Today'S Argument: Social Security Disputes Can Be Sought For Social Security Audit.

The first section of the "social insurance auditing method" (No. sixteenth of the Ministry of labor and social security of the People's Republic of China) points out: "in order to standardize the work of social insurance auditing, ensure that the social insurance premium should be collected and fully protected, and protect the legitimate rights and interests of the insured personnel, these measures are formulated in accordance with the Interim Regulations on levying social insurance premium and relevant state regulations."

Nor has there been any time limit in this method.

Xiaohua worked in A company from April 2012 to December 2012. After leaving the company for a long time, she found that the unit paid social security only at the base of 3000 yuan, and her salary was 4000 yuan at that time.

When she found the company, the company ignored it.

So in June 2015, she applied to the labor dispute arbitration agency.

The Arbitration Commission told her that the limitation of arbitration was one year and has expired.

After January 1, 2011, courts at all levels in Shanghai did not accept social insurance payment disputes. Since July 1, 2014, labor arbitration agencies at all levels of the city have no longer accepted social insurance payment disputes, so they can not help her deal with them.

Xiao Hua came to the local labor monitoring team to report the incident. The surveillance brigade also told her that because it had left the A company in December 2012, it has been more than two years old, so labor supervision can not help her to deal with it.

This really makes Xiao Hua guilty. Indeed, in recent years, she did not care about her own payment base. Until now, she found that the unit had paid less social security. But after more than two years, she really could not solve it. In fact, Xiaohua can also find a solution through social insurance audit and reporting this time.

A brief introduction to the time limit.

Whether the social security administration should deal with the appeals for over two years? There are two views.

The first view is that the social security administration should not deal with appeals for over two years.

With this view, the legal basis of the scholars is mainly: the twenty-ninth article of the administrative penalty law: the illegal acts have not been found within two years and no longer give administrative penalties.

Unless otherwise provided by law.

As well as the twentieth provision of the labor and social security supervision Ordinance, the act of violating labor security laws, regulations or regulations has not been found by the labor and social security administrative departments within 2 years, and has not been reported or complained.

In many local laws and regulations, this has also been expressed. For example, the fortieth provision of the Shenzhen Special Economic Zone Social Endowment Insurance Ordinance further stipulates that employees do not think the employer has paid the old-age insurance premium in accordance with the regulations. They should complain to the municipal social security agencies within two years after they know or should know that their rights are infringed.

The city's social security organs refuse to accept complaints and reports for more than two years.

The second view is that

It can handle more than two years' appeals.

From this point of view, the legal basis of scholars is: "the Provisional Regulations on the collection of social insurance premiums" (the 259th order of the State Council), the twelfth rule: "social insurance premiums shall not be reduced or exempted."

The thirteenth rule: "if the payment unit fails to pay and withhold the social insurance premium according to the regulations, it shall be ordered by the labor and social security administrative department or the tax authority to pay within a specified time. If the payment fails to pay, if the overdue payment is not paid, the overdue fee will be charged by 2/1000 per day from the date of default.

(currently by "

"The regulation is on day 5/1000". The twenty-sixth rule states: "if the payment unit fails to pay social insurance premium or late fee, it shall be applied by the labor and social security administrative department or the tax authority to the people's court for compulsory collection according to law."

In the eighty-third section of the social insurance law, it is even more clear: "...

If the employer infringes upon the rights and interests of individual social insurance, an individual may also require the social insurance administrative department or the social insurance premium collection institution to deal with it according to law.

The higher people's Court of Shanghai, as early as the "question and answer of civil law application (fourth issue of 2004)," advocated this view: "employing employers to pay social insurance premiums for laborers is compulsory obligation in administrative law.

If the employer fails to pay the social insurance premium according to the regulations, the administrative organ shall have the power to order it to pay within a prescribed time limit, or even to collect the payment according to law, without limitation or limitation.

Therefore, when the worker has applied for arbitration for more than 60 days (Note: the time limit for the labor dispute is 60 days), the legal consequence is that the worker loses the right to win the right to pay the social insurance premium through the way of arbitration or civil action, but it does not affect the employer's obligation to continue to fulfill the administrative law obligation to pay the social insurance premium for its employees. "

The author believes that the above two views are not contradictory in themselves, but are the principles for the separate treatment of social security administrative punishment and social security administrative levy.

The author quotes the "administrative judgment of the intermediate people's Court of Xinyu municipality of Jiangxi province" (No. 2014] fourth). According to the reply issued by the Legislative Work Committee of the Standing Committee of the National People's Congress on the implementation of the administrative punishment law, [FDA] (96) 2, "the family planning fee is not a fine, and does not fall within the scope of the administrative punishment law."

The provisions of the administrative penalty law that all fines must be turned over to the state treasury and the relevant time limitation shall not apply to family planning work ".

Therefore, the plaintiff asserted that the defendant had imposed a social maintenance fee on him for more than two years without any facts and legal grounds.

Although the law enforcement Committee of the NPC deals with the administrative expropriation of the family planning system, it also illustrates a truth: "administrative expropriation is not an administrative punishment and is not subject to limitation of time".

Therefore, when a laborer meets the social security dispute that cannot be handled by the labor supervision department due to the limitation of time, he can go to the social security agency for social security audit and seek complaints.

Of course, it is also necessary to point out that workers need to provide effective evidence such as a good labor contract, wage list, etc. when they complain, otherwise, without evidence, social security organizations can not help workers safeguard their rights.