(Translation for Reference Only)
(Adopted at the Eleventh Meeting of the Standing Committee of the Second People's Congress of Shenzhen Municipality on October 29, 1996; revised at the 18th Meeting of the Standing Committee of the Fourth People's Congress of Shenzhen Municipality on April 1, 2008; amended for the first time in accordance with the Decision on Revising 27 Regulations Including the Regulations of the Shenzhen Special Economic Zone on Medical Services adopted at the 33rd Meeting of the Standing Committee of the Sixth People's Congress of Shenzhen Municipality on April 24, 2019; and amended for the second time in accordance with the Decision on Revising 12 Regulations Including the Regulations of the Shenzhen Special Economic Zone on Certified Public Accountants adopted at the 28th Meeting of the Standing Committee of the Seventh People's Congress of Shenzhen Municipality on April 30, 2024)
Chapter I General Provisions
Article 1 In order to safeguard the lawful rights and interests of the employees of the Shenzhen Special Economic Zone (hereinafter referred to as the “Zone”), maintain social stability and promote social harmony, the Regulations of the Shenzhen Special Economic Zone on Owed-Wages Security (hereinafter referred to as “these Regulations”) are formulated in accordance with the basic principles of the relevant national laws and administrative regulations and in light of the actual conditions of theZone.
Article 2 These Regulations shall apply to the raise, use and administration of the Owed-Wages Security Fund of the Zone.
Article 3 The system of owed-wages security in the Zone shall be constructed, under which the Owed-Wages Security Fund shall be established.
Article 4 The system of owed-wages securityas mentioned in these Regulations refers to a system of social mutual assistance which shall apply under the circumstances stipulated in these Regulations involving an employer defaulting on the payment of wages to its employees, according to which the competent authorities shall, in accordance with the provisions of these Regulations, advance a certain amount of wages to the employees from the Owed-Wages Security Fund.
The employers, as mentioned in these regulations, refer toentities such as enterprises, other economic organizations, and private non-enterprise entities, except for individual industrial and commercial households.
The employees, as mentioned in these regulations, refer to persons who have established labor relationship with an employer.
Article 5 The system of owed-wages security is based on the principles of social mutual assistance and limited advance payment.
Chapter II Owed-Wages Security Agency
Article 6 The Committee for Owed-Wages Security Fund shall be established, consisting of representatives of the municipal human resources and social security department, the finance department, trade unions, chambers of commerce, employers and other parties, to perform the following duties:
(1) Overseeing the collection and advance payment of the Owed-Wages Security Fund;
(2) Undertaking coordination and studying work related to the owed-wages security; and
(3) Reporting to the Municipal People's Government on the administration of the revenue and expenditure of the Owed-Wages Security Fund.
The specific measures of composition, working rules and other matters relating to theCommittee for Owed-Wages Security Fund shall be formulated separately by the Municipal People's Government.
Article 7 The municipal department of human resources and social security shall be the competent authority for the Owed-Wages Security and act as the office of the Committee for the Owed-Wages Security Fund, and shall perform the following duties:
(1) Undertaking daily administration of the Owed-Wages Security Fund;
(2) Supervising and inspecting employers' payment of the owed-wages security fee;
(3) Reporting regularly to the Committee for Owed-Wages Security Fund on the revenue and expenditure of the Owed-Wages Security Fund;
(4) Directing and supervising the owed-wages security work of district human resources departments; and
(5) Other work assigned by the Committee for Owed-Wages Security Fund.
Article 8 The district human resources departmentsshall be responsible for the specific work of owed-wages security within the administrative jurisdictions and perform the following duties:
(1) Receiving and examining applications for the advance payment of owed-wages;
(2) Making decisions on whether or not to pay theowed-wages in advance; and
(3) Recovering the money paid in advance.
Chapter III Owed-Wages Security Fund
Article 9 The sources of the Owed-Wages Security Fundshall be as follows:
(1) Owed-wages security fee;
(2) Financial subsidies; and
(3) Lawful interest on the Owed-Wages Security Fund and lawful donations.
