2023-11-20
海问劳动法双月报（2023年9-10月）
作者：
刘宇翔
吴琼
Summary
小编英文论文
政策法规梳理：《世界 商业保险行业💝经办条列》发布的，对用工标准的员工♏辞职世界 商业保险行业合法合规菅理入宪新要
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
最新政策快递：天津市朝阳区区、海淀区将颁布劳作人资争执仲载裁定书
Quick View of New Regulations: Beijing’s Ch💖aoyang and Haidian Districts Will Release Arbitration Awards on Labor and Personnel Disputes
先进明显真实案例分析库：最高的人院公布涉私营化公司🥀、私营化公司家人格结构权🍒保护区先进明显真实案例分析库
典型案例：广州市市正式发布传承社会生活注意重点使用社会价值观其最典型的成功案例
典范真实应用案例真实应用案例：郑州市发布消息的《劳动课就业争执裁决运行市场研究报告》，天津市发布消息的八ꦜ起劳动课就业病员是争执典范真实应用案例真实应用案例
明显应用案例：沪市金山里人民群众法院执行发布消息🎀《未履行劳功者合同说明类劳功者争执安件民事发展报告》
Exploration of Ty🧜pical Cases: Shanghai Jinshan District People’s Court Released White Paper⛄ on Trial of Labor Dispute Cases Concerning Unsigned Labor Contracts
典范例：西安市市杨浦区区我们区法院发布了十起劳动课热议典范例
Exploration of Typical Cases:🃏 Shanghai Putuo District People’s Court Released Ten Typical Cases of Labor Disputes
《社会生活安全经办的规则》（“《的规则》”）于去年对外公布，并将自202五年110月1日起颁布实施。《法规》共七章63ꦍ条，介绍触及中国发展中的存在商业保费登记好和转回、中国发展中的存在商业保费的权利核准和缴付、中国发展中的存在商业保费经办服务质量和的工作、中国发展中的存在♔商业保费经办督察及涉及到的民事法律职责等地方，对选拔人才标准在劳功劳动力过程中 中的财务人员中国发展中的存在商业保费合规经营的工作提出来了新的规范。这之中，下面重要环节引起观注：
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, theܫ 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 attenti༒on:
1. 确立相关数据讯息数据服务体系，有利市场商业保费费用结构了解并核查参加相关数据讯息：我司记录经营企事业标准将与市场商业保费费用经办结构数据服务管人标准兴办、变更登记表备案、销号记录的相关数据讯息，警方、民政、卫生卫生、🍌司法行政机关行政机关等行业将与市场商🍨业保费费用经办结构数据服务个体的生、消失或者迁户口记录、知识、销号等相关数据讯息。
2. 特别指出择人之长行业及店员的老懒被执行人被执行人风险分析：人社政府岗位跟想关政府岗位制定生活人寿人身险每个人方法律规范章制度，ไ明晰生活人寿人身险范畴造成老懒被执ꦜ行人被执行人花名册查证规范。择人之长行业、每个人等情节严重生活人寿人身险法律专业、法律规范等老懒被执行人被执行人犯罪行为可能会被数据。
Emphasizing the dishonesty risks of employers and employee♕s: 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 socﷺial insurance. Violation of social insurance laws and regulations and other dishonest acts of employers, individuals, or other subjects will be recorded.
3.𝔉 推崇以某项的方法获取社会生活上商业保险服务货币股票基金教育支出费用的法津负责：以欺诈罪、虚假说明资料或其它的的方法获取社会生活上商业保险服务货币🍎股票基金教育支出费用的，涉及到员工待遇应勒令撤回，处以获取票额2倍以上的5倍下述的罚钱。
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 emplo♐yment, 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 subje𝓡cts with serious dishonest acts or facing administrative penalties due to illegal or non-compliant behaviors.
二、新规速递：北京市朝阳区、海淀区将公布劳动人事争议仲裁裁决书
20🅷17年3月21日，人社部上传《关于幼儿园进那步不断加强劳动力人士法律纠纷纠纷调解劳动仲裁逐步完善块解决逻辑的一件》，进来认为推行“太阳光诉讼”，逐层履行诉讼仲裁书在线开放，受到社会发展进行监督。关东店南街、沙漠风等地已💟在2019年上线了每天劳动仲裁庭劳动仲裁书的相关联规定，就劳动课人士热议劳动仲裁庭劳动仲裁书的每天也将要搞好。
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 ඣDispute Arbitration Committee have also issued the Measures on Releasing Arbitration Awards on Labor and Pers🌌onnel Disputes on the Internet (Trial) (“Measures”) in succession. The Measures provide for the publication of arbitration awards in respect of labor and personnel disputes (“A🦩rbitration Awards”) as follows:
2. 栽决书应由在有效哪日起90个那自然工作日在互连网每天。
三、典型案例：最高院发布涉民营企业、民营企业家人格权保护典型案例
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 gro𒁃up cha🧸ts.
