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China Ningbo Network Correspondent Yu Jianwei Reporter Zhang Chi
During the transit of the typhoon "fireworks", not only the lives of the people were greatly affected, but some enterprises also suffered losses.
Today, we will give you a general legal answer, mainly introducing legal issues related to enterprises caused by the impact of the typhoon, and putting forward handling suggestions.
Labor and Social Security Chapter
1. In typhoon weather, employees cannot return to work. Is it considered absent from work?
When an employer establishes a labor relationship with the worker, absenteeism refers to the absence of work in which the employee does not ask for leave without a legitimate reason or does not approve the leave on a normal working day.
my country's Labor Law does not stipulate absenteeism. Generally, enterprises will stipulate in employee manuals and other enterprise rules and regulations. If employees are unable to return to work due to extreme weather due to typhoons, it is recommended that employees apply for leave well, and the company does not constitute absent from work.
According to the "Implementation Opinions on the Arrangement of Class Suspension in Extreme Weather and the Handling of Loss of Work", after the disaster red warning is issued, employers and employees must take corresponding measures in accordance with the specific response plan formulated. Employees who should go to work but cannot arrive on time must contact the unit in a timely manner; if employees lose work due to red warnings for disasters, the employer shall not be late or absent, and shall not impose disciplinary sanctions on the lost workers or terminate labor relations on this reason; if a red warning for disasters is issued during working hours, the employer shall promptly stop outdoor operations and large-scale activities that are not suitable for such meteorological conditions in ports, construction sites, etc. in accordance with relevant laws and regulations and other relevant regulations.
However, when the typhoon meteorological disaster ends and the water accumulation problem is alleviated, the city has begun to restore normal production and living order, and employees should arrive at work normally in accordance with the company's rules and regulations. If you are unable to take the post in special circumstances, a leave request system should be established. If an employee violates the compliance with the company's rules and regulations and fails to return to work without a legitimate reason after the deadline, the company may deal with it as absenteeism. If the company complies with the rules and regulations, it is recommended that the company terminate the labor contract with the employee after sending a written reminder letter to the employee.
2. The impact of typhoons has caused the suspension of work and production. Will the company still pay labor wages?
According to Article 12 of the "Interim Provisions on Wage Payment" issued by the Ministry of Labor, if the unit is suspended from work or production within one wage payment cycle without the reasons of the worker, the employer shall pay the worker's wages according to the standards stipulated in the labor contract.
Extreme weather such as typhoons generally have an impact on enterprises for 3-5 days and does not exceed one wage payment cycle. Therefore, if workers have labor relations with enterprises, it is recommended that enterprises should pay labor wages normally. If the company deducts wages for no reason, it will bear heavier legal responsibilities.
3. What situations will cause work-related injuries during a typhoon?
After the typhoon comes, if an employee is injured in the company's defense against Taiwan, it will constitute an industrial injury; if an employee participates in rescue and disaster relief volunteer activities during the typhoon, it will be deemed to be an industrial injury; if an employee drives to work and suffers injuries in a traffic accident that is not due to his main responsibility, it will constitute an industrial injury.
Enterprise property damage insurance claims
1. How to fix the quantity and evidence of damage of all the company's equipment and inventory caused by typhoons and floods?
Article 64 of the Civil Procedure Law stipulates: "The parties have the responsibility to provide evidence for their claims." After suffering natural disasters such as typhoons and floods, enterprises are obliged to provide evidence for the losses caused by the disaster. The specific measures are as follows: After encountering natural disasters such as typhoons and floods, enterprises should keep the disaster-affected site and contact the insurance company in a timely manner to send claims handlers to the disaster site to investigate and count the losses and quantity of houses, various equipment and inventory. If necessary, they can contact the notary authority to send notarized officials to the disaster site to preserve and notarize evidence, and timely count the number of damaged property and fix evidence of related losses on the disaster site.
Enterprises shall preserve and organize relevant procurement contracts, documents and notes for related machinery and equipment and warehousing raw material products, and prepare the company's balance sheet, audit report, asset appraisal report and other materials. These written materials can be used as an important basis for determining property losses in the subsequent damage assessment and evaluation.
In order to avoid greater losses from the insurance subject matter, enterprises organize personnel to actively carry out rescue operations. The expenditure of relevant rescue costs needs to be listed as much as possible (such as salary lists, working hours records, salary payment lists, transfer records, etc.). If a third party applies for rescue services, they must sign a written contract with the third party and ask them to issue an invoice.
2. How to determine the total amount of losses caused by flooding and damage to the company's equipment and inventory caused by typhoons and floods?
After natural disasters such as typhoons and floods, the enterprise shall immediately contact the insured insurance company to inform the insurance company of the approximate situation of the disaster, and require the insurance company to immediately dispatch a claim adjuster to the scene to determine the damage, make on-site records, and verify the number of damaged property.
In the judicial field, the amount of damaged property is generally selected by the insurance company and the insured enterprise to negotiate with each other, or a qualified appraisal company designated by the people's court to evaluate the property value of damaged equipment and inventory (pre-disaster value - after-disaster residual value = actual loss amount). Generally speaking, the amount of damage given by the insurance company’s claims handler will be lower than the actual amount of loss.
3. Is the insurance company obliged to fully compensate the total amount of losses caused by flooding or damage to the company's equipment and inventory?
The insurance company's claim obligation is specifically agreed upon by a written insurance contract (or insurance policy) signed by the insured and the insurance company. The claim obligation shall be subject to the contract agreement. If losses exceed the scope of insurance claims, the insurance company has the right not to pay compensation.
