배움과 공유의 시간

02 Kitchen public funds

In the past, state-owned companies distributed homes to employees free of charge in China However, with the implementation of the Kitchen Public Fund System in the late 1990s, the policy was changed from "real distribution" of houses to "funding support" and the Kitchen Public Interest (long-term savings) system, in which the monthly housing purchase funds were set aside at the kitchen public service center at the joint labor-management ratio, was implemented.
Kitchen public funds refer to long-term kitchen public funds, which are set aside at the same rate by businesses and employees so that employees can use them for purchasing, building, renovating, and repairing houses. Under Cabinet Ordinance No. 262, which was promulgated in 1999, the Kitchen Public Funds became a legal obligation.

1. An Overview of the Kitchen Public Expend

Supervision of the payment of kitchen public funds
Unlike social insurance under the management and supervision of the Bureau of Labor, the Kitchen Public Fund is under the control of the Kitchen Public Funds Management Center. Unlike legal social insurance, such as the old and the medical insurance, kitchen public funds are not set aside in the social unification management fund, and are only used for personal housing purposes, so the intensity of law enforcement is relatively weaker than social insurance. In addition, the Kitchen Public Loan Center also has passive supervision activities on the basis of complaint.
If a company does not pay kitchen bills, the employee's remedies are limited. Even if workers apply for arbitration due to kitchen public funds, repairs are denied, and courts do not accept them. Since the inspection team is not included in the inspection team's inspection list, it is impossible to file a complaint with the inspection team. This is because the issue of unpaid kitchen bills is not settled through lawsuits, but is considered to be an issue to be dealt with through the kitchen's public money center in charge of collecting

The Role of the Kitchen Public Deposit Center
The Kitchen Public Funds Center in each province is responsible for the management of the kitchen public funds jointly established by businesses and workers. As an employee, the only remedy is to file a complaint against the company to the management center and request supplemental payment of the kitchen public expense by submitting a labor contract payroll statement. If the Kitchen Public Deposit Center does not move, the accuser may file an administrative suit against the center.
In line with the rise in real estate prices, workers' interest in kitchen public money has increased significantly, raising complaints to the deposit center for unpaid kitchen bills, and some local kitchen public money centers have been stepping up supervision by sending companies fines, notice and reminder letters of compensation payment if complaints are filed and verified.

Meanwhile, as part of its recent "urbanization" policy, the government actively pursues "the settlement of farming and farming industries in cities."
In the meantime, the government has been strengthening its supervision of the company's payment of kitchen bills every day by day. Shanghai, Shenzhen,
Beijing and other cities have promulgated administrative rules for strengthening the management of kitchen public funds or have declared kitchen public funds.
The center has strengthened its supervision function and is actively engaged in the handling of workers' complaints.
The legal risk of unpaid kitchen bills is increasing day by day. So, still the kitchen.
For companies that do not pay public money, kitchen work even from some employees step by step.
It will be necessary to start paying gold.

2. Criteria for the payment of kitchen public funds

Subject to payment
All employees serving in a company will be targeted, and even farmers who spend money abroad will not be discriminated against under the law. However, it should be noted that, in reality, different policies are in place for farmers or for those who have an outside urban household depending on the province. For example, in the case of farmers with severe manpower fluctuations, companies should check the specific payment conditions of the local area at the kitchen public service center in their location, as Beijing and Shanghai are given the option of joining the company membership.
[Bukgyeong, Shanghai] Payment is made to the owners of the estuary and the out-of-the-box city.
Forced by the government, the company is given a choice for those in need of agriculture.

a paid-in rider
1 My monthly wage position for the previous year (total total wage / 12 including bonus, overtime, etc.)
2 Upper and lower limits on the number of days (base) paid for kitchen public funds
ᄋ Upper limit of the flag carrier: Average wage for the previous year in the city x 3 times x 12 percent
ᄋ Lower bound for flag bearer: the minimum wage for the city;
3 When to set and pay the number of new employees in the year
(a) Employees who enter their first job after graduation (no job experience)
From the second month of employment, the company pays kitchen bills and the period of payment is the total wage for the second month.
(b)Employees who have entered the company on a medium-sized loan.
Starting from the day of employment, the kitchen service fee will be paid, and the period of payment will be the total amount of wages in the month of employment.

