19
2022-12
On December 16, 2022, under the unified leadership of the China Securities Regulatory Commission, the Shenzhen Stock Exchange (the "Shenzhen Stock Exchange") issued the "Guidelines for the Pilot Listing of Cross-Border Bonds on the Greater Bay Area Bond Platform" (hereinafter referred to as the "Guidelines for the Pilot Listing"). Start the pilot work of listing services for cross-border bond products on the Greater Bay Area Bond Platform. Under the continuous interest rate hike by the Federal Reserve and the liquidity crisis of Chinese housing enterprises, the Chinese overseas debt market has entered a downturn (according to Bloomberg data, the issuance of Chinese US dollar debt has dropped by more than 40% compared with the same period last year). Considering the amount of funds and financing costs, many securities dealers and issuers have changed the approved overseas debt into offshore RMB bond issuance. The issuance of the Shenzhen Stock Exchange's pilot listing guidelines has added new vitality to the issuance of offshore people's bonds and the internationalization of the RMB. In order to facilitate readers to understand the listing pilot guidelines more clearly, this article will sort out the listing pilot guidelines of the Shenzhen Stock Exchange from the aspects of bond platform positioning, service object and scope, service requirements and methods. 1. Bond Platform Positioning During the pilot period, the Greater Bay Area Bond Platform only provided listing services for cross-border bonds. The transaction transfer of cross-border bonds and the registration and settlement services are still carried out through the relevant overseas financial infrastructure path. 2. listing service object (I) Issuer: 1. Domestic enterprises and overseas enterprises under their control that have completed the registration of overseas issuance and have been approved by the competent authorities for the amount of external debt; 2. An enterprise registered in Hong Kong, China, with an international rating of investment grade or a domestic rating of AAA; 3. Other issuers recognized by the Shenzhen Stock Exchange. (II) investors: Cross-border bonds can be subscribed for and registered with the Greater Bay Area Bond Platform: 1. Domestic institutional investors; 2. Institutional investors in Hong Kong, China. (III) bond products: The cross-border bonds referred to in the listing pilot guidelines are bond products issued outside the the People's Republic of China for professional institutional investors. In the notice issued by the Shenzhen Stock Exchange, it was made clear that at the initial stage of the pilot, cross-border bonds were limited to offshore RMB bonds issued by designated issuers in Hong Kong, China, for professional institutional investors. It can be seen that the scope of services of the Shenzhen Stock Exchange will gradually expand from Hong Kong dim sum bonds to other varieties of cross-border bonds. 3. Listing Service Scope The listing trial services provided by the Shenzhen Stock Exchange include: 1. Display of cross-border bond names, maturities, coupon rates and other elements; 2. Cross-border bond information disclosure; 3. Cross-border bond issuance online roadshow; 4. Other services provided by Shenzhen Stock Exchange. Taking into account the technical preparation of the market and its own business, the Shenzhen Stock Exchange has suspended the implementation of the online meeting tool service in Article 16 of the listing pilot guidelines, and the specific implementation time will be notified by the Shenzhen Stock Exchange separately. 4. Listing Service Requirements For cross-border bonds listed on the Shenzhen Stock Exchange, the issuer shall: ♦1. Legal completion of cross-border bond issuance; ♦2. Submit the following application materials (which can be written in Chinese or English, and the text agreed to be issued in the issuance document shall prevail in case of ambiguity): a. Application for listing of cross-border bonds; B. Cross-border bond listing announcement; c. Resolutions of the issuer's competent decision-making body (board of directors, shareholders' meeting or general meeting) on the application for listing of cross-border bonds; d. A copy of the issuer's articles of association and business license (copy) or registration certificate (if applicable); e. Cross-Border Bond Prospectus (Issue Circular); f. Financial reports and audit reports, credit enhancement measures documents (if any), rating reports (if any), issuance results announcements and other issuance documents; g. Other materials required by Shenzhen Stock Exchange. ♦3. Signing a service agreement with the Shenzhen Stock Exchange; ♦4. If the issuer has the obligation of continuous information disclosure and is listed (listed) on other exchanges at the same time, the information shall be disclosed simultaneously. 5. termination of listing 1. Full repayment, full exchange or conversion of cross-border bonds; 2. The issuer is dissolved or declared bankrupt by the court; 3. The court approves the bankruptcy reorganization plan or the bankruptcy settlement agreement; 4. The issuer applies for the termination of the listing of the bonds; 5. Other circumstances specified by the Shenzhen Stock Exchange. The listing pilot guidelines also stipulate that if the issuer violates the guidelines or the listing service agreement and the circumstances are serious, the Shenzhen Stock Exchange will suspend or terminate the service early. 6. dispute resolution mechanism If the issuer, investors and intermediaries of cross-border bonds have disputes over the disclosure of cross-border bond information, they shall be dealt with in accordance with the resolution mechanism agreed in the issuance documents. 7. listing charges The Shenzhen Stock Exchange does not charge a fee for cross-border bond listing services. The above are the main contents of the listing pilot guidelines. If you need more information, it is recommended to pay attention to the information published on the official website of the Shenzhen Stock Exchange.
