Point of view... A brief analysis of the practical treatment of social security claims when bankrupt enterprises do not open social security accounts for employees.

Published:

2023-02-21

Foreword Social insurance is at the core of the social security system, and the state also gives employers the legal obligation to pay social insurance for their employees in the form of legislation. In the case of enterprise bankruptcy, the enterprise will usually default on social insurance due to the pre-debt crisis, which leads to the inability to pay social insurance for employees in time, and usually the social security institutions will also protect the rights and interests of employees in the form of social security claims. However, some bankrupt enterprises have not opened social security accounts for their employees since the date of production and operation, and social security institutions are unable to declare claims because they have not opened accounts, and there is no express provision on how to deal with social security claims. The purpose of this paper is to analyze the practical treatment of social security claims when bankrupt enterprises do not open social security accounts for employees. 1. what is social security claims The expression of social security claims does not appear directly in the Enterprise Bankruptcy Law and the judicial interpretation of the Bankruptcy Law, but in the second paragraph of Article 113 of the Enterprise Bankruptcy Law, the expression "social insurance expenses owed by the bankrupt in addition to the provisions of the preceding paragraph" appears, which is the provision of social security claims. Social security claims are formed in social insurance costs, but social security claims and social insurance costs cannot be completely equated. According to Article 113 of the Enterprise Bankruptcy Law, social security claims are closely related to employee claims. Therefore, the scope of social security claims can be determined by employee claims. The calculation formula of social security claims can be expressed as follows: social security claims = social insurance fees payable by the unit (excluding the unit's withholding of the individual's contributions)-the social insurance fees paid by the unit shall be included in the basic old-age insurance and basic medical insurance fees of the employee's personal account. Thus, the social security claim can be understood as the social insurance fee paid by the unit into the co-ordination account. The significance of 2. enterprises to pay social insurance. The first paragraph of Article 58 of the "Social Insurance Law" stipulates that the employer shall apply to the social insurance agency for social insurance registration for its employees within 30 days from the date of employment. If the social insurance registration is not completed, the social insurance agency shall approve the social insurance premiums that it should pay. Article 72 of the "Labor Contract Law" stipulates that the social insurance fund shall determine the source of funds according to the type of insurance, and gradually implement social pooling. Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law. It can be seen that the employer's payment of social insurance for employees in accordance with the law is a legal obligation of the employer, which is mandatory. This obligation is not exempted for any reason, and it is not changed according to the wishes of the parties. The promise made by the employee to the employer not to pay social insurance is also invalid due to violation of mandatory legal provisions. Taking basic old-age insurance as an example, the first paragraph of Article 10 of the Social Insurance Law stipulates that employees shall participate in basic old-age insurance, and employers and employees shall jointly pay basic old-age insurance premiums. The first paragraph of Article 11 of the "Social Insurance Law" stipulates that the basic pension insurance shall be combined with social pooling and individual accounts. The first paragraph of Article 12 of the "Social Insurance Law" stipulates that the employer shall pay the basic pension insurance premiums in proportion to the total wages of its employees as prescribed by the state, and record them in the basic pension insurance pooling fund. The second paragraph stipulates that employees shall pay basic old-age insurance premiums in proportion to their wages as prescribed by the State, which shall be credited to their personal accounts. The social insurance fee paid by the employer has a double significance. On the one hand, part of the social insurance fees paid by employers are transferred to the individual accounts of employees, which is "private"; on the other hand, part of the social insurance fees paid by employers are transferred to the overall planning account, which is uniformly allocated and managed within a certain range. to achieve regional adjustment, protect social and public interests, with "mutual aid". It can be seen that social insurance has the function of social security. Employers pay social insurance, which is not only a way to realize the social security needs of employees, but also a way for the state to protect the basic human rights of all people through social risk sharing. The payment of social insurance by enterprises has dual significance. It has both corporate responsibilities