From interpretation to interpretation: Reflection and reconstruction of the conc

Release Time:：2022-05-09    Source：    Author：admin [summary]: China's current enterprise bankruptcy law has obvious "market driven" characteristics. The re integration of factor resources in the bankruptcy law is highly dependent on the market economic system, and its implementation industry faces the Governance Dilemma of "synchronic solution of diachronic problems". As a "unit community", the state-owned enterprises in the old industrial base have a personal dominant relationship with the employees, which is not entirely based on the labor dominated labor relationship, but has administrative management characteristics. The entire relationship with the employees is not entirely based on the formation mechanism of "marketization". In the face of major changes in the legal field and social space, it is necessary to interpret the scope of employee creditor's rights of "wages" protected by the enterprise bankruptcy law, In order to balance the interests in the bankruptcy proceedings and solve the contradiction of market-oriented solution of non market-oriented problems. The position of defining the scope of wages should move from "interpretation" to "interpretation", based on the intersubjectivity, form a legal system with the logic of "principle concept system order" and make substantive judgments, so that the wage creditor's rights and interests of each employee can be legally protected and break through the restriction of time on the understanding and recognition of the wage concept.
[Key words]: Interpretation of wages of state-owned enterprises in old industrial bases
[question raised]: the bankruptcy law is the product of the development of the market economy to a relatively mature stage. The marketization concept contained in the bankruptcy law is reflected in many legal principles and specific rules of the reorganization and liquidation system. It also makes institutional arrangements for the withdrawal of market entities through the survival of the fittest in market competition. China's current enterprise bankruptcy law has obvious "market driven" characteristics. The re integration of factor resources by the bankruptcy law is highly dependent on the market economic system, and the market plays a decisive role in resource allocation. According to the experience of various countries in the world, the standardized operation and effective market economic system generally have the following five common characteristics, namely, independent enterprise system, effective market competition, standardized government functions, good social credit and sound legal basis.
Earth shaking changes have taken place in China's economy and society over the past 40 years. All the baton style reforms are centered on the modernization of the country's governance system and governance capacity. They are carried out and promoted in the linkage of the economic system, political system, cultural system, social system, ecological civilization system and other systematic reforms. The way of life of the broad masses of people has undergone profound changes, and the reality of law enforcement has undergone profound changes, The original equalitarian society ended and society began to split. Therefore, like other laws, the implementation of enterprise bankruptcy law faces the Governance Dilemma of "synchronic solution of diachronic problems". Chinese society, Chinese law and Chinese judicature are all facing the problem of synchronic solution to the diachronic problem of the construction of the rule of law. Under such a big problem, China's social governance is faced with different types of dilemma patterns and hidden traps, such as locality and universality, individuality and collectivity, emotional rationality and legal rationality, multiple and difficult, structural and non structural.
Most of the state-owned enterprises in China's old industrial bases were established during the "first five year plan" period and the "third line" construction period. Their characteristics are long history, large scale, highly regional industrial development, and closely related to administrative power. As a "unit community", the state-owned enterprises in the old industrial base do not have a labor relationship dominated by labor force, but a personal relationship dominated by administrative management characteristics. The entire relationship between state-owned enterprises and employees in the old industrial base is not entirely based on the formation mechanism of "marketization". In the face of major changes in the legal field and social space, it is necessary to sympathize with the social functions undertaken by them and their reality and rationality, and sympathize with the historical evolution of "non marketization". If it is necessary to pay off the wage claims of the employees of the state-owned enterprises in the old industrial base in a "market-oriented" way in the bankruptcy procedure, it is necessary to make a historical and cultural interpretation of the scope of the employee claims of "wages" protected by the enterprise bankruptcy law, so as to balance the interests in the bankruptcy procedure and solve the contradiction between the market-oriented solution of "non market-oriented problems". The bankruptcy of the state-owned enterprises in the old industrial base is not a simple law enforcement relationship between the court and the parties, but a relationship between the parties to jointly build the legality of the law. We should respect the history and the "local knowledge" of the old industrial base, seek the maximum common denominator between marketization and non marketization, and seek a reorganization plan that can be accepted by all parties to the greatest extent.
[connotation and extension of wage concept]: wage is one of the basic concepts of labor law and the core of all labor relations. There is a lack of consensus on the connotation and extension of wages in China's existing laws and regulations. The meaning of the concept of wages is constantly changing with the development of China's economy and society. In the process of transforming the planned economic system into the market economic system, the basic theoretical research of the wage system is still very imperfect, the academic research on the deep mechanism and the inclusive technology of wages is insufficient, the research on the nature and function of wages is incomplete, and there is no convincing explanation, The right system of wage creditor's right is not clear; In practice, there are some characteristics such as the low legal rank of defining wages, the limitation of protection means, the confusion of legal rules at the level of law enforcement, and the insufficient legal supply of the modern salary management system.