2022-12-19
18
2022-12
With the establishment of modern enterprise system, equity incentive has become a very important link in the company's development. In order to retain core talents in key positions, gather energy and enable the enterprise to develop continuously and steadily, controlling shareholders are often willing to release part of their equity through capital increase or equity transfer. However, the company's equity is "rare", equity is "soul", the adjustment of the equity structure is a process that affects the whole body. Therefore, before the company plans to implement the equity incentive plan, it is recommended to conduct a "consultation and self-test" of the company, and steadily advance the equity incentive plan with a better understanding of the company's current situation. Definition of 1. equity incentive Equity incentive refers to the company's employees to give or sell a portion of the company's equity at a discount, so that employees can participate in corporate decision-making, share profits, take risks as shareholders, so as to diligently and conscientiously serve the company's long-term development of an incentive. It is essentially a medium-and long-term incentive policy and the best compensation mechanism to improve the company's competitiveness. From the above definition, we can see that equity incentive is essentially a process of interest exchange and interest binding, the company or the actual controller to the company's equity to exchange the incentive object to the company's long-term stability to pay, successful equity incentive cases often have the characteristics of "self-interest and altruism. 2. what kind of enterprise is suitable for equity incentive Before implementing the equity incentive plan, the company should consider whether it is at the right time to implement the equity incentive from several dimensions, such as its own industry, the company's development stage, the company's development standardization and the company's development goals. Specific can refer to the following aspects: 1. Companies with strong dependence on talents: information technology, high-end equipment, new materials, new energy, energy conservation and environmental protection, biomedicine and other high-tech industries, the Internet, big data and other industries; 2. Standardized and unified chain companies; 3, the development stage: more suitable for companies in the rapid growth, mature period; 4, internal management (clear organizational structure, sound performance appraisal, clear corporate strategy, with a certain valuation basis) more standardized, interested in docking capital market companies. Research and diagnosis of equity incentive in 3. companies 1, refer to Maslow's hierarchy of needs theory to understand the demands of employees. Maslow's hierarchy of needs theory is divided into physiological needs, security needs, social needs, respect needs and self-realization needs. In addition to the basic salary, the equity incentive plan allows employees to enjoy the company's dividends and realize the accumulation of personal wealth. First of all, it can meet the basic physiological needs of employees' lives; secondly, equity incentives can transform employees from workers to participants in the company's operations., Decision makers, itself is also a recognition of the employee's identity, increase their sense of professional belonging, and can meet their safety needs; the status of employees as shareholders is closely tied to the interests of the company, and even those who can participate in related work on behalf of the company will virtually increase the sense of responsibility and mission of employees, which is the embodiment of social needs and respect needs. Through interviews with employees, understanding the real demands of employees can better help the company's decision makers to determine the direction of incentives and incentive measures, whether to improve the salary structure, improve employee benefits or implement equity incentives? Interviews with employees can make incentive programs more targeted and incentive effects. 2, understand the company's equity status. The company's decision makers and controlling shareholders can first judge the current company's shareholding structure by the following questions. In the relevant equity incentive cases I took over, I often found that the controlling shareholders and founders of many companies knew little about the Company Law and equity, and the articles of association were basically the version of the Industrial and Commercial Bureau, which did not fit the company's equity structure. In the framework of human-based limited companies, once disputes arise, imperfections at the institutional and structural levels often expose many drawbacks, and even lead to equity dispute litigation. Therefore, before the formulation of the equity incentive plan, the company's decision makers must first fully understand the company's equity status quo, as well as the future equity structure design, to avoid "impulsive" equity changes in the industrial and commercial bureau to leave "evidence", for the future docking of the capital market or adjust the equity structure to lay hidden dangers. ♦Is the equity between shareholders more even? ♦Does the company have more than three founding shareholders? ♦Do you give a lot of equity to part-time employees? ♦Are there shareholders who provide only one-time resources? ♦Are large equity stakes given to short-term resource commitments? ♦Is there a problem of minority shareholders manipulating the company? ♦Does the company have only major shareholders and no partners? ♦Is there no agreed exit mechanism for venture partners? ♦Do you reserve equity for investors? ♦Is equity reserved for the management team? ♦Is it controlled by an outside investor? ♦Is there a situation of concerted action person in the company? 3, understand the company's current financial data. A company's financial data is the most intuitive reflection of a company's current business situation. Whether the company is currently profitable, the company's development plan for the next three years and the analysis of financial data are important factors in judging whether the company implements "real share" incentives or virtual equity incentives. At the same time, the company's implementation of the equity incentive plan involves the issue of "share payment", which also directly affects the company's net profit after deduction, especially for companies that intend to be listed on the capital market, the impact of the calculation of financial costs on net profit cannot be ignored. The company's cash flow situation and the actual distributable profit funds are also important factors for the company and the incentive target to consider repurchase later. Most importantly, the company's net worth will directly determine the pricing of each contribution or share. Therefore, the company should fully understand the financial data of the company before implementing equity incentive, and analyze it from all dimensions, so as to formulate the equity incentive plan more accurately. 4, understand the company's development stage and development goals. Companies are at different stages of development, which are important in identifying the candidates for incentives, the incentive price and the specific incentive model to be implemented, and the risk factors considered in the program are different. If the company has a listing plan or even started within three years, the impact of share payment on the financial data during the reporting period should be considered first, and the connection between the equity incentive plan and the listing plan should be considered. At the same time, more attention should be paid to compliance and tax issues. If a company is still in the growth stage and has a large demand for capital and performance, the equity incentive model should focus more on the growth of the company, the choice of incentive target should also be the core management and business backbone who contribute more to the company. The equity incentive plan is not a formalized, procedural and overnight work, but a gradual process. Therefore, the founders or decision makers of the company who are interested in equity incentive may as well conduct a full investigation and diagnosis of the company first. After the preparatory work, combined with the experience of lawyers or other intermediary agencies, tailor a set of equity incentive scheme for the company.
2022-12-18
18
2022-12
On the morning of December 18, the Youth Lawyer Development Forum of Zhongcheng Qingtai Jinan Institute and the fourth course of the "Guanghe Plan" Youth Lawyer Training Program were successfully held. Lawyer Shi Guangbo, deputy director of Zhongcheng Qingtai Jinan Institute, presided over the activity. In order to implement the law firm's epidemic prevention requirements, young lawyers who have been practicing in the Jinan area of Zhongcheng Qingtai for less than 3 years participated in this event through live webcast. Mr. Du Wentang, Director of the Management Committee of Zhongcheng Qingtai (Jinan) Law Firm, delivered an opening speech, in which Mr. Du fully affirmed the enthusiasm of everyone to learn during the epidemic and expressed the firm's ardent expectations for young lawyers. After that, Professor Xu Guoliang, a doctoral supervisor of the School of Marxism of Shandong University, gave a lecture on the theme of "Learning Chinese Studies and Strengthening Life Practice". Professor Xu Guoliang used the report of the 20th National Congress of the Communist Party of China as an introduction to explain in depth the study of Zhouyi. The relationship of self-cultivation encourages young lawyers to strengthen their own cultural, moral and philosophical cultivation through learning Zhouyi in order to grasp the laws of the development of things, do the "virtuous thing". Professor Xu Guoliang's lecture is fascinating, easy to understand, and easy to use literary and historical allusions. Combining boring theories with rich social phenomena, young lawyers have said that they have benefited a lot. Next, three lawyers from Zhongcheng Qingtai Jinan Institute, Leng Mei Aoxue, Zhang Lixin and Lin Jinze, shared the themes of "Lawyer Development Begins with Qingping Weilan", "Be confident and kind-hearted in your heart" and "Experience and Perception during overseas assignment" respectively. Several young lawyers who have made great achievements in their respective fields take their own development process as the main line, the participating lawyers introduced the details that young lawyers should pay attention to in the development process from different angles, and encouraged everyone to work steadily, guard against arrogance and rashness, strengthen learning, and accumulate for subsequent success. This activity is full of content, full of "dry goods", closely integrated with the work and life of young lawyers, and won unanimous praise from all participants.
