Viewpoint | Can a labor relationship be established between a worker who has reached the legal retirement age and does not enjoy pension insurance benefits and the employer?
Published:
2024-04-17
In real life, workers who have reached the retirement age often participate in work again in order to obtain income. When there is a dispute with the employer, whether the labor relationship can be established between the two parties becomes the main focus of dispute. In view of the relationship between workers and employers who have reached the legal retirement age and have not enjoyed old-age insurance benefits, there is no unified and clear provision of relevant laws, and courts in various places also hold different views in judicial practice.
Presentation of 1. issues
In real life, workers who have reached the retirement age often participate in work again in order to obtain income. When there is a dispute with the employer, whether the labor relationship can be established between the two parties becomes the main focus of dispute.
Regarding the relationship between workers who have reached the legal retirement age and have enjoyed pension insurance benefits and employers, Article 32 of the Interpretation (I) of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases has clearly stipulated that the employer If a unit files a lawsuit over an employment dispute with a person who has already enjoyed pension insurance benefits or received a pension in accordance with the law, the people's court shall handle it according to the labor relationship.
However, in view of the relationship between workers and employers who have reached the legal retirement age and have not enjoyed pension insurance benefits, there is no relevant legal unified and clear provisions, judicial practice in various courts also hold different views, this paper combined with the relevant cases to analyze the problem.
2.-related judicial opinions
(I) China's law does not prohibit the upper age limit of workers, nor does it prohibit employers from employing workers who exceed the legal retirement age."if an employer files a lawsuit over an employment dispute with a person who has enjoyed old-age insurance benefits or received a pension in accordance with the law, the people's court shall deal with it according to the labor relationship." It can be reversed that workers who exceed the legal retirement age and do not enjoy pension insurance benefits establish labor relations with employers. The court held this view in Shandong Shouguang Vegetable Industry Group Co., Ltd. and Hou Ailan's civil ruling on retrial review and trial supervision of labor relations disputes [(2020) Lu Minshen No. 4662], Changchun Guoxin Assembly Building Development Co., Ltd. and Wang Shuyan's civil judgment of second instance of labor disputes [(2022) Ji 01 Min Zhong No. 7299].
(II) a person who has reached the statutory retirement conditions, the labor contract is terminated and should retire, and can no longer become the subject of labor relations, and according to the "employment dispute between the employer and the person who has already enjoyed the pension insurance benefits or received the pension in accordance with the law, the people's court shall handle the lawsuit according to the labor relationship." It is not possible to reverse the establishment of labor relations with employers for workers who have not yet enjoyed old-age insurance benefits over the legal retirement age. In Wang Zhenying and Pingyi County Ruisen Wood Products Processing Factory Labor Dispute Civil Application Retrial Review Civil Ruling [(2021) Lu Minshen No. 8269], Du Huai and Shanghai Shidi Clothing Co., Ltd. confirmed that the labor relationship dispute second instance civil judgment [(2020) Hu 01 Min Zhong No. 9773] held this view.
(III) workers who have exceeded the legal retirement age have not yet enjoyed the pension insurance benefits, specifically examine the reasons for not enjoying the pension insurance benefits. If the non-employer causes the workers to not enjoy the pension insurance benefits, the labor relationship will not be established. Zhou huachun, Tianjin chengtong decoration engineering co., ltd. labor dispute retrial review and trial supervision civil ruling [(2020) Jin min Shen no 703], Zhang mou and Zhao mou, Li mou 1 and other labor dispute second instance civil ruling [(2022) Jin 06 min zong no 649] cases hold this view.
The root causes of the above-mentioned different views are mainly as follows: 1. "if an employer files a lawsuit over an employment dispute with a person who has already enjoyed old-age insurance benefits or received a pension in accordance with the law, the people's court shall deal with it according to the labor relationship." Can it be reversed that a labor relationship can be established without enjoying old-age insurance benefits in accordance with the law? 2. Article 44, paragraph 2, of the the People's Republic of China Labor Contract Law, "Termination of labor contracts when workers begin to enjoy basic old-age insurance benefits in accordance with the law" and Article 21 of the Regulations for the Implementation of the the People's Republic of China Labor Contract Law, "If a worker reaches the legal retirement age, the labor contract shall be terminated." How are the legal provisions applied?
3. How to identify the relationship between the person who has reached the legal retirement age but has not enjoyed the pension insurance benefits and the employer from the cases included in the case database of the people's court.
