1, the probation period may not exceed the period prescribed by law

[case]

A are employed by a company in Shanghai, she was in June 4, 2004 and the company signed a "contract", the contract agreed period of June 4, 2004 to December 31st of the same year. "The contract" agreed for a trial period of 3 months, and agreed to pay pay: probation base salary 2000 yuan, after the 2500 yuan. In July 12th the same year, company notifies the A to stop working.
A no longer work, think "contract" in the 3 month trial period agreed not to comply with the provisions of the law, in October 13th the same year the company to Shanghai Yangpu District court. A thinks, company early termination "employment contract" shall bear the liability for breach of contract is terminated in advance, require companies to pay a month's salary of $2500 and to terminate the labor contract 2500 yuan of economic compensation. But the company believes that they are to terminate the labor contract during the probation period, different A requirements

 

[comments]

According to the "Regulations" Shanghai labor contract, the labor contract period is less than one year, the probation period shall not exceed 1 months. And between the A and the company's "employment contract" within 1 years, but the probation period is 3 months, in violation of the provisions of; A to work for a month after the speech, the probation period has ended. According to the "Regulations" Shanghai labor contract, the company to terminate the labor contract with A after the trial period, should notice 30 days in advance, not 30 days in advance, should pay 1 months salary. Accordingly, the court verdict, require companies to pay A a month to replace the notice period salary 2500 yuan. According to the January 1, 2008 implementation of the "labor contract law" provisions: 1, the unit and the laborer may agree to probation 2, the term of the labor contract for more than three months but less than one year, the probation period may not exceed one month; if the term of a labor contract year and less than three years, the probation period may not exceed two months; more than three years of fixed - term and non fixed term labor contract, the probation period may not exceed six months. 3, an employing unit and a worker may stipulate only one probation period. 4, in order to complete a certain task of less than three months for the duration of the labor contract or labor contract, no probation period may be agreed upon. 5, the probation period shall be included in the term of the employment contract. Labor contract only the probation period, the probation period is not established, as the term of the labor contract. 6, the workers shall not be less than the minimum wages for the same post or the labor contract to pay eighty percent wages during probation, and may not be lower than the minimum wage standard location of the employer. 7, during the probation period, unless the employee has the "labor contract law" article thirty-ninth and article fortieth first, second of the cases, the employer shall not terminate the labor contract. The employer terminates the labor contract during the probation period, it shall explain the reasons to the workers. Visible, if the case happened after January 1, 2008, it will be in the following situations: 1, between A and the company's "contract" for more than six months but less than one year, this should be agreed a month probationary period, but the probation period is three months, in violation of the provisions of the A to work; a month after the speech, the probation period has ended. At this time, the company shall not take A proved to be inconsistent with the requirements for recruitment and termination and A. 2, at this time, if the company can prove that A up to this work, after transfer or training is still not qualified, can one month in advance notice or without advance notice of one month and pay in lieu of notice of one month's wages, and pay the economic compensation shall be paid according to the law, to terminate the labor contract with the A thereby. 3, if A is not "labor contract law" article thirty-ninth and article fortieth, second paragraph of the first case of company A, unilateral notice to terminate the labor contract, or terminate the labor contract is illegal; A can be based on "labor contract law" the relevant provisions: (1) choose to continue to fulfill the labor contract Medicines Co, Medicines Co should continue to perform, if not the actual performance of the labor contract, the Medicines Co should pay to A double economic compensation as compensation; (2) does not require Medicines Co to continue to fulfill the labor contract, require Medicines Co to double pay economic compensation as compensation.

2According to law, in violation of the provisions of the dismissal of pregnant women

 

[case]

A is a Beijing company staff, the contract period of 1993 May to June 30, 1998. In 1998 May, the A of typhoid fever, the two sides signed the medical contract in the labor contract expires, the termination period lasted until November 30, 1998. A after a period of treatment, physical examination qualified, company notified the A in September 30, 1998 to company for work procedures, but the A is not required by the company. In October 7th the same year the afternoon, company notice to terminate the labor contract. In the dispute process, A submitted to the Commission by the hospital issued from October 5, 1998 to October 19th pregnancy vomiting disease leave 1, think that pregnant women prenatal examination should be considered as attendance, rather than work. Asked the company to sign labor contract, the labor contract period to complete the outstanding salaries, insurance and welfare, as well as the compensation for mental loss 5000 yuan. A TV center according to the defendant argued: "Beijing 'labor protection of female workers'" provisions of several provisions of the first paragraph of article fifth, pregnant woman antenatal examination as attendance should have 3 conditions, namely the pregnant facts, in accordance with the requirements of the medical department and production fact check before the fact; but not A to provide any of the above facts prove. Our company dissolution and A labor contract, because A is a violation of the company "Employee Handbook" thirty-fifth first "staff due to illness or injury can not work, must be submitted by the Clinic or contract Hospital Medical Leave Certificate (diagnosis), approved by the departments or competent personnel may leave, within the time limit is treated as work" the.

 

[comments]

The court held that: the company rules and regulations, not inconsistent with the laws and regulations of the state, shall be as valid; to terminate the labor contract with A, there is no improper. A said its October 5, 1998 to the hospital antenatal examination, although the relevant state departments to ensure the effective monitoring of the medical department has special provisions for pregnant women and fetal, but this check, should be the routine examination regularly, A provided by the hospital's medical handbook in 1998 October 5 day ago no inspection record, also did not provide any relevant evidence and prenatal examination. In addition, although A referred to the hospital to the hospital recommended certificate, but not by the relevant departments or personnel in charge of approval, unauthorized leave, it does not take the initiative to explain the situation. The A of the request without basis in fact, the first intermediate people's court shall not support. China's labor law, female workers during pregnancy, maternity leave, breast-feeding period, the employer shall not according to the provisions of the law twenty-sixth, article twenty-seventh labor contracts; but the twenty-sixth, the provisions of article twenty-seventh does not include "serious violation of labor discipline or the rules and regulations of the employing units".

The labor contract law formally implemented in January 1, 2008, female workers during pregnancy, childbirth, lactation, the employing units shall not in accordance with the law fortieth, article forty-first labor contracts; but does not limit the employing units in accordance with the law the thirty-ninth regulation termination of labor contracts, and the law thirty-ninth second is "a serious violation of the rules and regulations of the employer". The case company and A to terminate the labor contract is based on the company's "Employee Handbook" in attendance management system and reward and punishment regulations, comply with labor law of twenty-fifth second "unit of choose and employ persons with serious violations of labor discipline or the employee employer rules and regulations to terminate the contract and labor contract law" thirty-ninth article second is "a serious violation of rules of the employer's rules and regulations, has nothing to do with the problem of" female "three period" protection, is reasonable, lawful; in the case of Enlightenment: workers during the term of the labor contract, special attention should be paid to observe labor discipline, to make their own legitimate rights and interests are protected.

3To extend the trial period, the enterprise may not exceed one month

[case]

Factory has a number of new employees, respectively, signed a year contract with them, the probationary period is 1 months. 30 days later, the human resource department for examination. A for the home of the elderly died 15 days before and after, absenteeism, poor B job skills, have failed to pass the examination standard. Human resources department suggested that A, B, extend the one month trial period, to do further observation. A, B can't understand.

 

[comments]

The probation period for contract both parties mutually study period. In the meantime, the labor relationship is not very stable, according to the labor law, the employee may rescind the labor contract with the employer at any time; and the employer as long as proof of laborer does not meet the conditions of employment, also can unilaterally terminate the labor contract with the laborer.

A in the original trial period, for a long time is not in accordance with the assessment criteria. A believes that he didn't pick in technology, there is no reason unilaterally to prolong her probation. But the employer for probation appraisal standards stipulated time working proficiency, and work should be completed during the probation period. As the assessment standard, obviously A is not qualified.

The employer has the right to choose who is. The purpose is to avoid the formation of labor contract unilaterally behavior change. In accordance with the provisions of labor law, labor contract, should be equal to follow a voluntary, consensus. The parties fail to reach an agreement, neither party shall have the right to unilaterally change the labor contract. The company should seek the employee A views on whether or not to extend the probation period. If you do not agree to extend, the employing units should be the first choice of the termination of the contract.

B is clearly not up to the job, should be in the dismissal of the column. If A, B do not want to leave the employer, after they agreed to extend the trial period, belonging to the two sides, consensus, reached a new offer, with the purpose of labor law.

According to the provisions of the labor laws and regulations, both sides agreed to extend the trial period, to extend the deadline only with one months. January 1, 2008 implementation of the "labor contract law" nineteenth article: "the term of the labor contract for more than three months but less than one year, the probation period may not exceed one month; if the term of a labor contract year and less than three years, the probation period may not exceed two months; more than three years of fixed - term and non fixed term labor contract, the probation period shall not exceed six months. An employing unit and a worker may stipulate only one probation period. Less than three months to complete a certain task as the term of the labor contract or labor contract, no probation period may be agreed upon. The probation period shall be included in the term of the employment contract. Labor contract only the probation period, the probation period is not established, as the term of the labor contract." Because the extended trial practice, has been facing against the "same agreed a probation period" and the same laborer employer's risk, therefore, does not recommend the use of the operating mode.

4Sign the contract, not to"Refund fee"?

[case]

At the end of 1, A suddenly received notice of the Ministry of personnel of the company, let him clean the table right away, leave. 3 months ago, A in Shanghai with the Shanghai IT company signed a one month trial period of contract, the contract 2000 yuan monthly salary. A month has passed, the company retained him, but did not sign the contract with him what, according to the prior oral commitments, to pay him 2500 yuan a month. A to one's heart's content, also on the "contract" don't claim. Did not expect the company to "order for guests to leave", this time under the process of A can be nasty. He went to the company's area for labor arbitration, require companies to pay him a month's wages, can let him find new jobs before the "buffer". Company Yanci refused, argued that, because A in the trial period performance is not good, often late to leave early, so no unit and his formal contract, now the company decided, no longer retained A, since the contract is not signed, not what "salary", "termination fee".

 

[comments]

"Regulations" Shanghai labor contract provisions of article fortieth: "shall conclude a labor contract without contract, laborer can terminate the labor relationship at any time; and the employer requests to terminate the labor relationship, shall be 30 days in advance notice to workers......" And A did not sign a written labor contract, but both have formed a de facto labor contract relationship. Suddenly leave company called A, not in accordance with the provisions of "30 days in advance notice to workers", it should pay "instead of" pay 2500 yuan. Regulations have such provisions, mainly in order to protect the interests of workers. Labor contract should be employer obligations, if there is no contract, shall be borne by the employer to the employee adverse legal consequences. According to the provisions of the January 1, 2008 "labor contract law": 1, labor contract only the probation period, the probation period is not established, as the term of the labor contract. 2, labor relationship has been established, not to conclude a written labor contract, a written labor contract within one month of the date should be occupied. In Japanese employee employer has more than one month but less than one year and not conclude a written labor contract, it shall pay the laborer the salary of two times. 3, the employing unit violates the provisions of this law, rescission or termination of the labor contract, the employee demands continued performance of the labor contract, the employer shall continue to perform; workers are not required to continue to fulfill the labor contract or labor contract can no longer continue to perform, two times the employing units shall, in accordance with the provisions of the law of economic compensation standard of article forty-seventh to the employee to pay compensation. 4, the employer may according to the law, article thirty-sixth, article thirty-ninth, article fortieth released from its contract with the labor of laborer, the employing units according to the law forty-fourth to terminate the labor contract with the laborer. In the new legal environment, a similar situation, processing method is: 1, A has signed a labor contract probation period for the duration of the labor contract a month of labor contract, the probation period agreed not to set up, a month after the labor contract expires, the company should renew the labor contract, within one month of the expiry of or, the company should be more than a months pay double salary to A. 2, and, in the "labor contract law" in the use of "labor relations" title, rather than "the fact labor relationship" in the title, from a legal perspective, the written labor contract is a written confirmation is in fact the existence of labor relations, labor relations in fact is the labor contract relationship, and not not to conclude a written labor contract, the labor contract is not exist. 3, the company in the probation period does not have a good reason to terminate the labor relationship, according to the "labor contract law", is not established. First of all, have not agreed on the term of the labor contract, only the probation period, the probation period shall not set up for the duration of the labor contract, the probation period; secondly, even if the probation period is established, then must also prove that the A does not meet the conditions of employment. 4, the company to A late to leave early on the grounds of termination of labor relations, must A be late or leave early evidence (e.g. attendance record), but also the company's rules and regulations specified in the tardiness serious not returning to the rules and regulations of the company act, if violated, will terminate the labor contract. 4, if the above termination reason are not established, the company has no legal grounds for dissolution or termination of labor contract, belong to illegal dissolution or termination of labor contracts; at this time, A will continue to carry out the labor contract, the company shall continue to perform; A can not continue to carry out the labor contract or labor contract has not continue to perform, this should be in accordance with the two times of the statutory standards for the economic compensation paid to workers compensation.

5The crime, punishment, non fixed term labor contract can be lifted?

[case]

A in July 1, 1996 with a medical device companies signed a labor contract without a fixed term. In January this year, A due to intentional injury of others, was sentenced to 1 years in prison, with 1 and a half years implementation. After the verdict, medical device companies to notify the A to terminate the labor contract. A believes that he and unit signed labor contracts is non fixed term, although due to intentional injury was sentenced to probation, but can still work in the unit. Therefore, do not agree to terminate the labor contract.

 

[comments]

This case mainly involves two problems: one is the non fixed term labor contract can be terminated; two is the reservation of the labor contract probation period. "Labor law" article twenty-fifth, "labor contract law" provisions of article thirty-ninth: if the workers to be investigated for criminal responsibility according to law, the employer may terminate the labor contract. The labor contract include all forms of labor contract, including the non fixed term labor contract. Because of the non fixed term labor contract is just in the period is different from other labor contract, but it is still a labor contract, the labor contract with the attribute of all the provisions of the law. Therefore, as long as the violation of the "labor law", "labor contract law" the relevant provisions, without a fixed term labor contract may rescind the. In addition, shall be investigated for criminal responsibility including probation, suspension of execution is a kind of sentence, suspended or criminals, does not enjoy the rights of ordinary workers. Therefore, the legal basis for the medical equipment company and A to terminate the labor contract is sufficient.

6,10Years of labor relations of fact can can conclude a non fixed term labor contract?

[case]

A in Shanghai a company just signed a three year term of the labor contract, then continue to maintain the original work, not renew. A heard as long as more than ten years of continuous work, the employer shall, without a fixed term labor contract with the laborer. One day, A figured out just in the company over ten years of continuous work, and require the company to sign a non fixed term labor contract in accordance with the provisions of the labor law. Company leaders think it is difficult to renew the contract with A without a fixed term labor contract, but says it is willing to immediately and A sign a three year term of the labor contract, but A does not agree. After several consultations, both sides Each sticks to his own view., so that the problem is difficult to determine the renewal of the contract. A month later, found that A still insisted to renew the labor contract without a fixed term, then notify A in writing: such as A within a week with the company three years not renew the term of the labor contract, the company can only in accordance with the provisions of notice of termination of labor relations of A. After receiving the notice, A to the labor dispute arbitration commission complaint, to require the company to non fixed term labor contract signed with his.

 

[comments]

The focus of controversy in this case is whether A can work for ten years without a fixed term contract is proposed to renew the labor contract requirements in no case. "Regulations" Shanghai labor contract provisions of article twenty-seventh: "a written labor contract shall be concluded but has not been signed, but the employee fulfill labour obligations in accordance with the requirements of the employer, the establishment of the labor contract relationship". "Regulations" Shanghai labor contract provisions of article fortieth: "shall conclude a labor contract without contract, laborer can terminate the labor relationship at any time; the employer to terminate the labor relationship, shall be thirty days in advance notice to workers". Then, the parties have not signed a written contract, workers more than ten years of continuous work, the employer according to the provisions of the preceding article whether to advance thirty days notice of termination of labor relations workers approach proposed can?

Circular of the Shanghai municipal labor and Social Security Bureau on the implementation of "Regulations" of Shanghai City Labor Contract (two) states: "shall conclude a written labor contract without a full ten years, workers in the same employing unit for both sides to continue to exist, labor relations, labor relations unit of choose and employ persons without basis" Regulations "provisions of article fortieth notifications, the employee proposes a non fixed term labor contract, the employer shall conclude a non fixed term labor contract". In accordance with the above provisions: workers with ten years or above work experience in same employing unit for, both parties shall conclude a written labor contract is not concluded, but continue to retain the state of labor relations, and the employer has not yet been shall inform worker to terminate the labor relationship, in this premise, the laborer proposes to set no fixed term labor contract, the employer shall conclude.
In this case, the A and the company is "should be set not order" labor relations and labor relations in the continued existence of the state. At this point, termination of labor relations unit of choose and employ persons such as basis "Shanghai labor contract regulations" article fortieth of the advance notice of A, both parties of labor relations can be terminated in accordance with company's notice; but A company on the basis of the provisions in advance notice before termination of labor relations is proposed for a non fixed term labor contract, therefore, the company shall conclude with the the non fixed term labor contract.