（1） The existing legal norms have confused the definition of wage
As for the connotation and extension of wages and related concepts, there are four definitions in China's current legal norms: the first is from the perspective of wage statistics, mainly the provisions on the composition of total wages approved by the State Council in 1989. Total wages refer to the total amount of labor remuneration paid by each unit to all employees of the unit within a certain period of time, mainly including hourly wages, piece wages, bonuses, allowances and subsidies Overtime wages and wages paid under special circumstances. The second is the definition of wages from the perspective of wage security. According to Article 53 of the opinions on Several Issues concerning the implementation of the labor law issued by the Ministry of labor in 1995, the "wages" in the labor law refers to the labor remuneration paid directly to the employees of the employer in monetary form according to the relevant provisions of the state or the provisions of the labor contract, generally including hourly wages, piecework wages, bonuses, allowances and subsidies Wages for extended working hours and wages paid under special circumstances. "Wages" is the main component of the labor income of workers. The third is the definition of wages and salaries from the perspective of employers' tax payment. Article 34 of the regulations for the implementation of the enterprise income tax law stipulates that reasonable wage and salary expenses incurred by enterprises are allowed to be deducted. The term "wages and salaries" as mentioned in the preceding paragraph refers to all cash or non cash forms of labor remuneration paid by an enterprise to its employees in each tax year, including basic wages, bonuses, allowances, subsidies, year-end salary increases, overtime wages and other expenses related to the employees' employment or employment. The fourth is the definition of wages and salaries from the perspective of personal taxable income. Article 8 of the regulations for the implementation of the individual income tax law stipulates that income from wages and salaries refers to the wages, salaries, bonuses, year-end salary increases, labor dividends, allowances, subsidies and other income related to employment or employment.
According to Article 2 of the accounting standards for Business Enterprises No. 9 - employee compensation issued by the Ministry of finance, employee compensation refers to various forms of remuneration or compensation given by enterprises to obtain services provided by employees or to terminate labor relations. Employee compensation includes short-term compensation, post employment welfare, dismissal welfare and other long-term employee welfare. The benefits provided by the enterprise to employees' spouses, children, dependants, survivors of deceased employees and other beneficiaries are also employee compensation. The term "employees" refers to all personnel who have entered into labor contracts with the enterprise, including full-time, part-time and temporary employees, and also includes personnel who have not entered into labor contracts with the enterprise but are officially appointed by the enterprise.
The above definition is based on different historical backgrounds, different stages of development, different legislative purposes and different functional requirements. At the level of relevant national departments, there is a lack of coordination and consensus on the definition of the connotation and extension of wages and total wages; At the micro operation level, the social security base, financial audit, enterprise tax payment, personal tax declaration, etc. have further aggravated the confusion of the concept of wages. This confusion causes the connotation and extension of wages to be unable to be clearly expressed, which makes the legal implication technically flawed and loses the function of building the external legal system.
（2） The planned economy trace of the wage concept is obvious
At the 14th National Congress of the Communist Party of China in 1994, it was proposed to shift from planned economy to market economy and establish a new socialist market economy system with Chinese characteristics. The above definitions of wages were mainly born around the 1990s. At that time, China was in the early stage of the transition from the planned economic system to the market economic system. The wage system of the employer was not based on the labor contract with the employee, and the mandatory power characteristics of labor relations under the planned economic system were obvious. The labor relationship between employers and workers has not yet been fully established, which is reflected in the definition of the connotation and extension of wages, and there are still obvious traces of planned economy.
Our country has long implemented the mandatory wage plan, that is, the plan issued by the superior planning unit according to the subordination relationship, which requires the units and individuals executing the plan to complete. It is mandatory by the state, and the execution unit must ensure the completion. Its purpose is to ensure the completion of the key construction tasks of the state during the planned economy period. Subsequently, with the establishment of the market economic system, the role and scope of the mandatory wage plan are gradually reduced. In 1992, the Ministry of labor also determined a 10-year labor plan. Since 1993, the State Development Planning Commission has implemented a flexible labor wage plan, changing from a mandatory plan to a guiding plan, changing from absolute control to flexible control, and changing from prior control to post inspection and regulation, so as to meet the needs of China's national economic development and enterprises' transformation of operating mechanisms.
（3） Comparative analysis of wage concept
Article 1 of the 1949 Convention on the protection of wages of the International Labour Organization defines wages as "the consideration of labor", and wages "refers to the remuneration or income paid by an employer to an employee for the work completed and to be completed or the services provided or to be provided, regardless of the name or calculation method, which can be settled in currency and determined by a common agreement or national laws or regulations, and by a written or oral employment contract."
