用人单位未给劳动者办理社会保险的民事责任

The Civil Liabilities of Employers Not Paying Social Insurance Premiums for Employees

在目前理论研究和司法实务中,对于用人单位未给劳动者办理社会保险所承担民事责任的性质及相关问题,缺乏足够关注。因我国社会保险法律关系的发生采行政确认主义,故用人单位未依法为劳动者办理社会保险不仅要承担行政责任,给劳动者造成损失时也要承担民事责任。劳动者要求用人单位承担民事责任的请求权基础,可以基于劳动合同约定,也可以基于侵权行为。在责任构成上,劳动者要求用人单位承担赔偿责任须以无法补办社会保险为前提。除工伤保险和生育保险外,赔偿数额应当扣除劳动者自己应缴纳的社会保险费。

In legal research and practice, insufficient attention has been paid to the civil liabilities assumed by employers that have failed to pay the social insurance premiums for their employees. In China, the determination of social insurance relations follows the principle of administrative affirmation. Consequently, employers that haven't paid the social insurance premiums for its employees shall assume not only administrative liabilities, but also civil liabilities in the case of loss suffered by the employees. The employee's right to request the employer to fulfill its civil liabilities could be based on either labor contract or a tort of the employer. As to the constitution of the liabilities, the right of the labor to request the employer to assume compensation liabilities shall be on the premise that there is no way to pay the arrear social insurance premiums. With the exception of industrial injury insurance and maternity insurance, the amount compensated shall not include the amount that the employee should have paid. Compensation should be made with the same standards as industrial injury, and it is not necessary for the employee to obtain the identification and verification of industrial injury by the administrative departments of the social insurance.