According to the January 1, 2008 implementation of the "labor contract law" provisions, this kind of case, must pay attention to the following points: first, using the Japanese employee employer that establish labor relationships with workers. The establishment of labor relationship, a written labor contract shall be concluded. Labor relationship has been established, not to conclude a written labor contract, a written labor contract within one month of the date should be occupied. The unit and the laborer conclude a labor contract prior to the employment, the labor relationship is established on the date of employment. The employer fails to conclude a written labor contract in labor at the same time, and the workers agreed remuneration is not clear, the new worker's remuneration the standard specified in the collective contract; there is no collective contract or collective contract does not specify, equal pay for equal work. Two, the full ten years working in the employer continuously, the employee proposes or agrees to renew, conclude a labor contract, unless the employee proposes to conclude a fixed-term labor contract, it shall conclude a labor contract without a fixed term. Three, with the daily employee employer has more than one month but less than one year and not conclude a written labor contract, it shall pay the laborer the salary of two times. In Japanese employee employer within one year and workers do not enter into a written employment contract, as the employer and the employee has a non fixed term labor contract. Employers of illegal and workers do not enter into a non fixed term labor contract, it shall conclude a non fixed term labor contract, to pay two times of monthly wages of workers. If the establishment of labor relations before January 1, 2008, but until January 1, 2008 did not sign labor contract, ought to sign labor contract, in 2008 January since the beginning of February 1st, otherwise, the employer will face the risk of not sign labor contract. Four, according to the provisions in the "labor contract law" outside, the employer shall not rescind or terminate the labor contract; if the employer violates the provisions of the "labor contract law" the dissolution or termination of the labor contract, the employee demands continued performance of the labor contract, the employer shall continue to perform; workers are not required to continue to fulfill the labor contract or the labour contract can no longer continue to perform, two times the employing units shall, in accordance with the provisions of the standard economic compensation "labor contract law" article forty-seventh of the payment of compensation to the workers. The original "Shanghai labor contract regulations" provisions of article fortieth of the practice is not "labor contract law" confirmed, then, if the employer is not unilateral rescission or termination of the labor contract relationship, otherwise, will face assume illegal dissolution or termination of labor contract responsibility; this time, the request for a non fixed labor contract, the employing units shall not refuse.

7Probation period prevalence, enjoy medical insurance

[case]

A2005 in March was a wooden products factory employment, both sides signed a 5 year contract, the contract A for a trial period of 6 months. In June 20, 2005, A is in the hospital, the hospital has not recovered after half a month. A during hospitalization, stopped all the wage unit of choose and employ persons, and to not work, do not meet the conditions of employment on grounds of termination of labor contract by A. A believes that the factory can not terminate the labor contract the disease in their untreated cases, require the employer to recover the termination of labor contract, continue to perform the contract, enjoy the sick leave pay. The factory is that, A belong to the trial stage, does not enjoy the medical treatment, the illness is not adapt to the job requirements, the factory can be dismissed. Both the number of unsuccessful negotiations, A but to the labor dispute arbitration commission to lodge a complaint, the arbitration commission after trial investigation ruled the employer to terminate the labor contract is invalid A decision; and the replacement of A hospital medical period salary

 

[comments]

This is because the probation period under the treatment by cancelling the contract dispute case, the focus of controversy in the probation employee illness whether enjoy treatment of medical treatment insurance, during the probation period the employer can dismiss the prevalence. First of all, the probation period to enjoy treatment of medical treatment insurance, the employer should be given medical treatment period pay. "Labor law" the provisions of article sixteenth, the labor contract workers and employers to establish labor relations, clearly the rights and obligations of both parties of the agreement. "Labor contract law" provisions of article seventh, with Japanese employee employer that establish labor relationships with workers. The provisions of article tenth, the establishment of labor relationship, a written labor contract shall be concluded; labor relationship has been established, not to conclude a written labor contract, a written labor contract within one month of the date should be occupied; the unit and the laborer conclude a labor contract prior to the employment, the labor relationship is established on the date of employment. Visible, of both sides of labor relationship is established from the date of employment, and labor contract is just on the establishment of labor relations, as long as the workers and employers to establish labor relations, workers will be employing units and workers, shall have the right to enjoy the employer medical treatment. The probation period is in labor relations, as the employing unit and the laborer for mutual understanding, and the agreement on the term of. Reply of the general office of the Ministry of labor in July 8, 1989 "about the contract workers in medical problem to the Ningbo Municipal Bureau of labor within the probation period" (Lao ban insurance word [1989] No. third) pointed out: "workers contract during the probation period due to illness or non work related injury, can enjoy medical treatment." Therefore, the employer can not to the probation period for deprivation of employee medical treatment, to be issued during the period of medical treatment pay. Secondly, A during the probationary period treatment should be given a certain period of time. The period of medical treatment is the enterprise workers due to illness or non work related injury treatment rest stop work may not terminate the labor contract period, is an important content of laborers to enjoy social insurance benefits in accordance with the law. The provisions of article third in 1994 the Ministry of Labor issued "enterprise workers Yingongfushang illness or medical period", the enterprise staff due to illness or non work related injury, medical need to stop working, according to one's working life and in this unit work experience, given 3 months to 24 months period of medical treatment. The actual working years less than 10 years, in this unit work life of 5 years for the following 3 months; 6 months to 5 years. In this case the A prevalence in the trial period, belonging to the working life of 10 years, this unit work life of 5 years, according to the provisions of medical treatment should be given 3 month period; the labor department office work to do risk characters [1989]3 paper also pointed out: "workers contract during the probation period due to illness or non work related injury, to enjoy medical treatment, medical treatment for a period of three months." But in this case A length of only 1 months, medical treatment period has not expired, therefore, the employer is not so as to lift the A labor contract.

8Temporary employment, to sign labor contracts and pay social insurance premiums

[case]

A is 2 months ago by a street occupation agency came to a company when the clerk, say every monthly wages 400 yuan, but did not sign labor contract. Listen to people say do not long, the clerk doing the longest is less than half a year. The company does not give the insurance, other what treatment did not. In this regard, deputy general manager of a company left some admitted the fact, but he stressed that, enterprise useful work autonomy, for many people, with a long time, the enterprise shall have the final say. He says, trade business off-season, a season; clerk is also sometimes use, sometimes not, sometimes more, sometimes less. He thinks, for "temporary" and the formal work can have difference, need not sign labor contract. Hire "temporary" whether to sign labor contract?

 

[comments]

With the "labor law" promulgated and implemented the labor contract system, the labor market becomes more mature, especially the January 1, 2008 implementation of the "labor contract law" promulgated, the so-called "temporary" and "official" has ceased to exist, the employer of worker rights is the same. If what is the difference between the worker, the only difference between the labor contract period, the average daily working time and working time system. According to the Ministry of labor and social security "on several issues of part-time employment opinion" (labor department No. [2003]12) regulations, work part-time workers, can establish a labor contract with one or more units. The establishment of labor relations between employers and part-time workers, shall conclude a labor contract. The term of the labor contract in the following months, as agreed between the parties, may conclude labor contracts. But the employee proposes to conclude a written labor contract shall be concluded in written form. So, working part-time personnel of flexible obtain employment to the employer of labor contract requirement is reasonable, the employer should not be eroded by any excuse. "The office of the Ministry of labor on the reply" (Lao Ban Fa No. [1997]88): the full implementation of the labor contract system, the employer's employment in temporary jobs, it shall sign a labor contract with the laborer in accordance with the law for the establishment of various social insurance. For the temporary workers the enterprise continuous work full 10 years, to renew the labor contract, should also be in accordance with the "labor law", if I ask, shall conclude a non fixed term labor contract. The Ministry of labor and social security "on several issues of part-time employment opinion" (labor department No. [2003]12) clearly states: "shall participate in the basic old-age insurance work part-time workers, in principle according to the individual industrial and commercial households participating procedures. To have participated in the basic pension insurance and the establishment of personal accounts personnel, before and after the capture expends fixed number of year together, move across different regions should handle the basic endowment insurance and individual account transfer, connection formalities." At the same time to personally participate in the basic medical insurance, the employer shall pay work-related injury insurance premiums for the establishment of labor relations workers part-time work in accordance with the relevant provisions of the state, happening inductrial injury, enjoy treatment of inductrial injury insurance according to law. According to the January 1, 2008 implementation of the "labor contract law" provisions: 1, the establishment of labor relationship, a written labor contract shall be concluded. Labor relationship has been established, not to conclude a written labor contract, a written labor contract within one month of the date should be occupied. The unit and the laborer conclude a labor contract prior to the employment, the labor relationship is established on the date of employment. 2, with the daily employee employer has more than one month but less than one year and not conclude a written labor contract, it shall pay the laborer the salary of two times. 3, with the daily employee employer within one year and workers do not enter into a written employment contract, as the employer and the employee has a non fixed term labor contract. 4, the employer fails to conclude a written labor contract in labor at the same time, and the workers agreed remuneration is not clear, the new worker's remuneration the standard specified in the collective contract; there is no collective contract or collective contract does not specify, implement the equal pay for equal work. "Labor contract law" the seventeenth regulation, the labor contract should have the social insurance clauses, the social insurance as the essential provisions of labor contract; the thirty-eighth regulation, fails to pay social insurance premiums for the worker, the worker may discharge the labor contract and ask the employer for the payment of social insurance premium, pay economic compensation gold to the. Thus, visible, "labor contract law" also requires employers to sign labor contracts with workers, and pay the social insurance for workers.

9, non fixed term labor contract duration

[case]

A work in the private sector, and the company signed labor contracts, the contract expires at the end of this year the 3. Previously, the human resources department responsible person told him that, because he worked in the company for 11 years, after the expiration of the contract, company willing to sign non fixed term contract. Later, the two sides signed without a fixed term labor contract. But because the private enterprise and foreign cooperation, in accordance with the contract, both sides have 5 years of life. So, if the company has 5 years of cooperation period expires, the A without a fixed term contract is not? A the term of the labor contract is how many years?

 

[comments]

Whether during the cooperation period, if the company failed because of other reasons, the dissolution does not exist, A and inter company signed a non fixed term labor contract will automatically terminate. On the contrary, if the company continues to operate, without a fixed term contract with A also remain in force. That is to say, without a fixed term labor contract, as long as there is no matter the provisions of laws and regulations, the labor contract can not stop, lift. That is, the non fixed term labor contract is not immutable and frozen, if in accordance with the law, regulations and conditions, any party may terminate or rescind the labor contract.

 

10, probation The unit also want to examine the new employee

[case]

A and the company signed a 3 year contract, the contract for a trial period of 3 months. During the trial, A had a few minor errors. So the company in probation notice before A, whereas A requires further investigation, the company decided to extend the probationary period is 3 months. 6 months after the trial period, the company to make the decision, because A does not conform to the company requirement conditions during the probation period, the company terminate the labor contract.

 

[comments]

The company in violation of the provisions on the trial period, the labor law, labor contract decision is wrong, A may apply to the labour dispute arbitration committee for arbitration, require the company to recover the termination of labor contract, continue to perform the labor contract. Labor law the twenty-first regulation: the labor contract may agree to probation, the probation period shall not exceed 6 months. During this period, the worker may discharge the labor contract with the employer at any time; and the employer as long as proof of laborer does not meet the conditions of employment, also can unilaterally terminate the labor contract with the laborer. "Labor contract law" article nineteenth: the term of the labor contract for more than three months but less than one year, the probation period may not exceed one month; if the term of a labor contract year and less than three years, the probation period may not exceed two months; more than three years of fixed - term and non fixed term labor contract, the probation period may not more than six months. An employing unit and a worker may stipulate only one probation period. Less than three months to complete a certain task as the term of the labor contract or labor contract, no probation period may be agreed upon. The probation period shall be included in the term of the employment contract. Labor contract only the probation period, the probation period is not established, as the term of the labor contract. The company in the labor contract during the probation period of 3 months, not terminate labor contract with A, but with its work in a mistake, to extend the trial period of 3 months decision. The company's practices, is actually a labor contract unilaterally behavior change. In accordance with the provisions of labor law, labor contract, should be equal to follow a voluntary, consensus. That is to say, the parties fail to reach an agreement, neither party shall have the right to unilaterally change the labor contract. Therefore, the company did not obtain the consent of A, unilateral change (Extended) trial decision, is invalid. On the contrary, if the company failed to complete the needs in the three month trial period, you have two choices: one is to terminate the labor contract with the laborer, the two is in consultation with the workers to extend the probation period, both parties agree in labor contract indicate the extended probationary period, but extended limit not a month more than the law provisions.

11During the probation period, wounded and treatment

[case]

A2000 in May 1st signed a 5 year contract with a transport company, post for a driver, for a trial period of 3 months. In May 7, 2000, the unit sent A drove A on the way back, the delivery in order to avoid a pedestrian, the car hit the roadside, causing serious injuries, medical care after the end, after identification, disability rating of three. The unit that A unit arrived a few days, and during the probation period, by the person responsible for causing injury, do not agree to pay inductrial injury treatment.

 

[comments]

According to the "on the implementation of 'issues' labor law of the people's Republic of China" stipulates that the eighteenth Views: "the workers to be unit green with people, the probation period may be agreed upon in the labor contract, the probation period shall be included in the term of the employment contract." January 1, 2008 implementation of the "labor contract law" stipulates that the nineteenth:"...... The probation period shall be included in the term of the employment contract......" Thus, the probation period is the employing unit and the laborer for mutual understanding, selection and the agreed period, probationary period is included in the term of the employment contract. Worker during the probation period the employer and has formed the labor relationship. According to the "trial for industrial injury insurance for enterprise employees to" provisions of the first paragraph seventeenth: "employees work-related injury treatment, enjoy medical treatment of work-related injuries." Therefore, during the probation period the occurrence of work-related injuries, the employer shall give laborer inductrial injury treatment. In the case of a transport company reason not established. A should be in the unit to within 60 days from the date of the local labor dispute arbitration committee for arbitration in treatment, payment, and pay attention to the collection of labor contract, inductrial injury, disability identification and registration materials. May 1, 2008 implementation of the "labor dispute mediation and Arbitration Law" twenty-seventh stipulates: "the period of limitation of labor dispute arbitration for one year. Arbitration time period from the party knows or ought to know the rights have been violated from the date. The limitation of the provisions of the preceding paragraph, where a direction opposite party claims rights, or to the relevant departments request right relief, or the consent of the other party to fulfill the obligations and interrupt. From the time of the interruption, limitation of arbitration during the re calculation. Due to force majeure or other legitimate reasons, the parties can not be in the first paragraph of this article limitation of arbitration for arbitration, the arbitration shall be suspended. The grounds for the suspension are eliminated from the date of the limitation period, continue to calculate. During the existence of the labor relations in dispute of labor remuneration, the employee applies for arbitration is not affected by the time during the arbitration, the provisions of the first paragraph of restrictions; however, the termination of labor relations, shall be made within one year from the date of termination of labor relations." Therefore, if the case happened in 2008 May after 1, A should be in the unit to pay within one year of the date of the local labor dispute arbitration committee for arbitration.

12During the period of probation employee, what rights

[case]

A candidates enter a company, as a recruiting officer, signed a one-year contract with the company (June 1, 2004 to August 31, 2005), the probation period of 3 months, from June 1, 2004 to August 31, 2004; probation salary 3200 yuan, after becoming a full member post wages 3200 yuan, examination to pay 800 yuan. In August 31, 2004, it is the last day of the trial period, the A was suddenly suffering from acute gastroenteritis to go to the hospital, the hospital issued a day of sick leave sheet. In September 1, 2004, it is the end of the probationary period after the first day, A went to work, but received the company's "Probation" notice to terminate the contract, dated August 31, 2004. A feel very grievance, and apply to the labour dispute arbitration committee for arbitration, the arbitration hearing, rejected A's appeal. A and sued to the court. In the trial, A thinks, company rules sick leave should call in advance to leave the company, and paid sick leave in the hospital after disease. On August 31st the morning call to inform the Company Ltd, suffering from acute gastroenteritis, need to take a sick leave for a day, also obtained the approval of the company; and the company in the telephone did not notice to terminate the labor contract. In September 1st, after work, company leaders find their conversation, informed the company benefit is not good, she either get a choice or choose to leave, in are the negative, company gave her a notice of termination of the contract, and forced to handle the transfer procedures. In the company has positive offered to terminate the labor contract, one month prior notice, so that companies should not to pay a month's notice substitute gold 4000 yuan. A company that, in August 25th the company has spoke to A, inform its because he could not meet the job requirements, company to terminate the labor contract, August 31st is a formal written notice. Work for August 31st A Future Ltd, they can not be notified to the A, after investigation, the company no one received A leave telephone. The court held that, the employing units in the trial period and dissolution of labor relations, the burden of proof obligations that must be legal, there is evidence that workers do not meet the "conditions", and a company fails to make full proof. Secondly, a company with A8 on day 31 Future Ltd to work for, explain why in the labor relations after the notification to the A termination of labor relations, reason cannot be established.

