Social
Insurance Law of the People's Republic of China
(Adopted
at the 17th meeting of the Standing Committee of the Eleventh National People's
Congress on October 28, 2010)
Contents
Chapter 1
General Provisions
Chapter 2
Basic Pension Insurance
Chapter 3
Basic Medical Insurance
Chapter 4
Work-related Injury Insurance
Chapter 5
Unemployment Insurance
Chapter 6
Maternity Insurance
Chapter 7
Collection and Payment of Social Insurance Premiums
Chapter 8
Social Insurance Funds
Chapter 9
Handling of Social Insurance
Chapter 10
Supervision of Social Insurance
Chapter 11
Legal Liabilities
Chapter 12
Supplementary Provisions
Chapter
1 General Provisions
Article 1
This Law is formulated in accordance with the Constitution for the purposes of
regulating social insurance relationship, protecting the legal right and
interest of citizens in participating in social insurance and enjoying social
insurance benefits, enabling citizens to share the development achievements and
promoting social harmony and stability.
Article 2
The State establishes social insurance systems such as basic
pension insurance, basic medical insurance, work-related injury insurance,
unemployment insurance and maternity insurance so as to protect the right of
citizens in receiving material assistance from the State and the society in
accordance with the law when getting old, sick, injured at work, unemployed and
giving birth.
Article 3
The social insurance system adheres to the principles of wide
coverage, basic protection, multi-level and sustainability and the level of
social insurance shall correspond to the level of economic and social
development.
Article 4
Employing entities and individuals within the territory of
the People's Republic of China shall pay social insurance premiums in
accordance with the law and shall be entitled to enquiry about payment records
and personal interest records and request social insurance agencies to provide
relevant services such as social insurance consultation.
Individuals may enjoy social
insurance benefits and are entitled to supervise the status of premium payment
by their own entities for them in accordance with the law.
Article 5
People's governments above the county level shall include
social insurance undertaking in the national economic and social development
plans.
The State raises social
insurance funds through multiple channels. People's governments above the
county level shall provide necessary outlay support for social insurance undertaking.
The State supports social
insurance undertaking through tax incentive policies.
Article 6
The State strictly regulates the social insurance funds.
The State Council and the
people's governments of the provinces, autonomous regions and municipalities
directly under the Central Government establish and improve the supervision and
administration system of the social insurance funds, protect the security of
the social insurance funds and ensure their effective operation.
People's governments above the
county level adopt measures to encourage and support all sectors of the society
to participate in the supervision of the social insurance funds.
Article 7
The social insurance administration departments of the State
Council are responsible for the work with respect to the administration of
social insurance throughout the country. Other relevant departments of the
State Council are responsible for the relevant social insurance work within
their respective scope of duties.
Social insurance administration
departments of the local people's governments above the county level are
responsible for the work with respect to the administration of social insurance
within their own administration regions. Other relevant departments of the
local people's government above the county level are responsible for the
relevant social insurance work within their respective scope of duties.
Article 8
Social insurance agencies provide social insurance services
and are responsible for work such as social insurance registration, personal
interest records and payment of social insurance benefits.
Article 9
The trade unions protect the legal interest of the workers in accordance with
the law and are entitled to participate in the study of major social insurance
issues, join the social insurance supervision commissions and supervise issues
relating to the social insurance interest of the workers.
Chapter
2 Basic Pension Insurance
Article 10
Workers shall participate in basic pension insurance and the
basic pension insurance premiums shall be paid jointly by the employing
entities and the workers.
Sole proprietors who are not
employed, non-full time practitioners and other workers in flexible employment
who have not participated in the basic pension insurance in the employing
entities may participate in basic pension insurance and pay the basic pension
insurance premiums on their own.
Measures for the pension
insurance of civil servants and staff governed by the civil servant laws shall
be prescribed by the State Council.
Article 11
Basic pension insurance involves both social coordination
and personal accounts.
The basic pension insurance
fund is made up of payment from the employing entities and individuals and
government subsidies.
Article 12
An employing entity shall pay the basic pension insurance
premium, which shall be included and recorded in the basic pension insurance
coordination fund, according to a ratio of the total wage of the worker of the
entity that is stipulated by the State.
A worker shall pay the basic
pension insurance premium, which shall be included and recorded in the personal
account, according to a ratio of the wage of the worker that is stipulated by
the State.
Sole proprietors who are not
employed or non-full time practitioners and other workers in flexible
employment who have not participated in the basic pension insurance in the
employing entities but have participated in basic pension insurance shall pay
the basic pension insurance premiums in accordance with the provisions of the
State and such premiums shall be included and recorded in the basic pension
insurance coordination fund and the personal accounts respectively.