2022-12-18
16
2022-12
Viewpoint | Research (III) on Disputes over Year-end Awards
The "Fair and Reasonable" Principle of (II) Year-end Bonus If the labor contract, rules and regulations and other written documents do not stipulate the year-end bonus or the agreement is invalid, when the employer should issue the year-end bonus, the worker may make a claim based on the principle of equal pay for equal work. If the employer decides not to issue the year-end bonus, it should provide evidence that the worker does not meet the conditions for the year-end bonus, such as the worker's unqualified assessment, failure to meet the performance requirements, the employer's failure to make a profit, the worker's violation of rules and regulations, and violation of labor discipline. Based on the principle of fairness and reasonableness, the distribution of year-end awards usually has the following manifestations. (1) If the employer fails to assess the labor contract due to the illegal termination of the labor contract, the year-end bonus shall still be paid. If it is agreed or stipulated that the year-end bonus shall be paid according to the assessment, if the laborer is unable to participate in the assessment due to the employer's reasons, such as the illegal termination of the labor contract, the employer shall bear the adverse consequences of the non-assessment, and the year-end bonus shall be issued in combination with the assessment in previous years. Shanghai No. 1 Intermediate People's Court (2015) Shanghai No. 1 Zhongmin San (Min) Zhongyu No. 283 Civil Judgment held: First, the court found that the termination of the labor contract of a certain mall did not comply with the law. Secondly, the work assessment and incentive method of the mall stipulates the distribution and standard of the year-end bonus. The mall distributed the year-end bonus to Wang moubin in 2012 and 2013. Now the mall has terminated the labor contract between the two parties ahead of schedule, which makes Wang moubin unable to participate in the year-end assessment. the responsibility shall be borne by the mall. referring to Wang moubin's year-end bonus in 2013 to convert his year-end bonus from January 1 to March 21, 2014, the year-end bonus amount is 3717.21 yuan. (2) If the year-end bonus is not issued on the grounds that the employer is not profitable in the current year, the employer shall provide corresponding evidence The employer may agree or stipulate that no year-end bonus shall be paid to the worker if there is no profit or loss in the current year. In the event of a dispute, if the employer claims a loss but does not issue a year-end bonus, it is required to provide financial audit reports and other evidence that can prove that the current year did not make a profit or even a loss. However, if the worker can provide evidence that the employer has publicly announced the profitability of the current year, the court is likely to accept the evidence against the employer and award the year-end bonus. Shanghai No.1 Intermediate People's Court (2014) Hu Yi Zhong Min San (Min) Zhong Zi No. 1750 Civil Judgment held that according to the facts that have been ascertained, although the 2012 annual audit report issued by an accounting firm in Shanghai recorded a net profit of -4091764.77 yuan, the 2012 net profit announced by a company was 5042500 yuan. A company claims that the audit caliber is different, so the results are different, the claim lacks legal basis, the original court did not accept. Because a company did not give a reasonable explanation to the two diametrically opposed audit results, the original court accepted the unfavorable audit results and determined that it had made a profit in 2012. A company claimed that it had a serious loss in 2012, and the original court did not accept it. (3) The conditions for the payment of the year-end bonus have been agreed. Although the conditions have not been met, the employer may still have to pay the year-end bonus in proportion. If it is agreed or stipulated that the year-end bonus will not be paid for mid-year entry and mid-year resignation, the court will usually not support the workers' request for year-end bonus according to the principle of "agreement priority" for year-end bonus. Shanghai No. 2 Intermediate People's Court (2014) Hu Er Zhong Min San (Min) Zhong Yu No. 761 Civil Judgment holds that the employer has the ability to determine the internal salary, welfare distribution method and distribution according to the production and operation characteristics and economic benefits of the unit. According to the regulations of a company, Lu Moumei has resigned before the end of the year and does not meet the conditions for receiving the year-end bonus, the court did not support Lu's year-end bonus claim. However, there is another view in judicial trials. Even if the contract or regulations stipulate that the year-end bonus will not be paid for mid-year entry and mid-year resignation, the employer should still be based on the principle of equal pay for equal work. Pay the employee the year-end bonus in proportion. In fact, if the payment of year-end bonus is only related to attendance time, it is more reasonable to convert the payment according to the proportion of attendance time. (4) The year-end bonus shall not be paid on the grounds of the conditions stipulated in the rules and regulations, and the rules and regulations shall be democratically publicized The conditions and standards for the payment of year-end bonuses are usually stipulated by the labor contract or rules and regulations. Whether the current labor contract stipulates the conditions and standards for the payment of year-end bonuses and year-end bonuses is usually easy to determine, but the formulation and adoption of rules and regulations have their particularities. When claiming whether to issue year-end bonuses based on rules and regulations, the rules and regulations should first be proved to be legal and effective. According to Article 4 of the Labor Contract Law, labor rules and regulations shall be discussed by the workers' congress or all employees, and determined through equal consultation with the trade union or employee representatives. The employing unit shall publicize the rules and regulations and decisions on major matters that directly involve the vital interests of the workers, or inform the workers. Therefore, if the application of rules and regulations is advocated as the basis for the distribution of year-end awards, it should first be proved that the rules and regulations have been formulated through democratic procedures and have been publicized or informed to the relevant workers, otherwise they will not be the basis for distribution. Shanghai No.1 Intermediate People's Court (2014) Shanghai No.1 Zhongmin San (Min) Zhongzi No.1750 Civil Judgment held that the salary management system and performance appraisal system provided by a company have no evidence to prove that they have been formulated through democratic procedures and have been publicized or informed to workers including Zhang, and cannot be used as the basis for deciding to issue Zhang's year-end performance bonus. (5) The agreed conditions for the payment of year-end awards shall be legal and valid. Although the conditions for the payment of year-end bonuses can be agreed or stipulated in advance, if the agreed payment conditions are unreasonable or do not comply with the law, they may be deemed invalid by the court. Shanghai Second Intermediate People's Court (2015) Shanghai Second Intermediate People's Court () Shanghai Second Intermediate People's Court (Min) Zhong Zi No. 74 Civil Judgment held that: Regarding the payment of the year-end bonus, the labor contract signed by a company and Zhou Mouming clearly stipulated the year-end bonus. The calculation method, both parties should perform according to the contract. A company believes that according to the relevant provisions of the Company Law, the company's profits should be calculated after making up for the losses and withdrawing the statutory provident fund. During Zhou Mouming's tenure as general manager, the company suffered an overall loss, so Zhou Mouming's year-end bonus should not be issued. The Court believes that the provisions of the Company Law on the withdrawal of statutory provident funds involve the distribution of shareholders' profits, the year-end bonus in this case belongs to the scope of labor remuneration of workers, the two are not the same nature of legal relations, so a company's claim, the Court does not adopt. Therefore, whether the year-end bonus is paid or not generally depends on whether the employer and the worker have agreed on this or whether there are such provisions in the rules and regulations. Once the labor contract stipulates or the rules and regulations stipulate the conditions and standards for the payment of year-end awards, the employer shall issue them in accordance with the regulations. Without justifiable reasons, the year-end bonus shall not be refused, nor shall the year-end bonus be refused under conditions not agreed or stipulated in advance. In practice, employers and workers may have a variety of different agreements or regulations on year-end bonuses, but if employers can well follow the two principles of agreement priority and fairness and reasonableness, they can not only give full play to the employer's operational autonomy, safeguard the legitimate rights and interests of workers, but also play a role in mobilizing the enthusiasm of workers.
