Author: Wang Daoyong Lawyer Arbitrator Partner Senior Engineer Cost Engineer
is written in the first place:
Construction and installation labor insurance premium is the labor insurance premium for construction and installation projects, that is, social insurance for construction workers and migrant workers. The practices and policies of different places are different. Taking the Gui Zhengfa [2019] No. 20 issued by Guangxi on May 6, 2019 as an example, the document stipulates that "from May 6, 2019, the construction and maintenance labor insurance premiums will no longer be paid to the construction and maintenance labor insurance premium management agencies and financial departments at all levels, and the project construction unit will directly pay to the construction and construction enterprises in accordance with relevant regulations. Construction and construction enterprises must pay social insurance premiums in full to the social insurance premium collection agencies in accordance with relevant regulations." In practice, construction companies and contractors rarely pay social security to migrant workers, and the project cost includes this amount of money. Both construction companies and contractors want it. Who should they give it?
1. Case index
Supreme Court "Civil Ruling on Retrial and Review of Civil Application for Disputes of Civil Application for Civil Application for Disputes in the Fourth Metallurgical Construction Co., Ltd., Guangxi Branch of China Fourth Metallurgical Construction Co., Ltd.", Case No. (2021) Supreme Court Minsheng No. 1762, judges Zhu Ke, Yu Ming, Jia Qinglin, case release date May 26, 2022.
2. Case introduction
contractor : Huaqiang Investment Company
contractor: China Siye Company, China Siye Guangxi Branch
actual construction workers: Chen Zhichao, Li Rinan
Second Instance ( Guangxi High Court ) ruled to include all the labor insurance premiums involved in the case in Li Rinan and Chen Zhichao in the project funds. Li Rinan and Chen Zhichao have neither business license nor construction qualifications. China Siye Company and China Siye Guangxi Branch claimed that the bills to pay social security for the engineering personnel involved in the case should be determined based on the amount of the bills provided by Li Rinan and Chen Zhichao, and the amounts to be allocated to Chen Zhichao and Li Rinan in the labor insurance premiums should be determined based on the amount of the bills.
Controversy focus: Is the Guangxi High Court correct in awarding Li Rinan and Chen Zhichao to Li Rinan and Chen Zhichao?
3. Judgment summary
1. According to the application of China Siye Company and China Siye Guangxi Branch, the second instance court entrusted Guangxi Xinda AIA Engineering Cost Consulting Co., Ltd. (hereinafter referred to as the consulting company) to conduct cost appraisal of the project involved in the case. On March 27, 2020, the consulting company issued the "Nanning Second Middle School ASEAN Campus Teacher Service Center and Nanning Second Middle School ASEAN Campus 2# Student Dormitory Project Cost Appraisal Report" (hereinafter referred to as the "Appraisal Report").
2. According to the contents of the reply letter issued by China Metallurgical Corporation and China Metallurgical Guangxi Branch on January 7, 2015 on the "Letter to your company for confirming the project settlement principles and paying the project payment as soon as possible for the "Nanning Second Middle ASEAN Campus" project" to Chen Zhichao and Li Rinan, it can be seen that before the consulting company issued the "Appraisal Report", the settlement amount of the project price was not finalized. The reply letter also states that regarding the allocation of "Kangan Labor Insurance Premium" is based on the settlement amount of both parties, and is calculated and paid in accordance with the current national laws, regulations and policies.
3. There is nothing wrong with the consulting company that calculates labor insurance premiums in accordance with the relevant provisions of the "Notice of the Guangxi Zhuang Autonomous Region on Stop the Unified Collection of Labor Insurance Premiums for Construction and Installation Projects" (Gui Zhengfa [2019] No. 20) that was valid when the "Appraisal Report" was issued.
4, China Siye Company and China Siye Guangxi Branch agreed to the appraisal opinion when the second instance was cross-examination. There was no improper decision to use the "Appraisal Report" as the reference basis for settlement of the project price involved in the case.
5, China Siye Company and China Siye Guangxi Branch submitted the "Notice of the Autonomous Region State Taxation Bureau on Issues Related to the Construction and An Labor Insurance Premium Value-Added Tax" and the "Notice of the Guangxi Zhuang Autonomous Region on Stop the Unified Collection of Labor Insurance Premiums for Construction and Installation Projects" (Gui Zhengfa [2019] No. 20) to this court during the retrial review. However, the above notice does not belong to the "new evidence" in the trial supervision procedure , and is not enough to overturn the second-instance judgment.
In summary, the second instance judgment included the construction fee for Jian'an labor insurance in the project to Chen Zhichao and Li Rinan. There was no improper application of the law.
4. Inspiration and Summary
According to the provisions of the Ministry of Construction "Construction and Installation Project Cost Composition" of the Ministry of Construction, the project price includes labor costs, material costs, equipment usage fees, enterprise management fees, profits, regulations and taxes, etc. The labor insurance premium in Jian'an belongs to the category of regulations and is also non-competitive fees.
In practice, construction companies and contractors do rarely pay social security to migrant workers, and the project cost includes this amount of money. Both construction companies and contractors want it. Who should they give it? From a fair point of view, it is more fair and reasonable to give this money to the contractor than to the construction company. Because the project is completed by the contractor's investment, manpower and material resources, construction companies generally do not have actual investment, so the project payment should be enjoyed by the contractor, and the construction social security fee is also an integral part of the project payment, and of course it should be enjoyed by the contractor. When the project is completed by the contractor, the construction company has no actual investment, and it is contrary to the principle of fairness to be enjoyed by the construction company.
Maybe someone wants to say, why should the contractor not pay social security to migrant workers? In practice, many migrant workers believe that buying social security is useless and unwilling to pay social security, so they require cash. So some contractors give social security money to migrant workers, which overall pushes up the market wages for migrant workers, and other contractors have to go with them. Therefore, in this sense, the wages paid by the contractor to migrant workers include social security fees. In fact, the wages paid by the contractor to migrant workers are several times higher than the unit price of fixed labor fees . Of course, the reason for the increase is the result of various factors such as the extension of labor time and social security, but at least the factor of social security cannot be ruled out. In addition, the labor insurance premium of the construction office includes work-related injury insurance premium . If an injury occurs at the construction site, the construction company will also seek compensation from the contractor after taking responsibility. When the compensation is pursued, the contractor will still bear the majority. From this perspective, it is reasonable for Jian'an labor insurance premium to be used by the contractor in a coordinated manner.
In short, in practice, construction companies and contractors rarely pay social security to migrant workers, and the project cost includes this amount of money. Both construction companies and contractors want it. Who should they give it? Giving a contractor is more reasonable and fairer than giving a construction company. Of course, the most important thing to give is the migrant worker brothers, which is their pension money.
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