2023-11-20
海問勞動法雙月報（2023年9-10月）
作者：
劉宇翔
吳瓊
Summary
本期摘要
法規解讀：《社會保險經辦條例》發布，對用人單位的員工社會保險合規管理提出新要求
Interpretation of Laws and Regulations: Regulation on Provision of Social Insurance Services was released, Proposing New Requirements for Employers to Manage the Employee Social Insurance Compliantly
新規速遞：北京市朝陽區、海淀區將公布勞動人事爭議仲裁裁決書
Quick View of New Regulations: Beijing’s Chaoyang and Haidian Districts Will Release Arbitration Awards on Labor and Personnel Disputes
典型案例：最高院發布涉民營企業、民營企業家人格權保護典型案例
典型案例：天津市發布弘揚社會主義核心價值觀典型案例
典型案例：北京市發布《勞動爭議審判工作白皮書》，重慶市發布八起勞動人事爭議典型案例
典型案例：上海市金山區人民法院發布《未簽訂勞動合同類勞動爭議案件審判白皮書》
Exploration of Typical Cases: Shanghai Jinshan District People’s Court Released White Paper on Trial of Labor Dispute Cases Concerning Unsigned Labor Contracts
典型案例：上海市普陀區人民法院發布十起勞動爭議典型案例
Exploration of Typical Cases: Shanghai Putuo District People’s Court Released Ten Typical Cases of Labor Disputes
《社會保險經辦條例》（“《條例》”）于近日公布，并將自2023年12月1日起施行。《條例》共七章63條，內容涉及社會保險登記和轉移、社會保險待遇核定和支付、社會保險經辦服務和管理、社會保險經辦監督及相關法律責任等方面，對用人單位在勞動用工過程中的員工社會保險合規管理提出了新的要求。其中，以下要點值得關注：
Regulation on Provision of Social Insurance Services (the “Regulation”) was released recently, and will come into effect from 1 December 2023. The Regulation includes seven chapters and 63 articles, covering registration and transfer of social insurance, approval and payment of social insurance entitlements, the provision and management of social insurance services, supervision and relevant legal liabilities of social insurance services, etc., and proposed new requirements for employers to manage the employee social insurance compliantly in employment. Among them, the following points are worthy of attention:
1. 建立信息共享機制，便于社會保險機構掌握并比對參保信息：公司登記管理機關將與社會保險經辦機構共享用人單位設立、變更、注銷登記的信息，公安、民政、衛生健康、司法行政等部門將與社會保險經辦機構共享個人的出生、死亡以及戶口登記、遷移、注銷等信息。
2. 強調用人單位及員工的失信風險：人社部門會同有關部門建立社會保險信用管理制度，明確社會保險領域嚴重失信名單認定標準。用人單位、個人等違反社會保險法律、法規等失信行為將會被記錄。
Emphasizing the dishonesty risks of employers and employees: Human Resources and Social Security Department, in conjunction with relevant departments, will establish a credit management system for social insurance, and specify the criteria for identifying the list of subjects with serious dishonest acts concerning social insurance. Violation of social insurance laws and regulations and other dishonest acts of employers, individuals, or other subjects will be recorded.
3. 強調以各項手段騙取社會保險基金支出的法律責任：以欺詐、偽造證明材料或其他手段騙取社會保險基金支出的，相關待遇應責令退回，并處騙取金額2倍以上5倍以下的罰款。
Emphasizing the legal liabilities for defrauding expenditure of social security fund by various means: anyone who defraud expenditure of social security fund by way of fraud, forgery of proof materials or any other means shall be ordered to return the social security funds, and be subject to a fine ranging from two to five times the amount obtained by fraudulent means.
Haiwen Suggestions: In the process of employment, employers shall pay attention to managing the employee social insurance compliantly, and inform the social insurance agencies of changes in their own or their employees’ relevant information timely and truthful, so as to avoid being included in the list of subjects with serious dishonest acts or facing administrative penalties due to illegal or non-compliant behaviors.
