances of the case are special and it is more appropriate to lower the post level, they may not be expelled, but they shall be reported to the competent department of the public institution for approval. And report to the comprehensive personnel management department of the public institution at the same level for the record.
If a staff member of a public institution is fined for a crime, or if the crime is minor, and the people's procuratorate makes a decision not to prosecute or the people's court is exempted from criminal punishment in accordance with the law, he shall be given a penalty of lowering the level of his post; if it causes adverse effects, he shall be expelled.
In a nutshell, the punishment for a crime committed by an employee of a public institution is basically the same as that of a civil servant. However, when the staff of public institutions are subject to coercive measures, there are minor changes in their provisions. According to the "Notice on Issues Concerning the Handling of Compulsory Measures and Administrative Criminal Penalties for Staff of Public Institutions and Agency Workers" published in 2012, it is the same as civil servants,During the period when the staff of public institutions are released on bail pending trial, residential surveillance, criminal detention and arrest, the living expenses shall only be calculated at 75% of their original basic salary.If it is finally found that criminal responsibility should not be investigated, the public security organ cancels the case or the people's procuratorate does not prosecute or the people's court declares innocence and exempts from criminal punishment, then similarly, the previously reduced wages should be reissued. If a staff member of a public institution is sentenced to fixed-term imprisonment or more and the original unit has not made a decision on dismissal, the original salary and treatment shall be canceled from the date when the judgment of the people's court takes effect.
Unlike civil servants,If the unit is sentenced to public surveillance, criminal detention or the period during which the criminal detention is suspended, the unit does not expel it, but only temporarily suspends the payment of wages.Moreover, if the staff member is assigned to temporary work during the period of detention and probation, he can also receive living expenses at 60% of his basic salary.The wages and benefits after the expiration of the period shall be determined accordingly according to the sanctions imposed.
3. enterprise employees
As an employee of an enterprise, if he has been sentenced to criminal detention, fixed-term imprisonment, life imprisonment and other free sentences due to a crime, there is no doubt that because his personal freedom is restricted, it is impossible to continue to work and naturally he cannot receive wages. In fact, as long as the criminal responsibility is investigated by the effective judgment, whether in custody or not, you may lose your job.According to Article 25 of the Labor Law, if a worker is investigated for criminal responsibility according to law,The employer may terminate the labor contract in accordance with the law. However, it should be noted that the provision here is "can". In other words, from a legal point of view, as a market economy subject that is responsible for its own profits and losses, enterprises can handle labor relations according to their own wishes and have their own discretion on whether to terminate or not. Legally speaking, even if workers are investigated for criminal responsibility, enterprises can continue to pay salaries without terminating labor relations based on their own considerations.
During the period of compulsory measures or execution of punishment, the wage provisions of enterprise employees are more relaxed and flexible. According to Article 28 of the Provisions on Wage Payment by Enterprises in Shandong Province revised in 2021,If a worker is sentenced to public surveillance, probation for criminal detention, probation for fixed-term imprisonment, or parole, execution outside prison, or release on bail pending trial, if the enterprise fails to terminate the labor contract with him, and the worker provides normal labor, the enterprise shall comply with the state regulations or labor contract. The agreed wage standard pays his wages.
In other words, as long as the worker's personal freedom is not restricted, the enterprise has not terminated the labor contract with him, and the worker provides normal labor, the enterprise shall pay his wages in accordance with the wage standards stipulated by the state or the labor contract. This is mainly due to the equality of labor relations in enterprises, and the status of both parties of labor relations is equal. In most cases, the establishment and dissolution of labor relations are the result of voluntary and equal consultation between both parties. As long as the laborer still has the ability to work and provides labor, the enterprise is willing to accept this kind of labor, and in accordance with the principle of fairness, remuneration should be paid in accordance with the law.
However, if the person in charge of a state-owned enterprise, the relevant regulations are more stringent. As a unit owned by the whole people, state-owned enterprises should not only be economical, but also have public welfare. The head of the state-owned enterprise manages and controls the operation of capital on behalf of the state, with the ultimate goal of developing the economy and serving the people. Therefore, compared with enterprise employees or private enterprise leaders, the requirements for the person in charge of state-owned enterprises are obviously higher. According to the 2020 Letter of Opinion on the Payment of Remuneration during the Investigation of the Heads of State-owned Enterprises for Suspected Violations of Discipline and Law,If the person in charge of a state-owned enterprise is suspected of violating discipline and law and is subject to compulsory measures such as lien or criminal detention or arrest by the discipline inspection and supervision organs or judicial organs in accordance with the law, the enterprise shall stop paying his salary during this period.
Even if it is finally found that there is no crime, it is confirmed afterwards that the above-mentioned measures were indeed wrong at that time, and his salary will no longer be reissued. The person in charge of the state-owned enterprise can only apply to the agency that made the compulsory measure decision in accordance with the State Compensation Law and other relevant regulations. State compensation.
at the same time, according to the opinion, even if the soe leaders have not yet been subjected to any coercive measures,As long as they are unable to perform their duties normally during the investigation by the discipline inspection and supervision organs or judicial organs,state-owned enterprises no longer pay salaries normally,The living expenses can only be calculated and paid according to the monthly payment standard of the basic annual salary of the current year.Only after investigation and determination that there is no violation of discipline and law facts, the enterprise will reissue its payable salary.
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