Social Security Bureau Refuses to Reinstate Falun Gong Practitioner’s Pension After Losing the Lawsuit for Arbitrarily Suspending It

(Minghui.org) A woman in Linli County, Hunan Province won her lawsuit against the local social security bureau for arbitrarily suspending her pension, but the bureau has refused to reinstate her pension and even threatened to file a counter lawsuit to uphold their decision.

Ms. Wu Chuanying, 68, retired from Linli County Supply and Marketing Cooperative in 2005. In September 2006, she was sentenced to 8 years in prison for practicing Falun Gong, a spiritual discipline that has been persecuted by the Chinese communist regime since 1999. 

The Linli Human Resource and Social Security Bureau (HRSSB) suspended her pension without advance notice in August 2020, six years after she was released from prison. They also ordered her to return the over 130,000 yuan pension payments issued to her since 2006. 

The HRSSB claimed that according to a policy issued by the labor department in 2001 and later updated in 2003, retirees serving time are not entitled to any retirement benefits. Ms. Wu argued that no Chinese labor law has such a stipulation. Even if the policy truly stands, she questioned why the HRSSB didn’t suspend her pension during her imprisonment and why it was demanding the return of already-issued pension benefits since 2006, instead of just during her 8 years of prison term.

Ms. Wu filed an application for administrative reconsideration of the HRSSB’s decision with Linli County Justice Bureau on October 20, 2020. The justice bureau refused to accept her case on the grounds that she did not submit a formal pension suspension decision letter from the HRSSB – a document that Ms. Wu did not have.

She spent months contacting the HRSSB, which agreed to issue a formal notice on January 14, 2021 about the decision to suspend her pension. By then, it had already been six months since her pension was suspended. With the formal letter, the justice bureau accepted her case. 

While waiting for the ruling from the justice bureau, Ms. Wu also wrote to the provincial disciplinary team and leadership of the HRSSB, urging them to pay attention to her case, but to no avail.

On March 28, 2021, the justice bureau ruled in favor of the HRSSB in suspending her “improper financial gain.”

Ms. Wu filed an administrative complaint against the HRSSB with the local court on April 29, 2021. The court accepted the case and held a hearing on June 15. Ms. Wu argued that the pension is her lawful asset while the HRSSB, which only acts as an agent in distributing her pension, did not have authority to suspend it. 

The court issued a decision in favor of Ms. Wu on October 11, ruling that1) it was illegal for the HRSSB to suspend her pension; 2) the HRSSB shall reinstate her pension within 20 days of the ruling and rescind the decision to suspend her pension or demand the refund;3) the decision made by the justice bureau in support of the HRSSB’s pension suspension is invalidated; 4) the 50 yuan of case registration fee shall be shared by the HRSSB and Linli County government.

More than two months have passed since the court’s ruling, the HRSSB is still refusing to follow the court order. As the previous HRSSB director Liu Yanju has been transferred to a new position, Ms. Wu contacted the two deputy directors, Li Qing and Zhang Xinchun, several times and urged them to reinstate her pension, but to no avail. The HRSSB also threatened on December 16 to file a civil lawsuit against her in their attempt to “recoup” the 130,000 yuan she allegedly “owed” them.

To safeguard her legal rights and stop officials from continuing bad deeds, Ms. Wu sent the following open letter to government officials and related individuals. 

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Violation of Constitution and Other Laws

According to the Chinese Constitution, Labor Law, and Social Insurance Law, Ms. Wu was still entitled to her pension even when she was in prison. That is, the HRSSB has no authority to demand the return of pension benefits distributed during her jail time. In fact, Article 44 of the Constitution states, “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.”

In addition, Article 72 of the Labor Law states, “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 conditions and standards on the eligibility of labourers for social insurance treatment shall be stipulated by laws and regulations. The social insurance funds for labourers shall be paid in due time and in full.”

This shows that pension benefits can only be specified by relevant laws and regulations and that no policies issued by local governments or agencies could overturn them. In addition, the amount of pension should be paid in full with no deduction whatsoever. 

Moreover, Article 10 of Social Insurance Law says, “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 clarifies that, “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.” 

In summary, none of the laws cited above forbids one to receive pension as long as retirement requirements are met. 

Violation of Legislation Law

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.”

Since pension is specified in Constitution, Labor Law, and Social Insurance Law, and no laws revoke its distribution, it is unlawful to deprive a citizen of his or her pension. It is true that the Ministry of Human Resources and Social Security issued a policy in 2019 titled “Management Procedure for Basic Medical Insurance for Urban and Rural Residents (URRBMI)” with a document number of No. 2019 – 84. This policy cited another policy from the Department of Labor and Social Security in 2001 (No. 2001- 44) and a third policy in 2003, none of which has legal effect though. The HRSSB’s use of those policies as legal basis to suspend Ms. Wu’s pension was thus illegal. 

Pension Is Legal Possession of the Plaintiff

Pension is based on the contractual relationship between employer and employee. Both of them are required to make contributions to the pension fund, which is part of an employee’s total compensation package (which includes both regular pay and statutory fringe benefits such as pension and health insurance). After an employee reaches retirement age, the pension fund becomes private asset for the employee and is protected by the Constitution. 