Article 13
The basic pension insurance premiums that shall be deemed to
have been paid during the payment period before the workers of the State-owned
enterprises and institutions participate in the basic pension insurance shall
be borne by the government.
In case the amount in the basic
pension insurance fund is insufficient to make payment, the government shall
provide the subsidy.
Article 14
The amount in the personal account shall not be withdrawn in
advance. The interest rate for the amount in the account shall not be lower
than the bank's interest rate for time deposits. Interest rate tax is exempted.
The balance in the personal account may be inherited after the death of the
individual.
Article 15
The basic pension is made up of the coordinated pension and
the pension in the personal account.
The basic pension is determined
based on factors such as the individual's cumulative premium payment period,
the wage from which premium payment is made, the average wage of the local
workers, the amount in the personal account and the average life expectancy of
the urban population.
Article 16
An individual participating in basic pension insurance may collect basic
pension on a monthly basis if the cumulative premium payment period reaches 15
years at the time the individual reaches the statutory retirement age.
If the cumulative premium
payment period is less than 15 years at the time the individual participating
in basic pension insurance reaches the statutory retirement age, he/she may
continue to pay the premium until the cumulative premium payment period reaches
15 years and then collect the basic pension on a monthly basis, or he/she may
transfer to the new rural social pension insurance or the social pension
insurance for urban residents and enjoy the corresponding pension insurance
benefits in accordance with the provisions of the State Council.
Article 17
If an individual who participates in basic pension insurance passes away due to
sickness or reasons other than work, the family members of the deceased may
collect funeral allowance and bereavement payment. The individual losing the
capacity for work completely due to sickness or disability not caused by work
before reaching the statutory retirement age may collect sickness and
disability subsidy. The amount required shall be paid from the basic pension
insurance fund.
Article 18
The State establishes a normal adjustment mechanism for
basic pensions, which increases the basic pension insurance benefits in a
timely manner based on the growth of the average wage of the workers and the
rise of prices.
Article 19
The basic pension insurance relationship of an individual
shall be transferred along with the shift of his/her employment away from the
coordinated region but the premium payment period shall be accumulated. When an
individual reaches the statutory retirement age, the basic pension will be
calculated by phases but will be paid together. The specific measures shall be
prescribed by the State Council.
Article 20
The State establishes and improves the new rural social pension insurance
system.
The new rural social pension
insurance involves a combination of personal payment, collective subsidy and
government subsidy.
Article 21
The new rural social pension insurance benefits are made up
of basic pensions and pensions from the personal accounts.
Rural residents who participate
in new rural social pension insurance and meet the conditions stipulated by the
State will collect new rural social pension insurance benefits on a monthly
basis.
Article 22
The State establishes and improves the social pension
insurance system for urban residents.
People's governments of the
provinces, autonomous regions and municipalities directly under the Central
Government may combine the implementation of social pension insurance for urban
residents and new rural social pension insurance.
Chapter
3 Basic Medical Insurance
Article 23
Workers shall participate in basic medical insurance for
workers. The employing entities and the workers shall jointly pay the basic
medical insurance premiums in accordance with the provisions of the State.
Sole proprietors who are not
employed, non-full time practitioners and other workers in flexible employment
who have not participated in the basic medical insurance in the employing
entities may participate in basic medical insurance and pay the basic medical
insurance premiums on their own.
Article 24
The State establishes and improves the new rural cooperative medical system.
The administrative measures for
new rural cooperative medical care shall be prescribed by the State Council.
Article 25
The State establishes and improves the basic medical insurance system for urban
residents.
The basic medical insurance for
urban residents involves a combination of personal payment of premium and
government subsidy.
The portion of premiums that
need to be paid by the individuals having minimum living security, the disabled
losing capacity for work and elderly above 60 years old and minors in
low-income families will be subsidized by the government.
Article 26 The
standards for benefits under basic medical insurance for workers, new rural
cooperative medical insurance and basic medical insurance for urban residents
shall be implemented in accordance with the provisions of the State.
Article 27
If the cumulative premium payment period reaches the period
stipulated by the State at the time the individual participating in basic
medical insurance for workers reaches the statutory retirement age, he/she will
no longer pay basic medical insurance premium after he/she retires and may
enjoy basic medical insurance benefits in accordance with the provisions of the
State. If the cumulative premium payment period has not reached the period
stipulated by the State, he/she may continue to pay the premium until reaching
the period stipulated by the State.
