Viewpoint | Examining employee claims in bankruptcy proceedings

The relevant point of view to (I) the scope of the employee's claim.

Liu Ziping pointed out in the Study on the System of Bankruptcy Claims Confirmation Litigation (Application of the Law, No. 10, 2007) that the subject matter of labor claims confirmation litigation is legal labor claims. An expansive interpretation of "wages" should be adopted. "Economic compensation" should be subdivided into two categories, namely, the economic compensation payable for the termination and termination of the labor contract relationship and the compensation payable for wage arrears.

Wang Xinxin and Yang Tao believe in the "Research on the Protection System of Creditor's Rights of Bankrupt Enterprises" ("Research on the Rule of Law", Issue 1, 2013) that the scope of employee's claims should be clarified through judicial interpretation and appropriately expanded. On the other hand, the requests made by employees in the creditor's rights confirmation litigation involve some claims that are not clear enough in legislation. These claims should be considered for inclusion in the scope of employee's claims.

Chen Guobin and Chen Hao pointed out in "Interpretation and Reshaping of Priority of Creditor's Rights in Bankrupt Enterprises" (People's Justice, No. 16, 2020) that at present, the judicial practice does not have a unified understanding of the subject and scope of employee's rights protection, and the listing provisions of the bankruptcy law on employee's rights are also difficult to meet the actual needs, resulting in all kinds of creditors in bankruptcy cases reporting their claims in the form of employee's claims, resulting in free-riding phenomenon, the interests of other creditors have been seriously affected by the fact that many claims are based on workers' claims and priority is given to fishing from "public fish ponds" with limited resources.

The Liaoning Provincial High Court pointed out in the research report of "Balancing the Interests of Bankrupt Enterprises and Properly Handling Labor Dispute Cases" that the claims of employees in labor disputes caused by bankruptcy have changed from single claims to multiple claims. The demands of employees for their own rights protection are more comprehensive, which is not consistent with the scope of the law.

Most of the views discussed above support the appropriate expansion of the scope of employee claims, and the inclusion of claims for which legislation is unclear should be considered.

The actual scope of the claims of (II) employees.

According to Article 48 of the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the Enterprise Bankruptcy Law), "...... the wages and medical, disability and pension expenses owed by the debtor to the employee, the basic old-age insurance and basic medical insurance expenses that should be transferred to the employee's personal account, as well as the compensation that should be paid to the employee according to laws and administrative regulations, do not have to be declared, but shall be listed and publicized by the administrator after investigation......." The scope of employee claims mainly includes wages, medical, disability subsidies, pension expenses, as well as social security expenses and compensation that should be included in the employee's personal account. Articles 57 and 58 of the Provisions on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases [Fa Shi (2002) No. 23]: The labor remuneration owed by the debtor to informal workers (including short-term workers) and the fund-raising funds owed to enterprise employees shall be paid off according to the order stipulated in Item (I) of Paragraph 2 of Article 37 of the Enterprise Bankruptcy Law (referring to the trial bankruptcy law), which is actually included in the first order of settlement. Specific as follows:

1. Wages

according to article 4 of the "regulations of the state bureau of statistics on the composition of total wages, wages of employees include hourly wages, piece-rate wages, bonuses, allowances and subsidies, overtime wages, wages paid under special circumstances (wages paid according to the hourly wage standard or a certain proportion of the hourly wage standard due to illness, work-related injury, maternity leave, family planning leave, marriage and funeral leave, personal leave, family visit leave, regular leave, work stoppage, implementation of state or social obligations, etc.).

Other types of "wages" that do not fall under the provisions of this article:

(1) In the case of general arrears of wages before the bankruptcy of the enterprise, the part of the directors, supervisors and senior managers higher than the average wage of the employees of the enterprise may be paid off as ordinary claims. The legal basis is to cite Article 113 of the the People's Republic of China Enterprise Bankruptcy Law and the Supreme People's Court on the application of<中华人民共和国企业破产法>The provisions of article 24 of the (II) on certain issues.

