Will the recovery of social insurance premiums be subject to a two-year limitation? Here is the latest judgment of the court, which gives the answer.
On January 20, 2020, Dai Moumou submitted an application to Dianjiang Human Resources and Social Security Bureau for paying the social endowment insurance premium for enterprise employees.The bureau is required to order the bankruptcy administrator of Chongqing XXXX Colored Glazed Tile Co., Ltd. (the company for short) to pay back the social insurance premium on behalf of XXX from January 2001 to July 31, 2012.
After investigation, Dianjiang Human Resources and Social Security Bureau made the Notice of Handling Results of Labor Security Supervision Complaints (hereinafter referred to as Notice No.1) issued by Dianren Social Security Supervision Office [2020] No.1 on January 22, 2020.It is considered that the matters reflected on behalf of XXX have exceeded the statutory limitation of complaint, so the complaint will not be accepted.
On behalf of a certain person, he refused to accept the decision and filed an administrative reconsideration with Chongqing Human Resources and Social Security Bureau (hereinafter referred to as the Municipal Bureau of Social Security), requesting to confirm that the administrative act of Dianjiang People’s Social Security Bureau in the bankruptcy resettlement of the company was illegal, requesting to cancel the No.1 Notice made by Dianjiang People’s Social Security Bureau, and requesting to redo it according to his application.However, the Municipal People’s Social Security Bureau issued a reply notice of administrative reconsideration after accepting it on February 17, 2020, and maintained the processing results made by Dianjiang People’s Social Security Bureau.
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On behalf of a certain person, he refused to accept the lawsuit and filed a lawsuit with the People’s Court of Changshou District, Chongqing.
The People’s Court of Changshou District of Chongqing believes that the following questions need to be analyzed as to whether the decision made by Dianjiang Human Resources and Social Security Bureau is correct:
First of all, the limitation of prosecution for violations of labor security laws and regulations. According to the relevant regulations, the limitation of prosecution for labor inspection is 2 years. If the illegal act has a continuous and continuous state, the 2 years shall be counted from the date of the end of the act.
Secondly, the nature of the limitation of labor supervision and prosecution. According to the definition of the Interim Regulations on the Collection and Payment of Social Insurance Premium,The payment of social insurance premiums belongs to the category of administrative collection, which is different from the nature of administrative punishment. The recovery of social insurance premiums and the prosecution and punishment of illegal acts are two different issues.
Therefore, Article 20 of the Regulations on Supervision of Labor Security (implemented on December 1, 2004) stipulates the time limit for administrative enforcement of labor security, while the provisions on the time limit for prosecution related to administrative punishment are not applicable to the recovery of social insurance premiums. When the employer fails to apply for social insurance for workers in time and in full, and the illegal act of paying social insurance premiums occurs, on the one hand, the administrative organ can investigate and punish according to Article 20 of the Regulations on Supervision of Labor Security, on the other hand, the relevant departments can continue to recover social insurance.
The complaint on behalf of a certain person is to order the bankruptcy administrator of the company to pay back the unpaid social endowment insurance fees from January 2001 to July 31, 2012. Obviously, this claim belongs to the issue of recovering social insurance premiums, rather than asking the relevant departments to investigate and deal with illegal acts, so the limitation of administrative law enforcement of labor security stipulated in Article 20 of the Labor Security Supervision Regulations should not be applied.
To sum up, the Notice of Handling Results of Labor Security Supervision Complaints made by Dianjiang Human Resources and Social Security Bureau on the grounds of exceeding the statutory limitation of complaints is wrong in application of law and should be revoked. At the same time, the Decision on Administrative Reconsideration made by the Municipal People’s Social Security Bureau should also be revoked. Dianjiang Human Resources and Social Security Bureau shall, within 60 days after the effective date of this judgment, make a new administrative act on behalf of a certain person.
Dianjiang Human Resources and Social Security Bureau refused to accept this and appealed to Chongqing No.1 Intermediate People’s Court, claiming that the court of first instance confused the issues of social insurance premium collection, social security audit and labor security supervision and complaint handling, found the facts wrong and applied the law wrong.
Judgment of the second instance: Dianjiang Human Resources and Social Security Bureau limited the time limit for social security agencies to accept reports and complaints to two years, which impaired the legitimate rights and interests of citizens and could not be used as the basis for them to make a Notice.
