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Guiding Case No. 167 of the Supreme People's Procuratorate: Chen [REDACTED] v. Human Resources and Social Security Bureau of [REDACTED] City, Jiangsu Province (procuratorial supervision of the revocation of an approval for retirement)
检例第167号:陈某诉江苏省某市人社局撤销退休审批检察监督案
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Guiding Case No. 167 of the Supreme People's Procuratorate: Chen [REDACTED] v. Human Resources and Social Security Bureau of [REDACTED] City, Jiangsu Province (procuratorial supervision of the revocation of an approval for retirement) 检例第167号:陈某诉江苏省某市人社局撤销退休审批检察监督案
(Guiding Case No. 167 of the Supreme People's Procuratorate) 检例第167号
[Keywords] 关键词
administrative procuratorial, prosecutor's appeal, employee retirement age, protection of workers' rights and interests, social governance 行政检察 抗诉 职工退休年龄 劳动者权益保护 社会治理
[Key Points] 【要旨】
The retirement age of enterprise employees shall be determined in accordance with the law based on the types of their positions. If, when handling a case for supervision of administrative litigation, a people's procuratorate discovers that an administrative authority fails to approve retirement in accordance with the state's requirements for the transformation of enterprise employee management from status management to position management and that the effective judgment of a people's court erroneously sustains the failure, the people's procuratorate shall exercise supervision in accordance with the law. In view of the violations of laws and policies discovered in the examination and approval of enterprise employees' retirement, the people's procuratorate shall strengthen communication and consultation with the people's court and the relevant administrative authority, promote the improvement of the standards and procedures for approving the retirement of enterprise employees, and facilitate the effective implementation of the national policy that determines retirement age based on the types of positions, so as to protect the lawful rights and interests of workers. 企业职工退休年龄应当依据所从事的岗位类型依法确定。人民检察院办理行政诉讼监督案件,发现行政机关未依照国家关于企业职工管理从身份管理向岗位管理转变的要求审批退休,人民法院生效裁判予以错误维持的,应当依法监督。针对办案发现的企业职工退休审批中存在的违反法律政策的问题,人民检察院与人民法院、相关行政机关加强沟通磋商,推动规范完善企业职工退休审批标准和程序,促进依据岗位类型确定退休年龄的国家政策有效落实,保障劳动者合法权益。
[Basic Facts] 基本案情
Chen [REDACTED], female, was born in April 1964. She was recruited as an employee of a printing and dyeing factory in [REDACTED] City in Jiangsu Province in 1981 and was recruited to work in [REDACTED] Investment Company, a subsidiary of [REDACTED] Group Co., Ltd. ([REDACTED] Group) in July 2001. Since 2005, [REDACTED] Investment Company had issued written documents several times, appointing Chen [REDACTED] as financial team leader, deputy manager of the financial department, and chief financial officer, among others, in its subsidiaries: a petrochemical company and a textile company. [REDACTED] Investment Company also repeatedly issued documents specifying that Chen [REDACTED] enjoyed the corresponding benefits for the management positions. 陈某。1981年经招工成为江苏省某市印染厂职工,2001年7月经招聘进入某集团有限公司的子公司某投资公司工作。2005年起,某投资公司多次行文,委派陈某到其下属的石化公司、纺织公司任财务科长、财务部副经理、财务总监等职务。某投资公司也多次发文明确陈某享受管理岗位相应待遇。
On August 14, 2014, [REDACTED] Investment Company handled the retirement procedures for Chen [REDACTED] on the grounds that Chen [REDACTED] attained the retirement age for workers: 50 years of age. On August 18, the Human Resources and Social Security Bureau of [REDACTED] City (Bureau) approved Chen [REDACTED]'s retirement in April 2014. Chen [REDACTED] initiated administrative litigation in a people's court for revocation of the approval of retirement by the Bureau, on the grounds that as a person holding a managerial position, she should retire at 55 years of age according to applicable provisions. 2014年8月14日,某投资公司以陈某已年满50周岁达到工人退休年龄为由,为陈某办理退休手续。同月18日,某市人社局批准陈某自2014年4月起退休。陈某认为自己属于管理岗位人员,按照规定应在55周岁退休,向人民法院提起行政诉讼,要求撤销市人社局退休审批手续。
On March 24, 2016, the Primary People's Court of [REDACTED] District entered an administrative judgment, rejecting Chen [REDACTED]'s claim on the grounds that existing evidence did not prove that Chen [REDACTED]'s position had been determined as a managerial or technical position in accordance with the procedures. Chen [REDACTED] appealed against the first-instance judgment. On October 30, the Intermediate People's Court of [REDACTED] City entered a second-instance judgment, holding that as there was no evidence of Chen [REDACTED]'s change of the status from a worker to an officer, and [REDACTED] Investment Company did not recognize Chen [REDACTED]'s managerial or technical positions before and after 45 years of age, Chen [REDACTED] should retire at the age of 50 as a worker, and it was not inappropriate for the Bureau to approve her retirement; dismissing the appeal; and affirming the original judgment. Chen [REDACTED]'s petition to the High People's Court of Jiangsu Province (Jiangsu Court) for retrial was rejected by a ruling on the same grounds. 2016年3月24日,某区人民法院作出行政判决,以现有证据无法证明陈某的工作岗位已按照程序被确定为管理或技术岗位为由,驳回其诉讼请求。陈某不服一审判决,提起上诉。2016年10月30日,某市中级人民法院作出二审判决,认为无证据证明陈某曾从工人身份转换为干部身份,且某投资公司对陈某45周岁前后的管理或者技术岗位不予认可,故陈某应按工人身份50周岁退休,人社局批准其退休并无不当,遂判决驳回上诉,维持原判。陈某向江苏省高级人民法院申请再审,被以相同的理由裁定驳回。