2022-12-16
16
2022-12
The arbitration statute of limitations for 2. twice the wage difference applies to the ordinary statute of limitations. Article 27 of the Law on Labor Dispute Mediation stipulates the limitation period of labor arbitration as one year, and stipulates the exceptions of the starting, suspension, interruption and arrears of labor remuneration during the limitation period of labor arbitration, forming a relatively perfect labor arbitration limitation system. However, for the type of labor dispute case in which the employer fails to sign a written labor contract in accordance with the law and the worker demands to pay twice the wage difference, there are disputes in practice as to whether the ordinary time limit stipulated in the first paragraph of Article 27 of the Labor dispute Mediation and Arbitration Law is applicable to the special time limit stipulated in the fourth paragraph of this article. In the current arbitration and judicial trial practice, the current mainstream view is to apply the ordinary statute of limitations for arbitration that requires the payment of double the wage difference without a written labor contract. The main reason is that the double wage difference does not belong to the labor remuneration in the sense of labor law. In addition, according to the first paragraph of Article 82 of the Labor Contract Law, "If the employer fails to conclude a written labor contract with the laborer for more than one month but less than one year from the date of employment, it shall pay the laborer three times the monthly salary", which also shows that the double wage difference is not a kind of labor remuneration that the laborer should receive for normal labor, but because the employer did not sign a written labor contract with the worker in accordance with the law and bear a punitive damages. It can be seen that there is a fundamental difference in the nature of double wage difference and labor remuneration, so for labor dispute cases such as the payment of double wage difference without a written labor contract, the labor arbitration statute of limitations should apply to the ordinary statute of limitations. How should the statute of limitations for arbitration 3. twice the wage difference be calculated? In a labor dispute case involving a double wage difference, the limitation period for applying for arbitration is one year, and the limitation period for arbitration is calculated from the date when the worker knows or should know that his rights and interests have been infringed. Among them, "knowing" belongs to the real state, that is, the laborer is clearly aware that his legitimate rights and interests have been infringed; "should know" belongs to the state of due and legal presumption, that is, the legal presumption that the laborer "should know" the labor contract law and related labor Relevant provisions in laws and regulations. Therefore, according to the provisions of the first paragraph of Article 82 of the Labor Contract Law, if the employer has not yet concluded a written labor contract with the worker for one month from the date of employment, it is deemed that the worker knows or should know that his labor rights and interests have been infringed, and the arbitration limitation period for requiring the employer to pay twice the wage difference shall begin to be calculated, that is, it shall be calculated on a monthly basis from the next day after the date of one month after the date of employment, and calculate the limitation of arbitration month by month. In practice, the time limit for arbitration is calculated on a monthly basis from the date on which the worker claims his or her rights to the date on which the labor relationship has completed one year. The amount of double salary is: monthly salary x number of cross months.
2022-12-16
16
2022-12
From February 13 to 14, in order to implement the construction requirements of "rule of law Luyan" and continuously improve the thinking of the rule of law and the ability to govern enterprises according to law, Shandong China Tobacco Industry Co., Ltd. held a training course on laws and regulations in 2022. The training course has a main venue and a branch venue. More than 300 people including cadres from various departments and central departments of the company, cadres from various cigarette factories and group companies, heads of relevant departments and related personnel participated. Shi Guangbo, deputy director and senior partner of Zhongcheng Qingtai Jinan Institute, was invited to give a special lecture on "Legal Practice of State-owned Enterprise Procurement" for the training course. Focusing on the procurement needs of state-owned enterprises, lawyer Shi Guangbo closely combined the procurement practice of tobacco enterprises and a large number of typical cases from several aspects, such as the procurement legal standard system of state-owned enterprises, procurement methods and processes, and the handling of common problems in procurement, made professional and detailed explanations for the participants, and achieved positive results, It was welcomed and praised by the participants. Zhongcheng Qingtai is the perennial legal counsel law firm of Shandong China Tobacco Company. Over the years, it has provided high-quality and efficient legal services for the daily operation and management of China Tobacco Company and its subordinate units, technical transformation, dispute resolution and major issues. In order to provide more professional legal services, Zhongcheng Qingtai has set up a special "tobacco industry" team, which is committed to studying the actual situation and needs of the industry, expanding demand-side legal service topics, and developing legal service products, aiming to upgrade the profession around the industry and industry, realize the professional promotion and breakthrough of lawyers, and provide customers with more in-depth and suitable high-quality legal services.
2022-12-16
15
2022-12
In labor dispute cases in which the laborer requires the employer to pay twice the wage, there are usually three focal issues:(1) whether the double wage difference is labor remuneration;(2) whether the arbitration limitation of the double wage difference applies to the ordinary limitation or the special limitation;(3) how to calculate the arbitration limitation of the double wage difference. By clarifying these three focal issues, labor dispute cases with double wages can be easily solved. The Legal Nature of "Double Wage" in 1. The double wage objection lies to a large extent in the expression of its words, regarding the legal nature of the double wage difference, there are two views in practice: the first view is that the double wage contains the word wage, so it should be understood as labor remuneration. The law clearly expresses double wages as wages. At the same time, the labor contract law has strictly distinguished the concepts of wages, economic compensation, compensation, liquidated damages and so on in the expression of legal concepts, which shows that legislators hope that the right to claim double wages of workers can obtain the same protection as their labor remuneration. Therefore, double wages are statutory wages. The second view is that double wages do not belong to labor remuneration, not the consideration provided by the laborer, but the punitive damages that the employer should bear for failing to sign a written labor contract in time. The word "wage" in double wages cannot be understood literally. Because wages are the manifestation of labor market prices, and they are the consideration remuneration that workers receive for providing labor. Without any increase in labor density and labor intensity, workers get another double just because they have not signed a written labor contract. Obviously, this double wage cannot be understood as the nature of labor remuneration. This extra double salary is actually the legal responsibility that the employer needs to bear because it has not signed a written labor contract with the worker. This kind of legal responsibility is actually a kind of punishment for the employer. The purpose of the legislator is to increase the illegal economic cost of the employer and urge the employer to sign a labor contract with the worker. Therefore, the double salary in the double salary is punitive compensation. The National Bureau of Statistics issued the "Regulations on the Composition of Total Wages" on January 1, 1990. Article 4 stipulates that the total wages shall consist of six parts, namely, hourly wages, piece-rate wages, bonuses, allowances and subsidies, overtime wages and wages paid under special circumstances. According to the "Supplementary Provisions on Relevant Issues of the Interim Provisions on Wage Payment" (Labor Department Fa [1995] No. 226), "wage payment under special circumstances" should refer to:(1) the wage payment of workers after being punished;(2) the wages and benefits of apprentices, skilled workers and graduates of colleges and secondary schools during their apprenticeship, proficiency, probation, probation and post-employment grading;(3) Wages for newly employed demobilized soldiers. Therefore, the provisions of the National Bureau of Statistics on the composition of wages can also strongly support the view that double wages do not belong to labor remuneration. "Double salary" is a false name of "salary", but not "salary. The author believes that the double salary does not consider the subjective motivation of the responsible subject. As long as the employer does not sign a labor contract with the laborer for more than one month, it should be paid. Although there is no actual damage to the laborer if the written labor contract is not signed, it damages the labor autumn order of social management and has illegal objectivity.