Article 28
Medical expenses that conform to the drug catalogue, the
treatment items and the standard of medical services and facilities for basic
medical insurance and medical expenses for emergency treatment and rescue shall
be paid from the basic medical insurance fund in accordance with the provisions
of the State.
Article 29
The portion of medical expense of the party participating in
insurance that should be paid from the basic medical insurance fund shall be
settled directly between the social insurance agency and the medical
institution or the entity engaging in the drug business.
The social insurance
administration departments and the health administration departments shall
establish the system for the settlement of medical expenses for medical
treatment that is not received locally to make it easy for parties
participating in insurance to enjoy basic medical insurance benefits.
Article 30
The following medical expenses are not included in the scope of payment by the
basic medical insurance fund:
(1) expense that should be paid
from the work-related injury insurance fund;
(2) expense that should be
borne by a third party;
(3) expense that should be
borne by the public health authority;
(4) expense for medical treatment
overseas.
If medical fees should be borne
by a third party in accordance with the law but the third party refuses to make
the payment or the third party cannot be ascertained, the fee will first be
paid from the basic medical insurance fund. The basic medical insurance fund is
entitled to claim the amount from the third party after making the payment
first.
Article 31
A social insurance agency may sign a service agreement with
a medical institution or an entity engaging in the drug business based on the
need of the management services so as to regulate medical services and
practices.
A medical institution shall
provide reasonable and necessary medical services for the party participating
in insurance.
Article 32
The basic medical insurance relationship of an individual shall be transferred
along with the shift of his/her employment away from the coordinated region but
the premium payment period shall be accumulated.
Chapter
4 Work-related Injury Insurance
Article 33
Workers shall participate in work-related injury insurance
and the work-related injury insurance premiums shall be paid by the employing
entities. The workers need not pay the work-related injury insurance premiums.
Article 34
The State determines the different rates of premiums for
different industries based on the level of work-related injury risk in the
industries and determine the rate scale within each industry based on the
utilization of the work-related injury insurance fund and the incidence rates
of injuries. The different rates of premiums for different industries and the
rate scale within each industry shall be determined by the social insurance
administration departments of the State Council and shall be reported to the
State Council for approval before publication and implementation.
A social insurance agency shall
determine the rate of premium paid by an employing entity based on the
utilization of the work-related injury insurance fund by the employing entity
and the incidence rates of injuries of the employing entity and the rate scale
of the industry to which the employing entity belongs.
Article 35
An employing entity shall pay the work-related injury insurance premium based
on the total wage of the worker in the entity and the premium rate determined
by the social insurance agency.
Article 36
A worker injured in an accident due to work or suffering
from an occupational disease and is identified as being injured at work shall
enjoy work-related injury insurance benefits. A worker identified as losing the
capacity for work after the assessment on capacity for work is conducted shall
enjoy disability benefits.
The method of the
identification of work-related injury and assessment on capacity for work shall
be simple and convenient.
Article 37
A worker who passes away or gets injured at work due to any
of the following situations is not identified as suffering from work-related
injury:
(1) committing a criminal
offense intentionally;
(2) getting drunk or taking
drugs;
(3) inflicting harm on himself
or committing suicide;
(4) Other situations prescribed
by the provisions of the laws and administrative regulations.
Article 38
The following fees arising from work-related injuries shall be paid from the
work-related injury insurance fund in accordance with the provisions of the
State:
(1) medical fees and
rehabilitation fees for the treatment of work-related injury;
(2) meal allowance during
hospitalization;
(3) fees for transportation,
accommodation and meal when receiving medical treatment outside the coordinated
region;
(4) fees required for the
installation of aids and appliances for the disabled;
(5) fees for daily care
confirmed by the committee assessing the capacity for work for those who cannot
take care of themselves;
(6) one-off disability
allowance and disability subsidy collected on a monthly basis by workers with
classes 1-4 disability;
(7) one-off medical allowance
upon termination or rescission of the labor contract;
(8) funeral allowance for the
family members of the deceased, bereavement payment for dependant relatives and
allowance for work-related death in case of work-related death;
(9) fee for the assessment of
capacity for work.
Article 39
The following fees arising from work-related injuries shall be paid by the employing
entities in accordance with the provisions of the State:
(1) wages and welfare during
the treatment period of the work-related injury;
(2) disability subsidy
collected on a monthly basis by workers with class 5 or 6 disability;
(3) one-off employment
allowance for the disabled upon termination or rescission of the labor
contract.
Article 40
A worker who suffers from work-related injury and meets the
conditions for collecting basic pension will stop receiving the disability
subsidy and enjoy the basic pension insurance benefits. In case the basic
pension insurance benefits are less than the disability subsidy, the difference
shall be made up by the work-related injury insurance fund.
