Problems That Should Be Paid Attention To When The Crime Of Refusing To Pay Labor Remuneration Is Recognized.

< p > January 2013, the Supreme People's < a href= "http://www.91se91.com" > court < /a > issued the interpretation of several issues concerning the application of law in criminal cases of refusing to pay labor remuneration (hereinafter referred to as "interpretation"), which provides guidance for the correct application of the crime amendment (eight), which has not been paid for labor remuneration. However, due to the difficulty in grasping the semantics of individual keywords, there are three problems in practice, which need attention.

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< p > the definition of "remuneration for labor".

The main issue is whether labor remuneration includes social insurance benefits, labor protection and so on.

The interpretation stipulates that "labor remuneration" includes "wages, bonuses, allowances, subsidies, wages extended to work hours and wages paid under special circumstances". However, the adoption of enumerative stipulations does not specify whether social insurance benefits and other expenses are "labor remuneration".

In view of this, there is a view that social insurance benefits, labor protection costs, etc., which should be paid to workers, should be included.

The author holds a negative attitude towards the above views.

Social insurance benefits, labor protection and so on belong to the scope of administrative law adjustment, which has strong administrative policy nature. The main basis for their production is not labor law or labor contract law.

At the same time, because the social insurance benefits have different standards and methods in different parts of the country, at the present stage, social insurance benefits, labor protection and other expenses are included in the protection of labor remuneration, which is not in line with the social reality.

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< p > the position of "ability to pay" in determining a crime.

There is a view that the law can not be forced, and the crime of refusing to pay labor remuneration should be the ability to pay and refuse to pay labor < a href= "http://www.91se91.com/news/index_s.asp" > remuneration < /a >. Therefore, the ability to pay is an important prerequisite for the crime.

There is also a view that "the pfer of property, escape and other methods to evade payment of laborers' labor remuneration" and "the ability to pay without paying laborers' labor remuneration" is logically parallel choice relations. Any violation of any situation can constitute this crime.

The above point of view is whether the crime of absconding without payment can constitute this crime. I believe that the crime of escaping without paying capacity should also be applied to this crime.

First of all, the escaping of the perpetrator inevitably causes the administrative investigation procedure of the administrative organ to be unable to carry out or increase the difficulty, and the administrative order which orders the payment of labor remuneration can not be carried out normally, causes the worker to be more worried about his own property rights and interests, and may even sharpen the contradiction and produce worse social influence.

Secondly, the actors do not have the ability to pay because of poor management and so on, so they can not pay labor remuneration, but they do not implement the pfer of property and escape to pay labor remuneration.

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< p > identification of "ordered by the relevant government departments to pay".

First of all, we should make reasonable restrictions on "relevant departments" so as to avoid exaggerating the scope of attack.

In the interpretation, the "relevant government departments" are refined into "human resources social security departments or other relevant departments of the government". The "other relevant departments of the government" here should refer to the government functional departments that have the relevant law enforcement power prescribed by labor laws and regulations or are clearly given the guidance and supervision of relevant law enforcement.

Secondly, we should correctly understand and grasp the "arrival" problem of "order".

"It is a precondition for the criminal law to use the relevant government departments to order the payment to be paid or not to pay". Therefore, it is determined that the crime must be ordered by the administrative order ordered to pay to the actor, that is, if the actor knows or should know that the relevant government departments have ordered the payment of labor remuneration to continue to refuse to pay, it can constitute this crime.

However, the executive order does not necessarily reach the actor himself.

The fourth article of the interpretation clearly stipulates that if a perpetrator escapes from hiding, he or she cannot be ordered to pay the instrument to the person himself, who is in charge of the adult family or the unit in charge. If it is ordered to pay by way of placing an order in the place of residence, production and business premises, etc., it shall be deemed to have been served.

This situation should also be regarded as "a href=" http://www.91se91.com/news/index_c.asp "> government < /a > the relevant departments shall order the payment".

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