Therefore, the employer should be clear that by law pension always belongs to the employee even though they help make contributions. After the employee’s retirement, his or her pension account is transferred to their local social security bureau, whose only role is to serve as a fiduciary to manage and distribute pension funds. In other words, the retiree still legally owns the pension, not the social security bureaus. 

As such, pension distribution is social security bureaus’ legal obligation, not a favor they grant for the retiree. In Ms. Wu’s case, the HRSSB has no authority to stop her pension or request the return of already distributed benefits. Furthermore, according to laws such Marriage Law and Inheritance Law, pension is also considered community property owned by both husband wife and could be used to financially support the elderly and the children in the family. Deprivation of pension is thus unlawful and inhumane because it could endanger the entire family or multiple families. 

Contradicting Civil Liability, Administrative Liability, and Criminal Liability Laws

Suspension of anyone’s pension is also wrong from the perspectives of civil, administrative, and criminal liabilities. 

Regarding civil liability, there was no civil disputes between the plaintiff (Ms. Wu) and the defendant (HRSSB). The plaintiff did not owe any debts to the defendant, who thus had legal ground to seek the return of already issued pension benefits. In some regions, local social security bureaus, similar to HRSSB in Ms. Wu’s case, labeled the already issued pension benefits “unjust enrichment” and filed civil lawsuits against the retirees. Such lawsuits are violations of Civil Law and Civil Procedure Law since “unjust enrichment” only applies to civil ligation between two private parties, not cases brought by a government agency against a private citizen. 

With regard to administrative liability, although the HRSSB is a government agency, its role is limited to its fiduciary function of managing retirees’ pension funds. Besides collecting contributions from the employer and the employee, it does not have any authority to take possession of pension funds. In fact, there is no law or procedure for the HRSSB to impose administrative punishment on Ms. Wu per Administrative Penalty Law. Although Ms. Wu received the criminal penalty of imprisonment, it was not an administrative penalty, and the entity that decided and implemented the imprisonment was not the HRSSB either. 

From the angle of criminal liability, pension suspension is not a punishment given to people held criminally liable. According to China’s criminal law, criminal punishment includes removal of personal freedom (such as death penalty, life imprisonment, fixed-term imprisonment, criminal detention, control), deprivation of political rights, and financial penalty (fines, or confiscation of property). Moreover, these penalties must be specified in criminal verdicts issued by courts and implemented by statutory agencies. In the case of Ms. Wu, the HRSSB did not have legal basis or court verdicts to suspend her pension. Plus, even if a financial penalty is imposed by a court order, it cannot involve deprivation of the pension at the same time; otherwise, it would violate the principle of “no two punishments for one crime.” Plus, pension is not obtained illegally and can not be subject to confiscation. 

Violation of Prison Law

Article 38 of Prison Law states, “A person released after serving his sentence shall enjoy equal rights with other citizens in accordance with the law.”

Without notification, the HRSSB suspended Ms. Wu’s pension in August 2020 and hasn’t restored it at the time of writing. Wu. This has violated the Constitution and Prison Law. As indicated earlier, the HRSSB cited as legal basis the policies issued by Ministry of Human Resources and Social Security, as well as Department of Human Resources and Social Security. But those policies contradict the Constitution and various laws. As a result, the HRSSB should reinstate Ms. Wu’s pension and issue back pay, including cost of living adjustment.

Violation of Social Insurance Law

According to Article 7 of Social Insurance Law, “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 this legislation states, “When a social insurance agency and its staff commit an offence 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;”

In addition, Article 93 says, “The public officials who abuse their power, neglect their duties, or engage in fraudulent acts for personal gains shall be sanctioned according to law.”

Furthermore, Article 60 of the revised Civil Servant Law that went into effect on June 1, 2019, specified that civil servants who executed decisions or orders that are clearly illegal should bear corresponding responsibilities.

Supporting the Upright

In additional to legal aspects mentioned above, Ms. Wu also shared how Falun Gong gave her good health and saved her employer and the government money in medical expenses. By following the principals of Truthfulness-Compassion-Forbearance, she also became someone who is kind and considerate of others. But the wrongful imprisonment not only deprived her 10 years of personal freedom – 8 years in prison and 2 years in a detention center, but also cost her huge loss financially. 

Although the persecution policy came from former Chinese Communist Party (CCP) leader Jiang Zemin, those CCP officials who blindly followed it would face consequences too, both in the court of law and from a moral perspective. 

Since ancient times, the traditional Chinese culture emphasizes that “good is rewarded with good, and evil meets evil.” In other words, those who support the upright and the innocent will receive blessings, while those who helped the vicious harming ordinary citizens would be held accountable. There are many such examples from the war criminals in the World Wall II. 

Similar situations also happened in China. After each political campaign such the Cultural Revolution, the CCP often executed some key perpetrators to ease public anger to maintain its power. This may also happen to whoever persecutes Falun Gong today. Furthermore, a large number of officials involved in the persecution, such as Zhao Chuanjun and Zhu Zufeng, former police department heads of Linli Country, have already faced consequences. 

We sincerely hope everyone a safe and healthy life. By acting according to our conscience, we can achieve that toward a better future for us and our families.