2022-12-15
15
2022-12
Viewpoint | Research (II) on Disputes over Year-end Awards
The agreement of the year-end bonus usually has the following forms: (1) If the labor contract does not stipulate or the rules and regulations do not stipulate the year-end bonus, the employer is not required to issue the year-end bonus to the worker. This is the due meaning of the principle of "agreed priority" in the distribution of year-end awards. The distribution of year-end bonuses is not the legal obligation of the employer. As a means of motivating workers, the employer has a certain degree of autonomy. Shanghai No.1 Intermediate People's Court (2014) Shanghai No.1 Zhongmin San (Min) Zhongzi No. 1511 Civil Judgment held that a Tibetan army advocated that a company should have a clear agreement with a company to pay year-end bonus every year. Now a Tibetan army and a company have no written agreement on the payment of the above bonus, and have not provided a company with a written stipulation on the need to pay employee bonus, therefore, a Tibetan army believes that a company's promise to pay a fixed year-end bonus lacks evidence and does not support it. (2) If the labor contract does not stipulate the year-end bonus and the rules and regulations do not stipulate the year-end bonus, but there is a special agreement on the distribution of the year-end bonus, the special agreement on the distribution of the year-end bonus shall be observed. The special agreement for the payment of year-end bonuses is a written agreement reached by both parties to the labor relationship on the basis of equality and consultation. As long as the agreement does not violate the mandatory provisions of laws and administrative regulations, it should be observed and implemented. The Beijing Higher People's Court (2015) Gao Min Shenyu Civil Judgment No. 02898 held that the "Wage Agreement" was voluntarily signed by a law firm and Di Moukai, and did not violate the mandatory provisions of laws and administrative regulations. The current Di Moukai claims that the "Wage Agreement" clause on early resignation without year-end bonus is invalid and insufficient basis. The "Salary Agreement" stipulates that a law firm will evaluate Di Moukai's work throughout the year from January 1 to 31, 2014. Di Moukai resigns before the year-end bonus evaluation and will not issue the year-end bonus. However, Di Moukai resigned on December 2, 2013. Therefore, according to the agreement of the Salary Agreement, the ownership of a certain law does not issue Di Moukai's year-end bonus. The reason for resignation filled in by Di Moukai in the "Employee Resignation Registration Form" is personal. According to law, a law firm should not pay Di Moukai economic compensation for the termination of the labor contract. The original judgment did not support Di Moukai's claim, which was not improper. (3) If the labor contract stipulates the year-end bonus or rules and regulations, but does not stipulate or stipulate the payment conditions or payment standards, the employer shall pay the year-end bonus in full or pay the year-end bonus according to the amount of previous years. If the employer does not stipulate the payment conditions, it is deemed that the laborer receives the year-end bonus without any additional conditions; if the year-end bonus is not specified, the year-end bonus shall be paid in full amount, however, if it is not possible to determine the amount to be issued, it may be issued based on the amount of previous years. (4) If the labor contract or rules and regulations stipulate the year-end bonus and its payment conditions and payment standards, the employer shall issue the year-end bonus in accordance with the agreement or regulations. If both parties have made specific agreements on the payment of the year-end bonus, they shall abide by the relevant agreement. The employer shall not refuse to pay the year-end bonus on conditions not agreed or stipulated in advance. Shanghai No.1 Intermediate People's Court (2014) Hu Yi Zhong Min San (Min) Zhong Zi No. 1310 Civil Judgment holds that the main reason why an insurance company advocates not to pay Miao Mou Gang's 2012 year-end bonus is that the company has not completed the targets issued by the group and all employees have not paid year-end bonus, but the interim measures formulated and implemented by an insurance company clearly stipulate that the total annual bonus for management sequence employees shall not be less than twice the monthly basic salary, however, it is not stipulated that the payment of the year-end bonus is based on the company's completion of the annual target issued by the group, and an insurance company has not provided evidence in the lawsuit to prove that the actual payment of the year-end bonus over the years is based on the company's completion of the annual target issued by the group. Therefore, the original trial confirmed that an insurance company should pay its 2012 annual bonus at twice the monthly basic salary of Miao Mougang, which is not inappropriate.
2022-12-15
15
2022-12
Point of View | A Brief Analysis of the Copyright of Translated Works
In recent years, my country's translated and published works have a variety of varieties and rich content, which have made up for the shortcomings of the domestic original market and have had a huge impact on the Chinese publishing industry. With the further deepening of reform and opening up, globalization, informatization and networking have brought opportunities and challenges to translation and publishing. For the process of translation and publication of foreign books, China has made legal requirements: to publish translated works, we must first solve the copyright problem. Translation works usually involve more than one country. The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) is the oldest international treaty on copyright protection, signed on September 9, 1886. The original signatories were ten countries, including Britain, France, Germany, Italy, Switzerland, Belgium, Spain, Liberia, Haiti and Tunisia. On September 5, 1887, the signatories (except Liberia) exchanged instruments of ratification. The Convention entered into force three months later, in December 1887. This was the world's first international copyright convention. All the countries participating in the Berne Convention form a union called the Berne Union. We became a member of the Convention on 15 October 1992. The scope of works protected by the Berne Convention is all literary, artistic and scientific works first published in a Contracting State by a national of a Contracting State. The treaty, centred on the principle of national treatment, requires that the author of a work created in any member State of the Union, or whose work was first published in any member State, shall enjoy the same protection in other member States as that accorded to the work of its own nationals. The legal application of foreign-related copyright in China is basically in accordance with the provisions of the Berne Convention, and the principle of national treatment is adopted for the protection of copyright. According to this principle, nationals who are entitled to national treatment include "nationality of author" and "nationality of works", that is, for Chinese citizens, legal persons and other units, whether they are in the territory or not, whether their works are published or not, they are all works of our country; works of foreigners that are first published in China are regarded as works of our country; works of foreigners that are published in China within 30 days after they are first published in other member states are also regarded as works of our country. Foreigners can also make their works protected by China's copyright law on the basis of signed agreements and international treaties. The author compares the Berne Convention and the the People's Republic of China Copyright Law (2020 Amendment), and briefly summarizes the relevant legal provisions on copyright in translated works as follows: 1. Protection of the Rights of Copyright Owners (I) the protection of the rights of the author in our country's law (II) International Copyright Convention on the Protection of the Rights of Authors Combined with the above terms, the right of translation shall be enjoyed by the copyright owner from the beginning. Only with the authorization of the author can he translate and publish the work, otherwise it constitutes infringement. 