Law Fa [2022] No. 36
Supreme People's Court
Opinions on Providing Judicial Services and Guarantees for Stable Employment
Employment is the most basic livelihood of the people.
Persisting in emphasizing and doing a good job in stabilizing employment and implementing the detailed employment priority policy are the internal requirements and important basis for implementing the employment priority strategy.
In order to fully, accurately and comprehensively implement the new development concept, accelerate the establishment of a new development pattern, focus on promoting high-quality development, and better coordinate epidemic prevention and control with economic and social development, we now propose to further play the role of the people's courts in order to serve, guarantee and stabilize the overall situation of employment. Comments below.
1. Promoting the implementation of the employment priority policy, supporting the stabilization of market players and ensuring employment
1. Promote the implementation of the policy of deferred payment of social insurance premiums in stages to reduce the labor burden of employers.
Accept administrative cases caused by the implementation of preferential employment policies in accordance with the law, and resolutely support eligible employers in accordance with the law to enjoy preferential policies such as phased reduction of social insurance premium rates, deferred payment of social insurance premiums, and steady return of unemployment insurance premiums to effectively reduce the burden on employers. The operating pressure and burden of employment, social security, etc. help industries, small, medium and micro enterprises, and individual industrial and commercial households that have been severely affected by the epidemic to resume work and production.
Properly hear administrative cases where employers are ordered to make up payment due to arrears of social insurance premiums, etc., and consider the actual situation of enterprises resuming work and production in accordance with laws and regulations, and can coordinate and resolve them by extending the time limit for making up payment, etc., so as to balance the burden on employers with protecting workers The relationship between legitimate rights and interests, and promote the substantive resolution of administrative disputes.
Properly hear social insurance dispute cases in accordance with the law, the insured unit enjoys the policy of deferred payment of social insurance premiums in stages, and the laborer claims that the employer has not paid social insurance premiums according to law during the deferred payment period, according to the third paragraph of Article 38 of the Labor Contract Law If the labor contract is terminated according to the provisions of this item, the people's court shall handle it prudently in accordance with the law.
2. Promote the implementation of relief policies such as phased reduction or exemption of real estate rents, and support small, medium and micro enterprises to stabilize their employment scale.
Properly try housing lease contract disputes and other cases in accordance with the law, promote the implementation of policies such as phased reduction or exemption of state-owned property rents, guide lessors to reduce or postpone rent collection, reduce the burden on small, medium and micro enterprises and individual industrial and commercial households in accordance with the law, and stabilize the employment scale of small, medium and micro enterprises.
Where small, medium and micro enterprises in the service industry, individual industrial and commercial households, etc., who lease state-owned enterprises or administrative institutions for business operation, request rent reduction or exemption for a certain period of time in accordance with relevant state policies, the people's court shall support it in accordance with the law.
If a lessee who rents a non-state-owned house requests rent reduction or exemption or postponement of payment, the parties may be guided to make a settlement by referring to the relevant rent reduction policy and conditions;
3. Promote the implementation of financial support policies and enhance the employment absorption capacity of the service industry.
Hear financial loan contract dispute cases in accordance with the law, fully consider financial support policies such as postponement of repayment of principal and interest, and increase support for inclusive small and micro loans, and the People's Republic of China for litigation requests for early maturity of loans and termination of contracts filed by financial institutions in violation of financial support policies. The court did not support it.
Wholesale and retail, accommodation and catering, logistics and transportation, cultural tourism and other service industry enterprises, individual industrial and commercial households, etc., due to temporary difficulties in production and operation due to the impact of the epidemic, resumption of work and production, and inability to repay, advocate deferred repayment, installment repayment, and reduction of overdue interest If the interest rate is lowered, the parties concerned shall be actively guided to resolve the dispute through negotiation; if the negotiation fails and the borrower's claim is based on sufficient basis or meets the policy conditions, the people's court shall support it in accordance with the law.
4. Support people who have been lifted out of poverty to stabilize their employment in accordance with the law, and promote the transfer of rural labor force to employment.
