Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing the Criminal Cases of Refusal to Pay Employment Remunerations

Fa Shi [2013] No. 3

January 16, 2013

The Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing the Criminal Cases of Refusal to Pay Employment Remunerations, which were adopted at the 1567th meeting of the judicial committee of the Supreme People's Court on January 14, 2013, are hereby promulgated and shall come into effect on January 23, 2013.

Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing the Criminal Cases of Refusal to Pay Employment Remunerations

Adopted at the 1567th meeting of the judicial committee of the Supreme People's Court on January 14, 2013

In order to legally punish crimes of refusal to pay employment remunerations and protect the legitimate rights and interests of the laborers, some issues concerning application of laws to the hearing of such criminal cases are hereby interpreted as follows in accordance with the Criminal Law of the People's Republic of China:

Article 1 Employment remunerations, including salary, bonus, allowance, subsidy, overtime pay and wages paid under special circumstances, etc. deserved by employees in accordance with the Employment Law of the People's Republic of China and the Employment Contract Law of the People's Republic of China and other laws shall be recognized as "employees' employment remunerations" as stipulated in Item 1 of Paragraph 1 of Article 276 of the Criminal Law.

Article 2 Any of the following circumstances that is to avoid making payment of employment remunerations to employees shall be determined as "avoiding to make payment of employees' employment remunerations by way of transferring property or escaping or hiding" as prescribed in Item 1 of Paragraph 1 of Article 276 of the Criminal Law:
1. Hiding property, maliciously paying off or making up debts, falsely going into bankruptcy or closing down or transferring or disposing of property in other ways;
2. Escaping or hiding;
3. Hiding, destroying or altering accounts, employee directory, payroll record, attendance record and other materials relating to the employment remunerations; or
4. Avoiding payment of employment remunerations in other ways.

Article 3 Any of the following circumstances shall be determined as "a relatively large amount" as prescribed for in Item 1 of Paragraph 1 of Article 276 of the Criminal Law:
1. Refusal to pay the employment remunerations of a single employee for more than three months and for an amount of between RMB5, 000 and RMB20, 000 or more;
2. Refusal to pay the employment remunerations of more than ten employees for an accumulative amount of between RMB30, 000 and RMB100, 000 or more.
The high people's courts of all provinces, autonomous regions and municipalities directly under the Central Government may deliberate and determine the specific amounts applicable to local areas to the extent prescribed in the foregoing paragraph in light of local economic any social development, and file the same with the Supreme People's Court for the record.

Article 4 Where after the human resources and social assurance departments or other departments of the government legally order payment of employees' remunerations by written payment order instruments requiring correction within a specified time limit or by issuing written administrative decisions, the payment is still not made within the specified time limit, it shall be determined as a "failure to make payment after being ordered by relevant governmental authority" as prescribed for in Item 1 of Paragraph 1 of Article 276 of the Criminal Law, unless there is evidence proving the due payer has justifiable reasons for not knowing the order requiring payment or for not making remuneration payment in time.
Where the due payer escapes and it is unable to deliver the payment order instrument to the due payer in person, his grown-up family members living with him or the person responsible for receiving deliveries in his working unit, if relevant authorities have ordered payment by posting payment order instruments at such places as the premise and business place of the due payer and have recorded so by taking a photo or video, it shall be deemed as "have been ordered by relevant governmental authorities to make payment".

Article 5 A refusal to pay employees' remunerations that complies with the provisions of Article 3 hereof and is under any of the following circumstances shall be deemed as "have caused seriously consequence" stipulated in Item 1 of Paragraph 1 of Article 276 of the Criminal Law:
1. Bringing material impact on the basic life of the employee or the persons supported by him, causing the employee or the persons supported by the employee unable to get medical treatment for their serious illness in time or unable to continue their study at school; or
2. Treating employees claiming for employment remunerations violently or threatening to use violence; or
3. Causing other serious consequences.

Article 6 Where a refusal to pay employee's employment remuneration has not caused any serious consequence and remuneration payment is made before the case is put on criminal docket and the liabilities for compensations are borne in accordance with law, it shall be deemed that the circumstance is obviously slight and has minor danger and shall not be deemed as a crime; where remuneration payment is made prior to the criminal prosecution and corresponding liabilities for compensations are borne in accordance with law, the criminal punishment can be mitigated or exempted; where the remuneration payment is made prior to first instance sentence and corresponding liabilities for compensations are borne, lighter punishment can be imposed.
Where the criminal punishment is exempted, admonishing the due payer or ordering the same to make corrections or apologies can be used in light of the differing circumstances.
Where any one refuses to pay employees' remunerations, causing serious consequences, but makes payment before the sentence and legally bears the liabilities for compensations, punishment can be imposed on a generous basis depending on the circumstances.

Article 7 Where an entity or individual who has not qualification to employ people illegally hires employee and refuses to pay employees' remunerations for a relatively large amount, and still refuses to pay such remunerations after being ordered by the relevant governmental authorities, such entity or individual shall be prosecuted for the crime of refusal to pay employment remunerations in accordance with the provisions of Paragraph 1 of Article 276 of the Criminal Law.

Article 8 Where the de facto controller of the employer refuses to pay employment remunerations, which constitutes a crime, such controller shall be prosecuted criminally in accordance with the provisions of Paragraph 1 of Article 276 of the Criminal Law.

Article 9 Where an entity refuses to pay employment remunerations and commits a crime, the directly responsible officers and other personnel directly responsible shall be prosecuted and punished in accordance with the criteria of judging individual crime and imposing punishment stipulated in these Interpretations and the entity employer shall be imposed with a fine.