Article 10 Every employer shall pay the owed-wages security fee of RMB 400 in the first quarter of each year. Newly-established employers shall pay the fee startingfrom the year following their establishment.
The owed-wages security fees shall be collected by the municipal social insurance agency.
The municipal people's government shall, in light of the revenue and expenditure of the Owed-Wages Security Fund, propose a motion to adjust or suspend the levy of owed-wages security fees and submit it to the Standing Committee of the Municipal People's Congress for deliberation.
Article 11 The Owed-Wages Security Fund shall be administered in a special financial account, and shall separate its receipts and expenditures management. The Owed-Wages Security Fund shall not be used for any purpose other than the advance payment of owed-wages in accordance with the provisions of these Regulations.
The specific administration methods of the Owed-Wages Security Fund shall be separately formulated by the municipal people's government.
Article 12When using the Owed-Wages Security Fund,the money shall be pre-allocated from the municipal finance department to the municipal human resources and social security department, and then to district human resources departments.
Article 13 The Committee for Owed-Wages Security Fund shall, in the first quarter of each year, publicize to the public the collection, advance payment, recovery of money, insolvency and the balance of the Owed-Wages Security Fundof the previous year.
The municipal audit department shall regularly audit and supervise the revenue and expenditure of the Owed-Wages Security Fund, and publicize the audit results to the public.
Chapter IV Advance Payment on Owed-Wages
Article 14 If an employer defaults on wages and is subject to any of the following circumstances,theemployee may apply for advance payment of owed-wages to the district human resources department:
(1) The people's courts accept its bankruptcy application in accordance with the law; or
(2) Its legal representative or principal person in charge hides or escapes.
Article 15The employee applying for advance payment of owed-wages shall, within 30 days from the date on which he/she knows or should have known of the circumstances stipulated in Article 14 of these Regulations, submit a written application to the district human resources department, presents the employment contract or other proof of employment relationship and the identification documents with copies.
Article 16 The application for advance payment of owed-wages of the following persons shall be rejected:
(1) The legal representative or the principal person in charge of the employer that owes wages;
(2) Close family member of the person in the preceding item;
(3) Person who owns shares in the employer that owes wages and whose share capital amounts to RMB 200,000 or more;
(4) Person whose average wage for the 3 months preceding the payment default exceeds 3 times the average monthly wage of employees for the previous year in Shenzhen; and
(5) Person whose accumulated owed-wagesareless than RMB 200.
Article 17 The district human resources department shall accept the applications that comply with the provisions of Article 15 of these Regulations.If an application shall be rejected, the district human resources department shall reply within 3 working days. If no reply is given within due time, the application shall be deemed to have been accepted.
Article 18 After accepting the application, the district human resources department shall go to the employer to inspect and collect attendance records, wage rates, wage payments and financial statements and other necessary information, and examine the authenticity of time, amount of owed-wages and other relevant information.
The employee, the employer, the owner of the employer's business premises, and the property services entity shall cooperate with the district human resources department in the investigation.
Article 19 The district human resources department shall, within 10 working days upon accepting the application, make a decision on the payment ofowed-wages in advance.
If the requirements stipulated in the provisions of Article 15 of these Regulations are satisfied , the district human resources department shall make a decision on the advance payment of owed-wages, and notify the applicant and the employer.If not, the district human resources department shall make a rejection decision on the advance payment of owed-wages, and shall notify the applicant with reasons.
Article 20 If the duration of owed-wages does not exceed 6 months, the advance payment of owed-wages shall be calculated on the basis of the actual number of months of owed-wages; otherwise, it shall be calculated on the basis of 6 months.
If the amount of monthly owed-wages is higher than 60% of the average monthly salary of the employees of Shenzhen in the previous year, the advance payment standard shall be calculated according to 60%; if lower,the advance payment standard shall be calculated according to the actual amount of owed-wages. If the amount of owed-wages cannot be confirmed, the amount of advance payment shall be determined in accordance with the minimum wage standard for the employees ofShenzhen.
Article 21 The employees shall, within 15 days upon receiving the decision on the advance payment of owed-wages, go to the designated place to claim the money by their identity cards or other valid proofs of identity. If the money is not claimed within prescribed time, the relating decision on the advance payment of owed- wages shall be automatically revoked.