2. restrictions on the rights of copyright owners In the international treaties related to intellectual property rights and the intellectual property legislation of various countries, in some cases, the law allows others to freely use copyright works based on legitimate purposes and means without obtaining the consent of the copyright owner, that is, "copyright exception". In addition to protecting the legitimate rights and interests of authors of literary, artistic and scientific works, the law promotes cultural exchanges through exceptions and restrictions on the use of works, protects the public interests of the public, and reflects the pursuit of fairness and justice. (I) the limitation of the rights of the author in our country's law. Corresponding to the protection of rights, the law of our country also makes certain restrictions on the rights of copyright owners. According to Article 24 of the Copyright Law of the the People's Republic of China (2020 Amendment), in some cases, the copyright owner may not be allowed to pay remuneration to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and shall not affect the normal use of the work, nor shall the legitimate rights and interests of the copyright owner be reasonably damaged. Listed as follows: Clause 1 is limited to use solely for personal purposes. (2022) in the civil judgment No. 170 of Shanghai 73 min zong, the Shanghai intellectual property court held that the party concerned, as a company engaged in market operation, published the published works of others on Weibo, and the contents published on Weibo can be used for the introduction and promotion of its business matters, which obviously does not belong to the reasonable use situation stipulated in the copyright law, It infringes the copyright owner's right of information network dissemination of the works involved in the case. The court comprehensively considers the relevant circumstances to determine the amount of compensation to be borne by the parties for the infringement. The "reference" in clause 2 must be necessary, that is, the purpose and use of the reference must be limited to introducing, commenting on the work or explaining the problem. Under the premise of necessity, "citation" must also be in line with appropriateness, that is, the number, method and scope of the use of the work should be controlled within a certain limit, so as to avoid unreasonable damage to the interests of copyright owners. (2022) in the civil judgment of Lu 06 min zong No. 2502, the intermediate people's court of Yantai city, Shandong province held that the public number of royal ranch company publishing the alleged infringing article was "royal ranch imported food self-operated pavilion of Canada". as the business entity selling related products, when using its wechat public number to publish the involved article, the advertisement of the relevant royal ranch company was attached to the end of the alleged infringing article, subjectively, it has the purpose of attracting the relevant public to click into its public number with the help of the popularity of the works involved, and at the same time objectively, it will play a role in publicizing and promoting its own products. Secondly, the Royal Ranch Company used 39 comic works of the copyright owner in the articles published by its public number, so that network users can obtain the comic works involved in the case by browsing the public number articles, thus substantially replacing the browsing and access of the personal microblog content of the copyright owner of the works involved and the purchase and reading of related books by network users, which has exceeded the necessary limit. It provides the works involved in the case on the official account, so that the public can obtain the works at the time and place of their choice, which infringes on the information network dissemination right of Tubao Technology Company to the works involved in the case, and shall bear the civil liability of stopping the infringement and compensating for the losses in accordance with the law. Article 6 stipulates that the scope of fair use is limited to classroom teaching or scientific research in schools. (2009) in the civil judgment No. 0014 of Wan Min San Zhong Zi, the higher people's Court of Anhui Province held that this kind of classroom teaching should be limited to on-site teaching between teachers and students in classrooms, laboratories and other places, and it should not exceed the needs of classroom teaching, nor should it bring losses to the market dissemination of the author's works. The restrictions on copyright in China's copyright law set out various situations through exhaustive enumeration of legislation, and the provisions involved apply to authors, publishers, performers, producers of audio and video recordings, radio stations, television stations, and so on. Restrictions on the rights of authors in the (II) International Copyright Convention The restrictions on copyright rights in the Berne Convention mainly focus on the right of reproduction and the right of dissemination (the exception to the use of the right of dissemination is that the copyright owner does not explicitly reserve its re-dissemination behavior), and there are relatively few types. The limitation provisions of the Berne Convention are non-mandatory and the Union member states are free to choose whether to apply them or not. As a factual act, it must be based on the law, taking into account the legitimate purpose and the legitimate means. The restriction on copyright is for the purpose of safeguarding the public interest and does not include commercial purposes. In this case, when using the copyright owner's work, information such as the copyright owner and the source shall be indicated. 3. on the application of copyright protection period Copyright, as an intellectual property right, is time-sensitive. The copyright protection period refers to the time limit when the copyright is protected by law. During the copyright protection period, the work is protected by the copyright law; when the copyright protection period expires, the copyright is lost and the work enters the public domain. Countries usually determine the duration of copyright protection according to their economic level and cultural development. According to Article 23 of the Copyright Law of the the People's Republic of China (2020 Amendment), the term of protection of copyright is the author's life and fifty years after his death, and ends on December 31 of the fiftieth year after the author's death. According to Article 7 of the Berne Convention, the term of protection for property rights in general works is the life of the author and fifty years after his death, and the member states of the Union may provide for a longer period of protection. For example, the EU Directive of the European Parliament and of the Council on the duration of protection of copyright and related rights (Directive2006/116/EC) stipulates that the period of protection of copyright is the life of the author plus 70 years after his death. When there is a conflict of interest between the parties belonging to different Union member states, the principle of the Berne Convention is usually to determine the duration of copyright protection in accordance with the provisions of the law of the country where protection is sought. The works of citizens of EU member states are translated and distributed in China. In case of disputes, the copyright protection period shall be subject to the provisions of China's Copyright Law, that is, the author's life and 50 years after his death, ending on December 31 of the fiftieth year after the author's death. Ownership of Copyright in 4. Translation Works (I) China's provisions on the attribution of the rights of the author. Translation does not list the corresponding translations of each word according to the original text, but a creative labor that converts one language into another, and the result of the labor can be called a work. The rights of authors of translated works are protected by law. The provisions of the (II) International Copyright Convention on the attribution of the rights of the author. How do 5. publishers publish translated works in compliance? In summary, for the publisher, the publication of the translated work should obtain the dual authorization of the original copyright owner and the translator, conclude a publishing contract with it, and pay remuneration, otherwise it will be liable for breach of contract. In addition, the publisher shall register the publishing contract signed with the copyright owner of the original work with the relevant administrative organ. Legal liability of 6. infringers
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2022-12