 

[comments]

As the employer terminate the labor relationship in the trial period, shall promptly notify the laborer, through a variety of ways, such as telephone etc.. Because the company failed to fulfill obligations, so the decision a company to pay A3200 yuan compensation. The probation period the employer may terminate the labor contract is not free. According to the "labor law" twenty-fifth and "Regulations" article thirty-third of the Shanghai city labor contract, laborer is proved to be unqualified during the probationary period, the employer may terminate the labor contract. Visible in the trial period, the employing units and workers remove labor contract is a prerequisite, that must be able to prove that employees do not meet the conditions of employment. In this case, a company that A is not competent for the recruitment officer's job, but failed to give sufficient evidence to prove that A does not meet the conditions of employment, so the company can not free to terminate the labor contract with A. The probation period of time release. If the employee is proved true does not meet the conditions of employment, the unit should inform the employee during the probation period the last day laborers before work, after this time, should think workers already pass probation, probation as formal staff. In this case, the unit failed to adduce evidence on August 25th A oral notice to terminate the labor contract, according to the who who advocated the principle of burden of proof, unit failed to proof, the claim cannot be supported by the court. Because the A at home on sick leave, companies can not personally served notice of termination, can inform A immediately by other means, such as telephone, or will notify the send to the home medium, but the company has delayed the probationary period after the notification, shall be borne by the company the legal consequences bear. Without notice to terminate the labor contract in advance instead of gold. According to the "Regulations" provisions of article thirty-second of the Shanghai labor contract, the employer to terminate the contract without advance notice of 30 days the workers according to the provisions, within 30 days from the date of the notification, the employer shall bear the obligations as stipulated in the labor contract for workers, mainly to pay workers a month's wages. Calculation of base probation compensation. In this case, the court considered as agreed upon by both parties after the appraisal wage is 800 yuan, has the uncertainty on the A, she only after passing the examination, in order to get this part of the wages, the company and the A to terminate the labor contract is the first day after a trial period, A is not the actual work, therefore this part of wages not support, and ordered the company to pay wages A3200 yuan post. Employer: good appraisal management probation. The conditions of employment must be told: according to the provisions of relevant laws, prerequisite ties with labor contract during the probation period the employer is, "does not meet the conditions of employment". However, the "conditions" must be the employer has to inform the laborers, not "black box operation", "internal control". Otherwise, workers can not understand the provisions deny the employer dissolves reason. The general. If the employer fails to inform the laborers of the special conditions of employment, can also according to the content of job advertisements for employment conditions. Probationary period assessment management: Probation evaluation in a variety of ways, because of the company. Some employers may set guidelines for workers to enter the probation teaching, the teaching arrangement probation work plan for new employees, and ultimately scoring or write reviews. Also some companies will focus on the new employee probation training, and assessment through organized written or daily performance evaluation methods such as workers on probation. To reflect the performance assessment and the Department and company will guide people's comprehensive new employees, and the comprehensive evaluation and feedback new staff of internal and external customer body, to form the final examination scores. Regardless of the final examination is a simple fraction, or a complex examination results, or the superior or guide people's comments. The employer has a legal obligation to examine the probation, and shall keep the corresponding file. To terminate the labor relationship service obligations: whether in the trial period to terminate the labor relationship, the employer has will release the documents to the obligation of labor. At the same time, this obligation in the trial period especially need attention, which must be within the legal time limit. In short, as labor law provided for the employer in the labor contract of strict liability, the employer should pay special attention to its own code of conduct. January 1, 2008 implementation of the "labor contract law" article thirty-ninth the first the same rules, it has been proved that the employee does not meet the employment conditions during the probation period; the employer may terminate the labor contract. But, according to the "labor contract law" article forty-eighth, article eighty-seventh, workers in the case of non compliance with the statutory conditions, the labor contract is terminated by the employer or the illegal termination, employees can be required to continue to fulfill the labor contract, the employer should continue to fulfill the labor contract; if the labor contract can not continue to perform or who do not demands continued performance of the labor contract, the employer shall pay the employee two times of the economic compensation as compensation. However, the employers of illegal discharge or termination of the labor contract, "labor contract law" is not required to be informed in advance or payment in lieu of notice. Therefore, in the case of after January 1, 2008, treatment will be different.

13Analysis of the term of the labor contract, and length of service

[case]

In 1996 August A and a machinery factory work, signed a deadline to 1997 August labor contract. 1997 April machinery plant sent including A, a number of workers to Shanghai for half a year's training, and then with A re signed labor contracts, the contract period is from 1997 April to 2002 April, but the two sides agreed in the contract after the training A machinery factory service life is 8 years. The end of 1997 November training, A back to the factory to work. At the beginning of 2002 machinery factory production lines of business, the factory decided to finish with this line of labor contract expires and no "three period", the period of medical treatment and other legal special case to renew the labor contract workers. In 2002 April, A received the decision to terminate the labor contract. A believes that the service life of the labor contract is 8 years, machinery factory is at least shall renew the labor contract period of 3 years. Appeal to the labor dispute arbitration institution.

 

[comments]

The focus of controversy: the employer can in service life under the labor contract expires terminate the labor contract. "The term" labor contracts with the "service" are two different concepts of law. The term of the labor contract is a contract rights and obligations of both sides of content of the period, and the service life is a one-way rights and obligations agreed deadlines. Specifically, the labor contract is the employing units and workers to establish the labor relationship, clearly written agreement between the parties in the labor rights and obligations. One is the term of the labor contract shall be borne by the parties agreed in the contract terms is necessary, the contract itself is both faithful implementation period, a two-way interactivity. Service as a non essential terms agreed to the labor contract, to define the employee shall pay to the employer of labor, fulfill labour obligations period. Compared with the starting point and the term of the labor contract is unidirectional, i.e. within this period the employer has the right to require the employee to work, workers and non due to obtain the employer consent or statutory conditions, and shall not refuse.

The original labor department office "on the termination of labor contracts in probation period for reply" Lao Ban Fa No. [1995]264, "when the unit and the laborer conclude a labor contract has expired, both sides agreed service period has not expired, the employer to terminate the labor contract with the decision not to form clear require workers to continue in the remaining service life for the right to work, there is no improper. While the laborer that unilateral mandatory for the unit to provide services is the lack of legal basis. On the contrary, if the employer needs workers continued to be the unit of service, while the workers refused to leave and requirements and the unit to renew the labor contract, despite not forced workers to sign labor contract, but not allowed to forced labor, but the laborers are shall bear the liability for breach of contract for the previously agreed. In short, if not to consider the legal situation may arise, bidirectional labor rights as the "labor contract" that can not unilaterally. The unidirectional labor rights as the "service" this can not make unilateral. To make the labor arbitration cases shall be the ruling is correct.

January 1, 2008 implementation of the "labor contract law" twenty-second article: "employers provide special training expenses, the professional technical training, it may conclude an agreement with the laborer, the agreed period of service. If the employee breaches the agreement on the term of service, he shall pay liquidated damages to the employer in accordance with the contract. The amount of damages may not exceed the training expenses paid by the employer. The employer requires the employee to pay liquidated damages shall not exceed the service allocable to the unperformed portion of the training expenses. The agreed period of service unit and a laborer, does not affect the workers during the service period to improve labor remuneration according to the normal wage adjustment mechanism." From a legal point of view, or a continuation of the "about the termination of labor contracts in probation period for the reply:" the spirit of the agreed period of service is in the labor contract unilaterally agreed to give the employer a right, which has the right to require the employee to fulfill the obligations stipulated service period, otherwise, the workers shall submit to the employer for payment of liquidated damages for breach of contract responsibility; of course, the employer can waive this right; and the workers in the service period agreement has obligations to fulfill the agreement on the term of service obligations, and has no right to require the employer to keep labor relations with the whole service period. So, if such cases occurred after January 1, 2008, processing results should be the same as the previous is.

14Competition agreement,: accompanied by the compensation agreement

[case]

In November 4, 2002, the A signed labor contracts with a Medicines Co, the term of the contract from November 19, 2002 to December 18, 2003. November 4, 2002, the defendant signed a confidentiality agreement with an Medicines Co. March 31, 2003, the defendant and the plaintiff agreed to sign a confidentiality agreement, the defendant will strictly abide by the confidentiality, it is strictly prohibited to directly or indirectly, oral or written form leakage company specialized technology, trade secrets and commercial secrets of the design competition. January 11, 2004, the defendant to the plaintiff to apply for resignation, after the defendant left the company, the relationship between the two sides end. The turnover, the plaintiff did not pay economic compensation of the prohibition of business strife.

The plaintiff claimed: the defendant to the plaintiff at work in November 19, 2001, the formation of labor relations, in November 4, 2002, the two sides signed a one-year contract, after the expiration of the defendant has been delayed, the signing of a written labor contract, both sides form the fact labor relationship. In November 4, 2002, March 31, 2003, the defendant and the plaintiff respectively two signed confidentiality agreement, agreed to the secret service and the scope of confidentiality. In addition, the employee handbook also details the scope of confidentiality provisions of employees, employees shall perform the obligation of confidentiality obligation of confidentiality, security for a period of three years from the date of the employee turnover, such as a breach of confidentiality, the employee shall pay liquidated damages to the company 2000000. According to the employee handbook, the month 10% wage as compensation restrictions, monthly wages 5% as a confidentiality agreement cost. The defendant received in the employee handbook, on January 11, 2004 to make a commitment, willing to comply with the manual labor.
January 29, 2004, the defendant to the plaintiff to apply for resignation, while leaving the company after. However, the defendant after leaving office, but will be obtained from the office, confidential within the scope of business secrets are revealed to the plaintiff's rivals, the defendant committed a serious breach of confidentiality agreement and the provisions of the employee handbook, should be about the plaintiff to pay default payments, taking into account the economic situation and the ability to compensate the defendant the defendant, plaintiff willing to remove part of the liquidated damages, so please the court to order the defendant to pay default payments 100000 yuan to the plaintiff.

The defendant argued that: confidentiality agreement in 1, the defendant and the plaintiff signed, there is no agreement the compensation given to the limitation of competition has not agreed to the amount of compensation fee and no payment, only unilateral agreement of the defendant's liability for breach of contract, without equal rights, in fact, is to leave after the plaintiff did not pay compensation the gold of prohibition of business strife, confidentiality agreement as a contract shall be equal to the rights, obligations under the condition of equivalence paid by both parties agree to sign, or the agreement is invalid. 2, the plaintiff did not pay the non competition compensation, the defendant may terminate the agreement of prohibition of business strife. 3, the manual labor in the monthly wage of 10% is the competition restriction compensation fees and 5% is confidential, despot provisions. 4, according to the relevant provisions of the state, not an official part of the wage compensation and security costs and, if the employer paid to workers monthly income is a part of non competition compensation and security costs, both sides need to explicitly agreed by the parties, the contract form. The wage labor remuneration. There is no prohibition of business strife compensation or confidential fee.

The court held that: Although the defendant did not sign labor contracts with the plaintiff, but from the confidentiality agreement of March 31, 2003, between the defendant and the plaintiff is the existence of labor relations. According to the law, the worker and the employer liquidated damages clause case only two kinds: violation of the agreement on the term of service and breach of confidentiality agreement. Confidential agreement between the plaintiff and defendant, the defendant should be agreed to keep the business secrets, it can set up a liquidated damages clause, but according to the law, the long time limitation of competition for three years, and the parties agreed in the competition restriction provisions, must be accompanied by financial compensation content. The employing units shall, in the termination or dissolution of the labor relation, economic compensation to the laborer. Therefore, pay economic compensation is a compulsory unit, rather than the right of defense, not workers need to pay claims, therefore the plaintiff said the defendant never requires the plaintiff to pay economic compensation, the defendant has no power to lift the prohibition of business strife agreement grounds untenable. And from the plaintiff to provide evidence can not prove that the actual payment of the wages do contain restrictions and security costs

 

[comments]

Although the defendant did not sign labor contracts with the plaintiff, but from the confidentiality agreement of March 31, 2003, between the defendant and the plaintiff is the existence of labor relations.

Confidential agreement between the plaintiff and defendant, the defendant should be agreed to keep the business secrets, so it can set up a penalty clause, at the same time the confidentiality agreement the defendant shall not engage in any business activities are in competition with the business of the company, shall not use company has established sales network in the business activities, the content limitation of competition shall belong to the. The original, the defendant in the employee handbook and confidentiality agreement separately agreed the obligation of confidentiality and prohibition of business strife obligation. But according to the law, the long time limitation of competition for three years, and the parties agreed in the competition restriction provisions, must be accompanied by financial compensation content. The employing units shall, in the termination or dissolution of the labor relation, economic compensation to the laborer. Therefore, pay economic compensation is a compulsory unit, rather than the right of defense, not workers need to pay claims, therefore the plaintiff said the defendant never requires the plaintiff to pay economic compensation, the defendant has no power to lift the prohibition of business strife agreement grounds untenable. A year and a half time the plaintiff filed an arbitration in labor relations between the two sides until the end of time, did not pay the economic compensation, the plaintiff submitted February 2, 2004 formalities reply did not reflect the plaintiff will pay the competition restrictions of economic compensation, but also from the plaintiff to provide evidence can not prove that the actual payment of the wages do contain prohibition of business strife and security costs, so the defendant that do not comply with the prohibition of business strife can reason is established. And the plaintiff to provide evidence to prove that the defendant is not direct current work unit of the plaintiff that only all of its commercial secrets is the leaked to the work unit. Therefore, the Plaintiff alleged that the defendant breached confidentiality agreement grounds untenable. According to the January 1, 2008 implementation of the "labor contract law" provisions of article twenty-fifth, article twenty-second, in addition to the twenty-third law (the law twenty-second stipulation is training and service periods, twenty-third specifies the confidentiality and prohibition of business strife), shall be agreed upon by the workers bear the penalty. Article twenty-third stipulates: "the unit and the laborer may agree in labor contract conservative employer's trade secrets and confidential matters related to intellectual property. If an employee has a confidentiality obligation, the employing unit may agree with the employee on the competition restriction provisions in the labor contract or confidentiality agreement, and agreed in dissolution or termination of labor contracts, during the term of the competition restriction monthly compensation. If the employee breaches the competition restriction provisions, he shall pay liquidated damages to the employer in accordance with the contract." Article twenty-fourth stipulates: "the competition shall be limited to senior management personnel, units of senior technical personnel and other confidential personnel. The scope of prohibition of business strife, regional, the period stipulated by the employer and the worker, the competition restriction agreement shall not violate the provisions of laws, rules and regulations. The discharge or termination of the labor contract, the provisions in the preceding paragraph staff and the units of production or business operation of similar products, engage in the same business with competitive relationship with other employers, or to open their own production or competition restriction period engage in the same business products, limit, shall not exceed two years." Therefore, if the case happened after January 1, 2008, is between the original defendant secrecy contents agreed by the metal in the invalid provision, the plaintiff shall not according to the agreement to require the defendant to pay default payments, but if it can prove that the defendant to the plaintiff breach of confidentiality agreement caused a loss, the plaintiff may claim compensation for competition restrictions; on the contents of the original defendant can be liquidated damages, but should also agreed to terminate the labor contract after the term of the competition restriction in the monthly payment of economic compensation in content, dissolution or also, limitation period shall not exceed two years.

15Prohibition of business strife, and close off the

[case]

A is a chemical engineer company, and the company signed a non fixed term labor contract. In the work, A is involved in a new process design company, and A company signed a confidentiality agreement, agreement: A during the working period to the company's technical secrets confidential; A if you want to terminate the contract to leave the company, must be six months in advance notice to the company, company will take away from its original position leak proof measures shall be assigned to work; A for any reason to leave the company, should work in the three years left to be in competition with the company; company due to the requirement of A comply with the confidentiality agreement, agreed to pay a certain amount of monthly A confidential allowance. By consensus, both sides signed the confidentiality agreement.

A few months later, A for personal reasons for resignation, the company asked A to continue to work for six months, the company will re arrangement of post, and again remind A don't get work there is competition between the six months later. A argues that the agreement is too harsh, and the future employment is extremely unfavorable, and require the company to cancel the "left the company after three years not to go and there is competition between the work" the provisions of the agreement. The company believes that the confidentiality agreement by mutual consent and signed, to fulfill the obligation of confidentiality is the responsibility of the staff, refused to the requirements of A. A refuses to accept, both sides and a labor dispute.

A think: in his exit from the company was notified six months in advance, the company can immediately change its position, and to take certain measures in the six months to the protection of technical secrets of the company; he left the company, technical secrets, no contact, therefore, company to set yourself in three years after leaving no to the competition with the company's work unit, limiting their employment rights, in violation of the provisions of the labor law.