Article 41
If the employing entity in which the worker works does not
pay the work-related injury insurance premium in accordance with the law and a
work-related accident that cause injury occurs, the employing entity shall pay
the work-related injury insurance benefit. If the employing entity refuses to
make the payment, the payment shall first be made from the work-related injury
insurance fund.
The work-related injury
insurance benefits paid from the work-related injury insurance fund shall be
repaid by the employing entity. If the employing entity refuses to make the
repayment, the social insurance agency may claim for the repayment in
accordance with the provisions of Article 63 of this Law.
Article 42
If the work-related injury is caused by a third party but
the third party refuses to pay the medical fee for the work-related injury or
the third party cannot be ascertained, the fee will first be paid from the
work-related injury insurance fund. The work-related injury insurance fund is
entitled to claim the amount from the third party after making the payment
first.
Article 43
A worker who suffers from work-related injury shall cease to
enjoy the work-related injury insurance benefits in any of the following
situations:
(1) he/she has lost eligibility
to enjoy the benefits;
(2) he/she refuses to undergo
the assessment on capacity for work;
(3) he/she refuses to receive
treatment.
Chapter
5 Unemployment Insurance
Article 44
Workers shall participate in unemployment insurance and the
unemployment insurance premiums shall be paid jointly by the employing entities
and the workers in accordance with the provisions of the State.
Article 45
An unemployed person meeting the following conditions may
collect unemployment insurance compensation from the unemployment insurance
fund:
(1) the employing entity and
the unemployed person has paid the unemployment insurance premiums for one year
before the person becomes unemployed;
(2) the unemployed person
unintentionally terminates the employment;
(3) the unemployed person has
gone through the formalities for unemployment registration and is seeking
employment.
Article 46
If the employing entity and the unemployed person have paid
the insurance premiums for one year or more but less than five years before the
unemployed person becomes unemployed, he/she may collect unemployment insurance
compensation for at most 12 months. If the cumulative premium payment period
reaches five years but is less than ten years, the unemployment insurance
compensation may be collected for at most 18 months. If premiums have been paid
for more than ten years, the unemployment insurance compensation may be
collected for at most 24 months. If the person becomes unemployed again after
re-employment, the premium payment period will be calculated all over again,
the period for the collection of unemployment insurance compensation this time
together with the period during which unemployment insurance compensation may
be collected but have not been collected for previous unemployment shall, in
aggregate, be no more than 24 months.
Article 47
The standards of unemployment insurance compensation shall be determined by the
people's governments of the provinces, autonomous regions and municipalities
directly under the Central Government and shall not be lower than the minimum
living security standard of urban residents.
Article 48
An unemployed person who participates in basic medical
insurance during the period in which he/she collects unemployment insurance
compensation shall enjoy basic medical insurance benefits.
The basic medical insurance
premium that should be paid by the unemployed person shall be paid from the
unemployment insurance fund. The individual is not required to pay basic
medical insurance premium.
Article 49
If the unemployed person passes away during the period in
which he/she collects unemployment insurance compensation, his/her family
members shall be given an one-off funeral allowance and bereavement payment by
reference to the local provisions relating to the death of workers in employment.
The amount required shall be paid from the unemployment insurance fund.
If an individual passes away
and the conditions for the collection of funeral allowance from basic pension
insurance, funeral allowance from work-related injury insurance and funeral
allowance from unemployment insurance are met at the same time, his/her family
member may only choose to collect funeral allowance from one of them.
Article 50
The employing entity shall issue the proof of the
termination or severance of labor relationship for the unemployed person in a
timely manner and shall notify the social insurance agency of the list of
unemployed person within 15 days from the date of the termination or severance
of the labor relationship.
An unemployed person shall go
through the formalities for unemployment registration at the designated public
employment service institution in a timely manner upon presentation of the
proof of the termination or severance of labor relationship issued for him/her
by the employing entity.
An unemployed person shall go
through the formalities for the collection of unemployment insurance
compensation at the social insurance agency upon presentation of the proof of
unemployment registration and proof of personal identity. The period during
which unemployment insurance compensation may be collected shall be counted
from the date the formalities for unemployment registration is gone through.
Article 51
If an unemployed person is involved in any of the following
situations during the period in which unemployment insurance compensation is
collected, he/she shall stop collecting the unemployment insurance compensation
and stop enjoying other unemployment insurance benefits:
(1) is re-employed;
(2) applies to serve in the
military;
(3) migrates to a foreign
country;
(4) enjoys basic pension
insurance benefit;
(5) refuses to accept the
appropriate job referred by or training provided by the department or
institution designated by the local people's government without proper reasons.
