Penalty For Damages For Non-payment Of Social Security By The Employer

Employers and employees have a vertical management relationship in terms of employment status,so the usual practice is to adjust them through labor dispute norms such as the Labor Contract Law and the Labor Dispute Mediation and Arbitration Law.As an independent departmental law,the labor law norm also has its supporting compensation mechanism in specific application,such as economic compensation,one-time compensation for work-related death,which may have the characteristics of labor management and subordination,emphasizing the protection of labor rights and interests.The rights and interests of labor-management relations are measured,but there is still a risk that the accusation of misconduct will not be able to completely damage compensation.There are two overlapping areas where the law applies in disputes over non-payment of social insurance.First,the employer’s payment of social insurance for workers stems from the mandatory obligations in the Social Insurance Law and the Labor Law.In the case of termination of labor relationship or flexible employment,employees will still have disputes over nonpayment of social security with employers.Therefore,some scholars doubt that disputes over non-payment of social security are labor disputes;Since then,labor law has been regarded as an independent part of the law,and it has been separated from civil law,but in practice,there is a normal phenomenon of applying civil law norms in labor disputes.The reasoning and proof are a little bit simplistic.Although the opinions and theories of adjudication caused by the two types of intersections are very different,considering the closeness of handling social insurance and employment management,it is not appropriate to prematurely deny the disputes over nonpayment of social insurance as labor disputes,and in the application relationship between civil law and labor law,the phenomenon of staggered application can also cause enough attention in theory.Like a mirror image presented from multiple perspectives,the equal civil subject status outside the relationship between employers and employees is easily overlooked,and private law remedies can also be sought when employees’ civil rights and interests are damaged.Whether the employer is responsible for economic compensation and other responsibilities under the labor law,and whether the act constitutes a tort can be investigated at different levels.When the employer fails to pay social insurance and causes considerable losses to the employee,the employee can be liable for infringement under the Civil Code.Title 1165 is the basis for the right of claim.The factors that need to be considered in determining the establishment of the employer’s tort liability are: the equivalence of causality,the seriousness of the damage,and whether the fault presumed by "violating the law on the protection of others" has the possibility of contradicting evidence.When determining the scope of compensation of the employer,attention should be paid to the possibility of complete compensation,and the infringed rights and interests are relative.Compensation for mental damage is generally not involved after the relative rights and interests are damaged,and this should not be supported;when calculating losses,attention should also be paid to the application of the principle of prohibition of profit,such as the deduction of social security contributions payable by employees.