Case saying: Paying social security does not constitute a labor relationship, and corporate risks are greater!

Trading social insurance is an important evidence to confirm whether the labor relationship between the labor relationship between the labor and management, but it is not a decisive evidence. If it can be proved that only by paying social insurance through an affiliation, it can prove that there is no labor relationship. Such a statement is a bit mouthful, then you can intuitively explain the legal logic in the middle through an example.

On the evening of March 30, 2019, a man had a traffic accident while driving a two -wheeled electric motorcycle, and he died after rescue. The death man was called Qiao Moumou, who worked in a residential construction site in Pingdu City during his lifetime.

The family members of the deceased Qiao Moumou had a dispute with Qingdao Pingjian Construction and Installation Co., Ltd. (hereinafter referred to as Pingjian Company) while dealing with the funeral. Pingjian Company denied it, so the two sides paid for the book.

The reason for the dispute comes from the slightly complicated relationship between the two parties: after Pingjian Company contracted the project, he was subcontracted to Mr. Liao, while Qiao Moumou and others followed Mr. Liao to work. Among them, Pingjian Company traded social security for Mr. Liao, and the salary of Qiao Moumou and others was issued by Mr. Liao.

Qiao Moumou's family believes that Qiao Moumou and Liao Moumou are employees of the company.

The evidence they took out was from the public announcement of the construction site. It showed that Qiao Moumou was the head of the Wareman and Mr. Liao was the head of the material area. The family members believe that the Pingjian Company has always been a trading insurance for Liao Moumou, which is enough to prove that Liao Moumou is not a subcontracting project, but an employee of Pingjian.

Qiao Moumou's family claims that according to the principle of "who advocates and who proof", if the company cannot provide evidence, it proves that Mr. Liao subcontracts part of the project contracted by Pingjian Company, such as the subcontracting agreement, etc. The unsatisfactory legal consequences are admitted that Mr. Liao is their employee.

If Mr. Liao is an employee of Pingjian Company, he pays the salary for Qiao Moumou and others to perform his duties. Qiao Moumou and Pingjian Company have a de facto labor relationship.

Pingjian Company did travel social security for Mr. Liao, and could not get a subcontracting agreement, but they had other evidence.

The first is the wages of Pingjian Company. There is no record of Mr. Liao in the 8 -month -old working employee salary panel; second is the account that Mr. Liao issued salary to Qiao Moumou and has no transaction flow with Pingjian Company. Third, the account that Mr. Liao paid a salary is his personal life account. The flowing water includes both the above -mentioned transactions and a large number of personal consumption records. The characteristics of operation; fourth, Mr. Liao has many records of paying to Pingjian's account account, indicating that Mr. Liao, the funding department involved in the project involved in the case, remitted it into the Pingjian Company account for public payment settlement.

The company advocates that Mr. Liao belongs to the project independently and is not an employee of the company. There is no affiliation between the two parties. As for the issue of social security, the company admits that it is very common for local construction personnel and engineering contractors to be attacked by a relatively familiar unit to insure.

After trial, the court believed that paying social insurance was not enough to determine the existence of labor relationships. Combined with the evidence provided by Pingjian Company, Mr. Liao could be determined that Mr. Liao was not an employee of Pingjian Company. Although Qiao Moumou worked on the construction site of the Pingjian Company, it can be determined through the relevant evidence that Qiao Moumou is the employee of Mr. Liao and pays the monthly pay by Mr. Liao.

Therefore, the court finally judged that there was no labor relationship with the company with Pingjian.

The law stipulates that the premise of establishing a labor relationship between the two parties is that there are employment behaviors, that is, workers provide labor for employers. If there is no employment behavior, it cannot be proved that the two parties have established labor relations with the behavior of social insurance.

However, the law also stipulates that workers must sign a labor contract and have labor relations with employers in order to pay social insurance through the unit. If the two parties do not establish a labor contract relationship, they will not be allowed to be legally allowed to trademark social security through an affiliation. Here are a reminder that local social security has a social security method for individuals who are flexible employment. Individuals do not have to find third parties to pay for payment. They can pay directly by themselves. The cost is less. Moreover, since March 18, 2022, the administrative supervision measures of the Social Insurance Fund are officially implemented. Personal affiliation paying social security is illegal, and there is a great risk.

Of course, the risk of paying social security in enterprises is greater, because the human -social department has clearly been suspected of illegal and violations of the insurance and insurance conditions for insurance participation conditions, and the punishment is gradually being implemented. A case announced in 2021 shows that a Beijing company adopts a fictional labor relationship. For 36 maternal women who do not have the conditions for insurance, they pay maternity insurance in the name of the company's employees. punishment.

Text/Li Jinwen

Edit: Xiao Hualin

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