In accordance with domestic legal provisionsThe statutory retirement age is 60 for male employees, 55 for female cadres and 50 for female employees.
According to the Regulations for the Implementation of the Labor Contract Law, the employment contract will be terminated once the employee reaches the statutory retirement age
At the same time, according to Article 16 of the Social Insurance Law, individuals who participate in basic pension insurance and have paid contributions for 15 years when they reach the statutory retirement age will receive a basic pension on a monthly basis.
So,If I have reached the statutory retirement age but have not paid social security for 15 years, will the employment contract be automatically terminated (retirement)? Are there any remedies available to receive Social Security? If you don't make up the payment, what will happen to the money that has been paid?
After reviewing the relevant information and documents, we have compiled them for you as follows, so please read on.
Article 44 (2) of the Labor Contract Law of the People's Republic of China stipulates that "the labor contract shall be terminated under any of the following circumstances: ......2) The ...... of the worker who begins to enjoy the basic pension insurance benefits in accordance with the lawArticle 21 of the Regulations for the Implementation of the Labor Contract Law stipulates that "the labor contract shall be terminated if the employee reaches the statutory retirement age." ”
The conditions for termination of the employment contract are not the same. Therefore, reaching the statutory retirement age is only one of the conditions for enjoying basic pension benefits. In addition, it is necessary to pay social security for 15 years before you can go through the procedures for receiving basic pension insurance.
Since the implementation of the Labor Contract Law in 2008, it is very complicated for employees to reach the statutory retirement age but not enjoy basic pension insurance benefits.
According to the Ministry of Human Resources and Social Security's reply to Recommendation No. 6979 of the Second Session of the 13th National People's Congress (Ren She Jian Zi 2019 No. 37), some employers have paid social insurance premiums for their employees in accordance with the law, but because the cumulative number of years of contributions has not reached the prescribed standard, they cannot enjoy basic pension insurance benefits when they reach retirement age.
There are also some migrant workers who are unwilling to participate in social insurance for various reasons, resulting in the inability to enjoy basic pension insurance benefits.
In addition, even if the senior management of individual employers reaches the statutory retirement age, they do not go through the retirement procedures, so they cannot receive basic pension insurance benefits.
Therefore, according to the provisions of the Regulations for the Implementation of the Labor Contract Law, the employment contract will be terminated after the human resources and social security department determines that the employee has reached the statutory retirement age.
For employees who have exceeded the statutory retirement age but are still willing to continue working, the employer may handle the employment relationship with the employee in accordance with the labor relationship, and adjust the rights and obligations of both parties according to the civil legal relationship.
In judicial practice, some courts, in accordance with the provisions of the Implementing Regulations, have held that when an employee reaches the statutory retirement age, the employment contract will be terminated without the need for the parties to make a claim.
But it's worth notingIn addition, according to the provisions of the Labor Contract Law, many courts determine the time of termination of the employment contract relationship between the employee (including migrant workers) and the employer based on whether the employee is entitled to pension insurance benefits or pension, regardless of whether the employee has reached or exceeded the statutory retirement age.
1. Pay annually
Depending on the individual's circumstances, you may also choose to continue to pay social security contributions until you have met the conditions for 15 years of cumulative contributions.
In addition, the retirement age of urban and rural residents' pension insurance is also 60 years old, which can be extended to 15 years.
Therefore, even if you are under the age of 60, it is okay to choose to continue paying for 15 years. It is worth noting that the pension insurance for employees is much higher than that for urban and rural residents.
2. Delayed retirement
If you have reached the statutory retirement age but have not yet paid for social insurance for 15 years, you can apply for a deferral of retirement for up to 5 years.
When you apply for delayed retirement, you can continue to pay social security contributions while working.
3. One-time supplementary payment
Although it is convenient to pay social security for 15 years in a lump sum, it is too unfair for those who pay social security on an annual basis.
Therefore, under the new rules, the one-time payment of social security for 15 years has been abolished, and only those who meet the following conditions can enjoy this method:
1) Employees of state-owned enterprises and institutions who retired before 2011;
2) young intellectuals who went to the countryside between 1961 and 1982;
3) Retirees aged 65 for men and 60 for women who have paid social security in the local area before 2011.
Fourth, it will be converted to resident social security
If before reaching the statutory retirement age, the individual has participated in the urban employee pension insurance and the urban and rural residents' pension insurance, the individual can apply to the social security institution in the place where the urban and rural residents' pension insurance benefits are received (generally the place of household registration) to transfer the urban employees' pension insurance to the urban and rural residents' pension insurance.
The payment period of the original participation in the pension insurance for urban employees will be combined into the payment period of the pension insurance for urban and rural residents.
At present, when reaching the retirement age, if the payment time is less than 15 years, you can make up for 15 years at one time, so as to go through the retirement procedures, but you can only enjoy the treatment of resident pension.
5. Stop paying social security and take out the money
If you have not met the 15-year social security contribution requirements and do not want to make any further supplementary contributions, you can apply for a surrender.
According to the relevant documents,By applying for the termination of the social insurance relationship and submitting the relevant documents such as ID card, social security card or bank card, the principal and interest of the pension insurance personal account can be withdrawn at one time.
Once approved, the corresponding payment will be credited to the social security card or bank card account you provided.
For example, Xiao Ming, male, who just retired at the age of 60 in 2022, has paid social security for a total of 15 years, with a total of 119,340 yuan in contributions, and a personal account balance of 47,736 yuan.
Assuming that the average monthly salary of employees in Xiao Ming's area is 5,525 yuan, he chooses 60% of the average salary as the payment base, so the monthly pension he receives is calculated as follows:
Monthly basic pension = (5525 + 5525 0..)6) 2 15% = 663 yuan.
Personal account pension = 47736 139 = 34342 yuan total: 663+34342=1006.42 yuan.
Assuming that the 60-year-old Xiao Ming can still receive a pension for 17 years, then the total pension that Komatsu can receive is 100642×12×17=205309.68 yuan.
In other words, men can receive a pension of 200,000 yuan as long as they reach the age of 77.
Of course, the longer the lifespan and the longer the payment period, the more pension everyone will have!
It is important to note that:Due to the different social security payment bases and payment grades in different places, the above cases only provide a calculation idea. The specific pension calculation also needs to be adjusted according to the specific local policies and regulations.
What are the conditions for receiving a pension?
A: Contributions for 15 years and retirement age are indispensable.
Does the interruption of social security contributions have an impact on pensions?
Answer: The 15 years we often say refers to the cumulative number of years of payment, which is not continuous, and there can be interruptions in between.
Is it okay to pay for 15 years? What if I continue to pay?
A: You can continue to pay, and the longer you pay, the higher the contribution base, and the more pension you will receive after retirement.
Where do migrant workers receive their pensions?
Answer: If you have paid social security for 15 years, you can choose to receive it locally, or you can transfer it back to your hometown to receive it, if you do not receive it locally, you need to go through the transfer procedures of pension insurance, and it is recommended to consult the local social security bureau for the detailed process.
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