Article 52
The unemployment insurance relationship of an individual shall be transferred
along with the shift of his/her employment away from the coordinated region but
the premium payment period shall be accumulated.
Chapter
6 Maternity Insurance
Article 53
Workers shall participate in maternity insurance and the
maternity insurance premiums shall be paid by the employing entities in
accordance with the provisions of the State. The workers need not pay the
maternity insurance premiums.
Article 54
If the employing entity has paid the maternity insurance
premium, its worker shall enjoy maternity insurance benefit. The spouse of the
worker who is not in employment will be paid the benefit of medical fees
associated with giving birth. The amount required shall be paid from the
maternity insurance fund.
Maternity insurance benefits
include the medical fees associated with giving birth and maternity subsidy.
Article 55
The medical fees associated with giving birth include the
following:
(1) medical fees associated
with giving birth;
(2) medical fees associated
with planned birth;
(3) fees for other items in
accordance with the provisions of the laws and regulations.
Article 56
A worker involved in any of the following situations may enjoy maternity subsidy
in accordance with the provisions of the State:
(1) a female worker in
maternity leave;
(2) taking leave due to an
operation related to planned birth;
(3) other situations stipulated
by the laws and regulations.
The maternity subsidy shall be
calculated and given based on the average monthly wage of the worker of the
employing entity in the preceding year.
Chapter
7 Collection and Payment of Social Insurance Premiums
Article 57
An employing entity shall apply to the local social insurance agency for going
through the formalities for social insurance registration upon the presentation
of the business license, registration certificate or the seal of the entity
within 30 days from the date on which the employing entity is established. The
social insurance agency shall review the application and issue the social
insurance registration certificate within 15 days from the date on which the
application is received.
If the social insurance item
registered by an employing entity changes or the employing entity is terminated
in accordance with the law, the employing entity shall go through the
formalities for the change or cancellation of social insurance registration at
the social insurance agency within 30 days from the date of such change or termination.
Industrial and commercial
administration departments, civil affairs departments and the authorities
responsible for the administration of the institutional establishments shall
inform the social insurance agencies of the status of the establishment and
termination of employing entities in a timely manner. The public security
authorities shall inform the social insurance agencies of the individuals'
birth, death and household registration, relocation and cancellation in a
timely manner.
Article 58
An employing entity shall apply for its workers to the
social insurance agency for going through the formalities for social insurance
registration within 30 days from the date on which the worker is employed. If
the formalities for social insurance registration have not been gone through,
the social insurance agency shall determine the social insurance premium that
the employing entity should pay.
Sole proprietors who are not
employed or non-full time practitioners and other workers in flexible employment
who have not participated in the social insurance in the employing entities but
participate in social insurance on a voluntary basis shall apply to the social
insurance agency for going through the formalities for social insurance
registration.
The State will create a social
insurance number for an individual that is uniform throughout the country. The
social insurance number for the individual shall be the citizen identity
number.
Article 59
The people's governments above the county level shall strengthen
the work with respect to the collection of social insurance premiums.
The social insurance premiums
are collected in a centralized manner, with the implementation steps and
specific measures prescribed by the State Council.
Article 60
An employing entity shall declare and make a full payment of the social
insurance premiums on its own as scheduled and shall not delay or reduce the
payment for reasons other than statutory causes such as force majeure. The
social insurance premiums that should be paid by a worker shall be withheld and
paid by the employing entity on the worker's behalf. The employing entity shall
inform the worker of the breakdown of payment of the social insurance premiums
on a monthly basis.
Sole proprietors who are not
employed or non-full time practitioners and other workers in flexible
employment who have not participated in the social insurance in the employing
entities may pay the social insurance premiums directly to the social insurance
premium collection institutions.
Article 61
A social insurance premium collection institution shall collect the full amount
of social insurance premiums as scheduled in accordance with the law and shall
inform the employing entity and the individual of the status of premium payment
on a regular basis.
Article 62
If an employing entity has not declared the amount of social
insurance premiums that should be paid in accordance with the provisions, the
amount that should be paid shall be determined based on 110% of the amount of
premiums paid by the entity in the preceding month. After the entity paying the
premiums handles the originally omitted declaration formalities, the social
insurance premium collection institution shall make the settlement in
accordance with the provisions.
Article 63
If an employing entity does not pay the full amount of social insurance
premiums as scheduled, the social insurance premium collection institution
shall order it to make the payment or make up the difference within the
stipulated period.
