Research On Economic Compensation Under The Situation Of Voluntary Non Payment Of Social Security

When the employee and the employer voluntarily reach an agreement not to pay social security fees after consultation,whether the employee can claim economic compensation from the employer on the ground that the employer has not paid social security fees according to law has become one of the hot topics in judicial practice and theoretical circles.Due to the introduction of different regulations in different places,the same situation will result in different treatment results in different areas,so that the protection of workers’ rights will produce different results in different areas.Generally speaking,the differentiated local norms make the attitude of courts or arbitration institutions towards this issue divided into three aspects,namely,supporting the economic compensation claims of workers in the case of voluntary non payment of social security,conditional support and denial.In the case of "voluntary non payment of social security" in law and judicial interpretation,there is no uniform regulation on the determination and treatment of economic compensation.No matter what position is adopted,it may deviate from the path of legal hermeneutics and "incline" to protect the interests of employers or workers.On the one hand,if the workers violates the principle of good faith or is not due to the employer’s reasons,it is not only against the meaning of Article 38(1)(3)of the labor contract law in form,but also leads to the violation that the laborer’s rights cannot be protected The negative consequences of the intention of labor legal norms.In addition,employers may also use the principle of good faith to evade the legal obligation to pay economic compensation;in the ultimate sense,the legal system of social security can not operate effectively,and social public interests will also be affected.On the other hand,if the enterprise violates the provisions of the social security law or damages the public interest,supporting the workers to claim economic compensation in the case of voluntary non payment of social security fees,there may be mechanical application of legal norms,ignoring the role and fault of the workers and employers in the voluntary non payment of social security fees,which leads to the situation that the main body of labor should not pay social security fees In addition,this position will objectively encourage the workers to advocate the moral hazard of economic compensation and increase the burden of enterprises;at the same time,it will also make the role of workers and employers imbalance in China’s social insurance system.Therefore,in the case of voluntary non payment of social security fees,it is necessary not only to explore a more reasonable mode of judicial regulation based on the existing legal norm system and legal hermeneutics,but also to improve the corresponding administrative regulations from the perspective of effectively eliminating the public law obligation of social insurance payment by private agreement between workers and employers Finally,we can achieve the goal of interest balance between subjects,healthy and sustainable development of social insurance system.