"Interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases (four)" in2012Years12Month31The trial by the Supreme People's Court on the1566Meeting of the, is hereby promulgated, since2013Years2Month1The date of promulgation.

Supreme People's court

2013Years1Month18Day

Method (release2013)4No.

The Supreme People's Court on the

Hearing the law applicable to a number of Labor Dispute Cases Interpretation (four)

2012Years12Month31On the judicial committee of the Supreme Court of the1566Meeting of the)

For the trial of labor dispute cases, according to "people's Republic of China Labor Law" "the people's Republic of China labor contract law," "the people's Republic of China labor dispute mediation and Arbitration Law" "PRC Civil Procedure Law" and other relevant laws and regulations, combined with the civil trial practice, some issues of applicable law, as explained as follows:

Article 1 Labor dispute arbitration committee to no jurisdiction is inadmissible on labor disputes, litigation of the parties, the people's court in accordance with the following situations respectively:

(a) the examination that the labor dispute arbitration committee has no jurisdiction over the case, it shall inform the parties to the jurisdiction of the labor dispute arbitration committee for arbitration;

(two) after examination that the labor dispute arbitration committee has jurisdiction, shall inform the parties applying for arbitration, and the examination opinions written notice to the labor dispute arbitration committee, labor dispute arbitration commission is not accepted, the parties of the labor dispute of lawsuit, it shall be accepted.

Article second Type the arbitral award to the arbitration award is determined as the quasi.

The arbitration award is not stated in the award for the final award or non final award, the employing unit refuses to accept the arbitration award at the basic people's court proceedings, shall handle it according to the following circumstances:

(a) the examination that the arbitration award is not the final award, the grassroots people's court shall accept the case;

(two) after examination that the arbitration award shall be final, the grassroots people's court shall not accept, but should notice to the employer may refuse to accept the intermediate people's court within thirty days of labor and personnel dispute arbitration commission is located for the revocation of the arbitral award from the receipt of the statement of award; have to accept, reject.

Article third The intermediate people's Court of the employer for the revocation of final ruling on the case, shall form a collegial panel trial. After the examination, investigation and questioning the parties, no new facts, evidence or reason, the collegial panel considers that it is not necessary to conduct a trial, the trial can not.

The intermediate people's court may organize mediation the parties. Reach an agreement of mediation, conciliation statement can. If one party fails to perform the mediation agreement, the other party may apply to a people's court for compulsory execution.

Article fourth The parties in the people's mediation committee under the auspices of only the payment obligations of the conciliation agreement reached, both parties consider necessary, may jointly apply for judicial confirmation to the people's Mediation Committee for the location of the grassroots people's court.

Article fifth The reasons not attributable to himself from the original employing unit was assigned to the new employer, the original employer fails to pay economic compensation, the worker in accordance with the labor contract law the thirty-eighth regulation and the new employer terminates the labor contract, or the employer to the employee termination, termination of labor contract, in the calculation of pay economic compensation or for compensation service request, workers in the original employing unit of work experience combined with the calculation for the new employer work life, the people's court shall support.

Unit of choose and employ persons with one of the following situations shall be identified, "laborer reasons not attributable to himself from the original employing unit was assigned to the new employer work":

(a) the workers were still working in the workplace, work, subject of labor contract by the former employer to change to the new employer;

(two) the employing units to organize the workers are working to mobilize the assignment or appointment form;

(three) due to merger, division by the employer as a result of working to mobilize;

(four) the employer and its affiliated enterprises and workers to sign labor contracts;

(five) other reasonable circumstances.

Article Sixth The parties have agreed on the prohibition of business strife in the labor contract or confidentiality agreement, but not agreed rescission or termination of the labor contract to pay economic compensation to workers, workers perform the duty of prohibition of business strife, employing units in accordance with the requirements of workers in the labor contract is rescinded or terminated before twelve months average wage30%Monthly payment of economic compensation, the people's court shall support.

The provisions of the preceding paragraph, the average monthly wage30%Lower than the minimum wage standard of the performance of the labor contract in accordance with the labor contract, to pay the minimum wage.

Article seventh The parties have agreed on the prohibition of business strife and economic compensation in the labor contract or confidentiality agreement, the termination of the labour contract, unless otherwise agreed, employers require workers to perform the obligations of prohibition of business strife, or workers perform the obligations of prohibition of business strife require the employer to pay economic compensation, the people's court shall support.

Article eighth The parties have agreed on the prohibition of business strife and economic compensation in the labor contract or confidentiality agreement, the labor contract is rescinded or terminated, the reason for the employing units to not pay economic compensation to three months, the request to terminate the competition restriction provisions, the people's court shall support.

Article ninthDuring the term of the competition restriction, the employer requests to terminate the agreement of prohibition of business strife, the people's court shall support.

In cancelling the agreement of prohibition of business strife, laborer requests compensation in the competition unit to pay extra workers three months limit, the people's court shall support.

Article tenth If the employee breaches the competition restriction provisions, pay liquidated damages to the employer, the employer requires the employee in accordance with the contract, continue to perform the obligations of prohibition of business strife, the people's court shall support.

Article eleventh The change of labor contract without the written form, but has actually performed oral change labor contract for more than a month, the labor contract and does not change in violation of laws, administrative regulations, state policies and public order and good customs, the parties to do not use the written form on the grounds that the change of the labor contract is invalid, the people's court shall not support.

Article twelfth The union employer terminates the labor contract in accordance with the labor contract law article thirty-ninth, the provisions of article fortieth, but not in accordance with the labor contract law the forty-third regulation prior notice to trade unions, workers in the employer terminates the labor contract law requests an employer shall pay damages, the people's court shall support, but other than the unit have made relevant procedures before the prosecution.

Article thirteenth The implementation of the labor contract law, the term the employing units no longer continue operation due to the expiration of labor contract can not continue to perform, the request of economic compensation paid by the employing entity, the people's court shall support.

Article fourteenth Foreigners, stateless persons not in accordance with the law to obtain employment certificates and Chinese domestic employers to sign labor contract, as well as the residents of the Hongkong Special Administrative Region, Macao Special Administrative Region and Taiwan area not to obtain employment certificate and the mainland employers to sign labor contracts, the parties request confirmation and the employer of labor relations, the people's court shall not support.

Hold "foreign experts certificate" and "foreigner work permit for foreign experts in China", and Chinese establish labor relations within the territory of the employer, can be identified as labor relations.

Article fifteenth The interpretation of the Council promulgated prior to the implementation of the relevant judicial interpretation and the interpretation of conflict, since the date of implementation of this interpretation is not applicable.

This interpretation has not been made after the implementation of the labor dispute cases, the applicability of this interpretation; this interpretation which is the party applying retrial, or retrial according to the procedure of judicial supervision, the interpretation shall not apply.