Companies that: the contact A work in the company during the period of technology are the core confidential company, companies for the protection of proprietary technology secret and A signed a confidentiality agreement; anti leakage measures because of technological secrets is not much, so A does not get competition in three years after leaving the work unit within the technical secrets and protection measures this agreement, both parties agree to sign, the company has to pay a monthly allowance of the secrecy, A now regret no basis

 

[comments]

The focus of controversy in this case is: the employer in order to protect their own technical or commercial secrets, whether classified workers to sign an agreement to terminate the contract of the notice period and agreed competition restriction period after the termination of the contract.

Business secret refers to: not familiar to the public, can bring economic benefits to power, who is practical and technical information and business information through the power to take security measures, including raw material formulation, technological process, technical know-how, design, management, marketing strategy, customer lists, sources of information. Commercial secret is a kind of intangible property right, legal protection of trade secrets, is essential for protecting fair competition, protect the orderly operation of the market economy. "Labor law" stipulates: "the labor contract the parties may agree in labor contract conservative employer related matters" commercial secret, "specified in the first paragraph of article twenty-third of the labor contract law": "the unit and the laborer may agree in labor contract conservative trade secrets of the employer and related to intellectual property confidential matters." According to the above requirements, the employing units to protect its own trade secrets, by contract or agreement shall keep the business secrets of the measures and matters, the advance notice period and the prohibition of business strife is to keep the business secrets of specific measures.

And the competition restriction notice whether can also agreed in the contract in advance? "Regulations" Shanghai labor contract sixteenth provisions of the second paragraph: "labor contract limitation of competition shall not terminate the contract, agreed the advance notice period." In accordance with the above provisions, and prohibition of business strife cannot notice also agreed in advance, that employers can only take one of them as a measure of the protection of commercial secrets, the provision of substantive meaning, should be to prevent excessive restrictions for employer and may affect the industry choice of workers rights. "Labor contract law" twenty-third paragraph second: "workers on duty of confidentiality, the employer may agree with the employee on competition clauses in the labor contract or confidentiality agreement, and agreed in dissolution or termination of labor contracts, during the term of the competition restriction monthly compensation. If the employee breaches the competition restriction provisions, he shall pay liquidated damages to the employer in accordance with the contract." "Labor contract law" did not carry on the stipulation to the advance notice period.

In this case, the chemical company in order to protect the new technology will not be leaked, and participate in the development of the technology staff signed a confidentiality agreement, which itself is legitimate and reasonable. But in the confidentiality agreement, which not only provides the limited period of competition, also stipulates the advance notice period, labor for employment right are too restrictive, and monthly payment security allowance is only for the confidentiality agreement, the prohibition of business strife is not stipulated in the economic compensation for termination or cancellation of the contract after, in violation of the relevant labour regulations the. Therefore, companies in the confidentiality agreement A limitation period shall not terminate the contract, agreed the advance notice period, the release notice of contract six months ahead of schedule cannot produce a legally binding agreement.

16The establishment of labor relations, labor contract shall be signed

[case]

In May 3, 1995, the plaintiff to the defendant A business downturn, internal management disorder on the grounds, require the general manager of A agrees to pay the work during the actual wages after the resignation, A immediately said don't agree, and notify the company finance department on A month wages, A refuses to accept and will appeal to the local arbitration committee. The defendant of Sino foreign joint venture in a real estate company in March 23rd in a local journal recruitment advertising commitment to public relations manager, a monthly salary of L600 yuan, A 27 in the same month the candidates for posts, the two sides have been unable to sign labor contract, the company opened, business is bad, the staff thought fluctuation is large. A considering the defendant a dead end job, then go away.

 

[comments]

The arbitration committee that: Sino foreign joint venture in a real estate company is a Sino foreign joint ventures, the hire employees do not sign labor contract is wrong, according to the "labor law of the people's Republic of China" the sixteenth stipulation: shall conclude a labor contract to establish labor relations". The labor department office "on the" labor law "provisions of the" sixteenth article: "labor law" sixteenth article "the establishment of labor relations of all workers, regardless of management personnel, technical personnel or the original fixed said, must make workers work contract, should be here must be the meaning of". "Second rules" labor management in Chinese foreign equity joint ventures also stipulates that "employed staff and workers of a joint venture, dismissal and resignation...... Three, be stipulated in the labor contract". Therefore, only according to the unit and the laborer shall establish labor relations is in accordance with the law of labor contract. A and the defendant labor relations in fact is a kind of fact labor relation, if the parties do not agree to complement signed the labor contract, laborer also does not agree to continue to maintain this kind of labor relations, can terminate the labor relationship, but the actual work time according to the standard wage employees give, shall not deduct.

Results: between the 1 person and the respondent terminating litigation in labor relations; 2 reissue the complainant wages 1600 yuan lessons: 1 establish labor relationships shall conclude a written contract. 2 employees (including all enterprises fixed workers, temporary workers, contract workers, technicians, management personnel and so on) through the labor contract to establish the labor relationship. 3 the employer employee, in staff, to accept the assigned staff, should be to establish labor relations through labor contract, administrative job, administrative transfer, administrative accept college graduates and demobilized military personnel itself is not of course legally established the labor relations.

According to the provisions of the January 1, 2008 "labor contract law": 1, the establishment of labor relationship, a written labor contract shall be concluded. Labor relationship has been established, not to conclude a written labor contract, a written labor contract within one month of the date should be occupied. The unit and the laborer conclude a labor contract prior to the employment, the labor relationship is established on the date of employment. 2, with the daily employee employer has more than one month but less than one year and not conclude a written labor contract, it shall pay the laborer the salary of two times. 3, with the daily employee employer within one year and workers do not enter into a written employment contract, as the employer and the employee has a non fixed term labor contract. 4, the employer fails to conclude a written labor contract in labor at the same time, and the workers agreed remuneration is not clear, the new worker's remuneration the standard specified in the collective contract; there is no collective contract or collective contract does not specify, implement the equal pay for equal work.

17, and contract period and service period differences

[case]

A with a Technical Developing Company signed a four year term of the labor contract. The contract for nearly a year, Technical Developing Company has developed a new product development plan. The company plans to conduct training for A. Therefore, the two sides signed the training and service agreement: the company invested about five hundred thousand yuan training, training service for the company for ten years, according to the length of service or not for the training fee. A after the training to continue to work to fulfill the service period. Soon, the parties to the labor contract is the expiration of the period, the period of service and for many years, company to notify the A to renew the labor contract, A said he took technology research and development work, require the company to himself as the manager of the technical department, and a corresponding increase in wages and benefits; companies that product development work has not yet been determined, the A requirements are difficult to meet, said new product development success after consideration. After several consultations, both sides still Each sticks to his own view., that failed to renew the labor contract. A believes that the parties cannot reach an agreement on the renewal of the contract, the original contract would expire, therefore, A after the original labor contract expires left the company. Both sides so dispute.

 

 

[comments]

Agreed service period are not fulfilled but not to renew the contract, can terminate the labor contract at the expiration of the contract. According to the "Regulations" provisions of the labor contract in Shanghai: "the parties to the labor contract by the employer to employee training, recruits with or provide other special treatment services make agreement"; according to the "on the implementation of" Shanghai labor contract regulations "several issues notice" provisions: "employee violates the service the terms of the contract, shall bear the liability for breach of contract". The above provisions that: the employing units in the premise of training workers and workers make the service agreement, legally binding upon the workers. The term of the labor contract with a term of service is not a legal concept, how to deal with the inconsistency between the two? According to the "on the implementation of" Shanghai labor contract regulations "issues notice" provisions: "agreed service life longer than the term of the labor contract, the labor contract expires employers require workers to continue to perform the service period, both parties shall renew the labor contract".

By the party to renew the labor contract conditions no agreement can be reached through negotiation and renewal is not how to do? According to the "Notice of the Shanghai municipal labor and Social Security Bureau on the implementation of" Regulations "of Shanghai City Labor Contract (two)" stipulates: "the labor contract expires, employers continue to provide jobs for workers to continue to perform the service period, both parties should renew the labor contract. Due to renew the labor contract conditions can not reach an agreement, the parties shall be determined according to the conditions of the labor contract to continue to perform the original. Continue to implement a period, the employer does not provide jobs, as to give up on the remaining term of service requirements, the termination of labor relations". The above provisions that, by each party to renew the labor contract conditions can not reach an agreement, the parties shall be in accordance with the original labor contract to determine the conditions continue to perform.

In summary, A to both parties cannot renew the new contract away, violating the agreement on the term of service, it shall bear the liability for breach of contract. Therefore, A or back to the Technical Developing Company to continue to fulfill the remaining term of service, the liability for compensation or according to the agreement to assume the remaining term of service. January 1, 2008 implementation of the "labor contract law" twenty-second article: "employers provide special training expenses, the professional technical training, it may conclude an agreement with the laborer, the agreed period of service. If the employee breaches the agreement on the term of service, he shall pay liquidated damages to the employer in accordance with the contract. The amount of damages may not exceed the training expenses paid by the employer. The employer requires the employee to pay liquidated damages shall not exceed the service allocable to the unperformed portion of the training expenses. The agreed period of service unit and a laborer, does not affect the workers during the service period to improve labor remuneration according to the normal wage adjustment mechanism." "Labor contract law" article twenty-second "only stipulates the employer to provide special expenses for workers, the professional technical training" can be agreed period of service, the original "Regulations of Shanghai labor contract regulations" in the "capital hire, or other special treatment" are not mentioned, but also "labor contract law" provisions of article twenty-fifth, article twenty-second, in addition to the twenty-third law (the law twenty-second stipulation is training and service periods, twenty-third specifies the confidentiality and prohibition of business strife), shall be agreed upon by the workers bear the penalty. In fact, the agreed period of service to narrow the scope, which is confined to "the employer to provide special expenses for workers, the professional technical training".

18The economic compensation, the company moved from the termination of the contract

[case]
Chief designer A was one of a software company in Shanghai, since 2001 April into the company. 2004 November received the company notice: company will move to Beijing, with the relocation of the staff is willing to stay in the company to work, do not want to move, the company will from 11 at the end of the termination of the contract. A than with the relocation of a company, so the company in 2004 12 early A to handle the formalities, but the compensation problem is the delay is not decided. A and in many company consultations fail circumstances, apply for labor arbitration.

The arbitration tribunal after hearing that, the company moved to another city employees don't move, the company can advance a month written notice to terminate the labor contract is not inappropriate, but shall pay economic compensation to the laborer, the payment standard is laborer in the company's working life, every year to pay one month's wages during the first half of the year, with less than a year by year basis part. Accordingly, the arbitration tribunal shall pay economic compensation A4 month wage decision.

 

 

[comments]

The company has some significant changes in the process of operation and sometimes can hardly be avoided, for example, in this case moved from Shanghai to Beijing is a typical. In this case if you don't allow the labor contract can be conditionally released, on both sides is not reasonable. So the current labor law has a regulation: the basis for the conclusion of the labor contract changes, so that the original contract can not be fulfilled, but can not change the contract the parties reach an agreement, the employer can be 30 days in advance written notice of termination of the contract of employment. But in this case, an objective to workers caused a loss, so the current labor law has a regulation: the employing units on the basis of the above reasons stipulated in the termination of the contract, it shall pay economic compensation to the laborer. In this case the A work in the company for 3 years and 8 months, according to the provisions of this law, the company shall pay economic compensation for A4 months of wages.

The labor contract law on forty-first January 1, 2008 the formal implementation of the: "in any of the following circumstances, to reduce staff twenty people or less than twenty people but the total number of employees more than ten percent, the employer thirty days in advance to the trade union or all the workers explained the situation, to listen to the opinions of the trade union or employees, staff reduction programme by the report to the administrative departments of labor, reduces staff: (a) restructuring pursuant to the enterprise bankruptcy law; (two) has serious difficulties in production and operation; (three) converting enterprises, major technical leather adjustment or mode of operation, after amendment of employment contracts, the need to reduce staff; (four) other due to objective economic situation of labor contract is based on significant changes, resulting in inability to perform the labor contract. When reducing the workforce, should be retained in preference to the following persons: (a) fixed-term labor contracts with the unit to make a longer duration of; (two) and the unit for a non fixed term labor contract; (three) the family has no other workers, there is a need to support the elderly or minors. By the employer in accordance with the provisions of the first paragraph of staff reductions, in six months to recruit staff, shall inform the workers cut down, and in the same conditions to give priority to the employees cut." The provisions of article forty-sixth, "the employing units in accordance with the provisions of the first paragraph of this article forty-first terminates the labor contract", "the employing unit shall pay economic compensation to the laborer". The law forty-seventh stipulation: "economic compensation to workers in this period of work units, each for one year to pay one month's wages paid to workers. More than six months but less than one year, calculated according to a year; less than six months, half a month to pay economic compensation to the laborer wage. The monthly wage of workers three times higher than the average wage where employers and municipalities, districts and municipal people's government announced last year in the region of the monthly wages, payment of economic compensation standards to pay three times the worker is mean monthly salary amounts, to pay economic compensation does not exceed the maximum period of twelve years. This article referred to is the monthly wage of workers in the labor contract is rescinded or terminated before twelve months average wage." Ninety-seventh the provisions of the third paragraph: "the implementation of this law, the existence of the labor contract is rescinded or terminated in this Law comes into force, in accordance with the provisions of this law the provisions of article forty-sixth shall pay economic compensation, calculated from the date of implementation of this Law and economic compensation period; before the promulgation of this Law in accordance with the relevant regulations, the employer shall pay economic compensation to the laborer in accordance with the relevant provisions of, at that time.

Therefore, if the cases occurred in January 1, 2008, the employer is also need to pay economic compensation, just to be executed in accordance with the provisions of the labor contract law in computation.

19, changing jobs, can be about the probation period?

[case]

L worked as a sales job in A company, she and enterprises signed labor contracts to expire in October. In September, the Company Personnel Ministry told L: "because of your excellent work, the company decided to start from next month, as you worked as marketing director. In accordance with the provisions of the company, the new staff must be half of the probation period." L after listen to very happy, and with the Company re signed a 3 year contract, and agreed to half of the probation period.
Had not thought that, she do sales is an ace, but when the market competent but repeatedly error, the company then lifted her out of the labor contract, the reason is: according to the "labor law" the twenty-fifth stipulation: it has been proved that the employee does not meet the conditions of employment during the probationary period, the employer may terminate the labor contract.

 

 

[comments]

According to the May 1, 2002 implementation of the "Regulations of Shanghai Municipality on labor contract" the nineteenth stipulation: "the labor contract expires, the parties reach a consensus through consultation, the labor contract may be renewed. To renew the labor contract probation period shall not be stipulated." January 1, 2008 implementation of the "labor contract law" article nineteenth, "an employing unit and a worker may stipulate only one probation period". Therefore, whether or not the same workers changing jobs, to renew the labor contract does not stipulate a probation period. Because the labor contract is not only post the rights and obligations of the agreement, but the legal contract during the existence of the labor relations. Some workers to renew the labor contract, although changed jobs, but after the employer has been in actual work, the worker's mental state, personal qualities, such as the ability to work conducted the inspection. In general, the employer may according to the laborer during the performance to fulfill the original labor contract, whether to continue its labor relations decisions. Of course, this does not affect the new posts "probationary period contract". However, the specific positions "Probation" does not belong to the labor contract adjustment category.

Thus, L is not to renew the labor contract probation period. If L is not new job, A company against her training or adjustment to work. If you still can not do the work, the company may terminate the labor contract, and the notification of the decision of trade unions. Of course, dissolution of the labor contract shall be thirty days in advance to inform Ms. song in written form.

20Conclude a labor contract, pay attention to the geographical factors

[case]

A in a Taiwan funded enterprises, recently encountered a let him worry about things. They company plant opened in Guangdong Province, Dongguan City, he initially served as a production supervisor at the factory. Thereafter, he was transferred to the office in Beijing, and then transferred to the Shanghai office. In Guangdong work, A and the company signed a labor contract, when transferred to Beijing after the company renewed the contract period, in the performance of the contract period, being transferred to Shanghai. Frequent transfers has brought much inconvenience to the life of A, A decided to resign.

But the company said, the resignation must be in accordance with the agreed in the contract the amount of liquidated damages, in the face of high default payment A in a dilemma. He had heard of, the relevant provisions of the Shanghai different from Guangdong Province and Beijing City, the resignation of employees do not have to pay liquidated damages, hope to know about.

 

 

[comments]

Beijing, Guangdong Beijing: according to the February 1, 2002 implementation of the "Beijing City, Guangdong Province labor contract" and the May 1, 1995 implementation of the "Guangdong Province labor contract management regulations", if the labor contract agreed liquidated damages and not in violation of laws, regulations, no unfair situation, the breaching party shall pay liquidated damages in accordance with the contract the agreement.

