| With regard to the legal remedy for the non-payment of basic pension insurance premiums by employers,China adopts the parallel procedure of social insurance labor remedy and administrative remedy.However,the dual remedy procedure is suspected of confusing the legal relationship between pension insurance and the legal relationship of pension insurance premium collection,which also causes the positive and negative adjudication in judicial practice.In view of this problem,the nature and structure of the legal relationship of basic pension insurance should be rethought.With reference to typical countries in the world,the legal relationship of basic pension insurance is based on the legal relationship between the insurer and the insured in public law,and the relevant relief system is constructed.Considering various theories in foreign countries,the public law debt theory can reflect the social law concept of protecting workers and provide theoretical support for the construction of legal remedy system.In terms of comparative law,the legal remedy system adopted in Germany for disputes over unpaid annuity insurance premiums is based on the relationship of public law debt,which provides inspiration for the construction of China’s system.From the current situation of China’s system,the existing legal remedy procedures cannot give full play to the effectiveness of the rights and interests of the remedy,which not only causes serious damage to the legitimate rights and interests of the workers,but also infringes on the social insurance fund and even damages the social public interests contained therein,which undoubtedly deviates from the original purpose of the social law concept of mutual help and cooperation among the social community.Therefore,it is necessary to reconstruct the relief system in China.The specific relief system should be improved from the following aspects: firstly,the labor relief procedure should be separated from the pension insurance dispute.Secondly,the administrative relief procedure in the public field should be improved,i.e.,through refining the procedure of workers’ right to supervise,establishing the antecedent relief procedure for pension insurance disputes,and constructing the special administrative dispute handling procedure,etc.,as a real relief way to solve the problem of unpaid pension insurance premiums,specifically,when the employer fails to insure the workers according to the law,the workers can confirm the existence of the pension insurance legal relationship through the antecedent relief procedure.When the employer fails to pay the workers’ pension insurance premiums,the workers can exercise the right of supervision: if the workers exercise the right of supervision,the workers are deemed to have fulfilled their personal obligation to pay the premiums first,and they should obtain the right to claim the pension benefits.Finally,if the social insurance agency is negligent in its duty to confirm the legal relationship or to pay the premiums,the workers can remedy their rights through special administrative dispute procedures. |