In order to consolidate and expand the achievements of poverty alleviation, comprehensively promote rural revitalization, and implement rural construction actions to provide effective judicial services, properly handle traditional disputes in the field of "three rural areas" and disputes in new rural business forms such as leisure agriculture, rural tourism, homestay economy, and healthy elderly care. Handle agricultural-related guarantee financing dispute cases, promote the integrated development of rural industries, and promote the improvement of the employment absorption capacity of rich peasant industries and local characteristic industries.
Deeply promote the effective connection between new-type urbanization and rural revitalization strategies, provide effective judicial services for the transfer of rural labor force to employment, protect rural land contract rights, homestead use rights, and collective income distribution rights of farmers who have settled in cities in accordance with the law, and equally protect their employment, education People's livelihood rights and interests such as housing, medical care, etc., and promote the convenient settlement of agricultural transfer population who have stable employment and life in cities and towns and who are willing to settle down.
Promote the formation of a labor market with equal competition, standardization and order, and unified urban and rural areas, implement equal employment and equal pay for equal work for urban and rural workers, improve the fast-track, quick-trial, and fast-enforcement channels for handling cases of arrears of wages for migrant workers, apply the law and execute beforehand, and promote the improvement of wage arrears Governance of long-term mechanisms to promote the comprehensive integration of agricultural transfer population into cities in accordance with the law.
5. Support the employment of college graduates in accordance with the law and promote flexible employment through multiple channels.
Properly hear cases of disputes over the right to equal employment, rectify employers' failure to recruit and refuse to sign labor contracts due to gender discrimination and regional discrimination in accordance with the law, remove various unreasonable restrictions, and promote equal employment for college graduates, multi-channel flexible employment and entrepreneurship .
Crack down on illegal and criminal activities such as "black job agencies", false recruitment, and selling resumes in accordance with the law, try cases involving employment trainee disputes in accordance with the law, properly determine the legal relationship involving employment trainees, and protect the legal employment rights of college graduates.
For fresh graduates who cannot leave school on time due to the impact of the epidemic, when dealing with related cases, employers should be guided to postpone the time for signing contracts, and the time limit for registration and reception, file transfer, and settlement processing should be extended accordingly.
College graduates who are unable to return to work due to the impact of the epidemic during the probationary period can guide employers to adopt flexible probationary inspection methods to assess whether they meet the recruitment conditions; The assessment purpose period can be negotiated and not counted in the original agreed probation period. If the employer exceeds the statutory probation period limit by extending the probation period in disguise, the people's court will not support it.
Scientifically set up judicial auxiliary positions, deepen the implementation of the standardized and convenient recruitment mechanism for grassroots judge assistants, and smooth the employment channels for college graduates majoring in political science and law to enter grassroots people's courts.
2. Regulate the employment of new employment forms according to the law, and promote the sustainable development of the platform economy
6. Accurately grasp the work requirements for the trial of civil dispute cases in the new employment form.
Promoting the implementation of the "Guiding Opinions of the Ministry of Human Resources and Social Security, the National Development and Reform Commission, the Ministry of Transport, the Ministry of Emergency Response, the State Administration for Market Regulation, the State Medical Insurance Administration, the Supreme People's Court, and the All-China Federation of Trade Unions on Safeguarding Labor Security Rights and Interests of Laborers in New Employment Forms" (hereinafter referred to as the “Guiding Opinions on the Protection of Labor Rights and Interests in New Business Formats”) relevant systems and requirements, strengthen the protection of flexible employment and new employment forms of laborers’ rights and interests, support and standardize the development of new employment forms, rationally identify the responsibilities of platform companies, and support online order delivery and mobile travel Platform companies such as online broadcasting and webcasting have shown their talents in leading development, creating jobs, and competing internationally.
Support laborers to rely on Internet platforms for employment in accordance with the law, support employers to use labor flexibly in accordance with laws and regulations, guide platform companies and laborers to establish institutionalized and normalized communication and coordination mechanisms on labor remuneration, working hours, labor protection, etc., to protect new employment forms of laborers Legal labor rights and interests.
Formulate judicial policies in a timely manner, release typical cases, unify judgment standards, give play to the guiding role of individual case judgments and judicial policies, and promote the formation of a comprehensive management mechanism for new employment forms.