4. Can the company's additional rescue costs in order to reduce disaster losses be borne by the insurance company?
The rescue expenses for the company to reduce disaster losses shall be borne by the insurance company.
Legal issues related to corporate business activities under the influence of typhoon
1. Bonded goods are damaged due to water and rain and cannot be used again. What should enterprises deal with it?
If bonded goods are damaged and cannot be used, do not deal with them yourself. Processing and trading enterprises must report to the competent customs in a timely manner, and the customs will send personnel to verify and collect evidence as appropriate. Enterprises shall cooperate and handle relevant procedures according to customs requirements before disposing of the situation.
2. How should the invoice be handled if it is affected by the typhoon?
If the invoice is blank and unused, it cannot be used normally due to soaking or moisture, the invoice shall be invalidated in accordance with Article 31 of the "Implementation Rules for the Invoice Management Measures". If the blank unused invoice is lost in
, report it to the tax authority in a timely manner and make corresponding filing. If an uncertified invoice cannot be certified normally due to soaking or other reasons, you must contact the supplier in time and obtain a copy of the corresponding special invoice accounting couplet for certification. If the certification is consistent, you can use the copy of the special invoice accounting couplet and the "Certificate Form" issued by the sales tax authority. After review and approval by the purchaser's competent tax authority, it can be used as a deduction certificate for the value-added tax input tax amount. Copy of the special invoice accounting couplet and the "Certificate" are kept for reference.
3. Construction projects suffer losses due to force majeure such as typhoons. What is the principle of claim?
According to the "Construction Project Bill of Quantity Pricing Specifications" jointly issued by the Ministry of Housing and Urban-Rural Development and the State Administration of Quality Supervision, Inspection and Quarantine, the losses caused by force majeure shall be borne by the contractor and the contractor respectively according to different responsibilities. The specific details are as follows:
1. The damage to the project itself, the casualties and property losses of third-party personnel caused by the project damage, and the materials and equipment to be installed on the construction site for construction shall be borne by the contractor. For example, after a typhoon passes through, the losses suffered by some construction projects due to long-term soaking rainwater will be borne by the contractor.
2. The casualties of the employer or contractor shall be borne by the unit where he or she shall bear the corresponding expenses.
3. The contractor shall bear the losses of the contractor's construction machinery and equipment and the losses of suspension of work.
4. During the suspension of work, the contractor shall bear the expenses of the necessary management and security personnel who are required by the employer to stay at the construction site.
5. The cleaning and repair costs required for the project shall be borne by the contractor.
4. Can the lessor bear the maintenance obligation if the commercial property rented by the enterprise is damaged due to a typhoon?
During the period of the lease relationship, the commercial houses leased due to force majeure are damaged. If the lease contract does not stipulate that the lessee is responsible for the maintenance, the lessor shall bear the maintenance obligation. If the lessor fails to fulfill the maintenance obligation in a timely manner after the lessee notifies the repair, in order to ensure that the house can be used for normal operation, the lessee can repair it first and cannot allow the losses to continue to expand. The lessee may require the lessor to bear the expenses incurred in the repair, or request the extension of the lease term or the reduction of rent through consensus with the lessor, and change the terms of the lease contract in writing. If negotiation fails, you can sue the lessor and ask the lessor to bear the losses.
5. Is it necessary to bear the liability for breach of contract due to the impact of the typhoon?
According to Article 180 of the Civil Code, if you are unable to perform civil obligations due to force majeure, you shall not bear civil liability. If otherwise provided by law, it shall be in accordance with such provisions. Force majeure is an objective situation that cannot be foreseeed, avoided and cannot be overcome. Article 590 stipulates that if one party is unable to perform the contract due to force majeure, it shall be exempted from liability in part or in full based on the influence of force majeure, except as otherwise provided by law. If the contract is unable to be performed due to force majeure, the other party shall be notified in a timely manner to reduce the losses that may be caused to the other party, and proof shall be provided within a reasonable period of time. If a party encounters force majeure after delaying performance, it will not be exempted from breach of contract.
combined with practical experience, generally speaking, typhoons have the characteristics of being inevitable and incompletely overcome, so it is reasonable to identify typhoons as force majeure. However, for individual cases, whether the typhoon weather naturally constitutes force majeure for a contract, an event, or a responsibility should still be analyzed in detail. The statutory or agreement obligations of the parties, whether they have professional status or identity, whether they take reasonable prevention and impairment measures, etc., will have an impact on the final determination. Even if the force majeure is determined to exist, it is not necessarily completely exempted from liability. You may still be liable for losses caused by breach of contract or infringement besides the impact of force majeure.
Therefore, for enterprises affected by typhoons, it is recommended to take the following measures to protect their rights and interests: 1. Notify the counterparty in a timely written manner, inform the other party of the fact that the typhoon is affected, and provide corresponding proof, such as the announcement issued by the government department to prevent the suspension of work and production of typhoons, etc.; 2. Take measures in a timely manner to prevent the expansion of losses (after force majeure occurs, active prevention and control measures should be taken to minimize the impact and losses caused by the typhoon. If prevention and control measures are negligent and the losses are allowed to expand, then part of the expanded losses cannot be exempted); 3. After the typhoon is over, you should actively negotiate with the counterparty to the contract to reach a consensus remedial measure.
6. How can enterprises recover the losses caused by natural disasters such as typhoons?
Enterprise losses can be claimed based on relevant insurance, and the insurance compensation obtained does not require VAT to be paid.
Enterprise losses can be declared and deducted according to tax regulations.
Inventory losses caused by typhoons do not require input and transfer.
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