If an employee fails to claim the money within prescribed time due to reasons beyond his/her control, he/she may reapply for the advance payment of owed-wages within 15 days after the elimination of the said reasons beyond his/her control on the basis of the relevant certificates.
Article 22 The municipal human resources and social security department shall promptly announce to the public the employer’s name address, and behavior of defaulting on wages, and the amount of money paid in advance. If the employer's legal representative or the principal person in charge hides or escapes, their names shall be published and reported to the relevant agencies to record in the enterprise or personal credit system.
Chapter V Recovery of Money Paid in Advance
Article 23 After an employee claims the advance payment of owed-wages, the district human resources department obtains the right to pursue the money that has been paid in advance. The employee has the right to continue to pursue the wages not covered by the advance payment.
The district human resources department shall pursue money from the employer in accordance with the law after paying the owed-wages in advance, and shall pursue the direct costs incurred in recovering the owed-wages.
Article 24Under any of the following circumstances, the district human resources department shall inform the people's court in writing of the advance payment of owed-wages after paying in accordance with the law:
(1) the employer is subject to insolvency proceedings; or
(2) the people's court takes coercive measures against the employer in accordance with the law, and is about to pay employees' wages.
The money paid in advance by the Owed-Wages Security Fund shall be recovered as wages owed by the employer to the employees in accordance with the provisions of the Enterprise Bankruptcy Law of the People's Republic of China. In the event that the property of the bankrupted employer is insufficient to cover both the money pursued by its employees andthe money pursued by the district human resources department, priority shall be given to the employees.
Article 25 If the legal representative or the principal person in charge of the employer hides or escapes, the district human resources department shall apply to the people's court for adopting property preservation measures and shall file a lawsuit in accordance with the law after paying the owed-wages in advance.
Article 26 The money recovered by the district human resources department shall be returned to the Owed-Wages Security Fund in full and in a timely manner.
If the money recovered by the district human resources department's is less than the money paid in advance after the completion of the statutory recovery process, the gap shall be handled in accordance with the provisions of the State's relevant financial regulations.
Chapter VI Legal Liability
Article 27 If an employer fails to pay the owed-wages security fee in accordance with the provisions of these Regulations, it shall be ordered by the municipal human resources and social security department or the district human resources department to pay the fee within a certain period. If it fails to pay the fee within that period , a fine of RMB 2,000 yuan shall be imposed on it.
Article 28 If the legal representative or the principal person in charge of an employer hides or escapes, after paying the owed-wages in advance in accordance with the provisions of these Regulations, the district human resources department shall impose on the legal representative or the principal person a fine of 25 percent of the advanced owed-wagesamount.
Article 29 If the owner of an employer's business premises or a property service entity obstructs the investigator of the district human resources department to investigation orcollect evidence of owed-wages case, the district human resources department shall, depending on the seriousness of the behavior, impose a fine of not less than RMB 2,000 and not more than RMB 10,000.
Article 30 Anyone who intentionally provides false information to defraud the advance payment of owed-wages, shall be ordered by the district human resources department to return the fraudulently obtained money and shall be fined 3 times the amount fraudulently obtained; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.
Article 31 If an employee or employer is not satisfied with a specific administrative act made by the municipal human resources and social security department, the district human resources department or the social insurance agency, he or she may apply for an administrative reconsideration or bring an administrative lawsuit in accordance with the law.
Article 32 The staff of the municipal human resources and social security departments, district human resources departments and social insurance agencies who do not perform their duties in accordance with the provisions of these Regulations, or who abuse their powers, commit acts of favoritism or neglect their duties, shall be punished in accordance with the law; and if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.
Chapter VII Supplementary Provisions
Article 33If the advance payment of owed-wages, involving the data of average monthly salary of employees in Shenzhen in the previous year, is made in the first half of the year, the calculation shall be based on the average monthly salary of employees for the year two years prior. If it is made in the second half of the year, the calculation shall base on the average monthly salary for the previous year.
Article 34 These Regulations shall come into force on June 1, 2008.
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