If the employing entity does
not pay or make up the difference of the social insurance premiums within the
stipulated period, the social insurance premium collection institution may make
enquires to the bank or other financial institutions about the deposit account
of the entity. It may also apply to the relevant administration department
above the county level to make the decision on the allocation of social
insurance premiums and inform the bank or other financial institutions with
which the account is opened in writing to allocate the social insurance
premiums. If the balance in the account of the employing entity is less than
the social insurance premiums that should be paid, the social insurance premium
collection institution may request the employing entity to provide guarantee
and sign the agreement on the delay in premium payment.
If the employing entity does
not pay the full amount of the social insurance premiums and does not provide
guarantee, the social insurance premium collection institution may apply to the
people's court to attach, seize and auction the entity's properties with value
equivalent to the social insurance premiums that should be paid and use the
proceeds from the auction to pay the social insurance premiums.
Chapter
8 Social Insurance Funds
Article 64
The social insurance funds include the basic pension insurance fund, the basic
medical insurance fund, the work-related injury insurance fund, the
unemployment insurance fund and the maternity insurance fund. Each of the
social insurance funds shall establish separate accounts based on the lines of
social insurance and shall conduct accounting for separate accounts and
implement the uniform accounting system of the State.
The social insurance funds are
earmarked for specific purposes and any organization and individual shall not
embezzle or misappropriate the funds.
The basic pension insurance
fund will be coordinated on a national basis gradually and the other social
insurance funds will be coordinated on a provincial basis gradually. The
specific time frame and steps will be prescribed by the State Council.
Article 65
The social insurance funds normally adopt balanced budgets.
When the amount in the social
insurance funds is insufficient to make payments, the people's governments
above the county level will grant subsidy.
Article 66
The social insurance funds establish budgets based on the coordination levels.
The budgets of the social insurance funds are prepared separately based on the
social insurance items.
Article 67
The preparation, examination and approval of the drafts of
the budgets and final accounts of the social insurance funds shall follow the
provisions of the laws and the State Council.
Article 68
The specific administrative measures governing the deposit of social insurance
funds into the special financial accounts shall be prescribed by the State
Council.
Article 69
The social insurance funds shall engage in investment
operation in accordance with the provisions of the State Council to preserve
and add value under the premise of guaranteeing the safety of the funds.
The social insurance funds
shall not engage in investment operation in violation of the rules, shall not
be used to balance other government budgets, shall not be used to construct or
convert office premises and pay the outlay for staff, the operation fee and
management fee or used for other purposes in violation of the provisions of the
laws and administrative regulations.
Article 70
A social insurance agency shall regular make known to the
public the status of participation in social insurance and the income,
expenditure, balance and gain of the social insurance funds.
Article 71
The national social security fund established by the State shall
comprise the funds allocated from the budget of the central treasury and the
funds raised by other methods approved by the State Council and shall be used
as replenishment and adjustment for social security expenditure. The national
social protection fund shall be managed and operated by the management and
operation institution for national social security fund and shall seek to
preserve and add value under the premise of guaranteeing the safety of the
fund.
The national social security
fund shall announce to the public the status of its revenue and expenditure,
management and investment operation on a regular basis. The finance
departments, social insurance administration departments and audit departments
under the State Council shall supervise the revenue and expenditure, management
and investment operation of the national social security fund.
Chapter
9 Handling of Social Insurance
Article 72
The coordinated regions shall establish social insurance agencies. The social
insurance agencies may, based on the needs of their work, establish branches
and service networks in their own coordinated regions upon the approval of the
local social insurance administration departments and the authorities
responsible for the administration of the institutional establishments.
The outlay for the staff of the
social insurance agencies and the basic operation fee and management fee
incurred from the handling of social insurance shall be provided by the
treasury at the same level in accordance with the provisions of the State.
Article 73
The social insurance agencies shall establish and improve
business, finance, security and risk management systems.
The social insurance agencies
shall pay the full amount of social insurance benefits as scheduled.
Article 74
A social insurance agency shall handle, compile statistics
on, investigate and obtain data necessary for social insurance work. The
relevant entity and individual shall provide the truthful data in a timely
manner.
A social insurance agency shall
establish the record for an employing entity in a timely manner, prepare a
complete and accurate record of the social insurance data such as the personnel
participating in social insurance and the premium payment and shall properly
keep the original evidence of registration and declaration and the accounting
documents of payment and settlement.
A social insurance agency shall
prepare a timely, complete and accurate record of the premium payment of an
individual participating in social insurance and the personal interest of the
individual, such as the employing entity's payment for him/her and his/her
enjoyment of the social insurance benefits and shall send the personal interest
record to the individual free of charge on a regular basis.