Shanghai: Shanghai City, May 1, 2002 since the implementation of the "Regulations of Shanghai Municipality on labor contract", took the lead on the labor contract agreed liquidated damages made special provisions. At the same time, according to the "Regulations" Beijing labor contract: "the worker to the employer payment of liquidated damages shall not exceed the total wages 12 terminate labor contract month." "Regulations" Shanghai labor contract only made the provisions of principle: "the agreed liquidated damages amount is excessively high, the parties may request the appropriate reduction. Disputes due to default payment, according to the labor dispute settlement."

"Guangdong Province labor contract management regulations" does not have a liquidated damages clause, then in Guangdong, the amount of damages Is it right? Can be set arbitrarily by parties? The answer is certainly negative, should follow the principle of fairness, reasonably determine the labor remuneration according to factors such as. The resulting controversy, only by the judge's discretion. In addition, according to the "Regulations" Beijing labor contract, laborer violates the present provisions or the labor contract termination of labor contract, and causes losses to the employer, shall compensate. "Provisions of Guangdong Province labor contract management regulations": "due to the fault of one party, cause the labor contract can not perform or can not perform, the fault shall bear the liability for breach of contract; causes losses to the other party, must bear the responsibility for compensation." "Regulations workers in violation of laws, regulations and rules of the dissolution of the labor contract, the labor dispute arbitration commission ruled, workers must return to the original employing unit of labor contract, and compensation for economic losses." That is to say, in Beijing and Guangdong, one party default in payment default payment according to the contract, if it causes losses to the other party, it shall be liable for compensation.

However, the Shanghai municipal labor and social security bureau "on the implementation of 'Shanghai labor contract regulations' issues notice" provides that: "the parties agreed liquidated damages amount higher than the actual loss caused by the breach of contract laborers to the employer, the employee shall be liable for breach of contract by the parties about the gold; the agreed liquidated damages amount is less than the actual loss, the employer requests damages, workers should according to the actual damages." In fact, provided by the employer in liquidated damages and "either or" principle. Special tips: enterprise management in the treatment of labor contract default payment problems, should pay attention to the following points: first, in the labor contract should clearly know, its geographical position is how the provisions of the labor contract. As a Shanghai enterprises to recruit a staff in Beijing in Beijing, if the employee is directly signed with the Shanghai headquarters of the labor contract, one in Beijing, Shanghai is also shall apply; if the employee is with branches or offices in Beijing, the labor contract, the applicable is the provisions of Beijing. The only familiar with the local laws and regulations, to suit one's measures to local conditions, have ready plans to meet a situation. Secondly, can see the collection of local setting of the liquidated damages case, help yourself to a reasonable set of the amount of damages. In Shanghai, the penalty amount should be higher than the actual loss, otherwise it is not much significance. In Beijing, the amount of damages in general should not be less than 3 months of wages of staff. If the amount is too low, will lose the disciplinary significance. But the amount is too high, can also cause controversy. Two kinds of situations, it will harm the interests of the employing units. Third, don't miss the limitation period for claims damages rights. To resign from escaping and pay breach of contract damages phenomenon, the employer should be through legal channels to claim promptly. If you blindly refused to retired workers, detain records, tend to hinder the normal employment of employees, but also make their own rights suffered losses.

Regardless of Beijing, Shanghai, and Guangdong, please be sure to find the employee turnover of the contract within 60 days, filed an application for arbitration to the labor dispute arbitration committee. According to the provisions of the January 1, 2008 "labor contract law": 1, in the labor contract or confidentiality agreement, the employer may be agreed upon in the competition restriction provisions and laborers, and agreed in dissolution or termination of labor contracts, during the term of the competition restriction employee shall be given economic compensation. The workers did not return the competition restriction provisions, he shall pay liquidated damages to the employer in accordance with the contract. The competition shall be limited to senior management personnel, units of senior technical personnel and other confidential personnel. The scope of prohibition of business strife, regional, the period stipulated by the employer and the worker, the competition restriction agreement shall not violate the provisions of laws, rules and regulations. The discharge or termination of the labor contract, the provisions in the preceding paragraph staff and the units of production or business operation of similar products, engage in the same business with competitive relationship with other employers, or to open their own production or competition restriction period engage in the same business products, limit, shall not exceed two years. 2, the employing units to provide special training expenses for workers, the professional technical training, it may conclude an agreement with the laborer, the agreed period of service. If the employee breaches the agreement on the term of service, he shall pay liquidated damages to the employer in accordance with the contract. The amount of damages may not exceed the training expenses paid by the employer. The employer requires the employee to pay liquidated damages shall not exceed the service allocable to the unperformed portion of the training expenses. The agreed period of service unit and a laborer, does not affect the workers during the service period to improve labor remuneration according to the normal wage adjustment mechanism. 3, in addition to the above two kinds of circumstances, the employing units and workers may not be agreed upon by the workers bear the penalty. So, if the case happened in January 1, 2008, the company and the A default payment agreement does not belong to the "two kinds of situations that the labor contract law", the agreed liquidated damages will be faced with the "labor contract law" against the loss of legal effect, namely A resigned in January 1, 2008 after, do not need to pay the labor contract agreed liquidated damages to the company.

21, also want to pay economic compensation to dismiss probationary member of the situation

[case]

A graduated from the university after the candidates to work in a publishing company, signed a 1 year contract, the probation period shall be 3 months. From 2004-1-1 to 2004-3-31, in the 2004-2-15 company suddenly to A issued a notice, inform the A performance is not ideal, does not meet the conditions of employment, the right to handle the transfer procedures. A is very helpless, had to handle the transfer procedures, to the end of the month, no wages, A to the company for wages, companies only give the half a month salary, A refuses to accept, to labor law lawyer after the Labor Department filed a complaint, the arbitration committee not only support the unpaid wages, back to the economic compensation for her one and a half months.

 

 

[comments]

The workers because the company signed a 1 year contract until January 1, 2008, according to the original provisions of Beijing City, the probation period shall not exceed 30 days, so the company in 2004-2-15, dismiss employees date has passed the probation period, it should pay economic compensation, due to separation at the company did not pay economic compensation, therefore, the company should pay 50% of the additional economic compensation.

In daily life, workers and the company signed a labor contract, we must pay attention to the time limit. According to the January 1, 2008 before the Beijing city original provisions, the term of the labor contract within 6 months, the probation period may not exceed 15 days; the term of the labor contract in 6 months or more than 1 years, the probation period may not exceed 30 days; the term of the labor contract in 1 years or more within 2 years, the probation period may not exceed 60 Japan; the term of the labor contract for more than 2 years, the probation period may not exceed 6 months. The probation period shall be included in the term of the employment contract. Labor contract law article nineteenth in accordance with the January 1, 2008 the formal implementation of the labor contract: "more than three months but less than one year, the probation period may not exceed one month; if the term of a labor contract year and less than three years, the probation period may not exceed two months; more than three years of fixed-term and non fixed term labor contract, the probation period may not exceed six months. An employing unit and a worker may stipulate only one probation period. Less than three months to complete a certain task as the term of the labor contract or labor contract, no probation period may be agreed upon. The probation period shall be included in the term of the employment contract. Labor contract only the probation period, the probation period is not established, as the term of the labor contract."

To remind the employer, if you want to dismiss the employee during the probation period, it should first have a look whether you agreed trial period in accordance with the law, whether to have the legal trial period, if not specified or exceeds the limit, then, is to be prudent in the dismissal of employees, which relates to economic compensation the problem.

22, was forced to resign can get economic compensation

[case]

A is a company staff, in 2007 March and the company signed a 5 contract, in 2009 March, the company replaced the main person in charge, the new person in charge to A is not suitable for work on the ground, requests to terminate the labor contract with A, A does not agree. The company has adopted A increased labor intensity, reduce the A bonus income approach to be difficult. A in the unbearable situation, put forward if the company terminate labor contract, he could sign. But the company insisted A write "resignation", and then approved by the company. A strongly disagree with it, but the company promises: such as A do this, the company can give A a comparatively rich living allowance, but also the economic compensation for termination of the labor contract payment in accordance with the relevant provisions of labor law. In this case, A in 2009 May submitted to the company "resignation", was immediately approved by the company, but the subsidy and economic compensation after vain. A find the company demanded, companies come up with A "resignation" say, living allowance is to be fired Staff Pension units, according to the labor law, to pay economic compensation to the employer terminate labor contract, A is the automatic resignation, none of the above two treatment. A very angry, complaints, and provides the company asked him to submit "resignation" evidence. The labor dispute arbitration committee after the trial, ruling that companies pay economic compensation A two months salary, the arbitration fees shall be borne by the company.

 

 

[comments]

This case is the key to A submitted a "resignation" is voluntary or forced. The A command and provide the corresponding evidence, so this case got treatment.

Economic compensation for the labor department "breach and termination of labor contract" (Ministry of labour (1994) No. 481) fifth stipulates: "the agreement of the parties after the labor contract, the employer terminate the labor contract, the employer shall, according to the workers in the units of work experience, each year to the economic compensation the equivalent of one month's salary, up to a maximum of twelve months. Less than a year by year the standard to the economic compensation". The labor contract law formally implemented in January 1, 2008, "by the employer in accordance with the law the thirty-sixth regulation to the laborer proposes to terminate the labor contract and dissolution of the labor contract agreed in consultation with the workers", "the employing unit shall pay economic compensation to the laborer". "Economic compensation to workers in this period of work units, each for one year to pay one month's wages paid to workers. More than six months but less than one year, calculated according to a year; less than six months, half a month to pay economic compensation to the laborer wage." According to the above provisions, dissolution of the labor contract, if the employer, must pay economic compensation to workers in accordance with the law, if the laborer is offered, there is no corresponding provisions.

In this case, it is company hope and to terminate the labor contract, but to take all sorts of difficulties and deception, to induce workers put forward the "resignation", is clearly in the evasion of law, so as to avoid the payment of economic compensation responsibility. But because A the company forced and deception to submit their own "resignation" evidence, so as to clarify the facts of the case. In force and deception cases, workers make meaning cannot be considered true, responsibility and terminate the labor contract shall be borne by the company.

23The enterprise did not arrange annual leave, resign workers rights awarded

Paid annual leave is a legitimate rights and interests of the employees of enterprises and institutions, but some units to reduce production costs or other reasons, the annual leave of employees to take some illegal practices. Recently there is such a case: Huang resigned from a wedding company, because the company did not arrange their vacation during his 2008 work, no pay the corresponding compensation compensation, to take the company to court. The court finally support Ms. Huang claims, a wedding company paid Ms. Huang in 2008 did not take annual leave pay 561.10 yuan.

Paid annual leave in employee, what specific provisions of state laws and regulations? In reality, our city some units in the year off on some practice is appropriate? This period "hotline" program that invites the general labor union lawyer Zhang Chongwei, do this interpretation for the reader.

The case review

Enterprise fails to arrange for annual leave women prosecution

Huang in 2006 into a wedding company as a warehouse, the two sides signed a labor contract. In June 3, 2008, Ms. Huang submitted his resignation to the company, the reason for the company in the aspect of employment is not standard, and its own interests are infringed. On 13 August, termination of labor relations. Later, she filed a lawsuit to the court, asked the company to pay its 2008 annual holiday pay 688.5 yuan.

In court, Ms. Huang said, because the company did not arrange the annual leave in accordance with the relevant regulations, the court ordered the company to pay in 2008 should not rest annual leave pay.

According to Ms. Huang's appeal, the company says, 2008, Ms. Huang in the company did not do full year, should not enjoy annual leave, so do not agree to pay Ms. Huang annual leave pay.

The court held that, according to the relevant provisions, she worked in the company for 1 years under the age of 10 years, in 2008 the annual leave for 5 days. She works in the company until June 13, 2008, according to the working time conversion, Ms. Huang in 2008 should not rest for 2.26 days annual leave. The company failed to provide evidence that has arranged a Ms. Huang, annual leave, therefore, as the company shall pay Ms. Huang not to take annual leave pay.

Accordingly, the court shall make the decision.

Legal concerns

One problem, relevant regulations of our enterprises and workers annual leave any specific requirements? All enterprises must comply with this provision?

Lawyer: our current specification staff annual leave regulations have 3: the State Council promulgated in January 1, 2008 since the implementation of the "Regulations on paid annual leave for employees", the Ministry of personnel in February 15, 2008 promulgated the "organs and institutions of staff paid year leave of absence measures", human resources and social security Department issued and implemented in September 18, 2008 "paid annual leave for employees of enterprises implementing measures".

"Regulations on paid annual leave for employees" annual leave for employees of the period made specific provisions: total employees work full 1 year and less than 10 years, annual leave 5 days; already full 10 year and less than 20 years, annual leave 10 days; already full 20 years, 15 days of annual leave. All kinds of enterprises, organizations and institutions to enforce the regulations.

Ordinance also provides, units do not because of the need for workers to take annual leave, I agree with the workers, can not arrange for annual leave. The employee should not rest days of annual leave, the unit shall pay wages paid leave in accordance with the staff of 300% of the daily wage income.

Two, the wedding company of Ms. Huang for annual leave wage demands that, in 2008, Ms. Huang in the company did not do full year, should not enjoy the annual leave. Why this statement has no legal basis?

Lawyer: "staff paid year leave regulations" provisions of the conditions of workers enjoy the annual leave is employees who have worked continuously for more than 12 months, enjoy paid annual leave. Employees in the same or different employers during the work, and be in accordance with the law, administrative regulations or the provisions of the State Council shall be counted as period, total working time.

The above case, Ms. Huang from 2006 into the wedding company, working at the wedding company has one full year. According to the "Regulations on paid annual leave for employees", Ms Wong enjoy 2008 annual holiday entitlement. But because she did not work in 2008 for a full year, with the wedding company dissolution or termination of labor contracts, the year 2008 days of annual leave, should stay in the actual work calendar wedding company according to Ms. Huang 2008 years (165) divided by 365 days × 5 =2.26 days to calculate. After the conversion of less than the integer part does not pay the payment for untaken annual leave days.

Therefore, wedding company claims there is no legal basis.

Three, at present, some institutions there if the female worker maternity leave was already 6 months, do not arrange annual vacation with pay practices, a legal practice?

Lawyer: in accordance with the "measures" organs and institutions of staff paid year leave of absence and "enterprise employees paid vacation implementation measures" provisions, workers shall enjoy home leave, funeral leave, maternity leave and other national holidays are not included in the annual leave. Therefore, workers in the enjoyment of the family leave, funeral leave, maternity leave and other national holidays, still enjoy annual leave. Some units to enjoy home leave, funeral leave, maternity leave and the regulations of the state holiday in staff, deducted from the employee annual vacation time practice is illegal.

24The expiration of the contract is not terminated Decision to leave was revoked

(case)

In February 13, 2007 Jin Xia entry in foreign hotels, through their own efforts was appointed director of the hotel, 10000 yuan monthly salary. In February 14, 2008, the hotel and Jinxia signed a deadline is February 14, 2008 -- February 15, 2009 labor contract. In February 15, 2009 the labor contract expires, the hotel is neither and Jinxia termination of labor contract, did not renew the contract for Jin Xia.                             

In March 11, 2009, Jin Xia was working, hotel HR department to Jinxia served the "notice" requirement to renew the labor contract and Jinxia renewed in three copies of the labor contract, the labor contract Jinxia found in addition to the terms and conditions of the contract deadline and salary reduced to 5000 yuan of the change, the remaining provisions consistent with the original labor contract. Jin Xia in triplicate to renew the labor contract signing his name and also marked "not agree" wages "and give it to the hotel HR department in the labor contract. Jin Xia in the "receipt" clearly marked "I agree to renew the labor contract".

In March 12, 2009, the hotel personnel notice Jin Xia apply for leave procedures, in Jinxia requirements under the hotel to its service for separation procedures of the "notice" and marked with "I recognized not to notice the content, does not conform to the law" on the "receipt".

In March 13, 2009, Jin Xia to the labor arbitration committee for arbitration commission to revoke the hotel requirements, make decision to leave and continue to fulfill the labor contract.

In July 16, 2009, the labor arbitration committee for arbitration are as follows: cancel the hotel in March 12, 2009, Jin Xia made a decision to leave and continue to fulfill the labor contract.

(expert analysis)

According to the "Regulations" Beijing labor contract fortieth "before the expiration of labor contracts, the employer shall be 30 days in advance, the renewal or termination of labor contract by written notice to workers, after consultation with the renewal or termination of labor contract procedures," article forty-fifth "the labor contract expires, the reason for the employing units shall not termination of the labor contract procedures, workers and employers are still labor relations, as a renewal of the labor contract", "the people's Republic of China Labor Contract Law" article forty-eighth "the employing unit violates the provisions of this law, the dissolution or termination of the labor contract, the employee demands continued performance of the labor contract, the employer shall continue the provisions perform", signed the hotel and Xia Jin period of February 14, 2008 -- February 15, 2009, labor contract, in 2009 February 15 date is full, not according to the statutory procedures with Hotel Jin Xia for termination or renewal of the labor contract procedures and the formation of the factual labor relationship, as the two sides agreed to continue to fulfill the labor contract with the original conditions.

