法律法规Several Provisions on Implementation of theSocial Insurance Law of the People's Republic of China
Order of the Ministry of Human Resources and Social Security No.13
June 29, 2011
The Several Provisions on Implementation of the Social Insurance Law of thePeople's Republic of China, which were adopted at the 67th executive meeting ofthe Ministry of Human Resources and Social Security, are hereby are promulgatedand shall come into effect on July1, 2011.
Minister: Yin Weimin
Several Provisions on Implementation of the Social Insurance Law of thePeople's Republic of
These Provisions are formulated with a view to implementing the Social Insurance Law of the People's Republic of China(hereinafterreferred to as the SocialInsurance Law).
Chapter I Basic Endowment Insurance
Article 1 The coordinated pension prescribed in Article 15 of the Social Insurance Law shall becalculated and distributed in accordance with the measures for calculation anddistribution of basic pension stipulated by the State Council.
Article 2 Where an individual participating in the basicendowment insurance for enterprise employees has made payment for less than 15years cumulatively when he or she reaches the statutory retirement age, thepayment period may be extended until the cumulative premiums payment periodreaches 15 years. Where an individual has participated in the insurance beforethe implementation of the SocialInsurance Law and his or her payment period is still lessthan 15 years after 5 years extension, a one- time payment may be made for theunpaid years.
(Relevant articles: Articles 1)
Article 3 Where an individual participating in the basicendowment insurance has reached the statutory retirement age, but his or herpayment period is less than 15 years (including the payment period extensionmentioned in Article 2), he or she may apply for transferring his or herinsurance to the new rural social endowment insurance system or urban residentsocial endowment insurance system at the place where his or her residence isregistered to enjoy the corresponding endowment insurance benefits.
Where an individual participating in the basic endowment insurance forenterprise employees has reached the statutory retirement age, but his or herpayment period is less than 15 years (including the payment period extensionmentioned in Article 2), and his or her insurance has not transferred to thenew rural social endowment insurance system or urban resident social endowmentinsurance system, the individual may apply to terminate the basic endowmentinsurance relationship for enterprise employees in written. Upon receiving theapplication, a social insurance agency shall inform the individual in writingof the right to transfer his or her insurance to the new rural social endowmentinsurance system or urban resident social endowment insurance system and theconsequences of terminating the basic endowment insurance relationship forenterprise employees. After the confirmation of the individual, the socialinsurance agency shall terminate the basic endowment insurance relationship forenterprise employees and pay the individual the balance of personal savingsaccount in a lump sum.
Article 4 Where an individual participating in basic endowmentinsurance for enterprise employees and taking up trans-provincial flowing jobs,has make payments less than 15 years cumulatively when he or she reaches thestatutory retirement age, the individual shall go through the relevantformalities in accordance with Article 2 hereof after determining the placewhere the individual shall continue to pay premiums in accordance with theprovisions about places where individuals can claim insurance benefits of theCircular of the General Office of the State Council on Forwarding the TentativeMeasures for Transfer and Continuity of Basic Endowment Insurance Relationshipof Employees of Urban Enterprises Promulgated by the Ministry of HumanResources and Social Security and the Ministry of Finance (Guo Ban Fa [2009]No.66).
Article 5 Where an individual participating in the basicendowment insurance of enterprise employees and taking up trans-provincialflowing jobs meets requirements of claiming the basic pension monthly, thespecific methods of calculating in sections and paying in the pattern of unityof basic pension shall be implemented in accordance with the Circular of theGeneral Office of the State Council on Forwarding the Tentative Measures forTransfer and Continuity of Basic Endowment Insurance Relationship of Employeesof Urban Enterprises Promulgated by the Ministry of Human Resources and SocialSecurity and the Ministry of Finance (Guo Ban Fa [2009] No.66).
Article 6 The savings in a personal account for basic endowmentinsurance for employees shall not be withdrawn in advance. Where an individualleaves China to inhabit abroad prior to satisfaction of the statutoryrequirement of claiming basic endowment insurance, his or her personal savingsaccount shall be reserved; when he or she has met the requirement of claiming,he or she shall be entitled to enjoy the corresponding endowment insurancebenefits in accordance with the national provisions. Where an individual has lostthe Chinese nationality, he or she may apply to terminate its basic endowmentinsurance relationship for employees in writing during or after leaving China.Upon receipt of an application, a social insurance agency shall inform theindividual in writing of the right of reserving personal savings account andthe consequence of terminating basic endowment insurance relationship foremployees. After the confirmation of the individual, the social insuranceagency shall terminate basic endowment insurance relationship for employees andpay the individual the savings in the personal savings account in a lump sum.
After the decease of an individual participating in basic endowment insurancefor enterprise employee, all the balance in the personal savings account may beinherited in accordance with the law.