The issue of social security and provident fund has always been a typical issue for companies planning to IPO, and it is also one of the key concerns in the regulatory review process. This paper will summarize the social security provident fund payment of the proposed IPO enterprises and the key points of the regulatory authorities, as well as provide ideas for the legal compliance management of enterprises and the verification work of lawyers. 1. related regulations Article 72 of the the People's Republic of China Labor Code The social insurance fund determines the source of funds according to the type of insurance, and gradually implements social pooling. Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law. Article 84 of the Work Injury Insurance Ordinance If the employer fails to register for social insurance, the social insurance administrative department shall order it to make corrections within a time limit; if it fails to make corrections within the time limit, the employer shall be fined not less than one time but not more than three times the amount of social insurance premiums payable, and the person in charge directly responsible and other persons directly responsible shall be fined not less than 500 yuan but not more than 3,000 yuan. Article 13 of the Regulations on the Administration of Housing Provident Fund The housing provident fund management center shall set up a special housing provident fund account in the entrusted bank. The unit shall register the housing provident fund deposit with the housing provident fund management center, and handle the procedures for the establishment of housing provident fund accounts for the employees of the unit. Each employee can only have one housing fund account. Article 37 in violation of the provisions of these regulations, if a unit fails to go through the registration of housing provident fund payment or fails to go through the formalities for the establishment of housing provident fund accounts for its employees, the housing provident fund management center shall order it to go through within a time limit; if it fails to do so within the time limit, a fine of not less than 10000 yuan but not more than 50000 yuan shall be imposed. The housing provident fund management center shall establish a detailed account of the employee's housing provident fund, which shall record the deposit and withdrawal of the employee's individual housing provident fund. According to the Measures for the Administration of Initial Public Offering and Listing of Shares, an issuer shall not have the following circumstances: Violation of industry and commerce, taxation, land, environmental protection, customs and other laws and administrative regulations in the past 36 months has been subject to administrative penalties, and the circumstances are serious. According to the Measures for the Administration of Initial Public Offering and Listing on the Growth Enterprise Market, the issuer, its controlling shareholder and actual controller have not committed any major illegal acts that damage the legitimate rights and interests of investors and the public interest of the society in the past three years. According to the China Securities Regulatory Commission's "Answers to Several Questions on Initial Business", how should issuers do a good job of disclosure on issues related to the implementation of the social security system, and how should intermediary agencies grasp when verifying relevant issues? A: If the issuer has unpaid social insurance and housing provident fund during the reporting period, it shall disclose in the prospectus the specific circumstances of the unpaid social insurance and housing provident fund and the reasons for its formation, such as the possible impact of the supplementary payment on the issuer's continuing operation, reveal the relevant risks and disclose the response plan. The sponsor and the issuer's lawyer shall verify the aforementioned matters and issue a clear opinion on whether they are material violations. The Focus of Social Security Provident Fund in the Process of 2. Audit Specific cases: ① Henan Kaiwang Electronic Technology Co., Ltd. (GEM case) When Henan Kaiwang Electronics applied for listing on the GEM, the auditors required the issuer to disclose the basis for calculating the amount of social security and housing provident fund, the impact on the net profit of the issuer for each period of the reporting period and the net profit after deducting non-recurring gains and losses, and to measure whether the issuer met the listing conditions after the full payment. In its reply, the issuer disclosed in detail the deposit ratio and base of the company's basic old-age insurance, basic medical insurance, unemployment insurance, work-related injury insurance and maternity insurance units, and the deposit ratio and base of the provident fund. Then, according to the number of unpaid people, calculate the amount of social security and provident fund paid during the reporting period, and finally calculate its proportion in the net profit of each period and the net profit after deduction. Conclusion: The listing standard chosen by the company is "Shenzhen Stock Exchange GEM Stock Listing Rules" "The net profit of the (I) in the last two years is positive, and the cumulative net profit is not less than RMB 50 million". Assuming that the amount paid in full according to the above calculation method, the company's net profit in the last two years is not less than 50 million yuan. Therefore, the above-mentioned deduction of the amount of the company is still eligible for listing. Mingyue Lens Co., Ltd. (GEM case) Mingyue Lens Co., Ltd. applied for listing on the Growth Enterprise Market. The reviewers asked whether the social insurance and housing provident fund that had not been paid before needed to be paid, measured the impact of full payment on business performance, whether it constituted a major violation of laws and regulations, and revealed relevant risks and disclosed Response plan. The issuer's reply is as follows: First, make detailed statistics on the number of people who did not pay social security and provident fund during the reporting period and the reasons; Then explain that the number and proportion of unpaid people have decreased year by year (from 2017 to 2018 at the beginning of the reporting period, employees were not motivated to pay social insurance and housing provident fund; After the publicity and implementation of social insurance and housing provident fund by the company's personnel and other departments, employees' willingness to participate in insurance and pay housing provident fund gradually increased); the final table calculates the impact on net profit of the amount of social insurance and housing provident fund paid by the issuer during the reporting period. In addition, the issuer obtained the actual controller's commitment to make up the social insurance and housing provident fund and the compliance with the social insurance and housing provident fund, and further demonstrated that it did not constitute a major violation of the law and the corresponding response plan. ③ Chengdu Qusleep Technology Co., Ltd. (GEM case) When Chengdu Qisheng Technology Co., Ltd. applied for the Growth Enterprise Market, the auditors pointed out in the issue of employees and social security accumulation fund: whether the supplementary disclosure of the issuer's entrustment of a third-party payment agency to pay social insurance and housing accumulation fund for the company's employees constitutes a major violation of laws and regulations, calculate the amount involved in the supplementary payment and punishment, and explain the impact on the issuer's financial data. The issuer's reply is as follows: first of all, the situation of failing to pay housing provident fund for all employees of the company, implementing the system of not paying housing provident fund during the probation period, and entrusting a third-party payment agency to pay social insurance and housing provident fund for employees of the company is not in line with the provisions of the social insurance law, the Interim Measures for the administration of social insurance registration and the regulations on the administration of housing provident fund. Secondly, the reasons for entrusting a third-party organization to pay on behalf of the company are as follows: the employees work in scattered places, and the issuer has not set up branches in the local area, so it is unable to pay social insurance and housing accumulation fund for local business personnel, and the purpose of protecting the legitimate rights and interests of employees through payment on behalf of the social insurance law and the regulations on the management of housing accumulation fund is in line with the purpose of protecting the legitimate rights and interests of the company's employees. Finally, I got the commitment letter from the actual controller and the law-abiding certificate issued by the Social Insurance Administration, the Human Resources and Social Security Bureau, and the Provident Fund Management Center. ④ Henan Xiangyu Medical Equipment Co. Feedback: The prospectus disclosed that before the end of 2017, the company and its subsidiaries' employees' social security and provident fund contributions were relatively low, of which the number of housing provident fund contributors during the reporting period accounted for 0%, 68.08, and 71.33, respectively. The main reason is that some employees of the company are not willing to pay social security, and some of the company's social insurance, provident fund did not open accounts. Please indicate: (1) At the end of 2017, the reason why the issuer's housing provident fund contributors accounted for 0%, whether to make a supplementary payment on the 2017 housing provident fund, and whether there is a dispute between the relevant employees and the issuer regarding the payment of housing provident fund matters; (2) Whether the low proportion of social security and provident fund paid in 2017 complies with the relevant provisions of laws and regulations, whether there is a risk of being punished by the competent authority, and