Practical Dilemma And System Reconstruction Of Social Insurance Dispute Resolution In China

In recent years,with the standardization of labor relations and the improvement of workers' awareness of social insurance,social insurance disputes in the field of labor law have increased year by year.However,in practice,there is a lot of confusion about the treatment of social insurance disputes.The confusion is specifically manifested as follows:at first,there are differences in the scope of the case between the labor dispute arbitration tribunal and the court;on the second,the poor connection between the tribunal and the court on the rules for the certification of social insurance disputes;third,whether the employers should make up for social insurance premiums after compensating the damages.The inconsistent and unclear rules of social insurance disputes in the current legislation of our country are the institutional reasons for the confusion.Article 2 of the "The Law of Mediation and Arbitration to Labor Disputes" stipulates that social insurance disputes are labor disputes,but "Judicial Interpretation three of Labor Law" stipulates that the dispute that the employer fail to pay social insurance premiums or not in a timely manner is no longer belongs to court.The scope of the current legislation lacks provisions on the convergence of evidence at the arbitration and trial stage;the scope of the employer's liability is unclear and unreasonable.These regulations have led to the emergence of disjoint judgments or different judgments in the same case in the practice of social insurance dispute handling,and the social insurance rights relief of workers has encountered institutional difficulties.The contradictions and dilemmas in the current system are due to the inconsistency and qualitative inaccuracies of legislators 'understanding of social insurance disputes in different legislative thinking.Therefore,in order to solve the problems in the current system we need to clarify the nature of the social insurance relationship first.Fundamentally the social insurance relationship is essentially the administrative relationship between the social security administration and workers.Social insurance disputes should be defined as administrative disputes between the insurer and the insured due to the payment of social security benefits.In case of damage,the worker may use administrative reconsideration,administrative litigation etc.to provide social insurance rights relief.However,disputes between employers and workers based on social insurance are not within the scope of labor disputes.When there is a situation thatworkers' interests damaged due to employer 's failure paying social insurance premiums,the laborer should complain and report the situation to administration,and then chooses administrative reconsideration or administrative litigation against the administrative decision after the social security administrative agency makes an administrative decision.In terms of perfecting specific systems,first of all,the scope of the system of accepting cases should be regulated,and administrative litigation channels should be selected to resolve social insurance disputes according to the nature of social insurance;secondly,the rules of evidence should be clear,and the employers should be defined as the role of auxiliary man.The obligation of the institution to provide evidence is to allocate the burden of proof between the laborers,the employers and the social security administrative agency according to the specific circumstances of the cases;thirdly,to rationally allocate the employer's social insurance responsibilities,after the employer has assumed the responsibility for the payment of social insurance premiums.When the social insurance relationship is traced back to the time when the labor relationship was established,the social security administrative agency shall bear the responsibility for the payment of social security treatment,so as to realize the legislative purpose of protecting the rights and interests of workers.