In March 11, 2009, in triplicate contents of labor contract hotels in Jinxia renewal, consistent not negotiated with the Jin Xia, to change the labor contract terms, because the Jinxia dissent in writing articles salary amount, the hotel the next request Jinxia turnover behavior belong to terminate the labor contract is illegal.

So, according to the "Regulations of the people's Republic of China Labor Contract Law" article forty-eighth, labor arbitration commission to revoke the hotel in March 12, 2009, Jin Xia made a decision to leave and continue to fulfill the labor contract according to legal ruling there.

25Female staff and workers, as long as the birth of the second child, will be handling discipline?

MS J in 1987 June from the city of Shanghai Metallurgy College graduates were assigned into a Steel Corp technology as technician. In 1990 the company agreed to get married after a J, and in December 19, 2001 a female fertility. Because of the maternity insurance has not been implemented in society as a whole, Steel Corp according to the provisions for the reimbursement of medical expenses paid maternity leave and family wage. Steel Corp in 1995 the full implementation of the labor contract system, signed a five year contract with MS. J in 2000 February, the two sides also signed a labor contract without a fixed term.

In 1998, Ms. J divorce, daughter by the court sentenced to the custody of her ex husband. In 2003 December, Ms. J remarried, and asking for leave, please, don't agree with, think she already took off, can't take. Ms. J and ask for five days leave to marriage. In 2004 November, Ms. J the hospital pregnant, to Steel Corp requested prenatal examination for a case of processing, also do not agree. So Ms. J to the competent department of family planning requirements issued birth certificate, birth certificate after she got the proof to the personnel department units, but the Ministry of personnel still disagree as a case of processing. In July 3, 2005, Ms. J is the birth of a child, cesarean section. She told the telephone the Ministry of personnel requirements on maternity leave, the Ministry of personnel do not agree. And that MS J serious discipline according to the regulations, the company general manager office submitted a written statement of opinion. In July 15th, general manager of the office to discuss the adoption of the Ministry of personnel opinions, made her a written decision of labor contract termination for violation processing, on the same day to her mail delivery of the decision and retired workers and single. And MS. J live in the mother-in-law received in July 18th she signed for the offspring of mail, but family members did not inform Ms. J by the company to terminate the contract.

At the beginning of 9 colleagues to visit Ms. J home, to inform: has been made and terminate the contract, and the written decision has been in the company's publicity column publicity. Ms. J heard not, in October 10 to the labor dispute arbitration commission complaint, demanding the restoration of labor relations, continue to fulfill the labor contract. The arbitration commission that the company made the decision to lift in July 15th, and MS J in October 10th to appeal, the appeal has been more than 60 days time, pretending to be a written decision shall not be accepted. Ms. J and immediately to the court, the court considered: Ms. J due to birth of bed rest, failed to appeal, in line with the actual needs, should think the arbitration shall be suspended, the appeal does not exceed the prescribed time October 10th, shall be handled according to law.

Also check the provisions, a Steel Corp in the rules: "under the following circumstances, the Ministry of personnel to verify, general manager of the office to discuss, as a discipline of cancelling the contract processing:...... Female worker is illegal reproduction, including a second child; "by Ms. J partner agency, social insurance management center through bank transfer on August 5th issued in the form of a maternity allowance and birth medical subsidies to Ms. J. Since August 25, 2005, Steel Corp fails to pay social insurance premiums for MS J.

Mediation by the court: Steel Corp withdrew its dissolution of the labor contract, both sides since July 15th resumption of labor relations, continue to perform the original labor contract, Steel Corp need not pay maternity pay for Ms. J, but need to pay social insurance premiums after the stop payment.

Unit of choose and employ persons according to the regulations shall have the right to female workers illegal reproduction as discipline and termination of labor contracts in violation of the provisions of family planning, reproductive female job termination of labor contracts. But the female workers to have a second child is not equal to the illegal reproduction, both of which can not be confused. According to the "Shanghai city urban childbearing insurance '' implementation rules" provisions, in accordance with second offspring condition plan and approved by the administrative departments of family planning of population, the city or district, county, is still within plan. Therefore, the company shall strictly distinguish between the situations in which female workers to have a second child is illegal birth, to family planning departments shall generally be approved or not identified as the basis.

26,NoArchives NoOld-age pension

Do you know? No files directly lead to you may not be able to receive pensions will; for your retirement age is not to your account or ID card, but with age at birth records of your file to determine......
No files cannot receive pensions
Two days ago, I saw a letter for help in mop net, as follows:
Do you friends of the cat, I left from the original unit 1 years ago, archives haven't been out. As I told my new pay social insurance unit recently, had better put the files in the talent exchange center, I want to return to the original units to take. results, is the original unit told to more than 8000 pieces of fine actually --! So much, I don't want to, anyway, no file can also be social insurance. But I ask you, file those at sixes and sevens things exactly what is the use?
Hearsay of in the bookshops:
Dr. Liu Erduo, vice president of labor and human resources, Renmin University of China:
From the development trend, "if not officials, the role of archives for ordinary people not".
Personnel archives in our country social security system now in effect "is not directly, but to play a show the actual situation of the social security recipients supporting role. If the registration of social security complete material, basically do not need to file. If the material is not complete, the file can be used as a proof."
National policy: no file can not apply for retirement, also cannot receive pension
Handle insurance matters do not need to check my files, but does not mean no effect of archives. In addition to reach the statutory retirement age of workers in the social security departments, units to deal with emeritus formalities of examination and approval, to be submitted to apply for social security staff, in the process, some need to establish personal situation, also need to verify through personal archives.
Labor and social security agencies must first determine the retirees files transferred to the municipal, District Social Security Bureau, to determine, by labor affairs security staff access to retiree file, check the retirement date of birth, to participate in the work time, payment, retirement time will be "approval form" retired prevail.
Special remind:
1. although the personnel files can not be used as the basis of existence of labor relations, as long as the worker and the employer has in fact work relations, workers should enjoy social insurance. But some enterprises in employee files not in units that do not pay social insurance premiums for employees, this will directly harm the legitimate rights and interests of workers.
The young 2. you is on the pension, but ill in hospital can reimburse you for a large part of. Unless you are the boss, unless you are rich, you still have to keep your files to.
Archival materials are not complete, huge losses
Small Lei after graduation, archives has stayed in the school. Unit title when his archives, but can't find it, until the end of the title assessment, small Lei learned later the school put their files to the talent exchange center where his family mouth. This brought him a series of trouble -- due to the absence of intermediate title, just graduated from college of small Lei cannot apply for "Beijing residence permit to work". So he had to go through the "year" temporary card, not Beijing people to enjoy the treatment in the purchase, children start going to a nursery school, school etc..
Fortunately, two years after the company attaches great importance to him, gave his account moved to Beijing. When he returned to Xi'an handle the transfer formalities, found himself in the talent exchange center archives or records of students. The original files to the talent center, will never ignore files. Students file means that she needs to participate in all the formalities after work, and after a year of positive rating before official transfers. Small Lei and lose a chance.
Hearsay of in the bookshops:
Personal file system is no longer necessary? Now, the household registration system began to relax, file system sooner or later will be abolished.
The national policy:
Director of the Beijing municipal personnel files of public management and service center Zhang Jian: now is not to discuss personal file system has no existence when necessary, talent service organization is responsible for, tube, personnel archives, personnel relationship, for storing archives personnel to retain the original identity, continuous calculation of age, according to the relevant policies for positive rating, adjust archives wages, authentication, for overseas trips, to declare the title, in accordance with the regulations issued by the relevant proof (including the file card, proof of Ming border, marriage certificate, test certificate), took over the rotating party organization between, reporting relevant incentive issues, supplement of archival material, charge d'affaires of endowment insurance. Under the current system, personnel not to "off" when Hou, don't throw the archives at random, so as not to cause unnecessary trouble and losses to their future work and life.
Special remind:
In the civil service applicants and graduate, will play the role of archives. Especially in the state-owned enterprises, and institutions in many aspects of wage adjustment, title assessment, positive rating, relationship investigation, have issued to personnel files as the basis to prove a variety.
The mistake file and the solutions:
The error "since after graduation from the University, no work units and graduates to find the file in the school, but also do not need. Many students will file to stay in school, unless the receiving unit normal to remember the file, or files to stay forever in the school."
According to the relevant provisions, university students after graduation by the personal file in the school with two years. Two years later, the school will put your files to the secret letter express back to your registered permanent residence and personnel department or the talent exchange center.
Error two "after graduation, to the file to the talent market, the annual filing fee will be 300 yuan, has not paid. Now I work in a private enterprise, the file does not need, count down the years of filing fees are thousands of yuan of money. As long as you know where the files, to use the time to find, not also ignore, nobody dare to destroy."
Is no one dare to destroy files, but if the file data is not complete, will fall into the above small Lei trouble. If the file is not complete or defect, the enterprise is not acceptable. Even if he had to adjust to walk, want to turn away file, other personnel department will not receive, he records the missing material who give up? If in a long time, can't find the record keeping, how does that do? Especially some files must have : such as the salary grading. If the file data is not complete, can only be returned. So we should as soon as possible to the original file hosting of the personnel department should pay, pay escrow fees, "activation" personal files, so you can make your existing units continue to change material you add file bag.
Error three "file in the talent market exists, each month have to pay, or I take good, what thing to keep out more convenient. When we do the social security, I send files to social insurance bureau, don't have to pay the storage fee, conveniently, is worth it, there is no need to." 　
Social Security Bureau staff: "people hold the file is illegal, we will not tolerate such behaviour. To seize the time to the hands of the files back to the original unit, the school or the local personnel management service center. 　
Error four "file in my own hands, have a look have what can't? Besides, when exam plagiarism senior back a disciplinary warning, I want this punishment out to destroy!"
Restrain curiosity, not to check their records, the flow of talent service agencies should be in accordance with the "Regulations" cadre of archives work, any person may access or use their immediate family archives, more no altered, drawing a circle, extraction, replace the file material.
If the file is opened, the information which will need to go through the relevant departments to verify, if the file has defects, need to confirm the original units added.
Attachment: a complete personnel file in the "content"
Biographical material / autobiographical material / identification, assessment, inspection materials
Education and evaluation of professional and technical positions materials (including education, degree, academic, training records and evaluation of professional and technical positions, performance appraisal, approval of materials)
Political history review material (including screening, review materials and on the basis of materials, the party, to participate in the work time review material)
In Chinese Communist Party, the Communist Youth League and the democratic parties materials
The bonus material (including science and technology and business incentives, the hero model advanced deeds)
Disposal of materials (including screening, review materials processing opinion, shall be exempted from punishment)
Recruitment, appointment, employment, jobs, wages and benefits, to go abroad, retreat (from) Hugh, resigned materials and various representative council registration form and other materials
As well as reference material available for other organization

 27,Who wants to"Voluntary"Quit?

Your future is not what the employee retirement plans to decide, but depends on your degree of adaptation to the harsh reality of the re employment.
Event: Nokia Chinese launched the "chicken meal" -- retirement severance pay

At the end of 2009 2, Nokia announced, will provide 1000 voluntary turnover and retirement scheme, the top 1000 employees voluntarily resigned from the company can get the severance pay, so as to avoid being forced dismissal of fate. Nokia move is to cut labor costs and reduce the pressure caused by the compulsory redundancies. This global voluntary resignation policy was originally announced in order to improve the cost efficiency and the market environment challenges and make part of stroke. Because the plan for the world, Chinese will inevitably involve. This policy applies to all staff in the frontline workers and senior managers.

Nokia Chinese also confirmed the news: Nokia Chinese PR department Miss Gong said, since March 1st the staff will be able to apply for voluntary turnover, until May 31st only 1000 places, the current rules with body to decide according to the local conditions and the law. During the interview, she stressed, not layoffs, but voluntary choice, different from the mandatory cuts, more humane.

Universe of 1,000,000,000 universes, what things are possible. Before the sharpening head to go in business, but now......

Don't be busy like don't tut sigh, many enterprises in the past, we go one step that step if -- if it is you, will you choose to take "retirement fund" voluntary resignation?
Who to who, company already decided, early and late, active or forced to

Time has been foreign hard Penny last year in company takeover, the choice is actively apply for leave, but she was refused. The company leadership to see her go for very surprised, said to have to go to work in Singapore based opportunity the next three months, she as a "potential talent" is recommended to work in Singapore for three years.

"In fact, VDS list and not your boss," he said.

Penny said, when they were refused to understand -- who to who, company already decided, but sooner or later, active or forced to. If the active application, we may face look better.

"See, the company announced a generous voluntary redundancy scheme, you don't apply too silly: if the application is rejected, you are a talent, and use value, compulsory redundancies can sleep without any anxiety; if the application is accepted, then in the first batch of take the money and leave, while unemployment on the talent market are not so much.

But this compensation, there will be a buffer room, let a person have greater choice -- if the fear for being forced to lay off, you may be forced to rush to choose a job I don didn't like work, or simply can not find work.

Leave on their own initiative, is a good investment of time, to maintain optimism about the future, protect your sense of self value. Can also be retained so far "contacts", than those falling also refused to leave the staff workers, not burning bridges. After all, the world is small -- you may be in the same leadership work, or even return to the same company. If not, there is no need to influence "no talent, but also very difficult" in the peer or industry.

Don't be confused, alert, protect all their own

Human resources and social security department is responsible for the training of Zhou Yi decided "not to resign". In his view, the so-called "rich" severance pay is not enough to support found another job myself. But this is not just money and support the family problems, "I need to work with the state. Have a great relationship with my social identity, at this time, the work is more important than to receive compensation is."

Zhou Yi's boss, has said the company does not plan layoffs, but the HR department has recently proposed a than the labor contract law more "active turnover compensation plan" -- staff attrition.

In the past two weeks, the company has asked employees signed a voluntary resignation letter, additional compensation for participating personnel can get up to 12 months salary. But the selected employees must immediately will fixed willing to participate voluntarily. Unwilling to in the "voluntary resignation application form" signed by the employee, the manager of the personnel department said: "don't you sign up now, the coming months due to the change of business environment, some jobs may therefore disappeared, there are few because the staff cannot get arrangement deployment and affected......" Then, you can only get "N plus", many employees have no choice but to leave.

Although Zhou Yi was the boss "implied", but he was not "good" trap. He has been working in this company for 6 years, even if be forced layoffs, will also have the economic compensation for 7 months. He felt that in order to take 5 months salary (in accordance with the company's preferred exit plan, he can get the compensation December) lost his job very stupid. One of his (also engage in training) friend last year after leaving, didn't get the job, do the part-time business consulting, at the busy leisure, but the income is not stable.

Zhou Yi believes that for voluntary turnover intention is also foolish behavior on leadership. For many years engaged in HR makes it clear a truth -- even for voluntary turnover is rejected, it doesn't mean the next safety. A minute ago is still deemed indispensable, the next minute you not to be worth a hair, it is perfectly possible.

But Zhou Yi did not wait for the results, he was busier than ever, he all the way to the boss to prove themselves in hard work, in his view, trying to pretend to be busy or very poor pathetic, but not to those who do not want than around sending people resume but stone sea so miserable pathetic.
Keep the job! Otherwise, your family will not rest

If you think of voluntary turnover, will be with family or friends to stay more time, will have a life of leisure, then go to One's spirits are flourishing. work, then you are completely mistaken!

In October last year, Ma Sheng Li (a pseudonym) from a Swiss bank in china. He said it was a "civilized" turnover. Turnover is not "voluntary resignation requisition" said "personal reasons", then the outbreak of the financial crisis, cuts apparently be imperative -- active and not have to leave.

The final ending work, Ma Sheng Li feel so good, all the time, work is his all, even holidays are not a good rest. He is ready to bid farewell to the financial industry for a period of time, "leave advisers that job is perhaps the best thing, finally have time to stop and think. Work more than ten hours a day, you have no time to plan, very tired, the pressure is too big, no time to accompany the family, no friends, spiritual life quality is low."

With almost half the year salary of economic compensation. Mashingli said to his wife to "charge" diverted, but in fact, Ma Sheng Li after just sitting at home, read a book, surf the Internet, send resume......

Six months later, the horse Sheng Li never interview, his wife sink not to live spirit, trying to occupation problem for old some ideas, the chance to find out. Finally, there is a domestic bank is willing to give up a financial consultant posts, but the salary is only previous salary 1/4, Ma Sheng Li rebuffed the job (self-esteem, and this result) to make his marital tensions between two people -- although some savings, but is because the horse has been the money is for, and now wife must bear the family financial burden, the two people began to quarrel for money.

