A Bankrupt Enterprise Can Not Sue A Manager For Labor Dispute.

After the bankruptcy of the unit, Yang did not receive any economic compensation and living allowance, and the defendant was sued by the management to claim the right. Finally, he was dismissed by the court ruling because of the malpractice of the litigant.

In 1998, Yang worked in a chemical plant in Zoucheng. In 2013, the chemical plant declared bankruptcy. In September 2014, Yang complained to the court on the grounds that the manager of the chemical plant did not pay any economic compensation, nor did he pay the living allowance after his production stopped. He ordered the chemical plant manager to pay 18300 yuan for the economic compensation and 9200 yuan for the living allowance after the production stopped.

The court found that in September 10, 2013, the court made civil The ruling declared that the chemical plant was bankrupt. In November 10, 2013, the chemical plant failed to liquidate the bankruptcy expenses because of bankruptcy property. According to the forty-third provision of the enterprise bankruptcy law, the court ruled that the chemical plant should be terminated. insolvency proceedings 。

The court held that the thirteenth provision of the enterprise bankruptcy law stipulates that when the people's court decides to accept the bankruptcy petition, it shall designate the administrator at the same time. According to the seventh provisions of the twenty-fifth, first, and seventh stipulations, the duty of the manager is to represent the debtor in litigation, arbitration or other legal proceedings, instead of acting as a defendant in a dispute case. In addition, according to the opinions of the Shandong Provincial Higher People's Court on Bankruptcy trial in November 2012, in addition to litigation of bankruptcy revocation rights, confirmation of debtors' invalid actions and managers' liability for compensation litigation, managers are listed as litigants, and debtors are listed as litigation subjects. Therefore, there is labor dispute between Yang and chemical plant. The manager of chemical plant is not a suitable defendant.

So, according to corporate bankruptcy law "Twenty-fifth articles," 154th articles of the civil procedure law "and 139th provisions of the Supreme People's Court on the issues applicable to the civil procedure law, the court ruled that Yang's prosecution was dismissed.

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In March 24, 2015, Zhang Bin, a 36 year old IT man in Shenzhen, was found dead in a hotel toilet on the company's rented room. He sent the last working email at 1 o'clock that morning. Zhang Bin's wife, Yan, believes that Zhang Bin's sudden death is related to long overtime work. "He has exhausted himself for this project."

Zhang Bin's death exploded people's concern about karoshi.

With the increasingly fierce competition in the society, the problem of over exertion of office workers is becoming more and more serious. According to data released by Chinese Medical Doctor Association jointly, the IT industry has the lowest age of "overworked death", with an average age of only 37.9 years old. In Beijing and Shanghai, 60% of white-collar workers worked hard, and 76% of white-collar workers were sub healthy. These groups are undoubtedly the potential danger of "overworked death". Another statistic shows that the huge working pressure has led to the number of "overworked deaths" in China, which has reached 600 thousand people each year. This figure has surpassed Japan, and China has become the first big country of "overworked death".

At present, the work-related injury insurance in China carries out the principle of dangerous liability. When we identify the work-related injury, we need to have three basic elements -- working hours, workplaces (location) and work factors (or work reasons). We usually call it "three elements of work injury" or "three principles of work".

In addition, taking into account some special interests and special circumstances, China has set up a system of "injury deemed to be work-related" in labor laws and regulations. Article fifteenth of the regulations on industrial injury insurance stipulates that the death of a sudden illness or death within 48 hours during working hours and jobs is regarded as a work-related injury. However, the mere use of this clause is far from being able to solve all the cases of "overworked death". For the "overworked death" conforming to the "three principles", the family members of the deceased are entitled to the corresponding industrial injury treatment, but for the families of the majority of "dead overworked" families, they will encounter considerable difficulties when they confirm that they are in line with the "three principles". Overstepping obstacles. For example, "karoshi" usually occurs in the home of workers. It is hard to say that it is time to work, and the family members of the deceased are usually hard to prove to be in the process of work or work. In addition, karoshi is usually caused by overworked myocardial infarction or other types of sudden death.

In reality, in order to circumvent the mandatory provisions of the law, enterprises are forced to work overtime voluntarily without stipulations of overtime, through the establishment of a system similar to performance appraisal and other systems. In this case, Zhang Bin's enterprises do not exclude the form of combining performance appraisal with job evaluation mechanism and labor remuneration.

Because of the "overworked death" caused by "voluntary overtime", it is subjectively analyzed, because overtime is not the requirement and arrangement of enterprises, but the voluntary behavior of employees. Objectively speaking, "karoshi" is the transformation of fatigue into some kind of disease. It is often difficult to distinguish between "fatigue" and "morbidity" which are the main factors of death. Therefore, under the condition of "voluntary overtime work", the situation of "overwork death" will appear unclear responsibility, which will lead to the difference between employees and employers in the identification of responsibilities.

First of all, family members should strive to identify workers' "overworked death" as work-related injuries, because once they are identified as work-related injuries, their families can enjoy the corresponding industrial injury insurance benefits through the industrial injury insurance fund, such as funeral grants, one-off workers' death subsidies, and relatives' pensions. If the employer fails to pay work-related injury insurance for the workers, the above-mentioned industrial injury insurance will remain. The case is not paid by the industrial injury insurance fund, but by the employer.

If the worker's "overworked death" can not be identified as work-related injury, I believe that the family members can claim corresponding rights to the employer according to the relevant provisions of the general principles of the civil law and tort law.

For example, the 132nd provision of the general provisions of the national law stipulates that "if the parties concerned are not guilty of causing damage, they may share the civil liability according to the actual situation". In addition, the second provision of the tort liability law stipulates that "infringement of civil rights and interests shall be subject to tort liability in accordance with this law." The civil rights and interests mentioned in this Law include the right to life and the right to health. "

At the same time, the eleventh interpretation of the Supreme People's court's interpretation of several issues concerning the application of laws in cases of compensation for personal injury also stipulates: "if an employee suffers personal injury in engaging in employment activities, the employer shall be liable for compensation". Family members may claim corresponding rights in accordance with the above provisions.

Because the death of overwork is largely due to the implicit violation of the workers' right to rest, resulting in the violation of the right to life and health of workers. Of course, the family members need to work too heavy tasks and workload beyond the corresponding quota, and the overtime work of the workers is too long, which has greatly exceeded the average working time of the society and so on.