"Malicious arrears of wages" can be punished, and there are ways for workers to ask for wages.

? As the year is approaching, for many workers, getting wages and bonuses in time may mean that the family's food, clothing, housing and transportation, children's tuition fees and family medical expenses are guaranteed. However, due to various factors such as the economic downturn, some enterprises are seriously in arrears with their workers' wages, including objective factors. Some unscrupulous black-hearted bosses are profligate and do everything possible to maliciously default on their workers' wages, resulting in some workers falling into a situation of food and clothing and no recourse. On the one hand, those who pay wages maliciously ignore the law and take chances, thinking that even if the relevant departments intervene, they will eventually be administrative fines or civil compensation to avoid imprisonment; On the other hand, workers are weak in legal awareness, afraid and worried about the long road of asking for wages, facing the risk of dismissal or retaliation at any time, and have no recourse. In view of this, this paper will start from two aspects: how to convict malicious unpaid wages and how to provide relief to workers, so as to effectively protect the legitimate rights and interests of workers.

(2019165438+10/5) Before the Spring Festival in 2020, Ministry of Human Resources and Social Security, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security will make a thunderous attack, and hell to pay will organize a nationwide campaign to eradicate unpaid wages in winter. )

1. Under what conditions does "malicious arrears of wages" constitute the crime of refusing to pay labor remuneration?

According to statistics, since1/kloc-0 added the crime of refusing to pay labor remuneration in May, 2008, as of September, 20 106565438, courts at all levels * * accepted criminal cases of refusing to pay labor remuneration. Among them, 7,674 defendants were sentenced to fixed-term imprisonment or criminal detention, 1 16 defendants were sentenced to fixed-term imprisonment of more than three years, and most of them were fined tens of thousands of yuan. However, it needs to be clear that not all unpaid workers constitute a crime, and it is only possible to constitute a crime if they meet the five conditions of "specific subject+remuneration belongs to' labor remuneration'+malicious intention+large amount+failure to pay after being ordered by relevant government departments". Next, let's look at the legal provisions:

A quick look at the law: the crime of refusing to pay labor remuneration in article 276- 1 of the criminal law

"To transfer property, escape and other means to avoid paying laborers' labor remuneration. Or those who have the ability to pay but fail to pay the labor remuneration of the workers, and still fail to pay after being ordered by the relevant government departments, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; If serious consequences are caused, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

"If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.

If the acts mentioned in the preceding two paragraphs have not caused serious consequences, the punishment may be mitigated or exempted if the laborer is paid labor remuneration and is liable for compensation according to law before prosecution is initiated.

Combined with the provisions of the law, the author analyzes the applicable conditions of this crime:

(1) Who may constitute the crime of refusing to pay labor remuneration?

1. The directly responsible person in charge and other directly responsible personnel of the unit that has signed a labor contract with the laborer or has not signed a labor contract but has a factual labor relationship. It should be noted that this crime not only punishes individuals, but also the unit can become the subject of the crime and face criminal punishment measures of fines. Not only that, the relevant administrative departments will also pull the unit into the relevant "blacklist" and publicize it, which will not only damage the reputation, but also cancel some relevant tax incentives and subsidies.

2. Units or individuals (contractors) who do not have the qualification of employment subject. Specifically, it refers to the units and individuals that have no business license or are not registered and filed according to law, and the units that have their business licenses revoked or their registration and filing cancelled according to law. Practice also includes some illegal subcontractors, subcontractors or contractors without industry qualifications.

3. The actual controller of the employer, that is, the person who is not a shareholder of the company but can actually control the company's behavior through investment relations, agreements or other arrangements.

(2) What income does "labor remuneration" in the crime of refusing to pay labor remuneration include?

"Labor remuneration" in this crime includes: wages, bonuses (such as year-end bonus), allowances (such as maternity allowance), subsidies (such as high temperature allowance), wages paid for extended working hours (such as overtime pay) and wages paid under special circumstances (such as wages paid during work-related injuries). It should be pointed out that the employer's refusal to pay due economic compensation, compensation and double wage difference through arbitration or litigation is not labor remuneration. If the employer refuses to pay after the ruling or judgment takes effect, it will be included in the list of untrustworthy persons, which will affect the business reputation of the enterprise and constitute the crime of refusing to execute the judgment or ruling, rather than refusing to pay labor remuneration.

(3) How to understand the "malice" in refusing to pay labor remuneration?

"Malicious" means that the person who is in arrears with wages has the ability to pay but does not pay, and the actor is subjectively vicious in criminal law. Those who are in arrears evade payment of labor remuneration through some objective and external manifestations, such as absconding with money, malicious liquidation, fictitious debts, false bankruptcy, destroying or tampering with accounts, employee rosters, wage payment records, attendance records and other materials related to labor remuneration, and failing to cooperate with relevant departments to solve problems or explicitly refusing to pay labor remuneration within the specified time can be considered as malicious.

However, it needs to be reiterated that if an enterprise or individual really needs to postpone payment or cannot pay the remuneration of workers due to objective reasons such as difficulties in production and operation, it is not malicious subjectively, and it does not belong to the situation of being able to pay but not paying. At this time, the subject of unpaid wages should promptly report to the local human resources and social security departments and trade unions, and solve it according to law through mediation, arbitration, litigation and bankruptcy.

(4) How likely is malicious unpaid wages to constitute the crime of refusing to pay labor remuneration?