Chapter II Basic Medical Insurance
Article 7 The premiums payment period of enjoying the basicmedical insurance by retirees prescribed in Article27 of the SocialInsurance Law shall be implemented in accordance withthe local provisions.
Where an individual participating in basic medical insurance for enterpriseemployees transfers and continues his or her basic medical insurancerelationship, the premiums payment period of basic medical insurance shall becalculated cumulatively.
Article 8 Medical expenses of an insurance participant incurredat a medical institution under a medical service agreement and meeting therequirement of basic medical insurance on catalogue of drugs, scope ofdiagnosis and treatment and standard of medical service facilities, the medicalshall be paid from the basic medical insurance fund in accordance with theprovisions of the State.
Where an insurance participant truly needs emergency treatment, he or she maybe treated in the medical institution which is not under a medical serviceagreement; the scope of drugs for emergency treatment may be expandedappropriately. The specific administrative measures of emergency treatmentservices for insurance participant shall be formulated in light of the localactual situations by the relevant departments.
Chapter III Work- related Injury Insurance
Article 9 Where an enterprise employee (including part-timepractitioners) works for two or more employing units simultaneously, both orall units shall pay the work-related injury insurance premiums respectively.When a work-related injury happens, the employing unit whom the employee worksfor when injured shall take the responsibility of work-related injury insurancein accordance with the law.
Article 10 The standard of drunken prescribed in the Item (2)of Article 37 of the Social Insurance shall be implemented as the Threshold andExamination of Alcohol Concentration in the Blood and Expiration of VehicleDrivers (GB19522-2004).The testing results, diagnosis proof and other documents lawfully issued byrelevant units such as the traffic administrative department of the publicsecurity organ, medical institutions and etc. may serve as the basis ofdetermining drunken.
Article 11 For the purposes of Item (8) of Article 38 of the Social Insurance Law, the allowance forwork-related death refers to the lump-sum allowance for work-related deathprescribed in Article39 of the Regulationson Work-related Injury Insurance, whose standard shall be the twentytimes of the national urban per capita disposable income in the year prior tothe occurrence of work-related death.
The national urban per capita disposable income in the year prior to theoccurrence of work-related death shall be subject to the data released by theNational Bureau of Statistics.
Article 12 The wages and welfare during the treatment period ofwork-related injury prescribed in the Item (1) of Article39 of theSocialInsurance Law shall be implemented as the provisionsabout the wages and welfare and treatment during the paid non-working period in Article 33 of the Regulations on Work-related Injury Insurance.
Chapter IV Unemployment Insurance
Article 13 Where an unemployed person meets the requirement of Article 45 of the Social Insurance Law may apply forclaiming unemployment insurance compensation and enjoy other relevant benefits.Circumstances of unwilling suspension of employment include:
1. Terminating a labor contract in accordance with Items (1), (4) and (5) of Article 44 of the Labor Contract Law;
2. Rescinding a labor contract by an employing unit in accordance with Article39, Article 40 and Article41 of the LaborContract Law;
3. An employing unit projects to rescind a labor contract and terminates thecontract with the consensus of the employee in accordance with Article 36 of the Labor Contract Law;
4. An employing unit projects to rescind the labor contract or an employee isdismissed, removed or expelled by an employing unit;
5. An employee terminates the labor contract in accordance with Article 38 of the Labor Contract Law; and
6. Other circumstances prescribed by laws, regulations and rules.
Article 14 Where an unemployed person gets reemployed afterclaiming unemployment insurance compensation, the premiums payment period shallbe recalculated when he or she gets unemployed again. Where an unemployedperson fail to meet the requirement of claiming unemployment insurancecompensation, the previous payment period shall be retained; where he or shegets reemployed and participates in unemployment insurance, the payment periodshall be calculated cumulatively.
Article 15 Unemployed persons shall, during claiming theunemployment insurance compensation, hunt jobs actively, accept career servicesand training. Subsidies for career services and training shall be covered bythe unemployment insurance fund in accordance with the relevant provisions.
Chapter V Fund Management and Agency Services
Article 16 The formulation, examination and approval of draftson budgeting and final accounting of social insurance fund shall be implementedin accordance with the Opinions of the State Council on the TrialImplementation of the Budget for Social Insurance Funds (Guo Fa [2010] No.2).
Article 17 A social insurance agency shall, at least once ayear, send the records of individual rights and interests to insuranceparticipants by mail. At the same time, the social insurance agency shall sendthe records of individual rights and interests to insurance participants bytelephone message, e-mail and etc.
Article 18 Administrative departments of social insurance,social insurance agency and their staff members shall keep the information ofunits and individuals confidential in accordance with the law, and shall notdisclose to others the following information:
1. Information related with the trade secrets of the employing unit or thedisclosure thereof may harm the legitimate interests of employers; and
2. Information related with personal rights and interests.
Chapter VI Legal Liabilities
Article 19 Where an employing unit refuses to issue the certificateof termination or rescission of labor relationship to an employee whenterminating or rescinding the labor contract, making the employee unable toenjoy the social insurance benefits, the employing unit shall be liable forcompensation in accordance with the law.