(2) The "double wage difference" arising from the failure to sign a written labor contract does not fall within the scope of this article. According to the provisions of Article 3 of the Summary (III) of the Symposium on the Application of Law in Labor Dispute Cases by Chongqing High Court and Other Six Departments, the employer has not concluded a written labor contract or an open-term labor contract with the employee in accordance with the law, and the employee requires The double wage difference paid by the employer is punitive in nature and belongs to compensatory expenses, not labor remuneration, therefore, for the non-signed labor contract two times the wage difference should not be included in the employee's claim to pay off. (3) Wages incurred under special circumstances, such as certification fees. Due to operational needs, enterprises often look for some special certificate holders attached to the enterprise, between the two sides of the useless work facts, the holder did not actually work in the affiliated company, monthly or annual from the affiliated enterprise to collect a certain fee, the fee is reflected in the daily payroll. The author thinks that although this part of the cost is reflected in the enterprise payroll, it is actually a certificate fee and should not be included in the employee's claim for settlement. The reason why the enterprise bankruptcy law lists the workers' creditor's rights as the priority to be paid is that the wages of workers are the remuneration that workers exchange for labor, which is the basic guarantee for the survival of workers, and the licensing fees of the licensed personnel are not the labor consideration in exchange, and are not the important income on which they depend for survival, so it is not appropriate to include such fees in the workers' creditor's rights for settlement.

(4) Performance bonus is a kind of incentive salary given to employees by enterprises, and its amount is linked to the performance of employees. In some industries, such as real estate, insurance sales and other enterprises, the amount of performance pay of employees is relatively large, then whether part of the performance pay belongs to the creditor's rights of employees is a question. In practice, judges generally believe that the reason why wages in the bankruptcy law are recognized as having priority is based on the fact that workers pay their own labor value and obtain equal returns, which reflects the protection of vulnerable groups of employees, and the payment of performance bonuses is often based on On the basis of the company's profits, it should not be classified as employee claims with priority.

2. Medical, disability compensation and pension expenses.

(1) Medical expenses, generally refers to the loss caused by the failure of the enterprise to participate in medical insurance for the employees, which is caused by the failure of the enterprise to participate in the insurance according to law, and shall be borne by the enterprise itself and included in the employee's creditor's rights for settlement;

(2) Disability compensation expenses, commonly include medical, disability, and employment subsidies caused by employees' work-related injuries (except for the part of the fund reimbursement under normal insurance conditions);

(3) Pension expenses generally refer to the funeral expenses and one-time death pension of employees not caused by work-related death (under normal insurance conditions, paid by the social security fund).

3. Social security costs

According to the provisions of the "the People's Republic of China Social Insurance Law", social insurance premiums are jointly paid by employers and employees, of which the individual payment is included in the personal account, the employer's payment is included in the social pooling account, and the part included in the personal account is included in the employee's claims for statistics.

In addition, the enterprise did not participate in unemployment insurance for its employees in accordance with the law, resulting in the inability of employees to enjoy unemployment insurance benefits after unemployment. Therefore, the compensation for unemployment insurance losses caused by unemployment insurance also belongs to social security benefits and should be included in the scope of employee claims.

4. Compensation

"Compensation that shall be paid to employees as stipulated by laws and administrative regulations" refers to the economic compensation and compensation for the termination of labor contracts stipulated in the the People's Republic of China Labor Law and the the People's Republic of China Labor Contract Law (hereinafter referred to as the "Labor Contract Law") (only refers to the compensation arising from the illegal termination of the labor contract).

5. Employee claims and housing provident funds advanced by third parties

Article 27 of the Minutes of the National Court Bankruptcy Trial Work Conference stipulates that employee claims advanced by third parties shall, in principle, be carried out in accordance with the nature of the employee claims advanced. The housing provident fund owed by the debtor shall be paid off in accordance with the nature of the wages owed by the debtor.

6. Funds raised by employees

For employee fund-raising claims that occurred before the implementation of the Enterprise Bankruptcy Law on June 1, 2007, they were determined in accordance with the law at that time and in accordance with the nature of the employee's claims; for employee fund-raising claims that occurred after the implementation of the Enterprise Bankruptcy Law on June 1, 2007, they are generally treated as ordinary claims.

Article 48 of the Enterprise Bankruptcy Law stipulates that employee claims do not have to be declared, and the administrator shall make a list and make it public after investigation. If the employee has any objection to the list, he or she may request the administrator to correct it. If the administrator refuses to make corrections, the employee may file a lawsuit in the people's court. The author mainly analyzes the confirmation of employee claims through the qualitative and amount of employment legal relationship.

Confirmation of (I) employment legal relationship

1. Labor relations

In accordance with the provisions of Articles 7 and 10 of the Labor Contract Law and Articles 1 and 2 of the Notice on Matters Relating to the Establishment of Labor Relations (No. 12 [2005] of the Ministry of Labor and Social Affairs), the examination of whether there is a labor relationship between a worker and a bankrupt enterprise shall be conducted in a combination of formal examination and substantive examination.