[Performance of Duty by Procuratorial Authority] 【检察机关履职过程】
Source of the case: Chen [REDACTED] was dissatisfied with the effective judgment of the people's court and applied to the People's Procuratorate of [REDACTED] City for supervision. After examination, the People's Procuratorate of [REDACTED] City requested the People's Procuratorate of Jiangsu Province (Jiangsu Procuratorate) to file a prosecutor's appeal on June 24, 2019. 案件来源。陈某不服人民法院生效判决,向某市人民检察院申请监督。某市人民检察院经审查,于2019年6月24日提请江苏省人民检察院抗诉。
Investigation and verification: With a focus on the issues of this case, the Jiangsu Procuratorate conducted investigation and verification as follows: (1) Through learning about the situation from Chen [REDACTED], and accessing the relevant materials of [REDACTED] Group, the Jiangsu Procuratorate ascertained that Chen [REDACTED] began engaging in financial management in [REDACTED] Investment's subsidiaries—a petrochemical company and a textile company—at 40 years of age and received confirmations from [REDACTED] Group. (2) The Jiangsu Procuratorate learned about the policies and provisions on the approval of retirement from the Bureau and discovered that it followed the retirement approval procedures for Chen [REDACTED] on the basis of the Supplementary Disposition Opinions on Issues Concerning the Implementation of the Labor Contract System (repealed on December 21, 2015, “Opinions”) issued by the former Department of Labor of Jiangsu Province (Department of Labor). Article 13 of the Opinions provided that the division of production and operational positions and technical and management positions in an enterprise should be determined by the enterprise according to the established staff and the actual circumstances of production and operation and be implemented after discussion and approval at a meeting of employee representatives. Since [REDACTED] Investment Company never held a meeting of employee representatives to determine a list distinguishing between the positions of worker and managerial positions from its formation to the dispute in this case, the Bureau approved Chen [REDACTED]'s retirement at 50 years of age on the grounds that there was no evidence that her positions had been determined as managerial positions or technical positions in accordance with the procedures. 调查核实。围绕本案争议焦点,检察机关重点开展了以下调查核实工作:一是向陈某了解情况、调阅某集团有限公司相关资料,查明陈某自40岁起先后在某投资公司下属石化公司、纺织公司等从事财务管理工作,并得到某集团有限公司的确认。二是向某市人社局了解关于退休审批的政策规定,发现其为陈某办理退休审批手续依据的是原江苏省劳动厅《关于实施劳动合同制度有关问题的补充处理意见》(2015年12月21日被废止)。该《意见》第十三条规定,企业内生产操作岗位和技术管理岗位的划分,由本企业根据编制定员和生产经营实际自行确定,经过职工代表大会讨论通过后实施。因某投资公司自成立到本案争议时从未召开过职工代表大会确定区分工人岗、管理岗的目录,故人社局以无证据证明陈某工作岗位已按照程序被确定为管理岗或技术岗为由,以其工人身份审批50周岁退休。
Supervisory opinions: After examination, the Jiangsu Procuratorate held the following: (1) The second-instance judgment directly found that Chen [REDACTED] should retire at 50 years of age as a worker on the grounds that there was no evidence that Chen [REDACTED]'s positions had been determined as managerial positions or technical positions in accordance with the procedures; however, the finding was inconsistent with the objective facts. (2) The Bureau should have approved the retirement application based on Chen [REDACTED]'s actual positions. The Bureau, as an administrative department of social insurance, had the power to approve Chen [REDACTED]'s retirement; although [REDACTED] Investment Company failed to explicitly divide and define managerial and non-managerial positions, the Bureau should have determined the nature of positions and retirement age of Chen [REDACTED] based on the objective fact that Chen [REDACTED] had been appointed to managerial positions by [REDACTED] Investment Company several times. (3) Chen [REDACTED] may retire at 55 years of age. Chen [REDACTED] fell under circumstances where she may retire at 55 years of age in accordance with the relevant provisions on retirement age issued by the state, namely, the provision of the former Ministry of Labor's Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's China: “Where an employee has been transferred from a position of worker to a (technical) position of officer or vice versa before the transformation of the system, his or her retirement age and conditions shall be governed by the provisions on his or her current position issued by the state.” and the provision of the Opinions on the Implementation of the Provisions of Jiangsu Province on Basic Pension Insurance for Enterprise Employees: “A female worker who works in a managerial or technical position before 45 years of age and continues to so work after 45 years of age shall retire at the age of 55.” 监督意见。江苏省人民检察院审查后认为:1.二审判决以无证据证明陈某工作岗位已按照程序被确定为管理岗或技术岗为由,直接认定陈某应按工人身份50周岁退休,与客观事实不符。2.人社部门应当根据陈某实际工作岗位审批退休申请。人社部门作为社会保险行政部门,对于陈某退休具有审批权,虽然某投资公司未对管理和非管理岗位作出明确划分和界定,但人社部门应当根据陈某曾被公司多次任命管理职务的客观实际,确定陈某的岗位性质、退休年龄。3.陈某可以年满55周岁退休。根据国家关于退休年龄的相关规定,原劳动部《关于贯彻执行〈中华人民共和国劳动法〉若干问题的意见》中,关于“……职工在用人单位内由转制前的原工人岗位转为原干部(技术)岗位或由原干部(技术)岗位转为原工人岗位,其退休年龄和条件,按现岗位国家规定执行”的规定,以及《〈江苏省企业职工基本养老保险规定〉实施意见》中“关于45周岁前在管理或技术岗位上工作、45周岁后仍继续在管理或技术岗位上工作过的女工人,年满55周岁退休”的规定,陈某属于可以年满55周岁退休的情形。
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