whether it constitutes a major violation of laws and regulations; (3) Measure the amount of social security and provident fund payable by the issuer in 2017 and the measurement process, the impact on the performance during the reporting period, and whether it affects the conditions for issuance and listing. According to the response of Xiangyu Medical Feedback, the Company's social security and provident fund contributions were relatively low in 2017, mainly due to the non-standard management of employees' social security and provident fund contributions at the beginning of the reporting period, and the low willingness of employees to make individual contributions. Since 2018, the Company has actively regulated and rectified the situation, with social insurance and housing provident fund contributions reaching approximately 88% and approximately 74%, respectively. In addition, the company has obtained a certificate issued by the competent human resources and social security bureau, proving that there are no major violations of laws and regulations in the payment of medical and social security in Xiangyu during the reporting period, and the department will not punish the enterprise for historical irregularities, and the company has no record of administrative punishment by the department. The issuer estimates the amount of economic benefits that may flow out of the enterprise in the future due to the non-standard payment of social security and provident fund in 2017, and the impact on after-tax profit is 3.5014 million yuan, accounting for 5.43 of the current net profit. After taking this factor into account, the company's performance is still in line with the company's listing indicators. In order to reduce the impact of the above contingencies on the interests of minority shareholders, the commitments made by the controlling shareholder and the actual controller of the issuer in respect of the relevant matters, even if the regulatory authorities require the issuer to pay or make up in accordance with the relevant laws and regulations, may also be made up by the actual controller to fulfill the commitments. As can be seen from the above case, the issuance review committee mainly focuses on the issuer's social security provident fund payment from three aspects: One is whether there is a reasonable reason for the coverage ratio of social security and provident fund paid by enterprises to employees if they do not fully pay. The second is to pay attention to whether the issuer's social security provident fund payment will be subject to administrative punishment and the circumstances are serious, or constitute a major illegal act; On the other hand, the question is whether the issuer's supplementary payment of the social security provident fund will cause the operating performance to decline, resulting in failure to meet the listing conditions. Matters needing attention when verifying the social security provident fund problem by 3. lawyers and the solution to the problem of social security provident fund in enterprises to be listed. The the People's Republic of China Social Insurance Law, the Interim Regulations on the Collection and Payment of Social Insurance Premiums, and the Regulations on the Administration of Housing Provident Fund stipulate the scope, payment time and payment ratio of social insurance and housing provident fund. The governments of all provinces, municipalities and autonomous regions have social insurance. And housing provident fund has formulated specific collection policies. The CSRC has not given clear requirements on the specific number of contributors. According to the common practice of companies to be listed in recent years, at the end of the last reporting period, the company must pay social security and provident fund for employees who meet the requirements, basically covering all employees. Through the recent enterprise cases, the proportion of enterprises paying social security provident fund has basically reached more than 95%, and the remaining 5% has not paid can also make a reasonable explanation. As the relevant system for paying social security provident fund is not perfect, it is difficult for enterprises to pay social security provident fund for all employees. In the following cases, the issuer does not have to contribute to the social security provident fund: 1. Part-time employees According to the "Social Insurance Law" and the "Opinions of the Ministry of Labor and Social Security on Several Issues Concerning Part-time Employment", only industrial injury insurance in social insurance must be paid by enterprises for part-time employees. Take Shanghai as an example, part-time employees do not pay maternity insurance and unemployment insurance, while endowment insurance and medical insurance require enterprises to go through relevant procedures for part-time employees but do not undertake the obligation to pay. 2. Foreign and Hong Kong, Macao and Taiwan employees According to the Measures for Foreigners to Enjoy Relevant Treatment for Permanent Residence in China issued by 25 departments including the Organization Department of the Central Committee of the Communist Party of China, the Ministry of Human Resources and Social Security, and the Ministry of Public Security, foreigners holding China's Foreigners Permanent Residence Permit can follow the Housing Provident Fund Management Regulations and other regulations to deposit and use the housing provident fund at the place of work; those employed in China can participate in various social insurance in accordance with the relevant provisions of the Social Insurance Law. According to the Opinions on Issues Concerning the Housing Provident Fund Treatment for Hong Kong, Macao and Taiwan Compatriots Employed in the Mainland (Mainland) issued by the Ministry of Housing and Urban-Rural Development, the Ministry of Finance, the People's Bank of China, the Hong Kong and Macao Affairs Office of the State Council, and the Taiwan Affairs Office of the State Council, Hong Kong, Macao and Taiwan compatriots employed in the Mainland (Mainland) can pay housing provident funds in accordance with the "Regulations on the Housing Provident Fund Management" and related policies. However, according to the Social Insurance Law, foreigners who are employed in China shall participate in social insurance with reference to the provisions of the Social Insurance Law. In October 2018, the Ministry of Human Resources and Social Security issued the interim measures for Hong Kong, Macao and Taiwan residents to participate in Social Insurance in the mainland (mainland) (draft for soliciting opinions), which stipulates that people employed by Hong Kong, Macao and Taiwan in the mainland shall participate in social insurance in accordance with the law. At the same time, in order to avoid double insurance, Hong Kong, Macao and Taiwan residents who have participated in local social insurance in Hong Kong, Macao and Taiwan and continue to retain social insurance relations may not participate in endowment insurance and unemployment insurance in the mainland (mainland) with a certificate issued by relevant authorized institutions. Therefore, foreign and Hong Kong, Macao and Taiwan employees of enterprises should participate in social insurance and can choose to deposit provident funds, but the social insurance that Hong Kong, Macao and Taiwan employees have participated in in Hong Kong, Macao and Taiwan can no longer pay repeatedly. 3. Labor dispatch Labor relations exist between the labor dispatch unit and the dispatched workers, and the social security provident fund of the dispatched workers is paid by the labor dispatch unit, so the enterprises receiving labor dispatch do not have to pay the social security provident fund for the dispatched workers. 4. Retired employees According to the "Labor Contract Law" and the "Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases", if the rehired employees enjoy basic pension insurance benefits or receive pensions, the company will treat them as labor relations and do not need to pay for them. Social security provident fund. Retired personnel who have not reached the legal retirement age do not belong to this category, and the enterprise is required to pay the social security provident fund according to the labor relationship. 5. Interns According to the "Opinions on Several Issues Concerning the Implementation of the" the People's Republic of China Labor Law "", school students use their spare time to work and study, which is not regarded as employment. If a labor relationship is not established, they may not sign a labor contract. That is, there is no labor relationship between the enterprise and the intern, and there is no need to pay the social security provident fund for it. 6. Labor outsourcing There is no labor relationship between the labor outsourcing workers and the enterprise, nor is it included in the number of employees of the enterprise, and the enterprise does not have to pay the social security provident fund for it. 7. Migrant workers Many in the past.
2022-12-15
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