A property Service Co., Ltd. in Urumqi v. Ma XX labor contract dispute case, the case is mainly analyzed from the following aspects:
1. According to the second paragraph of Article 44 of the the People's Republic of China Labor Contract Law, the first paragraph of Article 32 of the Interpretation (I) of the Supreme People's Court on the Application of Laws in the Trial of Labor Dispute Cases, it cannot be stated that a worker who reaches the legal retirement age can establish a labor relationship with the employer without enjoying the basic pension insurance benefits.
2. Article 21 of the regulations on the implementation of the the People's Republic of China Labor contract Law "if the worker reaches the legal retirement age, the labor contract shall be terminated." It does not conflict with the second paragraph of Article 44 of the the People's Republic of China Labor contract Law, "if workers begin to enjoy basic old-age insurance benefits in accordance with the law, the labor contract shall be terminated", and it is a supplementary and perfect relationship. When applying Article 21 of the "Implementation Regulations of the the People's Republic of China Labor Contract Law", it is necessary to specifically examine whether the reason why workers cannot enjoy basic pension insurance benefits is related to the employer.
The court's analysis is as follows: The second paragraph of Article 44 of the "the People's Republic of China Labor Contract Law" stipulates: "Workers begin to enjoy basic pension insurance benefits in accordance with the law" labor contracts are terminated, and Article 21 of the "Implementation Regulations of the the People's Republic of China Labor Contract Law" It clearly stipulates: "If a worker reaches the legal retirement age, the labor contract shall be terminated." The above-mentioned laws and administrative regulations all provide for the termination of the labor contract. How should the above-mentioned provisions be applied in this case? The court held that,If the second item of Article 44 of the the People's Republic of China Labor Contract Law is applied separately, whether the labor contract is terminated or not is judged by whether the laborer enjoys the basic old-age insurance benefits. If the laborer reaches the legal retirement age, he does not go through the retirement procedures and does not receive the basic old-age insurance benefits, the employer may have to maintain the labor relationship with the laborer until the laborer dies or the employer cancels, under these circumstances, it is unfair to the employer. Therefore, according to Article 44, Item 6 of the the People's Republic of China Labor Contract Law on the authorization of the termination of the labor contract under "other circumstances stipulated by laws and administrative regulations", the the People's Republic of China Labor Contract Law Article 21 of the Implementation Regulations clearly stipulates: "If a worker reaches the legal retirement age, the labor contract shall be terminated." It can be seen that the above two provisions do not conflict, but complement and improve the relationship.
If you do not enjoy the basic pension insurance benefits, you cannot directly apply the provisions of Item 2 of Article 44 of the the People's Republic of China Labor Contract Law. This case should apply the provisions of Article 21 of the "Regulations on the Implementation of the the People's Republic of China Labor Contract Law" that "if the laborer reaches the legal retirement age, the labor contract shall be terminated". Of course, starting from the original intention of this article, if the laborer reaches the legal retirement age The right to terminate the labor contract directly granted to the employer will also cause damage to the legitimate rights and interests of the laborer to a certain extent,Therefore, for the examination of the application of Article 21 of the regulations on the implementation of the the People's Republic of China Labor contract Law, it is also necessary to specifically examine whether the reasons why workers can not enjoy the basic old-age insurance benefits are related to the employer.
3. Starting from the purpose of legislation, workers who have exceeded the legal retirement age are distinguished from different situations to determine the employment relationship, which is conducive to the orderly flow of workers and the favorable development of the economy and society.
When working, they have exceeded the legal retirement age, and the social security agency cannot open a social security account for them and accept their social insurance contributions. If a labor relationship is established, the employer will face the dilemma that it is difficult to fulfill the obligations established by judicial decisions, which will easily intensify social conflicts. The determination of the relationship between persons who have reached the legal retirement age but have not enjoyed pension insurance benefits and the employer cannot conflict with current labor laws and regulations, there is no sufficient reason to change the adjustment of old-age insurance and other labor security relations of the existing rules and regulations.
4. Summary
The relationship between workers and employers who have reached the legal retirement age and have not enjoyed pension insurance benefits is not clearly stipulated in the law, and there have been disputes in judicial practice, which has led to continuous litigation disputes between workers and employers, and different courts in similar cases. Different judgments also affect the credibility of the judiciary. On February 27, 2024, the Supreme People's Court announced the launch of the People's Court case library. The Supreme Law requires that judges must search and consult the case library when hearing cases, make judgments with reference to similar cases in the library, promote unified judgment rules and standards, avoid "different judgments in the same case", and ensure the correct and uniform application of the law. Therefore, this included case has important reference value for the determination of the relationship between workers who have reached the legal retirement age but have not enjoyed the pension insurance benefits and the employer, and solves the inconsistency of the opinions of different courts in the past, or even the same court. Inconsistent opinions.
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