rate of payment
Typically 5% (the lowest rate in court) to 12% (the highest rate) and the company and its employees pay at the same rate. If a high percentage of payment is reported from the beginning, all employees must sign a written agreement when the reduction adjustment is made later. Therefore, it is necessary to report to the lowest percentage of the area where the kitchen public funds are registered for the first time.

Penalty if kitchen public funds are not paid
If the company does not register the payment of the Kitchen Public Loan, the Kitchen Public Loan Center will press for implementation within the time limit and may impose a fine of 50,000 yuan from 10,000 yuan for executory. In the event that the company does not pay within the time limit or is underpaid, the Kitchen Public Loan Center shall press for due payment and may apply for compulsory execution by the People's Court in the event of non-execution.

Cautions concerning the payment of kitchen public funds
1 Company and employees maintain the same percentage of payments
The payment ratio of the company and its employees must be consistent.
For example, the difference in the rate of payment, such as 10% of employees and 12% of the company, is not recognized.
2 Differentiation payment ratio cannot be applied within the same company
The payment ratio of all employees in the same entity should be the same. For example, payment from an existing employee
The ratio will be 12 percent, and new employees cannot be 10 percent. However, the overall percentage of the workplace is
It is possible to upgrade or downgrade step by step.
3 Payment period can only be adjusted once a year
Most regions are adjusted as of July 1st (based on average wages in the previous year), and the adjustment period is adjusted.
It is valid until June 30 of the following year. Therefore, in the case of new graduates in August of the year,
By the end of June of the following year, the term of payment will be the wages for the month of employment.
4 If an employee does not sign up for a kitchen credit, he or she will sign up for a letter of approval.
Kitchen public funds are legally enforced under the State Council Ordinance, so employees are required to give up their membership.
Even if a confirmation is submitted, it will have no legal effect if an employee is turned back later. Peasant ball,
In the event that foreign expenditure holders do not wish to subscribe to the kitchen public funds on their own, it is not legally valid
In preparation for further investigation by the Center for Kitchen Public Funds, it is recommended that the following consent form be accepted.
do
If an employee requests a separate cash payment as a condition of giving up, and the employee is required to accept the payment as an entity.
In case of a situation, it is required to make up for the public kitchen bills later in the approval form, and to make up the cash.
It shall be accompanied by a provision agreeing to return the amount paid to the Company.

[Approved letter]
After careful consideration, I do not want to pay the kitchen public money. Therefore, I hope the company will not process the kitchen public money for you or deduct the kitchen public expense from your wages. I hereby pledge: I am responsible for all outstanding kitchen bills and I would like to abandon all claims to the company resulting from unpaid kitchen bills.

2. Implementing labor contract laws and changing payment standards

Economic compensation for the termination of employment due to contract
With the implementation of the Labor Contract Act in January 2008, China's economic compensation payment system was greatly expanded. In other words, in the labor law era until 31 December 2007, there was no obligation to renew the contract and to pay economic compensation when the fixed-term labor contract was due. Companies were able to use it to send out senior employees with higher wages and replace them easily with younger workers with lower wages. The Labor Contract Act provides for a wedge in the short-term employment phenomenon triggered by this, and at the end of the contract, an attempt to terminate the employment (in case of contract renewal), economic compensation.
He imposed a payment obligation
Under the principle of non-payment of laws, the period of application of economic compensation for termination of employment due to contract expiration is January 2008.
Only applicable for service period after 1 day.