Quarrel, blame, suspicion that marital status a sudden turn for the worse, even if two people temporarily reconciliation, dejected again unwilling horse never accept wife advice to training or a career change, instead of just constantly complained to her, this let the wife felt more and more tired. The old horse that wife has lost respect and affection for him, wife of the horse was very angry and disappointed.
Expert Luo Yueer comments

To increase their "employability"

From the company's point of view, to voluntary turnover way save labor cost, sounds like a good idea. It seems to decrease the negative psychological impact some employees. But is this really the case? On the surface, employees have some choice: look more fair, and more people will go. In fact, this approach to deceive the employees and the public: the bad news is bad news, do not need to use sugar to packaging.

Management should stop this treatment, and as the company staff should be the courage to face reality, think carefully about how to increase their future "employability", everyone should be honest in the face of common bad facts.

Whether you have been kicked out, or he had walked out, for many people, an inevitable problem must be considered: if the unemployment, what will you do in the future?
People really have a choice?

In fact, most of the time, the staff did not choose. Choice is an illusion: some people would be "hint" or "remind" to accept the plan, if we do not accept it, later may even worse, such as face severance second wave; some people want to choose this option, but the boss or higher competent layer is trying to comfort the left; some people expected that they may work for some reason to disappear, so took the opportunity to leave, so lower risk also more face.

Only a very few people will benefit from. For example: had planned to transfer jobs -- some people want to change more in line with demand (such as some of their own time) or more in line with their own interests / technical work, also some people just want to continue to study . With these needs time, especially for the intended conversion work, on the occasion of the economic slump, less chance of. In general, can really have a choice, is the family burden is less, less financial pressure, there will be only a handful of people is the winner.
Economic pressures iceberg

Under economic pressure, we need to examine the psychological impact, such as "lack of confidence" -- the "suggestions" accept discount dismiss scheme people tend to ask ourselves: Why me? Must be me or work efficiency is not high. This may be a self examination or self alert to opportunities, but more likely to trigger a crisis of confidence is difficult to return. In addition, with unemployment time grew, inner anxiety is more strict heavy, especially in the high order supervisor, relatively less external opportunities, unemployment time can often lasted for two years. On the surface, they make themselves look busy -- travel, or actively participate in family activities, in fact, gradually increasing strong anxiety has seriously hurt himself, it is a very painful process.

Suffer from unemployment is not limited to one person, may also hurt deep love of their families, the other half if something will become the only source of home, at the same time, partners or other people also do not know how to support unemployed facing painful family.
You want to step: what can you do?

Take the "voluntary departure scheme behind" the company is actually greater crisis: namely in the industry become losers, then will take is: leave without pay, severance or in a more strict performance standards to reduce some of the work.

Already facing the unemployed:

Contribution: unemployment pain can not rely on surface of the busy to heal, and to be able to contribute, whether it is the nature of the obligations completely or only a few paid jobs, contribute to see the real self value, otherwise, even if the surface is very busy, still produce self doubt and self critical psychology.

Self: learning some help to future career skills. The best of the learning is to immediately to output, because soon learn in order to practise can see their progress and growth.

Still jobs:

Stop because of fears and become more conservative: because many people feared the worse in a kind of "maintaining the status quo" mentality; on the contrary, should have a look how you can create added value for their own work, or the person beside.

Stop the pride and naive idea: so naive as to think that this is just a temporary economic downturn, will soon restore. This is false -- the reality is the business cycle will be bad continuous and appear constantly......
Around the "chicken meal"

In Hongkong, chose to leave a person in the company's suggestion will often be far beyond the economic compensation provisions of the law, and therefore known as "chicken dinner"; beyond the economic compensation, but compensation is not very generous is called "Bai Gecan".

For example, at the end of 2009 2, Microsoft for Yahoo! Takeover battle like a raging fire. Yahoo! Will use the "employee chicken meal plans," senior officials cut can fill 24 monthly salary, it tries to use the method of Microsoft acquisition cost increased to.

According to Hongkong media reports, Yahoo! Full-time employees available for at least 4 months severance pay, and senior executives can get 24 months severance pay. Employees with good reason (good reason), turnover or is fired to the severance pay.

In Singapore, the recent education system introduced chicken meal, is mainly oriented to the seniority, long-term didn't get the promotion, can not keep up with the pace of reform of faculty and staff, controversial and resistance in singapore.

In USA, during the economic downturn, enterprise in addition to the introduction of cuts, unpaid leave, will also launch the voluntary retirement "chicken meal" for "senior" employee selection. For example, since 2009 April, "Washington Post" has launched a second round of this year's "chicken meal". The Washington Post Company "chicken meal" is for seniority, not those who eat -- for more than 50 years old or in more than 5 years of employees, including editorial, production, target Department issued and the amount of the advertising department and information technology department.

In 2009 January America Disney on the last Wednesday in January to nearly 600 senior issued a "voluntary departure plan" letters. High layer of Disney's proposed chicken meal for American theme parks department, target including directors, vice president and senior staff, mainly is the senior staff salary of 6 digits, the deadline is February 6th. Disney did not budget the chicken meal for the group to save money. Disney has not revealed layoffs, but in a letter to the senior said, if failed to reach the goal, will have to introduce non voluntary departure plan of the amount of compensation is low.

In Australia, most of the employees of the "chicken meal" feel the fear, but also some people scramble for: recent Australian some company executives have " chicken meal" aroused public indignation, for example the factory moved to China Pacific brand clothing company, former boss left $3400000. According to Australian law, the board of directors of the company to terminate the contract, have an annual return seven times the reward gold, without shareholder approval. In March 20, 2009, the Australian government proposed legislation to stop eating "fat chicken meal", the "chicken meal" for more than a year's salary will be first shareholder approval, if the boss left to eat "fertilizer chicken dinner", the future will be charged. (end)

28Do not sign labor contract, not lose two times salary

(case)

Chen to a company, company proposed to try out for half a month and then consider signing a contract. But due to the lack of experience, coupled with the introverted, Chen's work let the company very dissatisfied, not half a month let him pack up and leave. Chen is very depressed, look for a company in someone else's instigation to double wages. However, his request was declined, claiming that Chen has nothing to do with the original condition of recruitment, dismissal he is justified, no need to pay him a double wages. But Xiao Chen a insist, the company does not sign the contract default first, the compensation, the two sides this become entangled in.

 

 

(comment)

According to the "labor contract law" stipulates: "the Employer from the date when the employee more than one month but less than one year and not conclude a written labor contract, should pay double salary to laborer."
However, in practice there are many workers think, so long as has not signed a contract, you have the right to receive double wages. Actually otherwise, to get double pay must have several conditions. First of all, the workers themselves to and actively and employers to sign the contract, but the unit refused to sign, like this did not sign a contract responsibility for not working, then behoove for double pay; secondly, did not sign the contract situation occurred after February 1, 2008, and to enter from the employer after the expiration of 1 months or second months start. In other words, sign labor contract with the transition period of one month, as long as the establishment of labor relations within one month after signing the labor contract as lawful act. So, in this case as long as according to the provisions of payment of wages can be found, do not have to pay double salary.

Some employees misinterpret "labor contract law" practice, think not sign labor contract can get a monthly salary of two times, in order to get two times the wage, not deliberately to enterprise contract. But should be noted here, the law clearly stipulates that the employers do not according to the law and the employee sign a written labor contract, it shall bear the legal liability of payment monthly pay two times, if the employee intentionally or not willing to sign a written labor contract with the employer, is not applicable to the provisions. Because the new "labor contract law" legislative original intention is to regulate the unit and the laborer conclude a written labor contracts, protecting the legitimate rights and interests of workers, not to give workers do not sign labor contract can get double pay right. Therefore, if the employee intentionally or not willing to sign labor contract, shall not be entitled to two times salary, the employee may terminate the labor relationship and do not have to pay economic compensation in this case.

In addition, "labor contract law", also want to pay economic compensation to a fixed term labor contract is terminated, but the premise is "unless the employer to maintain or improve the conditions agreed to renew the labor contract labor contract, laborer does not agree to renew the situation". This means that if maintaining or improving wages and other conditions the employer, laborer still did not renew, the enterprise does not need to pay economic compensation.

29The original units, merged, the labor contract is signed or change?

(case)

In 2007 March, Jia is a car sales company as a test technician, the two sides signed a 5 year term of long-term labor contracts. In mid September 2008, the company was B car sales company merger due to operational difficulties. When the merger, a car sales company not terminate the labor contract, a, B car sales company Paijiamou downtown another point of sales to continue to engage in detection. In October, auto sales company B notice Jia re signed labor contracts, Jia think this is a disguised form of the lifting of the original labor contract and sign a new labor contract, is the second company evading legal obligations, so refused to sign and required to pay economic compensation. Company B is considered, this signing belongs to change the original labor contract.

 

 

(comment)

According to the relevant provisions of the civil law and the labor contract law, change enterprise merger, division or corporate organization, the rights and obligations of employers by modified by employers and bear, does not affect the performance of the labor contract. Labor contract a company and Jia MOU signed in this case, because the objective conditions at the conclusion of the contract have undergone major changes, the original labor contract can not be fulfilled. Company B as mergers, rights and obligations inherited a company, including the rights and obligations of a company and the Jia a labor contract relationship in. Also can say, is the rights and obligations of company B take a company to continue to perform the original labor contract. Therefore, company B to Jia Mou puts forward to change the labor contract requirements. In this case, can not be regarded as the lifting of the original labor contract, but the original labor contract, laborer is not required to pay economic compensation.

In order to avoid because of the change of labor contract trigger unnecessary disputes, the employer and the worker should pay attention to the following points in the labor contract: 1, according to the labor law and labor contract law, labor contract shall change the conditions of both sides in accordance with the law. For example, laws and regulations, on the basis of the labor contract has been modified; the changes in production and operation of enterprises or labor, life. 2, to comply with the basic procedures of the labor contract. As to the other requests a change, the change reason, content and conditions; the other party fails to reply to each other, not to each other the change request ignore or simply refuse to. 3, both sides should adopt written form. That is the contents of the two sides will change the labor contract through negotiation and reach a written agreement, and both parties sign and stamp. 4, a written agreement shall set forth the changes clause, after the change in terms of the effective date, and shall report to the relevant departments for the record.

30The leak, employees, the company should sue anybody?

(case)

The company is a technology of the chemical industry, in early 2005 before entering the Chinese market, then set up a production base in Shanghai. The company has in China recruited dozens of technical personnel and professional training for them, and sent them two outstanding technical staff to Germany for further study, the staff and I have signed a confidentiality agreement. At the beginning of 2006, the company technical staff took 2 months long, later we found the long vacation the staff secretly for competitors to get technical formula. My company after investigation has acquired considerable evidence, but how do we start the corresponding rights program, is directly on the court? Or they must first be labor arbitration? In addition to the workers still can tell the competition unit?

 

 

(comment)

First is sure, the employees and the employees competitive enterprises have for your company's infringement. On the legal responsibility of employees, in this case the employee violates the confidentiality agreement, also constitute the company's infringement. That is to say, the company can take the staff on the grounds of breach of contract according to the procedures for labor disputes to be resolved, can also directly to the tort on the staff on the court. But the choice of the main way to suit different is different.

Infringement of commercial secrets essentially belongs to tort, in accordance with the "general principles of civil law", "Civil Procedure Law" provisions, the victim may directly file a suit for civil liability. According to "opinions" provisions of the Supreme People's Court on the law applicable to a number of labor dispute cases, "employer recruits not terminate the labor contract, the employing units and workers labor disputes happen, make the new employer for third people. The original employing unit to the new employer violations to the people's court, can train workers for third people. The original employing unit to the employing unit and the laborer joint tort sue to the people's court, the new employer and as a co defendant." For this kind of lawsuit how to hit, the company mainly should consider the case difficulty level, investment cost and related relief efforts, and then make a decision.

31The work, not full a year should get year-end bonus?

(case)

Mr. Lee in 2003 October into a Foreign capital company, the two sides signed a five year contract. In September 8, 2005, Lee submitted his resignation to the company, in September the same year 19 Nikkei Inc approved after the lifting of the labor contract.

In May 29, 2006, Lee to the labor dispute arbitration commission complaint, year-end bonus require companies to pay 2005 annual. According to Li Mou says: in 2006 April the company deputy general (2005 August early turnover in Lee) learned, paid his 2005 annual year-end bonus, but the company did not pay themselves. Think Mr. Lee, from January to September in 2005, the normal work of the company, the company also never told the annual year-end bonus not, since before leaving the company employees are, then you should have, then ask the company for year-end bonus eighty thousand yuan.

The company that, according to the company's year-end bonus payment practices, only in the year of service with the company staff, qualified through examination before they can receive a year-end bonus treatment, Lee in September left the unit, did not do full year, does not conform to enjoy the year-end bonus condition, and the vice general would not year-end bonus, but quit after liquidation at the same time savings, Lee's request has super aging. Company in 2005 October published "staff appraisal scheme", which has a clause that "year-end bonus and annual appraisal, after passing the examination issued by the year-end bonus".

The arbitration commission that, except the two sides have agreed or provisions, year-end bonus payment employers have greater autonomy, Lee did not provide evidence to prove that the two sides have agreed or unit commitment, and according to the usual practice, year-end bonus in second years in January, Lee in mid April to know the right infringement, contrary to common sense therefore, the complaint over time, the request is not supported.

(comment)

Most businesses in the rules and regulations of how to distribute year-end bonus, including the calculation of standard, issued, issue time and clearly defined, in this case, put aside the Lee complaints over aging factors, that is to say even in time, Lee should get a year-end bonus? If you take, should get how much?

First look at a year-end bonus issue both sides agreed in the contract or other agreement, agreed that from the agreement, no agreement is to look at the rules and regulations of the enterprise in how the regulations, enterprises for the issuance of year-end bonus has greater autonomy, "staff appraisal plan" clearly stipulates that "the year-end bonus and annual appraisal, the after passing the examination issued by the year-end bonus", is more of a consolidation of autonomy. Many similar cases we met, many people have a misunderstanding: the year-end bonus should be based on the staff to do full month according to a certain proportion to issue, it seems this method is reasonable, very human nature. However, China is now only a very small number of area required to issue in such a way, most areas are still depend on the provision of enterprise and employee engagement and regulations.

Through the above analysis, it is not difficult to identify, in this case Li with the enterprise to the year-end bonus is no special agreement, Lee worked less than one year will leave the situation does not conform to the rules and regulations issued in the year-end bonus condition, the enterprises have reason to refuse to pay their year-end bonus.

Year-end bonus, but to an employee's entire annual work achievements, also one of the basic ways to reward employees and enterprises, for employees, working hard for nearly a year later, but didn't get a year-end bonus, not only is the loss of income, but also inevitably have adverse effect on the work enthusiasm, not conducive to personal development, affect the development of entire firm, so enterprises should not only consider to control labor costs, but should establish fair and reasonable, can motivate benign competition of the year-end bonus appraisal system, let really contribute employees get their due reward, this is the expression of spirit of enterprise culture, is the business development of the.

32Make use of the false, sick leave sick leave how to deal with?

(case)

Wang is a senior employee of a company, the company has been working for more than five years. At the beginning of this year, the company and Wang also signed a one year contract. However, in May this year, Wang submitted to the company a hospital statement as proof of sickness and applying for a leave. According to the relevant provisions of the law and company, my company approved by the third month vacation request, and the timely payment of the sick pay. The expiration of three months after, Wang had not come back to work, but through the mail once again raised the leave application, request to take its due six months sick leave, and once again provides a hospital statement as proof of sickness.

This makes it wonder. Wang usually the body good, so the company did not immediately approved, but made some investigations. The results, we know from where some insiders, Wang is not sick, but by working in a hospital's brother-in-law opened a false proof of sickness, and is now a competition with our company.

This discovery makes the company was surprised. So the company and Wang Mou contact, want to listen to his explanation, because the company after all there is no evidence to prove that he was cheating company. However the company is unable to contact him, his mobile phone shutdown, to the house and found it just moved.

The company can unilaterally terminate the labor contract with Wang?

 

(comment)

First of all, can say for your company can not and Wang Mou to terminate the labor contract. Because Wang Mou form is in the medical treatment period, although he was not sick, but because no sufficient evidence, so from the point of view form Wang is still sick, in the medical treatment period. And the relevant provisions according to the "Labor Protection Ordinance" and "enterprise workers Yingongfushang illness or medical period", an employee who is ill, non work related injury, disability, enjoy the period of medical treatment, medical expenses, sick pay or relief funds and a series of treatment. "Forty-second labor contract law" also stipulates the sick or injured, in the provision of medical period, the employer shall not be based on "labor contract law" article fortieth, the provisions of article forty-first to terminate the labor contract.