二、新規速遞：北京市朝陽區、海淀區將公布勞動人事爭議仲裁裁決書
2017年3月21日，人社部發布《關于進一步加強勞動人事爭議調解仲裁完善多元處理機制的意見》，其中指出實行“陽光仲裁”，逐步實行仲裁裁決書網上公開，接受社會監督。廣東、江蘇等地已于2019年發布了公布仲裁裁決書的相關規則，就勞動人事爭議仲裁裁決書的公布也陸續開展。
On 21 March 2017, the Ministry of Human Resources and Social Security issued the Opinions on Further Enhancing the Mediation and Arbitration of Labor Disputes and Improving the Multi-Dimensional Mechanism for Dispute Resolution, which stated that “ ‘sunshine arbitration’ shall be implemented, and the online release of the arbitration awards shall be gradually realized to invite social supervision.” Guangdong, Jiangsu and other regions have issued relevant rules on the publication of arbitral awards in 2019, and the publication of arbitral awards on labor and personnel disputes has been carried out successively .
Recently, the Beijing Chaoyang District Labor and Personnel Dispute Arbitration Committee and the Beijing Haidian District Labor and Personnel Dispute Arbitration Committee have also issued the Measures on Releasing Arbitration Awards on Labor and Personnel Disputes on the Internet (Trial) (“Measures”) in succession. The Measures provide for the publication of arbitration awards in respect of labor and personnel disputes (“Arbitration Awards”) as follows:
2. 裁決書應當在生效之日起90個自然日內在互聯網公布。
三、典型案例：最高院發布涉民營企業、民營企業家人格權保護典型案例
On 16 October 2023, the Supreme People’s Court issued typical cases concerning protection of personality rights of private enterprises and private entrepreneurs. Among them, Case 4 is related to employment.
In this case, an employee, who had a dispute with the company over labor remuneration after separation, continuously made derogatory and insulting remarks regarding the franchise store operated by the company in WeChat Moments and WeChat group chats.
The court held that the inappropriate remarks were known to the public within a certain range, which led to some members of the public having negative perceptions of the company’s brand store, resulting in a lower social evaluation, and infringing on the company’s right of reputation, accordingly the employee should assume the tort liability in accordance with the law, and therefore the court supported the company’s claim for an apology to be made to the company in the employee’s WeChat Moments.
四、典型案例：天津市發布弘揚社會主義核心價值觀典型案例
On 11 September 2023, the Tianjin High People’s Court and the Tianjin Civilization Office released ten typical cases of carrying forward socialist core values. Among them, the case ten is related to labor and employment.
In this case, the employer installed a camera above the window of a small meeting room twice without the employee’s awareness after arranging for the employee to work in a small meeting room alone. The employee claimed that the employer had violated his/her right to privacy and personal information, and requested that the employer make a public apology, delete the video and files, and compensate the reasonable expenses incurred in defending his/her rights as well as moral compensation.
The court held that employee should accept the employer’s reasonable management at work, and also enjoy the right to inviolability of personality rights and interests. The employer specifically arranged for the employee to work alone in a small conference room, and secretly installed a camera to monitor the employee’s office area, which obviously exceeded the necessary limits of normal management, and to a certain extent damaged the employee’s privacy, so the employee’s request for the employer to make an apology was upheld.
五、典型案例：北京市發布《勞動爭議審判工作白皮書》，重慶市發布八起勞動人事爭議典型案例
On 11 October 2023, the Miyun District People’s Court of Beijing held a press conference, releasing the White Paper on Labor Dispute Trial Work of Miyun Court and informing about six typical cases of labor disputes. We highlight below cases for reference:
In Case 3, the employer failed to complete social insurance transfer procedures within the statutory period after terminating the labor relationship with the employee (due to work-related injuries), resulting in the employee’s employment being terminated by his new employer due to the inability to contribute social security after working for the new employer. The court ruled that the employer should compensate the employee for part of the loss.