High-wage economic compensation - Application of the upper payment ceiling regulation
In order to curb some high-wage earners’ excessive receipt of economic compensation, the Labor Contract Act established the upper limit of the high-wage wage earner (3 times) and the limit of the period (12 months). The cap on economic compensation money existed even in the pre-2008 labor legal age. However, at that time, the 12-month cap on economic compensation was applied in exceptional cases only to some statutory requirements (e.g., the lifting of negotiations, the lifting of non-compliance, etc.).
With the upper limit on economic compensation for high-wage workers, the economic compensation shall be calculated by applying the criteria of the past labor legal age to be transferred from January 2008 to January 2008 and the labor contract law era to the period of service thereafter.

3. Calculation of economic compensation and calculation of the number of years of service


Amount of economic compensation = Monthly wage standard corresponding to the number of service

Calculation Method of Wage Standards
It is based on the monthly average wage divided by 12 for the previous 12 months, which includes total wage income for the last 12 months (including bonuses, bonuses, bonuses and overtime expenses) before the termination or termination of labor contracts. If the work is less than 12 months, the average wage is calculated based on the number of months actually worked. Meanwhile, the last 12 months are assumed to be normal business conditions, such as "cancellation of operations" and, in the case of receiving abnormal wages, the period is excluded from the 12 months.

[Local judicial standards for Shanghai]
The Shanghai court was the only court in the country to make a local judicial interpretation that the calculation of economic compensation is deductible because overtime costs are not "normal wage income." However, in order to avoid unnecessary friction with retired employees, economic compensation is calculated and paid, including overtime expenses, unless special circumstances exist in Shanghai.
(Building) Civil Code Application Questionnaire of the High-Level People's Court in Shanghai (2013-1)--Calculator of Economic Compensation Funds

Restriction of economic compensation for high-wage employees

the upper limit of a sum
If the monthly wage of an employee (12 months average wage) exceeds three times the average monthly wage of an employee in the previous year, the wage standard of the economic compensation paid to that employee is calculated as three times that of the previous year's average wage of the company's property.
two-year limit
In calculating the service life, the number of months corresponding to the service life shall not exceed a maximum of 12 months. Even if a person has worked for 20 months, 12 months will be the legal upper limit.

Calculation of years of service

1 Time of service life
The number of years of service at the time of calculating the economic compensation shall be calculated from the working day at the company. However, the fixed-term labor contract is signed and the employment termination date at the end of the contract is subject to the payment of economic compensation only for the years of service from January 2008 (the new clause of the Labor Contract Act).
It is the case of termination of the contract that requires attention here. Economic compensation paid based on the total number of years of service from the time of employment when the contract is terminated from the previous era of labor law
On the other hand, if a medical period is given due to a worker's illness or non-work injury, this medical period is also counted as a continuous service life.

2 Retired soldiers' years of service
Care should be taken when hiring veterans when the military service training is calculated for the first time since retirement and economic compensation requirements are met for the relocation of the company, the economic compensation shall be calculated for the combined period of the company's service and military service (the opinion on the resettlement of veterans in accordance with the employment unit's labor contract system).
However, because the military service training is only counted on the first company after retirement, if a veteran joins the company after several companies, it does not count on the number of years he or she has received economic compensation in his first job or not. Therefore, it is very important for veterans to check whether they are first-time employees or have other company experience.

3 Employee's years of service from China's joint partner company
Many Chinese companies are transferred to the joint venture after their Chinese counterparts set up joint ventures with Korean companies. In this case, the employee’s years of service in the Chinese company are summed up in the joint venture’s years of service. However, if the employee transferred to the joint venture at the instruction of the Chinese joint partner, the employee has terminated the labor contract with the Chinese company that worked as his doctor and joined the joint venture, the number of years of service shall not be added.

4 Training for employees who have been transferred to related companies
If the company transfers employees to a separate company (new company) without the cause of the employee itself, the old company's years of service are added to the new company's years of service (Article 10 of the Labor Contracts Act).
Many cases involve shutting down companies or certain departments whose management has deteriorated, and transferring related employees to related companies. In this case, the employee’s service life is counted on the employee’s service life, which is a separate entity, if the former employee does not pay the economic compensation. However, if the company does not provide a job security service, if an employee releases a labor contract with the former job at his own discretion, and transfers to a related company, the employee's service life will not be added.