Article 20 The social insurance premiums which should be paidby an employee shall be withheld and paid by the employing unit. Where anemploying unit fails to withhold and pay the premiums in accordance with thelaw, the social insurance premiums collection agency shall order the employingunit to do so within a time limit, and shall charge the employing unit 0.05% ofthe premiums per day from the date of default as late payment penalty. Theemploying unit shall not order the employee to assume the late payment penalty.
Article 21 Where an employing unit has serious difficulties inproduction and business operation due to force majeure may, upon the approvalof the provincial administration departments of social insurance, suspendpaying social insurance premiums in a certain period which generally are notover one year. During the period of suspension, the employing unit shall beexempt from late payment penalty. After the expiration of the period, theemploying unit shall pay the corresponding social insurance premiums.
Article 22 An employing unit providing the guarantee andconcluding a payment suspension agreement with the social insurance agency inaccordance with Article63 of the SocialInsurance Law shall be exempt from late payment penaltyduring the period of suspension.
Article 23 During the period that the employing unit suspendsto pay the social insurance premiums in accordance with Article 21, Article 22of these Provisions, its employees' entitlement to social insurance benefitsshall not be affected.
Article 24 Where an employing unit fail to inform its employeesof the payment details of social insurance premiums monthly, the administrativedepartments of social insurance agency shall order it to make corrections, and,where the employing unit fails to do so, punish hereof in accordance with Article30 of the Regulations on Labor and Social Security Inspection.
Article 25 Where social insurance service agencies such asmedical institutions, units of drugs dealing and etc. swindle social insurancefund by fraud, forging proving documents or other methods, the administrativedepartments of social insurance shall order them to return the swindled socialinsurance fund and impose a penalty of more than two times but less than fivetimes of the swindled fund. In respect of the medical institutions and units ofdrugs dealing concluding an agreement with a social insurance agency, thesocial insurance agency shall investigate their liabilities in accordance withthe agreement; in some serious cases, the social insurance agency may rescindthe service agreement. In respect of the persons directly in charge and otherpersons subject to direct liability who have professional qualifications, theadministrative departments of social insurance agency shall suggest therelevant competent departments who granted the professional qualifications torevoke their qualifications in accordance with the law.
Article 26 Where a social insurance agency, social insurancepremium collection agency, social insurance fund investment operation agency,institution opening special accounts for social insurance fund, or specialaccount management bank and its staff members have the following illegalactions, the administrative departments of social insurance shall conductinvestigation and impose punishment in accordance with Article91 of the SocialInsurance Law:
1. Failing to collect or enter the social insurance fund into the account bookwhich shall be collected or has been collected by means of concealment orillegal placement and etc. in accordance with the regulations;
2. Transferring social insurance fund into accounts other than the specialaccount for social insurance fund in violation of the provisions;
3. Embezzling social insurance fund;
4. Misappropriating various social insurance funds or misappropriating socialinsurance fund as other social security funds;
5. Using social insurance funds to balance the financial budgets, to establishand rebuild offices, or to pay personnel expenses, operation expensesmanagement fees; or
6. Violating the policies of investment and operation stipulated by the State.
Chapter VII Miscellaneous
Article 27 Where an employee has disputes with its employingunit, he or she may, in accordance with the Law of the People's Republic ofChina on Labor-dispute Mediation and Arbitration and the Rules on HandlingCases of Arbitration of Labor and Personnel Disputes, apply for mediation,arbitration, or file a lawsuit.
Where an employee holds the view that the employing unit has the conductionharming his or her social insurance rights and interests such as failing to payfull social insurance premiums punctually for him or her, the employee may alsorequire the administrative department of social insurance or the socialinsurance premium collection agency to handle the case in accordance with thelaw. The administrative department of social insurance or the social insurancepremium collection agency shall handle the case in accordance with the Social Insurance Law and theRegulations on Labor and Social Security Inspection. During the process of handlingthe case, the employing unit raise an objection to the labor relationshipbetween two parties, the administrative department of social insurance shall,in accordance with the law, ascertain the relevant facts prior to handling thecase.
Article 28 In areas where a social insurance agency collectssocial insurance premiums, the administrative department of social insuranceshall perform the duties of administrative department specified in accordancewith Article63 of the SocialInsurance Law.
Article 29 Where an employing unit fails to pay full socialinsurance premiums punctually after July 1, 2011, the matter shall be handledin accordance with the SocialInsurance Law and these Provisions; where an employingunit fail to pay full social insurance premiums punctually prior to July 1,2011, it shall be handled in accordance with the relevant provisions of theState and the local people's governments.
Article 30 These Provisions shall come into effect as of July 1, 2011.
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