· 案例6中，公司單方解除員工，解除通知中載明的解除理由為員工不服從工作安排，但庭審中主張的解除理由為員工存在曠工、遲到早退且不服從公司安排。因庭審中陳述的解除理由與解除通知載明理由不一致，且未提供證據證明，法院認定公司解除勞動合同違法。
In Case 6, the employer unilaterally dismissed the employee, and the dismissal reason indicated in the termination notice was that the employee did not obey the work arrangement. However, the dismissal reasons claimed by the employer in the trial were that the employee was absent from work, late for work, left early and did not obey the employer’s arrangement. As the reasons for dismissal stated in the trial were inconsistent with the reason stated in the notice, and no evidence was provided to prove it, the court concluded that the employer’s termination of the employment contract was unlawful.
On 19 October 2023, the Wanzhou District People’s Court of Chongqing and the Bureau of Human Resources and Social Security jointly held a press conference to announce eight typical cases. The Case 3 also focused on the employment practice of inconsistent reasons for termination.
In case 3, the termination notice issued by the employer did not specify the reason for termination. However, during the trial, the employer claimed that the employee had not followed the employer’s arrangements for expatriate study, etc. The court held that if the employment contract had been terminated, the employer’s later modifications and additions to the termination reasons should not be considered in the case. Therefore, it held that the employer’s termination of the employment contract was unlawful.
Haiwen Suggestions: The right to terminate the employment contract is a formative right, and it would be advisable for employers to specify the corresponding reasons for termination in the notice of termination in accordance with the Employment Contract Law when exercising the right to terminate the employment contract unilaterally. It is difficult to use the reasons for termination that the employer’s subsequent modifications and additions as a basis during the arbitration trial. After the termination of the labor relationship, employers are advised to go through the social security transfer procedures in a timely manner in accordance with the provisions of the law, in order to avoid losses.
六、典型案例：上海市金山區人民法院發布《未簽訂勞動合同類勞動爭議案件審判白皮書》
On 19 September 2023, the People’s Court of Jinshan District of Shanghai held a press conference and released the White Paper on the Trial of Labor Dispute Cases Concerning Unsigned Employment Contracts (2020.01-2023.08) and issued eight typical cases.
The judicial opinions in the typical cases are as follows:
1. 公司和員工簽訂《勞務協議》中約定了工資、崗位、遵守規章制度等內容，具有勞動合同的特征，法院結合實際履行的情況認定成立勞動關系。
The employer and the employee signed a Contract of Service in which they agreed on salaries, positions, and compliance with rules and regulations, which had the characteristics of an employment contract , and the court found that an employment relationship was established in light of the actual performance.
The employee transported goods for a logistics company, and the logistics company failed to prove the fact of affiliation with a third party, the court found that the logistics company and the employee had an employment relationship.
3. 公司方就臨時崗位用工達成建立勞動關系合意，符合以完成一定工作任務為期限的勞動關系特征，法院認定存在勞動關系。
The employer reached an agreement on the establishment of employment on a temporary position, which was in line with the characteristics of an employment with a term of completion of certain tasks, and the court found that there was an employment relationship.
4. 實際施工人的雇員不受發包方全面管理的，法院認定和發包方之間不存在勞動關系。
In the case that the employee of the actual constructor was not under the overall management of the contractor, the court found that there was no employment relationship between the employee and the contractor.
5. 公司在案件審理中注銷的，仍可認定勞動關系存在，相關責任由該公司的股東承擔。
The employer was deregistered during the trial, the employment relationship may still be deemed to exist and the liability shall rest with the employer’s shareholders.
6. 公司就簽訂勞動合同已履行誠信磋商義務后的對應期間，無需支付二倍工資。
The employer would not be required to pay double wages for the period as of it had fulfilled its obligation to consult with the employee in good faith regarding the conclusion of the employment contract.
7. 公司應自用工之日起簽訂勞動合同，試用期間未簽訂勞動合同亦需支付二倍工資。
The employer shall sign an employment contract from the date of employment, and shall pay double wages for the probationary period without signing an employment contract.
8. 勞動合同到期前公司未明示是否續簽，不符合勞動合同期滿終止情況下公司無需支付經濟補償金的情形，仍應支付經濟補償金。
七、典型案例：上海市普陀區人民法院發布十起勞動爭議典型案例
On 15 October 2023, Shanghai Putuo District People’s Court held a press conference and released ten typical cases of labor disputes. Among them, the following cases are noteworthy:
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