What should I do if I have not paid enough pension insurance and cannot enjoy retirement benefits?

Author | Wang Hongting Lawyer

Introduction - "Due to the unpaid pension insurance period, I cannot enjoy retirement benefits. How can I get relief?"

Recently, a party consulted a question: "The company has interrupted the pension insurance for several years, resulting in the inability to enjoy retirement benefits". How should I claim my rights and interests?

First of all, it is clear that the collection and payment of social insurance premiums is the responsibility of the social security collection agency. Disputes arising from the employer's non-payment or refusal to pay social insurance premiums do not fall within the scope of civil cases in the people's court. That is to say, if the employer is only required to make up social insurance, it should file a complaint with the social insurance premium collection agency, and the agency will order it to pay or make up within a time limit.

However, in practice, when workers reach retirement age, they are usually unable to apply for retirement and receive social insurance benefits due to the employer's failure to pay social insurance during the duration of the labor relationship, or the lack of payment years, or the insufficient payment base, or the existence of missed payments.

This article will be combined with the current judicial practice of the referee point of view and thinking, for the guide to analyze the problem, so that more people understand the legal provisions.

Nature of the case

This type of case belongs to the category of labor disputes. If you need to seek relief, you should file a labor arbitration with the labor arbitration committee at the place where the employer is located or the actual place of work. If you are not satisfied with the arbitration result, you can file a lawsuit with the people's court.

[Legal provisions]

Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (1) Article 1: The following disputes between laborers and employers are labor disputes, and if the parties do not accept the ruling made by the labor dispute arbitration institution and file a lawsuit according to law, the people's court shall accept them:

(5) Disputes in which the laborer requires the employer to compensate for losses on the grounds that the employer has not handled the social insurance formalities for him and the social insurance agency cannot make up for it, resulting in his inability to enjoy social insurance benefits;

(6) Disputes between workers and former employers who have not yet participated in social insurance pooling due to claims for pensions, medical expenses, work-related injury insurance benefits, and other social insurance benefits after retirement;

Interpretation by case

Case 1: Wei asked the company to compensate 288,650 yuan for the loss caused by the failure to pay pension insurance fees from 2007 to 2018 and the inability to make up for it.

In this case, the company has gone through social insurance procedures for Wei.And Wei also acknowledges that the company has paid the pension insurance for him from January 2019 to October 2020Therefore, Wei is now claiming compensation for the economic losses caused by the company's failure to pay the pension insurance fees from 2007 to 2018, which does not meet the scope of acceptance of labor dispute cases that should be accepted by the people's court as stipulated in the above law.

Therefore, Wei's lawsuit request is not supported.

Case 2: The plaintiff joined a company in 2003, and the defendant began to pay pension insurance for the plaintiff in July 2006 until retirement. When the plaintiff went through retirement in 2019, he found that the payment period of his pension insurance was insufficient, and he could not enjoy the retirement pension benefits, and he needed to delay the retirement pension for 2 years. Therefore, the defendant was required to compensate for the loss of not being able to enjoy the retirement pension during this period.

[The judge held that] the people's court must meet certain prerequisites for accepting this type of dispute, that is, the employer has not handled social security formalities for the laborer, and the social insurance agency cannot make up for it, so it cannot enjoy social insurance benefits. In this case, although the plaintiff failed to enjoy retirement benefits for 2 years due to the defendant's problems, there were losses.

However, according to the facts found, the defendant has opened a social security account for the plaintiff, and has paid part of the pension insurance, work injury insurance, etc. for the plaintiff.It is just that the social security has not been paid for the full number of years, which does not belong to the situation of "failure to go through social insurance procedures" as stipulated in the above lawTherefore, the dispute in this case does not fall within the scope of trial of this court, and the plaintiff's appeal is rejected.

Review points

From the above legal provisions and cases, it can be seen that the main points of review for this type of case lie in the following three points:

1. The employer has never participated in basic pension insurance for the worker, or has never handled social insurance procedures for the worker.

In both of the above cases, the workers sued the company for compensation for the loss of their retirement benefits due to the suspension of social security payments and the inability to make up for it. However, the defendant company in the case did not handle social insurance formalities for the workers. In fact, the defendant companies had purchased pension insurance for the workers for a certain period of time, but only cut off the pension insurance for a certain period of time. Therefore, it does not belong to the interpretation of the Supreme People's Court on the application of law in the trial of labor dispute cases (1) Article 5 (see the above-mentioned law for details). Therefore, the court will not accept the claims of the two plaintiffs.

2. After a clear reply from the relevant social insurance agency, it cannot be reissued;

In addition, for the issue of "not being able to make up social security", you can't just consult the social security institution and get a verbal reply, thinking that the iron plate DingTalk will definitely not be able to make up. For this piece, the social security institution needs to give a clear written reply, such as the "Notice of not being able to make up social security insurance", otherwise it may make the court think that the worker's evidence cannot be provided, and therefore will not support the worker's appeal.

3. Workers have reached the legal retirement age and cannot enjoy social security benefits due to their inability to make up social security contributions.

Losses are based on actual occurrence. If a worker believes that the company's failure to pay social security may harm his or her enjoyment of pension benefits after retirement, he or she will directly sue the company for liability. If such future expected losses do not actually occur, the court will not support them.