The Convention adopts the "labor consideration theory", which characterizes wages as the remuneration and income earned by workers by providing labor. It inherits the basic concepts of classical economics through the contract / contract interpretation method of wages, and values labor in currency, which reflects the free wage concept of modern free and democratic industrial society. Scholars in Taiwan also adopt this view, holding that the essence of wages is the consideration of labor payment, and its regulation is based on civil regulations such as contracts. Paragraph 3 of Article 2 of the Labor Standards Law of Taiwan (promulgated on June 12, 2002) stipulates that wages are the remuneration obtained by workers for work, and non labor consideration pensions and benefits in kind do not belong to the scope of wages.
Different from the provisions in Taiwan, Japan's Labor Standards Law (Revised and promulgated on January 1, 2004) includes incentive bonuses, pensions, severance pay, etc. into the wage structure. It defines the connotation of wages most widely based on the theory of labor relationship consideration. Japanese enterprises have long adopted the life-long employment system, and the mobility of employment is weak. Therefore, they attach importance to the cultivation and training of talents within the enterprise, and attach importance to flexible personnel allocation and evaluation of groups rather than individual achievements. The annual merit wage and functional wage adopted by Japan just meet the needs of this long-term stable employment. However, the disadvantages of these two wage systems are high costs, which can be maintained in the period of high-speed economic growth and stable growth, and it is difficult to adapt to the needs of the economic environment in the period of low economic growth or even stagnation. With the long-term depression of Japanese economy since the 1990s and the shaking of its lifelong employment system, the wage system of Japanese enterprises has also changed greatly.
[Multidimensional Observation on the wages of employees of state-owned enterprises in old industrial bases]: the national old industrial base adjustment and transformation plan (2013-2022) issued by the national development and Reform Commission in 2013 defines "old industrial base" as an industrial base built by the state during the "first five year plan", "second Five Year Plan" and "third line" construction periods, relying on heavy industry backbone enterprises. The basic unit of the old industrial base is the old industrial city. There are 120 old industrial cities in the country, which are distributed in 27 provinces (districts and cities), including 95 prefecture level cities, 25 municipalities directly under the central government, cities specifically designated in the state plan, and provincial capital cities. The old industrial base has low industrial level, extensive development mode, high employment pressure, low income level, relatively lagging reform of state-owned enterprises, and many historical problems. The reform of some state-owned enterprises is not in place, and it is difficult to promote the reform of some state-owned enterprises that are in the state of shutdown or semi shutdown. The problems left over by history, such as enterprises running society, factories running large collectives, and social security arrears, have not been properly solved, and the reform cost is huge.
（1） The "weak contract" of wage nature: an investigation of the "unit" attribute of state-owned enterprises in old industrial bases.
In the process of the early organizational system construction of the unit system, which started in the 1950s, state-owned enterprises have always been included in the social mobilization system as a core department with symbolic significance. China's "unit organizations" constitute a unique social phenomenon: "most members of society are organized into specific" unit organizations ", which give them the rights, identity and legitimacy of social behavior, meet their various needs, represent their interests and control their behavior. Unit organizations depend on the state (government), and individuals depend on unit organizations. At the same time, the state relies on these units to organize, control and integrate society. " The unit society has formed a special vertical connection control mechanism of "state unit individual"; The party organization and administrative organization of the unit are not only the production management organization, but also the political and social management organization, with a high degree of unity; The unit implements the welfare security system of lifelong fixed employment; The unit has self closeness and strong ethical color of "acquaintance society". The practice of the unique modernity of new China is based on the unit organization as the carrier, thus forming the "overall character pattern" of the unit society, that is, "the political center, ideological center and economic center of the society overlap into one, the state and society are integrated, and the resources and power are highly concentrated, so that the state has strong mobilization and organization capabilities, but the structure is rigid and stagnant".
The acceptance of the market concept by the state-owned enterprises in the old industrial base is a gradual process. The employees of the state-owned enterprises started an epic movement of "from identity to contract". "China's transformation from a planned economy system to a market economy system essentially means a movement process from a unit organization based on abstract overall interests to a contract organization oriented by specific individual interests." The three reforms of state-owned enterprises mainly refer to the reforms of state-owned enterprises in three aspects: Labor and personnel, wage distribution, and social insurance system. Among them, the reform of labor and personnel system is the foundation, the reform of wage distribution system is the center, and the reform of social security system is the guarantee, so as to realize the transformation of unit organization into enterprise organization production regime. The reform of the above-mentioned state-owned enterprises has broken through the labor relations structure with the "iron rice bowl" and the workplace welfare system as the core, so that managers can effectively control and coordinate production. The wages of employees in the old industrial base are not based on freedom of contract and labor autonomy, but have strong administrative color and management factors.
（2） The "high mixing" of wage composition: the overall mixing of wages, benefits and benefits
The process of transforming China's planned economic system into a market economic system is also the process of the continuous development of China's employee benefits with the reform of the political and economic system, and the process of gradual separation and structural restructuring of wages and bonuses, insurance, medical care, welfare, subsidies, subsidies, labor protection, etc. In 1951, China promulgated the people's Republic of China