The Chongqing No.1 Intermediate People’s Court held that according to the second paragraph of Article 4 of the Social Insurance Law of People’s Republic of China (PRC) (hereinafter referred to as "Social Insurance Law"), "individuals enjoy social insurance benefits according to law and have the right to supervise the payment of their own units", Dai Moumou has the right to supervise the payment of their own units; According to Article 82 of the Law, "Any organization or individual has the right to report and complain about violations of social insurance laws and regulations", Dianjiang Human Resources and Social Security Bureau, as the social insurance agency within the administrative area of Dianjiang County, has the statutory duty to handle complaints on behalf of a certain person. According to the provisions of Article 12 of the Administrative Reconsideration Law of People’s Republic of China (PRC), the Municipal Bureau of Human Resources and Social Security, as the superior competent department of Dianjiang Bureau of Human Resources and Social Security, has the statutory authority to conduct administrative reconsideration and make reconsideration decisions.
Article 63 of the Social Insurance Law stipulates: "If an employer fails to pay social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay or make up within a time limit." It can be seen that the Social Insurance Law does not impose a time limit on the collection of social insurance premiums.
Legally speaking, employers’ failure to pay, unpaid or underpaid social insurance premiums are all manifestations of not paying social insurance premiums in full, which belongs to the category of social insurance premium collection, and naturally there should be no limitation.
The provisions of Article 3 of the Measures for Social Insurance Audit (implemented on April 1, 2003) also mean that the social insurance audit work does not involve administrative punishment.
At the same time, for employers who fail to pay social insurance premiums in full according to law, social insurance agencies perform administrative duties of recovery, which are two different administrative acts from the investigation of labor security violations.The 2-year limitation period stipulated in the Regulations on Labor Security Supervision is not applicable.
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When the employer fails to handle social insurance for workers in time and in full, and the illegal act of paying social insurance premiums occurs, on the one hand, the administrative organ can recover and punish them in accordance with the provisions of Article 20 of the Labor Security Supervision Regulations, on the other hand, the agency can also conduct audits to recover the historical arrears of social insurance premiums, and the upper law does not limit the recovery period.
Upon examination, the Social Insurance Law of People’s Republic of China (PRC), the Interim Regulations on the Collection and Payment of Social Insurance Fees and the Measures for Social Insurance Audit have not set a prosecution period for clearing the arrears of enterprises. According to the definition of the Interim Regulations on the Collection and Payment of Social Insurance Premium, social insurance premium belongs to the category of administrative collection, and its nature is different from that of administrative punishment. Therefore, the provisions on the limitation of prosecution related to administrative punishment are not applicable to the recovery of social insurance premium.
Therefore, Dianjiang Human Resources and Social Security Bureau limited the time limit for social security agencies to accept reports and complaints to two years, which impaired the legitimate rights and interests of citizens and could not be used as the basis for them to make the No.1 Notice.
On the reason that Dianjiang Human Resources and Social Security Bureau put forward that social security agencies are responsible for the declaration of payment and the tax department is responsible for the recovery of social security arrears. Although the tax department is the social insurance fee collection agency of this Municipality, according to the first paragraph of Article 3 of the Measures for Social Insurance Audit, social insurance agencies at or above the county level are responsible for social insurance audit; Article 9, paragraph 1, stipulates that the audit content of social insurance payment includes whether the number of social insurance payers and the payment base declared by the payment units and individuals conform to the state regulations; Article 11 stipulates that the social insurance agency shall order the audited object to make corrections if it underreports or conceals the payment base and the number of people. If it refuses to make corrections, the social insurance agency shall report to the administrative department of labor and social security for punishment according to law.
Thus, it is the responsibility of social insurance agencies to audit the payment base declared by the payment units and order the payment units that underreport the payment base to make corrections.
On behalf of a certain person, he complained about the failure of Meihua Company to pay social insurance premiums for him, and requested Dianjiang Human Resources and Social Security Bureau to audit and recover the social insurance premiums that were underpaid due to lack of reporting. This complaint belongs to the responsibility of Dianjiang Human Resources and Social Security Bureau.To sum up, the Notice made by Dianjiang Human Resources and Social Security Bureau was wrongly applied by law, and it was not improper for the court of first instance to decide to cancel the Notice and order it to be redone. Similarly, the "Reconsideration Decision" made by Chongqing Municipal Bureau of Human Resources and Social Security should also be revoked.
Therefore, the verdict is as follows: the appeal is dismissed and the original judgment is upheld.
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