Viewpoint | The amount of late fees should not exceed the amount of social insurance premiums owed.
Published:
2023-12-04
If the employer defaults on the social insurance premiums for employees for a long time, the late payment fee that the employer should bear may exceed the amount of social insurance premiums owed. At this time, can the late fee charged by the administrative law enforcement department to the employer exceed the amount of social insurance premiums owed?
In the real society, it is more common for employers to pay social insurance premiums for workers in full and on time. If a worker whose legitimate rights and interests have been violated submits a complaint to the labor security supervision department in accordance with the law, the labor security supervision department shall, after accepting it, correct and investigate the labor violations in accordance with the law, make an ''Administrative Handling Decision'' and order the employer to pay or make up the society within a time limit Insurance premiums, and add corresponding late fees. If the employer defaults on the social insurance premiums for employees for a long time, the late payment fee that the employer should bear may exceed the amount of social insurance premiums owed. At this point, can the late fees charged by the administrative law enforcement department to the employer exceed the amount of social insurance premiums owed? The administrative law enforcement department usually believes that the amount of late fees can exceed the amount of social insurance premiums owed, for the following reasons:
The first paragraph of Article 60 of the the People's Republic of China Social Insurance Law (2018 Amendment) (hereinafter referred to as the "Social Insurance Law") stipulates: "The employer shall declare on its own and pay social insurance premiums in full and on time, and shall not be deferred or reduced or waived unless due to force majeure and other statutory reasons. The social insurance premiums payable by employees shall be withheld and paid by the employer,......." The first paragraph of Article 63 of this Law stipulates: "If the employer fails to pay the social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay or make up within a time limit." Article 86 of this Law stipulates: "If the employer fails to pay the social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay or make up within a time limit, and from the date of non-payment, an additional five ten-thousandth per day will be charged. A late fee; if it fails to pay within the time limit, the relevant administrative department shall impose a fine of more than one time and less than three times the amount of the outstanding payment." Accordingly, if the employer fails to pay the social insurance premiums in full and on time, it shall bear the deadline to pay or make up the social insurance premiums, as well as late fees, fines, etc. If the non-payment lasts for a long time, the late payment fee may exceed the amount of social insurance premiums owed. According to the duration of the employer's labor violation, let it bear five ten thousandths of the late fee, which reflects the principle that the illegal time of the labor violation unit is compatible with the amount of the late fee, and the labor violation unit cannot be allowed to benefit from the violation. If the late fee charged by the administrative law enforcement department to the employer is not allowed to exceed the amount of social insurance premiums owed, once the late fee that the labor illegal unit should bear exceeds the amount of social insurance premiums owed, it will benefit from the violation of the law. In addition, the Social Insurance Law does not restrict the amount of late fees to exceed the amount of social insurance premiums owed. If the amount of late fees is not allowed to exceed the amount of social insurance premiums owed, the full amount of social insurance premiums that should be collected will be undercollected, resulting in the loss of state-owned assets. For the above reasons, the amount of the late payment fee may exceed the amount of the social insurance premium owed.
The author believes that the amount of late payment fees should not exceed the amount of social insurance premiums owed. The above-mentioned views of administrative law enforcement departments are questionable for the following reasons:
Article 45 of the "the People's Republic of China Administrative Compulsory Law" (hereinafter referred to as the "Administrative Compulsory Law") stipulates: "If an administrative agency makes an administrative decision on the obligation to pay money in accordance with the law, and the party fails to perform it within the time limit, the administrative agency may impose a fine or late fees in accordance with the law. The standards for imposing additional fines or late fees shall be notified to the parties concerned.The amount of the additional fine or late fee shall not exceed the amount of the obligation to pay money."This Law is the law governing the implementation of administrative coercive acts by administrative organs, and administrative organs must abide by this Law when implementing administrative coercive acts. There is no doubt that the labor security supervision department shall also be bound by this law when levying unpaid social insurance premiums, late fees and fines from illegal employers.
In terms of the application of the law, we should pay attention to the following issues: the social insurance law has been implemented since July 1, 2011, which is the old law. The Administrative Enforcement Law, which came into force on January 1, 2012, is a new law. According to the principle of the "Legislative Law" that the new law is superior to the old law, the second paragraph of Article 45 of the "Administrative Enforcement Law" stipulates that "the amount of fines or late fees shall not exceed the amount of the obligation to pay money." Priority should be given to the Social Insurance Act. Therefore, when applying the "Social Insurance Law" to charge employers with late fees, the mandatory provisions of the "Administrative Enforcement Law" should be applied first, and the amount of late fees shall not exceed the amount of social insurance premiums owed.
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