An employing entity and
individual may make free enquiries to the social insurance agency, check the
records of premium payment and the enjoyment of social insurance benefits and
request the social insurance agency to provide relevant services such as social
insurance consultation.
Article 75
The national social insurance information system is built
jointly by the people's governments above the county level according to the
principle of accountability at different levels under the centralized plan of
the State.
Chapter
10 Supervision of Social Insurance
Article 76
The standing committees of people's congresses at all levels
listen to and examine the specialized work report of the people's governments
at their own levels on the status of the revenue and expenditure, management
and investment operation and supervision and examination of the social
insurance funds, organize law enforcement examination on the implementation
status of this Law and exercise supervisory authority in accordance with the
law.
Article 77
The social insurance administration departments of the people's governments
above the county level shall strengthen the supervision and examination of the
status of the compliance with social insurance laws and regulations by
employing entities and individuals.
When the social insurance
administration department conducts supervision and examination, the employing
entity and individual under examination shall truthfully provide information
relating to social insurance and shall not reject the examination or report
false information or conceal information.
Article 78
The finance departments and audit authorities shall
supervise the status of the revenue and expenditure, management and investment
operation of the social insurance funds according to their respective duties.
Article 79
If a social insurance administration department discovers
any problem when supervising and examining the status of the revenue and
expenditure, management and investment operation of the social insurance funds,
it shall put forward a rectification proposal, make the decision on the
handling of the case or present the proposal on the handling of the case to the
relevant administration department. The examination result of the social
insurance funds shall be open to the public on a regular basis.
A social insurance
administration department is entitled to adopt the following measures when
supervising and examining the social insurance funds:
(1) consult, record and copy
data relating to the revenue and expenditure, management and investment operation
of the social insurance funds and seal the data that may be transferred,
concealed or lost;
(2) enquire the entity and
individual related to the investigation matters and request them to explain on
the issues relating to the investigation matters and provide relevant
documentary evidence;
(3) prohibit and order the
rectification of acts involving the concealment, transfer, embezzlement and
misappropriation of social insurance funds.
Article 80
A people's government of the coordinated region shall
establish a social insurance supervision commission that comprises the
representatives of the employing entities, the representatives of the personnel
participating in insurance, the representatives of trade unions and experts, to
keep abreast of and analyze the revenue and expenditure, management and
investment operation of the social insurance funds and provide consultation
opinions and recommendations on social insurance work and implement social
supervision.
A social insurance agency shall
report to the social insurance supervision commission the status of the revenue
and expenditure, management and investment operation of the social insurance
funds on a regular basis. The social insurance supervision commission may
engage an accounting firm to conduct annual audit and specialized audit on the
status of the revenue and expenditure, management and investment operation of
the social insurance funds. The audit results shall be disclosed to the public.
If the social insurance
supervision commission discovers any problem in the revenue and expenditure,
management and investment operation of the social insurance funds, it is
entitled to put forward a rectification proposal or present to the relevant
departments the proposal on handling the illegal behavior of the social
insurance agency and its staff in accordance with the law.
Article 81
The social insurance administration departments and other
relevant administration departments, the social insurance agencies, the social
insurance premium collection institutions and their staff shall keep the
information of the employing entities and individuals confidential in
accordance with the law and shall not divulge the information in whatever ways.
Article 82
Any organization or individual is entitled to report or complain about acts in
violation of the social insurance laws and regulations.
The social insurance
administration departments, health administration departments, social insurance
agencies, social insurance premium collection departments, finance departments
and audit departments shall handle the reports and complaints within the scope
of duties of their own departments and institutions in accordance with the law.
If the report or complaint is not within the scope of duties of their own
departments and institutions, a written notice shall be issued to and the case
shall be transferred to the department or institution entitled to handle the
case for handling. The department or institution entitled to handle the case
shall handle the case in a timely manner and shall not pass the buck.
Article 83
If an employing entity or individual thinks that the act of a social insurance
premium collection institution prejudices its or his/her legal interest, the
employing entity or individual may apply for administrative review or initiate
administrative litigation in accordance with the law.
If a social insurance agency
does not handle social insurance registration, assess social insurance
premiums, pay social insurance benefits, handle the formalities for the
transfer and renewal of social insurance in accordance with the law or is
engaged in any act that prejudices other social insurance interest, an
employing entity or individual may apply for administrative review or initiate
administrative litigation in accordance with the law.
An individual having a social
insurance dispute with the employing entity in which he/she works may apply for
mediation or arbitration or initiate litigation in accordance with the law. If
an employing entity prejudices the social insurance interest of an individual,
the individual may request the social insurance administration department or
social insurance premium collection institution to handle the case in
accordance with the law.