(1) Formal review. Under the condition that the information is very complete, it is reviewed from the aspects of labor contract signing, social insurance participation, personal tax payment, attendance records, salary distribution records, company personnel files, employment documents, etc.

(2) Substantive examination. Review whether there are actual employment facts, whether the employment time is long-term and stable, whether the work content of the laborer is part of the employer's business, and whether it is restricted by the employer's labor management and rules and regulations. The above substance can be verified from the transcripts of inquiries made by the managers or other workers of the bankrupt enterprise. The author handled a bankruptcy case, in order to find out the actual situation of employees, the production of employee claims registration form, and each employee to make interview transcripts, through the manager's preliminary investigation materials and employee interview transcripts to confirm each other, to confirm the true labor relationship of employees.

2. Labor relations

Due to the diversification of employment forms, there are labor employment in many enterprises, especially in real estate development enterprises, where employment is not standardized, and there are many temporary employment and employment of retirees.

(1) Temporary employment. Enterprises on a certain stage of a non-company business components of the temporary recruitment of some people for timing or piece-rate employment, due to the short time, flexible employment, that is, the use of the settlement, both sides have no long-term establishment of employment relationship of the intention, generally will not sign a written employment contract, such personnel are generally identified as labor.

(2) Recruiting persons who have enjoyed old-age insurance benefits or received pensions in accordance with the law. According to Article 44 of the Labor Contract Law and Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, the labor relationship of persons who begin to enjoy pension insurance benefits or receive pensions in accordance with the law The legal termination, the employment relationship established by the employer recruiting such personnel is the labor relationship.

3. Other special employment relationships

In the related fields of construction and mining enterprises, there are a large number of labor subjects called migrant workers. This kind of personnel has large mobility, uncertain labor cycle and no labor contract. The labor subject is generally a natural person and does not have the qualification of labor subject. According to Article 4 of the Notice on Matters Related to the Establishment of Labor Relations (No. 12, 2005 issued by the Ministry of Labor and Social Affairs), the employer with the qualification of the main body of employment shall bear the main responsibility of employment, and the main responsibility of employment here generally includes the scope of labor remuneration, work injury, etc.

Recognition of the amount of claims of (II) employees

1. Wages

(1) Confirmation of wage standards. It is mainly confirmed according to the enterprise labor contract, but in practice, many enterprises agree that the salary is the minimum base for paying social insurance or lower, but the actual salary is much higher than the contract agreement. Therefore, the manager also needs to check the salary table in the company's financial documents over the years for verification, and finally confirm the salary standard in combination with the employee's personal statement. The salary standard can also be confirmed by referring to the average salary issued by the audit company in the normal year.

If the bankrupt enterprise stops work and stops production, Article 12 of the Interim Provisions on wage payment stipulates that if the unit stops work or stops production within a wage payment cycle due to the reasons of the workers, the employer shall pay the wages of the workers according to the standards stipulated in the labor contract. If more than one wage payment cycle, if the worker provides normal labor, the labor remuneration paid to the worker shall not be lower than the local minimum wage standard; if the worker does not provide normal labor, it shall be handled in accordance with the relevant provisions of the State. Article 58 of the Circular on Several Issues Concerning the Implementation of the the People's Republic of China Labor Law stipulates that enterprises shall pay their living expenses for laid-off workers in accordance with the relevant provisions of the local government, and the living expenses may be lower than the minimum wage standard. If laid-off workers are re-employed, the enterprise shall stop paying their living expenses. With reference to the above provisions, in the case of workers who do not provide normal labor, the bankrupt enterprise shall pay the basic living expenses of the employees.

(2) The confirmation of the amount of unpaid wages is mainly through consulting the company's financial documents, making inquiry records to the person in charge of the enterprise and other employees, or consulting the employee petition registration form through the labor department, and combining with the employee's personal statement, confirming the period and amount of unpaid wages of the bankrupt enterprise, and also referring to the audit report of the audit institution on the unpaid wages of the employees.

2. Medical, disability compensation and pension expenses.

The common types of such claims include work-related injury insurance benefits, non-work-related injury benefits and medical insurance losses caused by not participating in medical insurance, and the amount of the above-mentioned claims can be determined through the employees' active declaration, the manager's inquiry of the enterprise's financial documents, litigation documents and the personnel director of the enterprise.