7. Reasonably determine the labor relationship of the new employment form in accordance with the law.
Where a platform enterprise and its employment cooperation unit establish a labor relationship with a worker, a written labor contract shall be concluded.
Where no written labor contract has been concluded and the laborer claims to have a labor relationship with the platform enterprise or the employment cooperation unit, the people's court shall comprehensively consider the degree of the laborer's independent determination of working hours and workload, the labor process and the labor process, based on the employment facts and the degree of labor management. Factors such as the degree of management control, whether employees need to abide by relevant work rules, labor discipline and reward and punishment methods, the continuity of employees' work, whether employees can decide or change transaction prices, etc., shall be prudently determined in accordance with the law.
Where a platform enterprise or a labor cooperation unit requires an employee to register as an individual industrial and commercial household before signing contracts such as contracting and cooperation, or avoids establishing a labor relationship with the employee in other ways, if the employee requests to determine the labor relationship based on the actual performance, the people's court shall Make corresponding determinations according to law on the basis of ascertaining the facts.
8. Strengthen the protection of the legitimate rights and interests of workers in new forms of employment.
If the enterprise does not fully meet the conditions for establishing a labor relationship but manages the labor of its employees, it can protect the rights and interests of employees according to the law in accordance with the relevant provisions of the Guiding Opinions on the Protection of the Rights and Interests of Laborers in New Business Formats.
Protect laborers’ rights to obtain labor remuneration according to the agreement or legal provisions; laborers who complete work tasks overtime or receive negative reviews from consumers due to force majeure, bravery, emergency rescue, and obviously unreasonable workload or labor intensity and other non-subjective factors, advocate If the due remuneration cannot be deducted because of this, the people's court shall support it in accordance with the law.
Promote the improvement of the responsibility sharing mechanism for the damage suffered by workers due to the performance of work tasks.
Determine the effectiveness of algorithmic rules related to labor management in accordance with the law, and protect workers' basic legal rights and interests such as labor remuneration, rest and vacation; algorithmic rules related to labor management do not conform to daily life experience rules, do not consider obedience to traffic rules and other objective factors, or other In violation of public order and good customs, if the laborer claims that the algorithm rule is not legally binding on him or requests compensation for the damage caused by the unreasonable algorithm rule, the people's court shall support it in accordance with the law.
9. Promote and improve the comprehensive management mechanism for employment in new formats.
Properly hear cases of social insurance disputes involving new employment forms in accordance with the law, support the improvement of basic endowment insurance and medical insurance participation methods, and promote enterprises to guide and support new employment forms of workers who do not fully meet the conditions for establishing labor relations, and participate in corresponding social insurance according to their own conditions .
Properly try insurance contract dispute cases in accordance with the law, and promote platform companies to purchase commercial insurance such as personal accident and employer liability to improve the protection level of flexible employment personnel on the platform.
Properly try cases such as motor vehicle traffic accident liability disputes and non-motor vehicle traffic accident liability disputes, reasonably determine the responsibilities of all parties in accordance with the law, promote platform companies to formulate algorithmic rules and regulations that focus on obeying traffic rules and other social orders, and strengthen the compliance of food delivery express employees. Awareness of social order such as traffic rules.
Cooperate with relevant departments to promote industry associations, leading enterprises or enterprise representatives to negotiate with trade union organizations and employee representatives, sign industry collective contracts or agreements, and promote the formulation of industry labor standards; unimpeded the procedures for adjudicating and adjudicating, improving diversified settlement mechanisms, and supporting various types of mediation Organizations, legal aid agencies, etc. provide more convenient, high-quality and efficient dispute mediation, legal consultation, legal aid and other services for new employment forms of laborers in accordance with the law.
3. Properly handle labor dispute cases and protect the rights and interests of both parties in accordance with the law
10. Pay attention to the principle of legal protection.
Actively implement the policy requirements of the state to help enterprises bail out, promote stability and development, and resume work and production, correctly understand and refer to relevant policy documents formulated by relevant administrative departments of the State Council and provincial people's governments, and accurately grasp the new stage of epidemic prevention and control. Various policies, properly handle labor dispute cases involving the epidemic, actively guide employers to negotiate with employees, promote the establishment of harmonious labor relations, ensure that employers resume work and production in an orderly manner, and protect the legitimate rights and interests of workers.