4. Requirements for the payment of economic compensation and the standard of tax payment

Payment upon completion of handover
Economic compensation shall be paid upon completion of the employee's handover of work (Article 50, Clause 1 of the Labor Contract Act). The Labor Contract Act stipulated the timing of payment of economic compensation to the completion of the work handover in order to prevent the failure of workers to take over upon retirement. Therefore, employees who have not completed the handover should be paid after confirming the firm implementation of the transfer, since it is not legally problematic to postpone the payment of the economic compensation.

[Labor Contracts Act]
Article50 Workers shall carry out work handover procedures in accordance with both parties' agreements. If the user is required to provide economic compensation to workers under the relevant provisions of this Act, the payment shall be made upon completion of the work handover process.

lump sum payment
Economic compensation money needs to be paid in batches (Article 2 of the Economic Compensation Rules for violating and lifting labor contracts). However, if labor and management agree on the payment in installments, follow the agreement.

a tax payment on economic compensation
Since economic compensation amounts to employee income, it is subject to taxation of personal income tax. In practice, money is paid in the name of consolation money in addition to economic compensation, which is also subject to taxation of personal income tax. When an entity pays economic compensation to its employees, it is obliged to pay the employee’s personal income tax by proxy deduction, as is the case with the payment of wages (article 8 of the Personal Income Tax Act).

[Personal income tax payment method]

1 Income tax exemption limit
Individual income taxes are exempted for income from economic compensation acquired on a one-time basis, and for the amount less than three times the average annual wage of the previous year on corporate property.
[Example] Tax exemption for Shanghai 2013: 4,692元(a monthly average wage in Shanghai 2012)×12 months
= 56,304元3배=168,912元
2 Calculation of personal income tax on excess of the exemption limit
Economic compensation (including surcharges, etc.) is calculated on the basis of the following principles:
(a) Segments within three times the previous year's average annual wage of a workman in the area shall be deducted from the taxable amount of the personal income tax.
(b) Social insurance and kitchen public funds paid from economic compensation as personal burden shall be deducted from the taxable amount of personal income tax.
(c) Since economic compensation is paid in proportion to the period of service, the wages for several months are considered to have been acquired once, and are calculated on average by dividing them into the number of years of service. Meanwhile, if the number of years of service exceeds 12 years, it is calculated as 12 years.

[Personal income tax calculation formula]
Personal income tax = {economic compensation - 3 times the average annual wage in the area - actual kitchen credit paid - social insurance premium paid]기업의 Corporate service life - personal income tax deduction amount} x applied tax rate - calculation deduction amount] x Company's continuous service life

 Business supply contract (object)

This means that the company enters into a business supply contract with an external individual to carry out certain tasks (S/W development, computer maintenance, transport services in its own vehicle).
The contractor is not a company with a business license, but a freelance individual who is on an equal footing with the company. The relationship between the two parties establishes the content, time and repair of the work, and entrusts the work to the individual through the specific work.

It is not a command supervision and subordinate relationship between labor and management, such as labor relations, but a method in which the results ordered by the rich (company) in an equal relationship are submitted by an Eulbang (individual) and remuneration is paid in exchange for the same way.

In this case, the entity is not subject to the corporate supervision and the company’s employment rules, is not required to commute on time, only if the entity issues the results specified in the labor contract at the specified time. This means that the entity is not involved in any of the processes in which the outcome is completed.

Labor-related laws such as the Labor Contract Act shall not apply to work contract relationships, and the Contract Act and the Civil Code shall be the basis of the Act. Since it is not a labor relationship, there is no need to pay social insurance. In addition, the commission fees paid by the company to an outside individual are not salary income, but are taxed and included in labor remuneration income.