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 cඣompany’s claim for an apology to be made to the company in the employee’s WeChat Moments.
四、典型案例：天津市发布弘扬社会主义核心价值观典型案例
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. Amℱong 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, delᩚᩚᩚᩚᩚᩚᩚᩚᩚ𒀱ᩚᩚᩚete 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：北京市发布《劳动争议审判工作白皮书》，重庆市发布八起劳动人事争议典型案例
ꦉOn 11 October 2023, the Miyun District People’s Court of Beijing held a press conferenc▨e, 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 complet🐷e social insurance transfer procedures within the stꦚatutory 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，公司单方解除员工，解除通知💫中载明的解除理由为员工不服从工作安排，但庭审中主张的解除理由为员工存在旷工、迟到早退且不服从公司安排。因庭审中陈述的解除理由与解除通知载明理由不一致，且未提供证据证明，法院认定公司解除劳动合同违法。
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 noti👍ce, 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 Co♑urt 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 emꩵployment 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 employme♒nt 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：上海市金山区人民法院发布《未签订劳动合同类劳动争议案件审判白皮书》
On 19 September 2023, the People’s Court of Jinsha💟n 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 cas꧟es.
The judicial ✅opinions in the typical cases aꦺre as follows:
1.♌ 我司和人签订的《劳务🌳派遣协议范本》中施工单位了工资收入、部门、认真执行章程管理机制等内容，有着劳动就业就业劳务合同的的特点，司法局融合预期进行的情況认为注册劳动就业就业关系的。
The employer and the employee signed a Contract of Service in which they agreed on salaries, positions, and compliance with rules and regulations, which h😼ad the characteristics of an employment contract , and the court found that an employment relations﷽hip 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 thir♛d party, the court found that the logistics company and the employee had an employment relationship.
3. 我司方就♛临时仓库部门劳功力形成创建劳功相互的联系合意，合乎以到位相应工作的任務期为限的劳功相互的联系特性，执行局认证现实存在劳功相互的联系。
♌The employer reached an agreement on the establishment of employment on a temporary position, which was in line with the characteristics of an emp🐭loyment with a term of completion of certain tasks, and the court found that there was an employment relationship.
4. 具体情况工程人的员工不在发包方进一步监管的，检察院判定和发包方区间内不有劳动力感情。
In the case that the employee of the actual constructor was not under the overall management of the contractor, the cou♚rt found that there was no employment relations♊hip between the employee and the contractor.
5. 子单位在犯罪案件审核中撤销的，仍可确定劳动课内在联𝓰系都存在，有关系🐼担责由该子单位的公司股东负担。
The empl༺oyer was dereg🐈istered during the trial, the employment relationship may still be deemed to exist and the liability shall rest with the employer’s shareholders.
6. 子公司就签合约劳功合约已承担守信谈判义务权利后的代表前三天，不要收款二倍公资。
The employer would not be requir✨ed to pay double wages for the period as of it had fulfilled its obligation to cons🦩ult with the employee in good faith regarding the conclusion of the employment contract.
7. 平台应使用工的那一天起起签署协议协议劳功纸质合同协议，使用期间里未签署协议协议劳功纸质合同🦩协议亦需给二倍工资收入。
The employer shall sign an employment contract from the date ꦜof employment, and shall pay double wages for th💯e probationary period without signing an employment contract.
8. 工作配资合作合同过期前机构未明确要不要续签，对不上合工作配资合作合🍸同到期结束症状下机构不能不付款城市发展拆迁补尝金的具体行政行为，仍应付𒐪款城市发展拆迁补尝金。
七、典型案例：上海市普陀区人民法院发布十起劳动争议典型案例
On 15 October 2023, Shanghai Putuꦐo District People’s Coꦜurt held a press conference and released ten typical cases of labor disputes. Among them, the following cases are noteworthy:
