其他
中伦观点 | 谁承担被征地农民社会保障费？
原劳动和社会保障部、国土资源部《关于切实做好被征地农民社会保障工作有关问题的通知》明确规定“地方各级人民政府主要负责人要对被征地农民社会保障工作负总责”。
国土资源部《关于进一步做好征地管理工作的通知》（96号通知）也强调“市县政府是征地组织实施的主体，对将被征地农民纳入社会保障负总责”。国务院及国土资源部、财政部等出台的其他相关规定也有类似的要求。
《物权法》规定：“在征收集体所有的土地时予以安排被征地农民的社会保障费用。”为保障资金安排，29号通知规定：“社会保障所需资金从当地政府批准提高的安置补助费和用于被征地农户的土地补偿费中统一安排，两项费用尚不足以支付的，由当地政府从国有土地有偿使用收入中解决。”
31号通知要求：“被征地农民的社会保障费用，按有关规定纳入征地补偿安置费用，不足部分由当地政府从国有土地有偿使用收入中解决。”
《国有土地使用权出让收支管理办法》《国务院办公厅关于规范国有土地使用权出让收支管理的通知》及其他一系列文件也进一步明确了被征地农民社会保障费用不足部分由当地政府从国有土地有偿使用收入中解决。
96号通知即规定了“解决被征地农民社保问题的关键在于落实社保资金，本着‘谁用地、谁承担’的原则，鼓励各地结合征地补偿安置积极拓展社保资金渠道”。部分地方性规范性文件随后也作出了类似要求。例如，四川省人民政府办公厅要求“城镇规划区外独立选址项目征地的个人缴费不足部分由项目业主缴纳并列入工程概算”。湖南省人力资源社会保障厅要求：“被征地农民社会保障资金主要来源于用地单位缴纳、政府补贴和集体补助。”
需要注意的是，“谁用地、谁负责”只是拓展了地方政府解决由其负责的被征地农民社会保障费用的通道，并非政府职责的转移。具体操作中，为免争议，该等安排应以明确的合同约定为基础，在征地拆迁补偿协议中投资人所需承担的征地拆迁费用组成中明确列明包含被征地农民社会保障费用。在此情况下，该费用即由PPP项目投资人负责承担。若未能在PPP项目的相关合同和文件中有明确的书面转移，则笔者认为被征地农民社会保障费用的支付主体仍在各级地方政府。
确定“谁用地、谁负责”原则的96号通知颁布于2010年。根据《立法法》的规定，96号通知对于其颁布前已签署合同并履行的项目，则不具溯及既往的效力。对于其后的新项目，则地方政府可以根据该规定，通过合同安排要求项目投资人承担。
为了保障失地农民的生活水平，避免因被征地农民社会保障费用承担引起纠纷，笔者建议，未来PPP项目需要注意对该笔费用的承担进行明确约定，在PPP项目合同、征地拆迁补偿协议等文件中，明确项目投资人承担的拆迁补偿安置费用中包含被征地农民社会保障费用。政企双方本着公平的原则进行协商，合理分担项目风险和合同义务。
Notice of the General Office of the State Council on Forwarding the Guiding Opinions of Ministry of Labour and Social Security on the Employment Training and Social Security Work for the Land-Requisitioned Peasants (Notice No. 29) requires, “Local governments at all levels should strengthen occupational training and social security work, and take effective measures to implement occupational training and grant social security funds.” The Circular of the State Council on Intensifying the Land Control (Notice No. 31) also demands that local governments conscientiously carry out the provisions of Notice No. 29.
The Notice on Earnestly Implementing Social Security Work for Land-Requisitioned Peasants clearly stipulates, “Leaders of local governments at all levels shall take full responsibilities for the social security work of the peasants whose land has been requisitioned.” The notice issued by the Ministry of Land and Resources on Further Improving the Administration Work of Land Requisition (Notice No. 96) also emphasizes, “Municipal governments and county governments are the main authority for the organization and implementation of land requisitions, and shall take full responsibilities for incorporating the land-requisitioned peasants into the social security system.” There are similar requirements in other relevant regulations of the State Council, Ministry of Land and Resources, and Ministry of Finance.
Property Law stipulates, “In case of requisition of collectively owned land, social security fees shall be paid to the peasants whose land has been requisitioned.” For the purpose of guaranteeing capital arrangements, Notice No. 29 stipulates, “The social security fees needed shall be arranged in a unified manner from resettlement subsidy that has been raised by local authorities, as well as land compensation for the peasants whose land has been requisitioned. In the event that the above expenses are not sufficient to cover their social security fees, the unbalanced part shall be supplemented by the local government from the incomes as generated from the paid use of state-owned land.”
Notice No. 31 requires, “The social security fees of these rural residents shall be incorporated into the expenses for compensation and relocation upon land requisition subject to related provisions, and the unbalanced part shall be supplemented by the local government from the incomes as generated from the paid use of state-owned land.”
It is further specified in the Measures for the Management of Income and Expenditure from the Assignment of the Right to Use State-Owned Land; Notice of the General Office of the State Council on Regulating the Management of Incomes from and Expenses for the Assignment of the Right to Use State-owned Land; and a series of other documents that the unbalanced part of the social security fee of the peasants whose land has been requisitioned must be supplemented by the local government from the incomes as generated from the paid use of state-owned land.
We can conclude that, as the subject of liabilities for land requisition and housing demolition, as well as land compensation and resettlement, governments at all levels must undertake their statutory obligations to pay for the social security fees to land-requisitioned peasants, and must give an overall consideration and implementation in their budgetary expenditures of land compensation and resettlement.
Notice No. 96 stipulates that “the key to solving social security problems of peasants whose land has been requisitioned is to guarantee social security funds, and to stick to the principle of ‘the party who uses the land shall bear the payment’, encouraging local entities to actively explore channels of social security funds in combination with land compensation and resettlement”. Similar requests have been made in some local normative documents subsequently, such as those of Sichuan and Hunan provinces.
In actual applications, to avoid disputes, arrangements must be based on clear contracts, and it must be clearly specified in the compensation agreements of land requisitions and housing demolitions that social security fees of peasants whose land has been requisitioned must be included in the expenses of land requisition and housing demolition, and that such fees should be borne by investors. In this case, investors of PPP projects must be liable for such expenses. If there is no specific written transfer in relevant contracts and documents of PPP projects, the authors believe that local governments at all levels must still be liable for social security costs of the peasants whose land has been requisitioned.
Notice No.96 which defines the principle of “the party who uses the land shall bear the payment” was issued in 2010. Subject to provisions of Legislation Law, for projects of which contract has been signed and fulfilled before the enactment of Notice No.96, the notice shall not be retrospective. For new projects thereafter, local governments may request project investors to undertake relevant fees through contract according to the provisions of Notice No.96.
To guarantee the livelihoods of the peasants who lost land, and to avoid any disputes arising from assumption of social security fees of the peasants whose land has been requisitioned, the authors suggest that, for future PPP projects, it should clearly specify in the contract which party shall be liable for such expenses. Both government and enterprises must negotiate with each other under the principle of fairness and reasonably allocate project risks and contractual obligations.
业务领域：建设工程与基础设施，房地产，收购兼并