Chapter
11 Legal Liabilities
Article 84
If an employing entity does not go through the formalities
for social insurance registration, the social insurance administration
department shall order it to make rectification within the stipulated period.
If rectification is not made within the stipulated period, the employing entity
shall be imposed a fine from one to three times the amount of the social
insurance premium that should be paid. The personnel directly in charge and
other personnel subject to direct liability shall be imposed a fine of more
than RMB 500 and less than RMB 3,000.
Article 85
An employing entity that refuses to issue the proof of the
termination or severance of labor relationship shall be handled in accordance
with the Labor Contract Law of the People's Republic of China.
Article 86
If an employing entity does not pay the full amount of
social insurance premiums as scheduled, the social insurance premium collection
institution shall order it to make the payment or make up the difference within
the stipulated period and impose a daily fine equivalent to 0.05% of the
overdue payment from the date on which the payment is overdue. If payment is
not made within the stipulated period, the relevant administration department
shall impose a fine from one to three times the amount of overdue payment.
Article 87
If a social insurance agency or a social insurance service
institution such as a medical institution or an entity engaging in drug
business gets payment from the social insurance funds by cheating through
fraud, counterfeit documentary evidence or other means, the social insurance
administration department shall order it to return the social insurance funds
obtained by cheating and impose a fine of more than twice but less than five
times the amount obtained by cheating. If the entity is a social insurance
service institution, the service agreement shall be terminated and the
personnel directly in charge and other personnel subject to direct liability
having practice qualifications shall have their practice qualifications revoked
in accordance with the law.
Article 88
If social insurance benefits are obtained by cheating
through fraud, counterfeit documentary evidence or other means, the social
insurance administration department shall order the party to return the social
insurance funds obtained by cheating and impose a fine of more than twice but
less than five times the amount obtained by cheating.
Article 89 A
social insurance agency and its staff engaging in any of the following acts
shall be ordered by the social insurance administration department to make
rectification. If loss is incurred by the social insurance funds, an employing
entity or an individual due to such acts, the compensation liability shall be
assumed in accordance with the law and the personnel directly in charge and
other personnel subject to direct liability shall be punished in accordance
with the law:
(1) do not perform the
statutory duties relating to social insurance;
(2) do not deposit the social
insurance funds into the special financial accounts;
(3) pocket or refuse to pay the
social insurance benefits as scheduled;
(4) lose or distort social
insurance data and personal interest records such as payment records and
records on the enjoyment of social insurance benefits;
(5) other acts in violation of
the social insurance laws and regulations.
Article 90
If a social insurance premium collection institution changes
the base number or the rate of the social insurance premium payment, which
leads to the under-charge or over-charge of the social insurance premium, the
relevant administration department shall order the institution to pursue the
payment of social insurance premium that should be made or refund the social
insurance premium that should not be paid and impose penalty on the personnel
directly in charge and other personnel subject to direct liability in
accordance with the law.
Article 91
If a party conceals, transfers, embezzles or misappropriates the social
insurance fund in violation of the provisions of this Law or engages in
investment operation in violation of the rules, the social insurance
administration department, finance department or audit authority shall order
the recovery of the fund. The illegal gain (if any) shall be confiscated and
the personnel directly in charge and other personnel subject to direct
liability shall be punished in accordance with the law.
Article 92
If a social insurance administration department and other relevant
administration departments, a social insurance agency, a social insurance
premium collection institution or their staff divulge the information of an
employing entity or individual, the personnel directly in charge and other
personnel subject to direct liability shall be punished in accordance with the
law. If loss is incurred by an employing entity or an individual as a
result of the divulgement of information, the compensation liability shall be
assumed.
Article 93
If the person working for the State abuses his/her power or
neglects his/her duties or engages in misconduct to seek private gains when
handling the work with respect to the administration and supervision of social
insurance, he/she shall be punished in accordance with the law.
Article 94
If a criminal offense in violation of the provisions of this
Law is constituted, the criminal liability shall be pursued in accordance with
the law.
Chapter
12 Supplementary Provisions
Article 95
Rural residents working in urban cities shall participate in
social insurance in accordance with the provisions of this Law.
Article 96
If the land owned collectively by the village is expropriated, the full amount
of the social insurance premiums for the farmers whose land is expropriated
shall be arranged and the farmers whose land is expropriated shall be included
in the corresponding social insurance system in accordance with the provisions
of the State Council.
Article 97
Foreigners working within the territory of China shall
participate in social insurance by reference to the provisions of this Law.
Article 98
This Law shall come into force on July 1, 2011.