3. Social security costs

Inquire about the insurance details of the unit in the social security collection agency where the enterprise is located, and notify the collection agency where the enterprise is located to declare the outstanding social security claims if there is any arrears. The outstanding payment details submitted by the social security department will include the total amount of social insurance premiums owed by the unit, and the detailed amount will reflect the amount owed by the individual account. The social security of bankrupt enterprises is generally declared by the social security department, but in practice, for the reorganization of enterprises, this paper proposes to set aside all the social security fees that need to be paid, and if they are not declared in advance, they shall pay the social security in accordance with the time period confirmed in accordance with the law.

4. Compensation

It generally refers to the economic compensation for the termination of the labor contract or the compensation for the illegal termination of the labor contract by the enterprise. In order to confirm such claims, the following three aspects should be examined:

(1) Whether the employment relationship between the employee and the bankrupt enterprise is a labor relationship, and there is no economic compensation for employment relationships other than labor relations;

(2) The fact that the employee and the enterprise have terminated (terminated) the labor contract, and the reason for the termination (termination) conforms to the provisions of Articles 46 and 48 of the Labor Contract Law;

(3) The time of entry of the employee and the time of termination or termination of the labor contract are the basis for calculating the number of years of economic compensation and compensation.

5. Employee claims and housing provident funds advanced by third parties

The bidding expenses and unreported travel expenses paid by the employees of the enterprise for the company are based on the performance of their duties and are confirmed according to the nature of the employees. According to Article 3 of the Regulations on the Administration of Housing Provident Fund, the housing provident fund paid by individual employees and the housing provident fund paid by the employee's unit for the employee belong to the individual employee.

6. Funds raised by employees

This paper holds that whether the employee fund-raising is included in the employee's creditor's rights or ordinary creditor's rights, we should make a comprehensive analysis on whether the fund-raising is based on the purpose of profit, whether it is a loan relationship, and the purpose and scope of the fund-raising.

Publicity of claims of (I) employees

1. Content of publicity

The contents of publicity and how to publicize the law are not specified in detail. Managers generally list the basic information of employees (including name, gender, date of birth, citizenship number, etc.), the amount of employees' creditor's rights (including wages, economic compensation, social security insurance premiums, etc.) and other employee's creditor's rights in the form, and specify the contents in the form under the form, and indicate the publicity period to remind employees to enjoy relevant rights.

2. The way of publicity

In the administrator's office space or the bankrupt enterprise office space public notice column, the administrator's public number and other means of publicity. At the same time, inform all employees of the publicity situation by mail, text messages, etc., and pay attention to keep the evidence of publicity and notification. The purpose is to let each employee of the enterprise know the amount of the confirmation of the individual employee's claim, and if the employee has any objection to the employee's claim of the individual and others, it can be raised with the administrator within the objection period.

Objection and Correction of Creditor's Rights of (II) Employees

1. Objection handling method

During the period of the disclosure of the employee's claims, the employee shall submit an objection to the contents of the administrator's announcement in writing, stating the contents and reasons for the objection, and submitting relevant evidence or clues. After receiving the employee's objection information, the manager will review it again according to the content of the employee's objection. Whether it is established or not, the manager will reply one by one in writing and inform him of the right relief after it is not established.

2. Correction of objections

If the manager really needs to correct after examination, it shall be corrected in the publicity of the employee's claim; if the objection is not established after the manager's examination, and the employee files a claim for confirmation of the employee's claim, if the court makes an effective judgment to confirm the employee's claim, the manager may correct it in the publicity of the employee's claim according to the content of the court's judgment.

Four of the ten typical cases of Shandong Higher People's Court in 2020 to optimize the business environment are bankruptcy cases, and through bankruptcy procedures, simplifying and accelerating the exit or rebirth of "zombie enterprises" has become an important judicial means to help enterprises in difficulty out of their difficulties and optimize the business environment. Whether the creditor's rights of employees are properly confirmed in the bankruptcy procedure is not only related to the protection of the rights and interests of the employees of the bankrupt enterprise, but also related to whether the enterprises in difficulty can get out of the predicament smoothly, and more related to the harmony and stability of the society. In practice, the examination and confirmation of employee claims should not only consider legal issues, but also consider the overall situation of the smooth progress of liquidation or reorganization procedures. From a micro perspective, the examination and confirmation of employee claims is a meticulous and trivial work. From a macro perspective, the process of confirming employee claims is also a process for managers to understand the overall picture of the enterprise through employees.