(1) Precautions for hiring subcontracts

1) There should be no administrative subjugation.

Workers in labor relations are not subject to the management of user employment In other words, they are not subject to user absenteeism and punishment schemes, and there is no subservience relationship between them. If a worker receives daily care, such as management of a user's muscular system, there is a risk that is legally considered to form a labor relationship between the two sides.

2) Business contract should differ from labor contract.

The contract shall not have the contents of the labor contract agreed as is, otherwise there is a risk that it will be considered a labor contract even if the title states "subcontracting contract." The work contract may include the details of work specifically engaged in both parties, the duty of rights between the two parties, the time and method of remuneration payment, and the responsibility for placebo.

3) Receive a receipt for labor expenses when paying a repair.

When a worker receives a remuneration, the user shall require the worker to submit a receipt (劳务费) for labour expenses from the tax office. In this case, it is a strong proof that he received the labour remuneration, not the salary.

4) Job security and legal risks are very high in a similar way to regular employees

 If a contract is concluded but a contract is concluded to be similar to a full-time employee, and the other party obtains relevant evidence, and the labor relationship is judged to have been established by filing a lawsuit, it can be held liable for a huge amount of compensation, such as contract failure, double-payment, payment of social insurance, and supplementation, and economic compensation.

[Requirement contract agreement requirement clause (case)]

ᄋ Eulbang shall handle social and personal injury insurance issues on its own and shall not be held liable for any damages caused to the person or property of others during Eulbang's labor activities.

ᄋ In the labor activities of Eulbang, the Affiliate conducts no specific arrangements or management and does not require any duties. Eulbang assigns his work hours entirely to himself, decides how to carry out his labor activities, and is not under the supervision of the Gabby Rules System.

ᄋ Eulbang shall bear management risks on its own, and the Subang shall not guarantee any income of Eulbang.

(2) Risk of subcontracting with individuals

Responsibility for compensation for a worker's fantasy accident hired by an individual contractor

Our company is doing construction at B Korean factory in China. During this construction, a member of K class was injured at the construction site of plant B while working with a person named K team leader who was working as a team leader. It was an accident in which the bones of the thumb were crushed due to his own negligence. In this case, is my company responsible?

Instead of being paid directly to the injured employee, the class president recruited people to work and made profits when he gave them construction costs.

There is no problem if the company submits a contract to an individual who does not have a business group and the individual carries out the work. However, if the individual employs other workers and proceeds with the work, it is in violation of the provisions of the Labor Contract Act. This is because the legal right to hire workers is granted only to companies with business licenses. If individuals are allowed to hire workers, there will be a large number of cases of daydreaming and avoiding legal responsibility due to lack of compensation during the work process.

It is less risky for a company to contract a contract with an individual for work performed by a single person, but in the event that the individual is involved in an accident while recruiting and working with an unregistered business, the damaged worker may be held liable for joint compensation to the individual contractor and the ordering company.

Therefore, it is desirable not to place an order with an individual contractor for work requiring a large number of workers, but to enter into a contract with a duly registered company, even if it is more costly.

[Article 94 of the Labor Contract Act]
In the event that an individual has been recruited in violation of the provisions of this Act to cause damages to the worker, the organization that placed the order and the individual contractor shall be responsible for the joint compensation.

(3) Taxing personal income tax on labor-conservative income

Based on the Personal Income Tax Act and the Enforcement Ordinance, the personal income tax shall be levied on the labour-conservative income as follows, and the company shall be required to pay withholding tax. It is important to note that the taxation criteria for personal income tax on salary income are different.

Taxable income amount tax deduction amount
20% 0 below 20,000元
20,000초s and less than 50,000 30%30% 2,000
50,000 元s and 40% 7000

If a single income does not exceed 4,000 元, a deduction of 800 비용 is made for expenses and a deduction of 20 per cent of expenses is made for taxable income.
* Tax amount = Taxable income amount X tax rate - Speed tax deduction amount