Practice summary

Combined with relevant legal provisions, in order to avoid similar losses in the future, the author summarizes the main points in practice as follows:

1. If the employer has gone through social insurance procedures for itself, it should no longer sue for labor disputes to avoid being rejected by the court.In reality, most of the cases are only the employer's *** years of social security, not never for the workers to handle social security procedures, for this situation is not in line with the provisions of the above law.

If the employer has never handled relevant social insurance procedures for the worker, and because of its failure to pay social security, it could have enjoyed retirement benefits, but cannot enjoy them because it cannot make up for it, it can sue the company for compensation upon learning that it cannot enjoy retirement benefits.

2. If the employer refuses to make up the payment, and the final worker makes up the payment by himself, he can recover the expenses that should be borne by the employer.In this regard, there may be situations where the employer refuses to cooperate with the supplementary payment. At this time, if the worker pays the social insurance by himself, including the part that should be borne by the employer, he can recover from the employer. This does not require the employer to bear the loss of its inability to enjoy social insurance benefits.

It is necessary to distinguish the legal relationship between the two.

3. If the amount of loss cannot be determined, you can apply to the court to entrust the relevant social security department to calculate the social insurance premiums such as pension insurance premiums and medical insurance premiums that the worker should pay during the working period of the company before reaching the legal retirement age, and determine the corresponding losses based on the results of the calculation.

Due to the complex laws and regulations on which the calculation of social insurance losses is based, and the rules for calculating insurance benefits for different insurance items are too professional, it is possible to apply to the court for reference to Article 4 of the "Notice on Issues Concerning the Improvement of Basic Endowment Insurance Policies for Urban Employees" and Article 3 of the "Several Provisions of the Social Insurance Law of the People's Republic of China" implemented by the Ministry of Human Resources and Social Security of the People's Republic of China. After the consent of the laborer, the local human resources and social security department shall be entrusted to calculate the social insurance premiums such as endowment insurance premiums and medical insurance premiums that the company should pay during the working period of the laborer, and the amount of social insurance losses shall be determined according to the measurement results

Relevant legal provisions

"Labor Law of the People's Republic of China"(Revised in 2018)

Article 100 If an employer fails to pay social insurance premiums for no reason, the labor administrative department shall order it to pay within a time limit; if it fails to pay within the time limit, a late fee may be added.

"Social Insurance Law of the People's Republic of China (2018 Amendment) "

Article 16 An individual who participates in the basic old-age insurance shall receive a basic pension on a monthly basis if the accumulated contributions have reached the statutory retirement age for 15 years.

Individuals who participate in basic endowment insurance who have paid less than 15 years of accumulated contributions when they reach the legal retirement age can pay for 15 years and receive a basic pension on a monthly basis; they can also transfer to the new rural social endowment insurance or urban residents' social endowment insurance, and enjoy the corresponding endowment insurance benefits in accordance with the provisions of the State Council.

"Notice of the Ministry of Labor and Social Security on Issues Concerning Improving the Basic Endowment Insurance Policy for Urban Employees"

Article 4: Farmer contract workers who participate in pension insurance shall, after terminating or terminating their labor relationship with the enterprise, retain their pension insurance relationship by the social insurance agency, keep their personal account and calculate interest. Anyone who re-employs shall continue or transfer the pension insurance relationship; they may also, in accordance with the provisions of the provincial government, upon the application of the farmer contract worker himself, pay the personal contribution part of his personal account to him at one time, and terminate the pension insurance relationship at the same time. Anyone who re-employs shall re-participate in the pension insurance.

Farmer contract workers who have reached the age of 60 for men and 55 for women and have accumulated contributions for more than 15 years may receive basic pensions according to regulations; if the accumulated payment period is less than 15 years, the entire amount stored in their personal accounts shall be paid to them at one time.

"Implementing Several Provisions of the Social Insurance Law of the People's Republic of China"

Article 3: After participating in the basic pension insurance for employees reaches the legal retirement age, if the accumulated contributions are less than 15 years (including the extension of contributions in accordance with Article 2), they may apply for transfer to the new rural social endowment insurance or urban resident social endowment insurance where their household registration is located, and enjoy the corresponding endowment insurance benefits.

After participating in the basic pension insurance for employees reaches the legal retirement age, if the accumulated contributions are less than 15 years (including extended contributions in accordance with Article 2), and have not been transferred to the new rural social pension insurance or urban residents' social pension insurance, the individual may apply in writing to terminate the basic pension insurance relationship for employees.

After receiving the application, the social insurance agency shall inform in writing of its right to transfer to the new rural social endowment insurance or urban residents' social endowment insurance and the consequences of terminating the basic endowment insurance relationship for employees. After being confirmed in writing, the social insurance agency shall terminate the basic endowment insurance relationship for employees and pay the personal account storage amount to the individual at one time.

Lawyer Profile

Wang Hongting Lawyer

Secretary General of Marriage and Family Department of Zhiheng Marriage Family Affairs and Wealth Inheritance Center

Contributor of Shenzhen Lawyers Association

Areas of expertise:

Marriage wealth, corporate governance

Civil and commercial affairs, infringement, labor disputes

Bankruptcy liquidation and other litigation and non-litigation services

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