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SPC Interpretation on Several Issues Regarding the Applicable Law for Criminal Cases of Refusal to Pay Labor Compensation

yan The Supreme People's Court Interpretation of Several Issues Concerning the Applicable Law for the Trial of Criminal Cases of Refusal to Pay Labor Compensation

(January 14, 2013 1567th meeting of the Adjudication Committee of the Supreme People's Court, Interpretation #3 of 2013)

On the basis of the Criminal Law of the People's Republic of China , and so as to lawfully punish crimes of refusal to pay compensation for labor and preserve the lawful rights and interests of laborers, several issues regarding the applicable law for handling this type of case are interpreted as follows:

  Article 1 Compensation for labor, including salaries, bonuses, allowances, subsidies, payment for extended work periods and for work under special conditions to which laborers are entitled under the provisions of laws such as the PRC Labor Law and the PRC Labor Contract Law, shall be considered "labor compensation" as used in Article 275 paragraph 1 of the Criminal Law.

  Article 2: Where any of the following circumstances exist for the purpose of avoiding the payment of worker's labor compensation, it shall be considered "avoiding payment of worker's labor compensation by methods such as transferring or concealing assets" as provided for in Article 276 of the Criminal Law:

(1) the hiding of assets, malicious failure to repay debts, fraudulent borrowing, false bankruptcy, faking a business closure or other means of transferring or dispersing assets;

(2) Fleeing or Hiding;

(3) the concealment, destruction or tampering with accounts, employee rosters, payroll records, attendance records or materials related to labor compensation;

  (4)and other methods of avoiding payment of labor compensation.

  Article 3: In any of the following situations, it shall be considered "a large sum" as used in Article 276 of the Criminal Law:

  (1)Refusal to pay a worker's compensation for 3 or more months, and the sum is more than 5000 - 20,000 Yuan;

  (2)Refusal to pay 10 or more workers' compensation and the cumulative sum is more than 30,000 to 50,000 yuan.

  High courts of every province, autonomous region and directly governed municipality may research and confirm their regions' specific enforcement values according to the state of that region's economic and social development , within the value ranges put forward in the proceeding paragraph, and report these to the Supreme People's Court for recording.

  Article 4: Where labor compensation is still not made after the Ministry of Human Resources and Social Security or other relevant government department has lawfully called for the payment of workers' compensation in a time period adjustment order or an administrative resolution decision, it shall be considered 'continued refusal to pay labor compensation following an order from a governmental department' as used in Article 276 of the Criminal Law, unless there is evidence showing that the offender has a legitimate reason for not knowing of the payment order or for not promptly paying the workers their compensation.

  If the offender has fled and hidden, and there is no way to deliver the order payment order to him in person, to an adult family member that lives together with him or to a person in his workplace responsible for receiving materials; it shall be view as 'after a government department orders payment' if the relevant department has already used such methods as posting notices of the payment order at the offenders place of residence and the production facility, and recorded this by means such as photograph or video.

  Article 5: Refusal to pay workers' compensation, when meeting the requirements of Article 3 of this regulation and having any of the following circumstances, shall be considered "causing severe consequences" as used by Article 276 of the Criminal Law:

  (1)Caused the worker or a person they support, raise or care f or to suffer a sever impact on their livelihood, to be unable to promptly seek medical treatment for a major illness or drop out of school;

  (2)Used violence or threats against the worker requesting labor compensation;

  (3)Caused other serious consequences.

  Article 6: A refusal to pay worker's compensation for their labor may be considered minor and the harm slight, so that it is not considered a crime, if it has not yet caused serious consequences, the workers are paid compensation before a criminal case is filed and responsibility is taken for any relevant compensation in accordance with law; punishment may be reduced or avoided where workers are paid labor compensation before a public prosecution is initiated and responsibility is taken for any corresponding damages in accordance with law; and if payment of compensation is made before the verdict is announced and responsibility taken for any damages, they may be punished lightly.

Admonishments or orders to xxxx or make a formal apology may be given on the basis of the specific circumstances of cases were criminal punishment is to be avoided.

The court may use discretion to lightly punish a refusal to pay workers labor compensation that causes a severe harm, but where workers are compensated before the announcement of a verdict, and responsibility is taken for repaying corresponding damages,

  Article 7: Where a workplace or individual that lacks qualifications to employ workers, unlawfully employs workers and refuses to pay them their labor compensation, where the amount is relatively large, and having received an order from the relevant governmental department to pay compensation, they still refuses to pay compensation, they shall be prosecuted for criminal liability for failure to pay labor wages under Criminal Law 276.

  Article 8: Persons in the actual control of an employer that act to refuse payment of labor compensation so as to constitute a crime, shall be pursued for criminal liability under Criminal Law article 276(1).

  Article 9: Where a workplace refuses to pay labor compensation so as to constitute a crime, the directly responsible manager and other directly responsible persons shall be tried and punished according to the provisions of this interpretation regarding the standards for conviction and punishment of crimes by individuals, and the workplace will be fined.

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