and social responsibilities. It is conducive to resolving the contradiction between the rich and the poor in society, ensuring the basic living standards of the people, truly realizing people-oriented, and building a harmonious socialist society. The practical analysis of social security claims when the 3. bankruptcy enterprise does not open a social security account for its employees. The Enterprise Bankruptcy Law stipulates that employers should pay social insurance for their employees, which is a mandatory obligation. In a bankrupt enterprise, when the bankrupt enterprise fails to open a social security account for its employees during the normal production and operation period, it has violated the law. When the enterprise goes bankrupt, the bankrupt enterprise should pay the social security for the employees and safeguard the legitimate rights and interests of the employees. However, in practice, the bankrupt enterprise has been in a state of insolvency, has obviously lack of solvency, the lack of funds available to the enterprise, especially in the face of many creditors, how the enterprise fair settlement of claims, to protect the legitimate rights and interests of each creditor has become a top priority. However, social security claims are only one of the many types of claims, and there is no uniform standard for the payment of social security claims in practice. Below, I will comb the face of bankrupt enterprises did not open social security accounts for employees, the administrator (or liquidation group) of the practical path choice. Path 1: When a bankrupt enterprise does not open a social security account for its employees, it cannot pay social insurance for its employees. Case 1: Due to the bankruptcy of the enterprise did not open a social security account for employees, do not support the payment of social security. In Huang Wuchun and Yingshan County Zhongneng Real Estate Co., Ltd., the civil judgment of the second instance of the dispute over the confirmation of employees' bankruptcy claims ((2020) Sichuan 13 Minzong No. 2139, Nanchong Intermediate People's Court of Sichuan Province) stated: ...... Zhongneng Company has not opened a medical insurance account in the medical insurance department and is now unable to repay the employees' medical insurance expenses to the medical insurance institution...... Case 2: Due to the bankruptcy of the enterprise did not open a social security account for employees, do not support the payment of social security for employees, but support compensation for losses. In the civil judgment of first instance on the dispute over the confirmation of bankruptcy claims of employees of Yang Ping and Mianyang Antelai Chemical Co., Ltd. ((2018) Sichuan 0792 Minchu No. 1971, Sichuan Mianyang High-tech Industrial Development Zone People's Court), it is stated:... The defendant Antelai Company failed to handle the social basic pension insurance premiums for the plaintiff from January 2013 to September 2014, which is illegal and should be paid according to law. However, after writing to the relevant social security department, the court learned that because the defendant did not open a social security account for the employees, and it has been many years since then, the social security department has been unable to complete the social insurance procedures for the plaintiff. Accordingly, in accordance with Article 118 of the General Principles of the People's Republic of China Civil Law, "Civil subjects shall enjoy claims in accordance with the law. Creditor's right is the right of the obligee to request a specific obligor to act or not to do a certain act due to contract, tort, unjust enrichment and other provisions of the law, and Article 1 of the (III) on the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of labor dispute cases, if a dispute arises over a claim for compensation from the employer, the people's court shall accept it." The plaintiff Yang Ping asked the defendant Antelai Company to give corresponding compensation, the court to support..... Case 3: Although the bankrupt enterprise has not opened a social security account for its employees, it confirms the basic old-age insurance and basic medical insurance that should be transferred to the employee's personal account. In Zheng Qishu and Kaili Economic Development Zone Baoheng Real Estate Development Co., Ltd. employee bankruptcy creditor's rights confirmation dispute first instance civil judgment ((2019) Qian 26 Minchu No. 122, Guizhou Qiandongnan Miao and Dong Autonomous Prefecture Intermediate People's Court) stated:... On whether Baoheng Housing Development Company should deposit endowment insurance and medical insurance for Zheng Qishu. The Social Insurance Law stipulates that employees shall participate in social insurance, and employers and employees shall jointly pay basic old-age insurance premiums and basic medical insurance premiums in accordance with state regulations. Therefore, Baoheng Housing Development Company for the company's employees Zheng Qishu to pay basic old-age insurance premiums, basic medical insurance premiums is its legal obligation. Because Baoheng Housing Development Company did not go to the social insurance department to open a personal insurance account for Zheng Qishu and pay insurance premiums, Zheng Qishu requested to confirm that Baoheng Housing Development