According to the law, not all malicious wage arrears constitute a crime, and only when the accumulated amount of wage arrears reaches a certain amount does it constitute a crime. "Large amount" means that the unpaid employee refuses to pay 1 employee's labor remuneration for more than 3 months and the amount is more than 5,000 yuan to 20,000 yuan, or refuses to pay 1 employee's labor remuneration and the accumulated amount is more than 30,000 yuan to 65,438+10,000 yuan. It should be pointed out that due to the uneven level of economic development in various regions, each region, in combination with its own economic and social development, studies and determines the specific amount standards implemented in the region within the above-mentioned amount range. For example, if you choose the highest standard, if you default on 1 employee's salary of 20,000 yuan for three months or default on 10 employee's accumulated salary of more than 654.38+10,000 yuan, you will reach a "large amount".

(5) How to understand "not paying after being ordered to correct by the relevant government departments"?

It is the prerequisite and necessary condition of this crime that the relevant government departments order payment. In reality, the relevant departments take the initiative to find or receive complaints from workers in their work, and order the workers to pay labor remuneration after issuing rectification instructions and administrative decisions within a time limit according to legal procedures. If the workers still fail to pay within the prescribed time limit, it is regarded as "not paying after being ordered to pay by the relevant government departments". Of course, unless the actor has evidence to prove that he didn't know that he was ordered to pay or didn't pay the labor remuneration in time for justified reasons.

(6) Special lenient provisions on the crime of refusing to pay labor remuneration

Legally speaking, when the unpaid employees meet the above conditions, they may be suspected of refusing to pay the labor report. Considering that the crime is based on labor relations, in order to build a good employment relationship, the law still gives the unpaid workers the opportunity to make up for their mistakes to the maximum extent. Before the criminal case is put on file, if a malicious unpaid worker pays the laborer's remuneration and bears the corresponding compensation liability according to law, it can be considered that the circumstances are obviously minor and the harm is not great, and it is not considered a crime; Criminal punishment may be mitigated or exempted if the employee who is maliciously in arrears before prosecution pays the remuneration to the laborer and bears the corresponding compensation liability according to law; Those who pay workers' remuneration before the verdict is pronounced in the first instance and bear the corresponding liability for compensation according to law may be given a lighter punishment. In addition, if there are serious consequences due to malicious arrears of wages, such as the basic life of workers or their dependents, dependents and dependents is seriously affected, serious diseases cannot be treated in time or they are out of school, or violence or threats of violence are used against workers who demand to pay their labor remuneration, and they are liable for compensation according to law, they can be given a lighter punishment as appropriate.

Second, in the face of wage arrears, what relief channels do workers have?

In the face of malicious wage arrears, some workers, especially migrant workers, often don't know how to protect their legitimate rights and interests, can't find the right way to defend their rights, or are discouraged because of the high cost of defending their rights. Based on this situation, you can ask for help in the following ways:

(A) to provide fast and safe relief channels for unpaid domestic helpers

1. Call 12333 national unified consulting service to consult labor security policies and regulations;

2. Complaint reporting method of local provincial labor security supervision institutions:/syrzyhhshbzbb/rdzt/gznmgqxwt/wqqd/201906/t20190601_ 319025.html.

3. Complaint reporting method of municipal labor security supervision institutions:/syrzyhhshbzbb/rdzt/gznmgqxwt/wqqd/201907/t 20190717 _ 324618.html.

4. Reflect the clues provided by the channels:/syrlyyzyhshbzb/rdzt/gznmgqxwt/tqmgzxsfy/

5. Search "China Legal Service Network", and choose: salary consultation, legal aid, problem reflection, online? Response, etc. ;

6. Seek lawyers' help in labor arbitration and civil litigation.

(two) the main procedures for administrative organs to transfer cases of unpaid wages to criminal trials.

Step 1: Workers complain to the Human Resources and Social Security Bureau or the Labor Security Supervision Brigade (and other administrative law enforcement agencies) through the above channels;

Step 2: The administrative law enforcement organs should promptly investigate and inquire about the workers and make inquiry records, and actively collect relevant evidence that can prove the facts such as employment and the amount of unpaid wages, and determine the facts according to the relevant evidence such as the amount of unpaid wages provided by the workers;

The third step: the administrative law enforcement organs inform the delinquent workers to go to the designated place to solve the problem within the specified time by writing, telephone, SMS and other means.

Step 4: If the fact that the actor is in arrears with the laborer's labor remuneration is clear, the evidence is conclusive and the amount is large, he shall promptly issue a document ordering payment-an instruction for labor security supervision to rectify within a time limit;

Step 5: If the actor fails to perform within the time limit, the administrative law enforcement organ will transfer the case to the public security organ for investigation on suspicion of refusing to pay labor remuneration;

Step 6: Take compulsory measures such as bail pending trial and detention for the relevant criminal suspects;

Step 7: The Public Security Bureau investigates according to law; The procuratorate examines and prosecutes according to law; The people's court ruled that the actor constituted the crime of refusing to pay labor remuneration according to law, sentenced him to fixed-term imprisonment of X months and fined X million.

Attachment: Top Ten Cases of Malicious Wage Arrears in 20 19:/syrzyhshbzbz/rdzt/gznmgqxwt/BGT/201/t 201911.

? The victims of malicious unpaid wages are mostly migrant workers, especially in the field of engineering construction. What's more, some government investment projects have seriously violated their legitimate rights and interests, triggered mass incidents and affected social stability. I hope this article can give more warnings to the workers who are owed wages, urge them to actively pay their wages, and also hope to help the victims find a solution to the problem faster.