(Minghui.org) Ms. Kang Jinying, a Falun Gong practitioner from Golmud City in Qinghai Province, was jailed for two and a half years for her faith following her arrest in March 2017. She was released in September 2019 and received a notice from Golmud City Social Security Bureau (SSB) in December 2020, telling her to return the pension benefits issued to her during her imprisonment.
Ms. Kang, in her 60s, contacted the SSB and warned them that their request was unlawful.
She then received a court summons on April 20, 2021, saying the SSB had sued her for unjust enrichment. More specifically, the SSB demanded the return of retirement benefits totaling 127,999 yuan.
During a hearing on May 14, Ms. Kang defended herself (her defense statement is attached below), requesting the dismissal of the case due to its lack of legal basis. The judge did not announce a decision on that day.
On May 31, Ms. Kan received the court ruling (numbered “2021 – Qinghai Civil Case 2801 in relation to Case 1083”). “This court accepted a case on April 12, 2021, filed by Golmud Social Security Bureau (SSB) against Kang Jinying regarding unjust enrichment. The plaintiff submitted a request to this court on May 31 requesting to withdraw this case,” wrote the ruling, “Based on the Chinese Civil Procedure Law, Item 1 of Article 154, this court grants plaintiff Golmud Social Security Bureau’s request to withdraw the case.”
According to insiders, the judge spent a lot of time evaluating the case and even went to the provincial capital to have a meeting with the provincial court. The conclusion reached at the meeting was that the Golmud City Court should not handle this case.
Ms. Kang’s Defense Statement
Below is the full text of Ms. Kang’s defense statement titled “Request from Defendant for Court to Dismiss the Case Based on Laws”
Facts and reasons:
1. This case does not belong to the scope of civil litigation
Unjust enrichment occurs when one private party benefits at another party’s expense in an unjust situation, which in turn disrupts the normal rights-obligation relationship between the two private parties. The plaintiff’s lawsuit was based on a policy from the Department of Labor and Social Security (No. 2001- 44), which states that those serving time are not entitled to pension benefits. The plaintiff thus demanded the return of pension benefits paid to the defendant during her imprisonment. As such, the plaintiff’s request was made according to its authority, which rendered it an unfair advantage over the defendant. In other words, the plaintiff and the defendant are not equal private parties involved in civil litigations, nor are there any civil disputes between the two parties. The defendant does not owe any debts to the plaintiff either. Therefore, this case does not belong to the scope of civil ligation.
2. Pension is a private asset, not a state asset. No organizations or individuals are authorized to confiscate it.
The pension system is based on a labor contract relationship and requires both employer and employees to make contributions. Pension benefits are part of employees’ total compensation and their lawful assets. Once reaching the required age, employees become eligible to receive pension benefits. Since pension benefits are funded by employer contribution and employee contribution, both of which are private assets, they are protected by the Constitution. Unless stated otherwise by law, no organizations or individuals have the right to deprive qualified employees of their ownership to their pension benefits.
In China, contributions made by employees and their employers are managed by the Social Security Bureau (SSB), which then dispenses retirement benefits when employees reach retirement age. Therefore, the SSB only plays the role of managing the pension funds, which by no means are state property. Dispensing pension payments is not a charity act done by the SSB but a legal obligation of the SSB to retirees. From the perspective of administrative responsibility, the SSB’s authority is limited to compulsory collection and management of pension contributions from employers and employees. It does not have the legal right to take over or stop the pension ownership. Therefore, since the pension fund is the defendant’s lawful private property, the plaintiff does not have authority to deduct, stop dispensing, or request a return of already issued pension benefits.
From the angle of criminal responsibility, our criminal laws do not have stipulations mandating the suspension of pension benefits of those serving time. The penalties imposed to restrict individuals’ physical freedom include death sentence, life sentence, termed imprisonment, detention, and house arrest. Other penalties include deprivation of political rights, fines, and confiscation of private property. But these penalties must be determined by criminal verdicts from courts and are carried out by law enforcement through legal procedures. The plaintiff’s cancellation and recovery of pension funds from the defendant have no legal basis or court verdict. Furthermore, even if there is a legal basis for canceling pension funds, the court cannot impose both fines and cancellation of pension at the same time; otherwise, it would violate the protection against double jeopardy in the criminal law. Plus, a pension fund is not illegal personal income and is not subject to confiscation.
3. Deduction of pension during detention violates Constitution and other laws
The policy from the Department of Labor and Social Security (No. 2001- 44) and some local SSB offices have violated the Constitution, Labor Law, Social Insurance Law, and other laws. From a legal perspective, this policy cannot be counted as an administrative rule. Some local policies are only government regulations, which are far less than the legal authority of the Constitution and other laws.
On the other hand, a citizen’s pension is protected by Constitution, Labor Law, and Social Insurance Law. From the legal perspective, any legal documents contradicting the Constitution and other laws are invalid. Neither the Constitution nor other laws allow a pension to be canceled if a retiree is detained. In addition, according to Legislative Law, government regulations or departmental rules cannot undermine a citizen’s freedom. Therefore, the above policy from the SSB and other laws are invalid. Below is a detailed analysis.
First, the policy from the Department of Labor and Social Security (No. 2001- 44) violated the Constitution, Labor Law, and Social Insurance Law. For example, Article 44 of the Constitution says, “The State applies the system of retirement for workers and staff members of enterprises and institutions and for functionaries of organs of State according to law. The livelihood of retired persons is ensured by the State and society.”
