Study On The Legal Effect Of Waiver Of Social Security Payment By Agreement

There is a legal proverb in Anglo-American law: the law should not allow anyone to profit from his own wrong.However,in recent years,the frequent occurrence of labor contract disputes has challenged this syntax.The 72 nd regulation of our country labor law,unit of choose and employ persons and laborer must attend social insurance lawfully,pay social insurance premium.Article 38 of labor contract law stipulates unit of choose and employ persons does not pay social insurance premium for laborer lawfully,laborer can dissolve labor contract.However,after a few laborer and unit negotiate to abandon labor insurance voluntarily,claim compensation gold and other appeal to the unit again.Courts are caught in a dilemma in dealing with such cases--if they support the workers' claims,they support their dishonest behavior;If you do not support it,you will violate the principle of invalid contract.According to data provided by an investigative report,the actual decisions in the cases were almost evenly split(51% were that employers were not required to pay financial compensation for nonpayment of social security).There are great differences between judicial practice and local standard documents in determining the validity of such agreements,and there are also great differences of opinions in academic circles.Whether from the perspective of value judgment,normative jurisprudence or legal interpretation method,the validity of affirmative waiver is more reasonable.From the perspective of value judgment,taking the validity affirmation can not only achieve the effect of interest balance,but also achieve the effect of social control.From the perspective of normative jurisprudence,the labor law,as a department of law between public and private law,should follow the principle of relative effectiveness of private law ACTS that violate mandatory norms in private law,so as to confirm its effectiveness for those parts that do not involve public interests.From the point of view of the method of legal interpretation,taking effect affirms that it neither deviates from the labor contract law,but also pursues the fairness and justice of the law by giving play to its subjective initiative of legal interpretation.Finally,when dealing with such cases,the judicial organ can directly apply the principle of good faith,and make a positive judgment on the effect of the waiver clause on the premise of confirming the authenticity of the parties' intention.Of course,the confirmation of the effect of voluntary abandonment of insurance among individuals does not constitute the basis for evading the punishment of public law.The social security clauses can be used to safeguard social interests by investigating the legal responsibilities of relevant employing units through labor supervision departments.