Adhere to the combination of protecting the legitimate rights and interests of laborers in accordance with the law and promoting the stable and orderly development of employers, strive to find the best balance and combination of interests between employers and laborers, protect the legitimate rights and interests of laborers and employment stability, and provide for the survival of employers. Create conditions for development and orderly operation.
11. Properly hear labor contract dispute cases.
If the employer has difficulties in production and operation, and in accordance with the statutory procedures, after discussing with the employee representative meeting or through democratic consultation with the trade union and employee representatives, an agreement is reached on delaying payment of wages within a reasonable period, job rotation and rest, etc., it can be regarded as the right of both parties. basis of the obligation.
In addition to lowering labor remuneration in accordance with the negotiation process in accordance with the law, if the employer arranges for the laborer to provide normal labor through home office or flexible office, etc., if the laborer requests to be paid according to the normal wage standard, the people's court shall support it in accordance with the law.
Properly try relevant cases in accordance with the law, actively guide and support employers and employees to negotiate in accordance with the law, and adopt measures such as salary negotiation, adjustment of working hours, rotation of shifts, and on-the-job training to stabilize jobs.
12. Promote diversified settlement of labor disputes.
Accurately apply the "Opinions of the Ministry of Human Resources and Social Security and the Supreme People's Court on Issues Concerning the Connection between Arbitration and Litigation of Labor and Personnel Disputes (1)", promote the orderly connection between arbitration and litigation of labor disputes, and gradually unify the scope of adjudication and application of laws; Strengthen linkage and cooperation with human resources and social security departments, trade unions, and industry associations, promote reconciliation and negotiation between workers and enterprises, overcome difficulties together, and promote the construction of harmonious labor relations.
For labor disputes that are group, sudden, sensitive, or involving major interests, we should insist on putting the non-litigation dispute resolution mechanism at the forefront, actively promote the governance of the source of litigation, do a good job in risk warning in a timely manner, and cooperate with "mediation, arbitration, and trial" Make efforts to fully protect the legitimate rights and interests of workers and employers.
4. Accurately apply procedural laws and regulations, and protect the exercise of litigation rights in accordance with the law
13. Accurately apply the provisions on extension of time limit.
Where a party applies for an extension of the time limit in accordance with Article 86 of the Civil Procedure Law, it shall comprehensively consider whether to grant it based on changes in the epidemic prevention and control situation and the evidence provided by the party, and protect the party's litigation rights in accordance with the law.
The parties and their litigation representatives are unable to appear in court to participate in the litigation due to the impact of the epidemic. If they meet the conditions, they can carry out litigation activities online in accordance with the law.
If the party delays the time limit for prosecution due to the impact of the epidemic, the delayed time shall be deducted according to law.
If the parties to a labor dispute provide evidence to prove that they cannot apply for arbitration within the statutory arbitration limitation period due to the impact of the epidemic, and claim that the arbitration limitation period is suspended, the people's court shall support it in accordance with the law.
14. Effectively improve the level of litigation services.
For disputes over the resumption of work and production involving enterprises and other market entities, great importance should be attached to the filing, trial, and enforcement of the cases, and they should be handled efficiently and properly in accordance with the law.
Where a party in real difficulty applies for exemption, reduction or postponement of payment of litigation fees, the people's court shall review and make a corresponding decision in a timely manner in accordance with the law; if other judicial assistance is really needed, timely rescue measures shall be taken in accordance with the law.
For market entities in trouble, especially small, medium and micro enterprises, individual industrial and commercial households, etc., take property preservation measures prudently in accordance with the law, timely correct excessive seizures and random seizures in accordance with the law, and adopt flexible litigation property preservation measures or property preservation guarantees. Burden, help resume work and production.
Improve the one-stop multi-dispute resolution mechanism, strengthen online litigation services and Internet trials, continue to promote the separation of complicated and simple cases, and quick trial of simple cases, so that legitimate rights and interests can be realized as soon as possible, various disputes can be quickly resolved in accordance with the law, and litigation costs can be effectively reduced.
Supreme People's Court
December 26, 2022
(Official WeChat of the Supreme Court)