Article 72 of the Labor Law states, “The sources of social insurance funds shall be determined according to the categories of insurance, and the practice of unified accumulation of insurance funds shall be introduced. The employer and individual laborers shall participate in social insurance in accordance with the law and pay social insurance costs.”
Article 73 of the Labor Law says, “The level of social insurance shall be brought in line with the level of social and economic development and social sustainability.”
Article 16 of the Social Insurance Law states, “Each employee shall enroll in the basic old-age insurance system;,and the employer and the employee shall jointly make basic old-age insurance contributions.”
Article 16 of the Social Insurance Law says, “A member of the basic old-age insurance shall receive the basic old-age pension on a monthly basis if the member’s cumulative length of contribution payment is no less than fifteen years upon reaching the legal retirement age. If the cumulative length of contribution payment of a member of the basic old-age insurance is less than fifteen years when the member reaches the legal retirement age, the member may receive the basic old-age insurance on a monthly basis once the member makes up the contribution payment to what is required for fifteen years.” This law does not mention exceptions. That means that employees could receive a pension during detention.
Secondly, the policy from the Department of Labor and Social Security (No. 2001- 44) is invalid because it violates higher-level legislation.
Article 80 of the Legislation Law states, “The effect of local regulations is higher than that of the rules of the local governments at or below the corresponding level. The effect of the rules formulated by the people's governments of the provinces or autonomous regions is higher than that of the rules formulated by the people's governments of the comparatively larger cities within the administrative areas of the provinces and autonomous regions.”
Article 82 of the Legislation Law says, “The effect of the rules of different departments is equal between the departments, and the effect of the rules of departments and of the rules of local governments is equal between the departments and local governments; their application shall be confined to their respective limits of authority.”
Therefore, the cancellation of pension during detention violates Article 73 of the Labor Law and Article 16 of the Social Insurance Law. It is thus invalid according to the Legislation Law.
Based on the above analysis, according to Article 208 of Interpretations of the Supreme People's Court on Applicability of the Civil Procedure Law of the People's Republic of China, the court should reject cases described in Article 124 of the Civil Procedure Law.
Abuse of Power
During the final debate in court, the plaintiff cited a policy from State Council (Document number 2000 – 42), “Since the defendant has served in prison and been provided daily cost by prison administration according to Prison Law, the pension is no longer eligible.”
Ms. Kang refuted, “If the state says a defendant should pay his or her own living expenses during imprisonment, this should come from a financial agency of the government, not the SSB. Plus, pension is not a living expense or ‘minimal living guarantee’; rather, it belongs to the defendant’s family, including the cost to serve the elderly and raise the youth. If this is deprived of with the excuse of the daily living costs provided during detention, then the defendant is forcibly deprived of rights to basic living, child education, and taking care of the elderly. This violates basic humanity.”
In a letter to the judge and court president, Ms. Kang wrote that the deprivation of pension from detainees could be suspected abuse of power.
Article 7 of the Social Insurance Law writes, “The social insurance administrative department of the local People’s Government at or above the county level shall take charge of social insurance administration in its administrative region. Any other relevant department of the local People’s Government at or above the county level shall take charge of social insurance affairs within its jurisdiction of responsibility.”
Article 89 of the Social Insurance Law says, “When a social insurance agency and its staff commit an offense included in the following list, the social insurance administrative department shall order for rectification. When damage has been done to social insurance funds, an employer or an individual, liability for damage shall be assumed by the person(s) responsible according to law. The principals who bear direct responsibilities and other persons with direct responsibilities shall be sanctioned by law.(1) Not discharging social insurance statutory functions;(2) Not depositing social insurance funds into dedicated financial accounts;(3) Underpaying or refusing to pay on time social insurance benefit obligations;”
Article 93 of the Social Insurance Law writes, “The public officials who abuse their power, neglect their duties, or engage in fraudulent acts for personal gains shall be sanctioned according to law.”
Article 60 of the new Civil Servant Law effective as of June 1, 2019, specifies that government employees who follow orders that violate laws would be held accountable. Then anyone associated with this cancellation of a pension fund, be they the police, court, SSB, or other officers, could be suspected of abusing power.
Being a Better Person
At the end of her defense statement, Ms. Kang reiterated that cancellation and recovery of pension funds from the recipient is illegal. Furthermore, she clarified why she was detained in the first place.
In order to become a better person and save medical costs for her children, she started to practice Falun Gong, a meditation system based on the principles of Truthfulness-Compassion-Forbearance. In the past, she suffered from illnesses, argued with her children, fought with coworkers, and lived a miserable life.
But Falun Gong changed all these, making her a healthy person, a good mother in the family, an easygoing coworker at the workplace, and a helper in the community. “I came to know that the purpose of life is becoming a better person according to the principles of Truthfulness-Compassion-Forbearance,” she wrote. “By letting go of bad habits, I can constantly improve moral values.”
Because of her belief, however, she was detained. As if that was not enough, the communist regime has also imposed financial persecution on her. Together with physical torture during detention, she and her family have suffered tremendously. These abuses are in line with former Chinese Communist Party (CCP) leader Jiang Zemin’s directives against practitioners: “Defame their reputations, bankrupt them financially, and destroy them physically.”
Ms. Kang said those officials who continued to persecute Falun Gong thought they had simply been following the CCP’s policy, but they failed to recognize that the policy from the Department of Labor and Social Security (No. 2001- 44) had violated the Constitution and other laws, nor have they realized that the new Civil Servant Law specified the liability of government employees.
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