Company enjoys the basic pension insurance premiums and basic medical insurance premiums that should be transferred to the personal account, Should be supported...... Case 4: The bankrupt enterprise has not opened a social security account for its employees and cannot confirm the basic old-age insurance and basic medical insurance that should be transferred to the employee's personal account. The civil judgment of the second instance of the dispute over the confirmation of bankruptcy claims between Gao Ruifeng and Weihai Chengxin Medical Science and Technology Development Company ((2014) Weimin San Zhong Zi No. 160, Weihai Intermediate People's Court of Shandong Province) states: ...... On the personal issue of whether the basic old-age insurance and basic medical insurance expenses that should be transferred to the employee's personal account should be paid to the appellant Gao Ruifeng, Article 48, paragraph 2 of the Bankruptcy Law stipulates, the wages and medical, disability subsidies, and pension expenses owed by the debtor to the employees, and the basic pension insurance and basic medical insurance expenses that should be included in the employee's personal account, shall be listed and publicized by the administrator after investigation. This article determines that the basic old-age and basic medical insurance expenses owed by the bankrupt enterprise that should be transferred to the employee's personal account shall be the employee's claim, but the amount shall be transferred to the employee's personal account and not directly paid to the employee himself. Therefore, the appellant Gao Ruifeng's request to pay the money directly to his personal lack of legal basis, the original trial on this basis to reject his claim is not improper, should be maintained in accordance with the law. What the author needs to explain is that the above path 1 occurred before, and each place issued a one-time pension insurance premium policy (taking Shandong Province as an example, on December 31, 2019, Shandong Provincial Department of Human Resources and Social Security, The Shandong Provincial Department of Finance jointly issued the "Notice on Improving the Basic Pension Insurance Payment Policy for Employees" (Luren Social Regulation [2019] No. 13), stipulating that bankrupt enterprises owe pension insurance premiums, it shall be paid off in accordance with the provisions in the income from the realization of the assets of the bankrupt enterprise. If there are still arrears after the assets are realized and paid off, for the part of the arrears that cannot be paid off, after the employee's personal payment and the enterprise's payment should be transferred to the employee's personal account (including interest), the bankrupt enterprise liquidation team can hold the court's bankruptcy ruling, The enterprise's assets and liabilities statement and other materials, apply to the social insurance agency in the insured place to write off the basic pension insurance premiums in arrears...) When the bankrupt enterprise has not opened a social insurance account for employees, A one-time payment of basic old-age insurance can be made. Path 2: When a bankrupt enterprise does not open a social security account for its employees, it can pay back pension insurance for their employees, but cannot pay back medical insurance. 1. Since the implementation of the "Notice on Improving the Basic Pension Insurance Payment Policy for Employees" (Luren She Gui [2019] No. 13), when a bankrupt enterprise has not opened a social security account for its employees, it can make a one-time payment of pension insurance. The basic approach is: If the basic pension insurance is paid as an employee of the unit, the unit generally submits a written application and provides proof materials that can prove the labor relationship between the employee and the unit, such as labor contracts, employee rosters, wage payment vouchers, etc., employee identification documents, etc. Among them, if the one-time payment exceeds three years, legal documents issued by the people's court, the audit department, the administrative department implementing labor supervision or the labor and personnel dispute arbitration committee shall be provided. According to this provision, when the bankrupt enterprise does not open a social security account for its employees, it can pay back the old-age insurance. 2. At present, there is no relevant policy to support bankrupt enterprises to pay back medical insurance for employees when they have not opened medical insurance accounts for employees. After the author consulted a number of medical insurance institutions, medical insurance institutions feedback in the bankrupt enterprises did not open medical insurance accounts for employees, can not pay medical insurance for employees. Concluding remarks It is the legal obligation of the employer to pay social insurance for its employees in accordance with the law, and it shall not be exempted because the employer is in any situation. Under the current one-time supplementary pension insurance system, employers should open social security accounts for employees in a timely manner, pay social insurance, protect the legitimate rights and interests of employees in a timely manner, and avoid the problem of later payment of arrears and late fees.

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