How to calculate the compensation for employees who are bankrupt in an enterprise

According to Article 113 of the Enterprise Bankruptcy Law of the People's Republic of China, the bankruptcy estate shall be repaid in the following order after giving priority to the repayment of bankruptcy expenses and common debts:

1) The wages and medical treatment, disability allowance and bereavement expenses owed by the bankrupt person to the employees, the basic endowment insurance and basic medical insurance expenses that shall be transferred to the personal accounts of the employees, and the compensation that shall be paid to the employees according to laws and administrative regulations;

2) the social insurance premiums owed by the bankrupt person other than those provided for in the preceding paragraph and the taxes owed by the bankrupt person;

3) Ordinary bankruptcy creditor's rights.

According to Article 46 of the Labor Contract Law, the employer shall pay economic compensation to the employee under any of the following circumstances:

1) The worker terminates the labor contract in accordance with the provisions of Article 38 of this Law;

2) The employer proposes to terminate the labor contract to the employee in accordance with the provisions of Article 36 of this Law and terminates the labor contract through consultation with the employee;

3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;

4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;

5) Terminating a fixed-term labor contract in accordance with the provisions of Paragraph 1 of Article 44 of this Law, except in the case where the employer maintains or improves the agreed conditions of the labor contract and the employee does not agree to renew the labor contract;

6) Termination of the labor contract in accordance with the provisions of Paragraphs 4 and 5 of Article 44 of this Law;

7) Other circumstances provided for by laws and administrative regulations.

Article 47 Economic compensation shall be paid to the worker according to the number of years he or she has worked in the unit and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary.

The settlement fee for employees is different from the compensation received by employees for the termination of labor relations with enterprises, and the compensation received by employees for termination of labor relations is based on the direct provisions of the Labor Law and is applicable to all enterprises; The employee settlement fee of the enterprise is based on the relevant administrative regulations on the bankruptcy and merger of state-owned enterprises and the provisions of the regulations of individual localities, which has a strong policy nature, and it is only applicable to employees in the bankruptcy and restructuring of state-owned enterprises. According to the provisions of the Provisions on the Trial of Enterprise Bankruptcy Cases, the right to claim compensation may be used as the first order of repayment of the bankruptcy claims to participate in the bankruptcy distribution of the enterprise, while the employee settlement fee shall not be subject to the provisions of the Bankruptcy Law. Finally, the biggest difference is that the compensation of employees is borne by the enterprise, which is a statutory responsibility under the labor law, and corresponds to the right of employees to claim compensation; Although part of the resettlement fee for employees is reflected in the burden of the enterprise, it is fundamentally the social responsibility that should be borne by the employees of the bankrupt enterprise for the employment placement, and the employees only have the right to claim the resettlement fee when they voluntarily choose to pay the resettlement fee in a lump sum.

According to the national development. 1997) No. 10 stipulates that, except for the bankruptcy of bankrupt enterprises that are included in the national plan for adjustment, the employee settlement expenses of bankrupt enterprises shall not be borne by the enterprise, but can only be resolved through local subsidies, civil relief and social security, etc., so it is not like the compensation for the termination of labor relations and other claims of employees, which must be borne by the bankrupt enterprise; Moreover, the employee placement fee is not all paid to the employee as a one-time placement fee, but will be used for job placement purposes such as job transfer training, employment introduction, and basic living expenses. Therefore, under normal circumstances, the employee settlement fee of the bankrupt enterprise is not paid from the sale of the bankruptcy property of the enterprise, so there will be no conflict with the interests of the bankruptcy creditors of the enterprise. However, according to the "Notice on Issues Concerning the Trial Implementation of the Bankruptcy of State-owned Enterprises in Several Cities", that is, the State Development.

1994) No. 59, as well as the State Development Bureau.

1997) No. 10 stipulates that when a state-owned enterprise included in the bankruptcy plan in these pilot cities goes bankrupt, its employee settlement expenses shall be borne by the enterprise. According to the provisions, after the transfer of its land use right, the bankrupt enterprise shall give priority to the payment of the enterprise's employee settlement fee from the transfer proceeds, and even if the land use right has been mortgaged, it shall give priority to the payment of the employee settlement fee before repaying the mortgagee's creditor's rights. If the income from the transfer of the land use right of the enterprise is insufficient to pay the resettlement expenses, it shall be allocated from the income from the transfer of other property of the enterprise, and shall be paid from the income from the transfer of the property that has not been mortgaged, and then from the income from the transfer of the property that has been mortgaged.

In the end, if it is still insufficient, it will be borne by the same level according to the affiliation of the enterprise. Therefore, for the bankruptcy of state-owned enterprises included in the bankruptcy plan, the employee settlement fee not only has priority over the bankruptcy claim stipulated in the bankruptcy law, but even has priority over the secured claim, and is closer to the bankruptcy fee in order.

How to calculate the compensation paid to the employees in the bankruptcy of the enterprise, the enterprise bankruptcy can only give as much compensation as possible, and there are two to give two.

1. Based on the average salary of employees, economic compensation shall be paid to workers according to the number of years they have worked in the unit and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year;

2. If it is less than six months, the worker shall be paid half a month's salary as economic compensation.

The distribution plan of the bankruptcy estate shall specify the following matters:

1. The name or name and domicile of the creditor participating in the distribution of the bankruptcy property;

2. The amount of creditor's rights participating in the distribution of the bankruptcy estate;

3. The amount of the bankruptcy estate available for distribution;

4. The order, proportion and amount of distribution of the bankruptcy estate;

5. Methods for implementing the distribution of bankruptcy property.

Legal basis] Enterprise Bankruptcy Law of the People's Republic of China

Article 113 The bankruptcy estate shall, after giving priority to the repayment of bankruptcy expenses and common debts, pay off in the following order:

1) The wages and medical treatment, disability allowance and bereavement expenses owed by the bankrupt person to the employees, the expenses owed by the bankrupt person shall be transferred to the personal accounts of the employees, and the compensation that shall be paid to the employees according to laws and administrative regulations;

2) the social insurance premiums owed by the bankrupt person other than those provided for in the preceding paragraph and the taxes owed by the bankrupt person;

3) Ordinary bankruptcy creditor's rights.

If the bankruptcy estate is insufficient to pay off the claims of liquidation in the same order, it shall be distributed proportionately.

The salaries of directors, supervisors and senior managers of a bankrupt enterprise shall be calculated on the basis of the average wages of the employees of the enterprise. Article 116 After the distribution plan of the bankruptcy estate is approved by the people's court, it shall be implemented by the administrator. If the administrator implements multiple distributions in accordance with the bankruptcy property distribution plan, it shall announce the amount of property and creditor's rights for this distribution.

Where managers carry out the final distribution, they shall indicate it in the announcement and indicate the matters provided for in paragraph 2 of article 117 of this Law. Article 120 Where a bankrupt person has no property to distribute, the administrator shall request the people's court to rule to terminate the bankruptcy proceedings.

After the final distribution is completed, the administrator shall promptly submit a report on the distribution of bankruptcy property to the People's Court and request the people's court to rule on the termination of the bankruptcy proceedings.

The people's court shall, within 15 days from the date of receipt of the administrator's request to terminate the bankruptcy proceedings, make a ruling on whether to terminate the bankruptcy proceedings. Where the ruling is concluded, it shall be announced.