However, "labor contract law" does not mean that the period of medical staff can not terminate the labor contract, because the provisions of article forty-second does not limit in this case thirty-ninth applies. While the "labor contract law" thirty-ninth stipulates: "the laborer is under any of the following circumstances, the employer may terminate the labor contract: (a) proved during the probation period does not meet the conditions of employment; (two) a serious breach of the regulations of the employer; (three) Yan Zhongshi duty, engage in malpractices for selfish ends, causing significant damage to the the interests of the employer; (four) workers also establishes labor relationship with other employers, a serious impact on the completion of the work unit, or by the employer, if it refuses to make correction; (five) for the twenty-sixth article of this Law the provisions of paragraph 1 and the labor contract is invalid; (six) were investigated for criminal responsibility according to law." According to your company's situation, the above six cases only (two), (four), (six) may be applicable. But, now you do not have sufficient evidence of Wang Mou is in use for sick leave for vacation, no sufficient evidence to prove there Wang in your company's competitors, everything has just heard. Therefore, the case (two), (four) applies also becomes more difficult. So can only from the situation (six) to begin.

China's "criminal law" provisions of article 266th of the crime of fraud, crime of fraud refers to the illegal possession for the purpose, with the method of fictitious facts or conceal the truth, for the larger public and private property act. According to the "issues of the Supreme People's Court on the fraud case specific application of the law interpretation" (December 16, 1996) the provisions of individual fraud: public and private property of 2000 yuan of above, belong to "large amount". Therefore, for public or private property amount as long as two thousand yuan constitute fraud.

The staff to use any sick leave for vacation, but also for the company's sick pay, and this sick pay to reach two thousand yuan may constitute fraud. From your company's situation, Wang wages should not be low, three months of sick pay enough for your company to report to the public security organs. So regardless of whether the public security organs whether to put on record, regardless of whether the criminal responsibility for Wang, eventually you can prove whether Wang is the use of false sick leave for vacation, whether in your company's work for a competitor, to prove the point, the company also can according to your company's regulations treatment of Wang. Of course, if Wang was investigated for criminal responsibility, that your company can according to the "labor contract law" article thirty-ninth (six) cases to deal with the provisions.

Suggestions on the unit's rules and regulations are perfect. Specific recommendations are: employee sick leave provisions should be designated hospital (conditional company can organize their own Clinic) issued the approval because of sudden onset, to be close to first aid, emergency the emergency hospital in the shortest period of time to prove to the designated hospital issued a statement as proof of sickness. At the same time, the staff to use any sick leave for vacation, once identified, in serious violation of discipline and processing. So, should can basically avoid encountered a similar situation.

33Before leaving, the salary of one month the button?

(case)

Wang is a consumer company's sales, for personal reasons, one month in advance to the company offered to resign, and in accordance with the provisions of the company personnel turnover formalities. But it has not yet received last month salary and sales bonus. Wang many times with the HR department to contact, but both sides have their own reasons, has not solved the problem. He filed a complaint to the labor dispute arbitration committee.

The company has not paid the reasons: first, in accordance with company procedures, the relevant formalities employees must be done "turnover over single" stipulated in the former, to receive the wages and other costs last month, but until the end of the month wages, personnel department or not received Wang finished "left over the single"; two, the Ministry of personnel receive written notification Wang Department, told Wang and dealers have outstanding sales, and financial department also informed the Ministry of personnel of the staff of 2000 yuan loans outstanding, so can't wage. So, the personnel department no payment of wages, and has repeatedly telephone and fax Wang Mou contact with the financial department as soon as possible to solve the credit matters.

 

(comment)

According to the "labor law" the provisions of article fiftieth, the wages shall be paid monthly to workers in the form of currency I. Shall not deduct or delay the payment. Some places have special regulations for the payment of wages, such as Shanghai City Labor Bureau issued on the "Interim Measures" Shanghai enterprises to pay wages in Shanghai to work (95)59, the provisions of article seventeenth, the enterprise shall not deduct the wages of workers.

In one of the following circumstances, enterprises can deduct wages: (1) withholding individual income tax; (2) the social insurance fee withholding shall be borne by the worker; (3) the court ruled, in withholding of alimony, maintenance; (4) provisions of laws, regulations and other fees are deducted from the wages of workers in the. The provisions of article eighteenth, due to the enterprise employee causes economic losses to the enterprise in accordance with the law, compensation for economic losses, and required to be deducted from salary compensation, part of the deduction shall not exceed the actual monthly wages of workers 205, and the remaining part of the wages deducted after shall not be lower than the minimum wage standard of this city enterprise.

34During female worker maternity leave, the salary should be how to pay?

(case)

Yao with a garment factory has a 2 years of labor contract, the contract factory piecework wage system, but also the implementation of legal standard working time system, according to the number of factories in the statutory working hours to pay. Contract also agreed, making each jacket 8 yuan wages, making each piece of trousers made 4 yuan wages. According to the calculation, Yao a monthly salary of more than 1200 yuan. When yaomou pregnant 7 months of waiting, the factory director of general office told Yao, Yao in a growth period plant will not pay wages, because Yao has never had a birth insurance premium, also cannot enjoy the treatment of maternity insurance, maternity leave expires if can provide normal labor factories still execute meter piece wage system. Yao should do?

 

(comment)

Yao a factory where it is wrong, Yao Mou does not have to worry about his unpaid maternity insurance and cannot enjoy birth insurance treatment. During female worker maternity leave wages should be in accordance with the 1998 the State Council issued the "female worker labor protection regulations" in 1988 and the Department of Labor issued the "about the female worker maternity treatment issues notice" executive, during female worker maternity leave in accordance with the regulations, enterprises continue their original salary.

The garment factory and Yao MOU signed labor contract piecework wages, because the number of Yao a finished product may not be stable in a unit of time, so the factory should quota period according to plan hair your maternity leave salary in the general labor. Rules issued in December 14, 1994 the labor department's "birth insurance for enterprise employees in the Trial Measures", female workers during their enjoy statutory maternity leave, to get birth allowance, maternity allowance pay by birth insurance fund; at present, the childbirth insurance premiums paid by companies is highest do not exceed 1% of total wages, incurred in the enterprise management fees; worker individual not pay maternity insurance.

35, payment of social insurance premiums

(case)

To enter the city and a foreign joint venture enterprise and Zhang, a few years ago, zhang signed a one-year contract of service, mainly engaged in garment sewing work. Service agreement after the expiration of the period of enterprise and a two-year agreement. In 2006 July, Mr. Zhang went to the social insurance management center enquiries personal social insurance premium to pay, found that companies in recent years has not for the payment of social insurance premiums, then, the personnel department Zhang to enterprises to pay social insurance premiums for its. Enterprise answer Zhang you are labor, we have no obligation to pay social insurance premiums for you, the enterprise did not agree with Xiao Zhang requirements.

Xiao Zhang despite repeated and business negotiation but failed, can only resort to the labor arbitration, apply for arbitration to the labor arbitration committee, require companies to pay social insurance premiums in work period for the. Labor dispute arbitration committee shall accept the Arbitration Commission shall, after a review of the additional labor conduit company for third people.

 

(comment)

The focus of dispute in this case is a little social insurance fee should be borne by the who, and who is he to pay. That is borne by the signing of labor contracts by the employer, or from the actual use of the laborer shall bear.

According to the "Regulations" provisions of Shanghai labor contract, labor contract is signed by the employer and the actual use of the laborer shall not consistent, the employer can unit and the actual use of the agreement, by the actual use of the laborer shall undertake all or part of the obligations for labour, now conduit company and enterprise have already been agreed upon, obviously, the social insurance premium expenses Zhang enterprise shall bear the.

36The company dismissed employees, illegal procedure was sentenced to undo and supplementary insurance wages

Anyang City, Henan Province, a Steel Corp staff Weimou removed, since there is no written notice Weimou, resulting in disenrollment decisions is unavailable because of illegal procedure. Recently, Anyang City, Henan province Yindu District People's court, the revocation of the delisting decision according to law, and ordered the company to resume Weimou staff identification and benefits should enjoy, back pay 112479.5 yuan, and pay the social insurance.

 

 

In 1970 April, Wei to the Steel Corp, in July 2, 1983 the day shift, Weimou unit to the bathhouse take a shower when the landslide falls, resulting in the right knee fall fracture, hospitalization for 4 months. After approved by the section and workshop leaders, Weimou back to their hometown to rest for about two years. In 1985 July, Weimou return to factory work, successively in the power plant in the open on the elevator and vaporization type, because the legs stand long time plus the task is heavy, large amount of exercise, Weimou the old wound recrudescence of knee pain, and in consultation with the workshop and workshop leader, in 1989 April once again back to the old home to rest for 12 days.

 

 

 

Later, the workshop leader Ma and section leader song to the Wei An, told Weimou work and to do its job, as soon as possible to return to factory work, Wei an old injury has a relapse is not going to work. In October 23rd the same year, workshop to Weimou from work for 6 months on the grounds, to the company declared will Weimou removed and allowed. Later, Wei a return to factory work, the Labor Department of oral notice Weimou has been removed. Since then, Weimou numerous consultations fail, leadership, negotiation process only in July 5, 2005 a written reply Weimou, because it has been removed, so the proposed retirement benefits, make up the original requirements can not solve the loss. In July 17th the same year, Weimou apply for labor arbitration, the Arbitration Commission to exceed the limitation of arbitration is to reject the appeal verdict, Wei is not a proper court.

 

 

After the court that the defendant, wie Department staff, after work to the unit take a shower when he will rest in the home leg, two years later, on the grounds of long-term work units to be removed, but did not notice in writing the plaintiff, the decision is not binding, should be recognized as invalid, then make the decision according to law.

 

37For the workers, the employer shall not pay the basic old-age insurance

(case)

 

Zhang Moumou, working in a company for 5 years, the company for the participating in the basic old-age insurance and pay the basic old-age insurance, after the workers to labor and social security departments to consult the relevant basic old-age insurance policy after that, company a year to pay the basic old-age insurance, therefore to the labor security supervision agency report. The labor security supervision mechanism of procuratorial on Zhang Moumou company, found that Zhang Moumou year monthly wages amounted to 2000 yuan, while the unit in the social insurance bureau to declare their wage is 1000 yuan, and 1000 yuan as a base pay for Zhang to pay the basic old-age insurance. In the labor security supervision agency urged, as Zhang Moumou payment of endowment insurance premiums.

 

 

(comment)

 

According to the "Provisional Regulations on collection and payment of social insurance premiums" (State Council Decree No. 259th), "labor security supervision regulations" (State Council Decree No. 423rd) "the audit of social insurance" (Social Security Labor Department Order No. sixteenth) and other laws and regulations, the employing units shall, in accordance with the actual amount of monthly wages to the social insurance agencies shall declare payment base salary, social insurance institutions according to the provisions of the approved, enterprises in accordance with the regulations for workers to pay the basic old-age insurance.

Some enterprises in order to reduce the basic old-age insurance payment expenditure, take less total wages of staff and workers of newspaper means, resulting in damage to the interests of workers basic endowment insurance, the basic old-age insurance fund received loss. Therefore, on one hand, the enterprise shall pay in full and on time for the workers to pay the basic old-age insurance, on the other hand, the staff should strengthen the protection consciousness of their rights and interests, find out that employers pay the basic old-age insurance, shall promptly report to the labor supervision department.

38, do not pay on time, will be levied fines

(case)

 

The company since its establishment in 2002, the registration after insurance, the basic old-age insurance has been in arrears. The tax authorities to order it to 30 days paid owed the basic old-age insurance, the company shall not pay, tax authorities to apply for court enforcement, and according to the provisions of payment of fines, the company shall not have begun to pay, but the suspicion of penalty payment. Then, cover unit of penalty payment according to the rules of procedure to apply for exemption, tax authorities received unit application, in accordance with the provisions of the late payment penalty reduction. Finally, the company paid owed the basic old-age insurance fees and fines.

 

 

 

(comment)

 

In accordance with the "Provisional Regulations on collection and payment of social insurance premiums" thirteenth stipulates: "a payer fails to pay and withhold social insurance premiums, the labor insurance administration departments or the tax authority ordered deadline pay; overdue is not paid, in addition to make up the back the number of extra, from less payment date, the daily added 2/1000 arrears gold." Insurance payment units shall declare payment on the timely and full payment of basic pension insurance, including social insurance premiums. If you don't pay in full and on time, the collection authority shall order the deadline pay; overdue is not paid, should be from the date of arrears, a daily surcharge thereon.

The basic old-age insurance system is based on the healthy development of the basic endowment insurance fund. The basic old-age insurance fund by the state, enterprises and individuals of three burden, the payer shall pay the basic pension insurance premiums in full and on time. Payment is not the purpose, but urged the payer shall pay in full and on time means.

39The unit can be dismissed at work, net chat employees?

The case:

Miss Lee in 2007 after graduating from university in July, entered a joint venture with the city engaged in market development work; we need because of the job, give each employee with the Fen Internet equipment, but the company's rules and regulations clearly stipulates, the staff to use QQ or MSN chat network behavior belongs to the serious violations of labor rules and regulations behavior at during the work, the company can then remove labor contract with employees.

In 2008 June, Ms. Lee received a company layoff notices, reason is Miss Li ignore the company labor discipline, work time repeatedly use MSN private chat.

In July, Miss Li to the labor arbitration for arbitration, demanding the restoration of both sides of labor relations.

The company argued that: as a discipline, the company in 2008 1 menstrual Workers Congress voted No. 001 memorandum, the provisions of three acts as a serious breach of the company regulations give the dismissal, including confirmed by using QQ or MSN private chat behavior. Memo to each staff and signature confirmation, Miss Li is among them. After Miss Li once again using the MSN private chat by the Department in charge of discovery. Because of its previously had many of the same behavior, the company immediately according to the enterprise system and she lifted the labor contract.

The arbitration committee after review that the company Miss Li in the staff chat as shall terminate the labor contract act, and the company Miss Li is proved by the employee Congress vote through the system, and in a memorandum circulated in the publicity, Li Xiao sister has signed, thus ruling: the company according to the rules the system make a dismissal is not inappropriate to Miss Li, Miss Lee rejected the request for arbitration.

 

Comment on:

First of all, do the job has nothing to do with things by using the unit equipment, this kind of behavior is not desirable. Whether the employer can dismiss chatting during workday personal staff, the key is that the behavior of employees is a "serious violations of discipline".

The law on the "serious" has not been clearly defined, generally speaking, people occasionally use MSN private chat, just belong to minor violations, even if the regulations of "units of a network chat private or dissolution of the labor contract, the employee " punishment is too large, too difficult for people to accept. But the staff repeatedly violates company rules chat network, and pointed out that refuses to correct, this adds to the discipline of the plot.

 In general, the employer terminates the labor contract in serious violation of discipline, must meet three conditions: first, the workers in violation of the rules and regulations of the employing units; second, discipline workers were classified as shall terminate the labor contract behavior in the labor contract or regulations; third, the rules and regulations is valid inform the workers. If the above three conditions are met, the employer may terminate the labor contract with the laborer.

 

However, although the company Miss Li's won the lawsuit, but its management is not without improvement. The net chat punishment of employees, if the critical warning, administrative penalty, out of jobs until the termination of labor contract tiered scheme, will be to obtain the support of all staff, and to discipline those who sincerely convinced.

40, enterprises pay economic compensation

The case:

Zhao in 2006 July after graduating from University, through acquaintances introduced into the city a joint-stock cooperative enterprises, engaged in marketing and product development. Enterprises and Zhao signed a two-year contract. The two sides agreed in the contract, the enterprise pay a monthly wage of 2000 Yuan Xiao Zhao, in addition to product development and sales, every month give some bonus.
At the end of 2008 6, Zhao and the labor contract expires, because of the market downturn, go from bad to worse business conditions, enterprise fails to renew and Zhao, the two sides terminated labor relations.
To apply for leave procedures, Zhao require companies to pay economic compensation, the enterprise did not agree. After Zhao repeatedly to the business requirements to pay economic compensation, the enterprise has repeatedly said do not agree. Zhao helpless under enterprise to the labor arbitration committee, require companies to pay economic compensation for termination of the contract.
Labor arbitration committee after review that the expiration of the contract, both parties, considering the actual situation of enterprises, enterprises do not want to renew the contract can be, but according to the relevant provisions of the "people's Republic of China Labor Contract Law", the parties contract is the enterprise is not willing to continue to sign the contract, the enterprise should pay economic compensation to the zhao.
Finally, the labor arbitration commission to make a ruling, the enterprise should pay zhaomou economic compensation within the prescribed period of time.

Comment on:

This dispute is the focus of the enterprises and the staff contract expires, the enterprise not to renew the labor contract with employees, whether enterprises should pay economic compensation to the employees.
According to "the people's Republic of China Labor Contract Law" the forty-sixth regulation, any of the following circumstances, the employer shall pay the economic compensation to the employee: (five) "in addition to the employer to maintain or improve the conditions agreed to renew the labor contract labor contract, the labor party does not agree to renew the situation, the termination of the fixed term of labor the contract in accordance with the forty-fourth paragraph". The end of the forty-fourth paragraph of the labor contract, the labor contract expires.
At the same time, in accordance with the law of the ninety-seventh provisions of the third paragraph: "the implementation of this law, the existence of the labor contract or termination of the act, in accordance with the provisions of this law the provisions of article forty-sixth shall pay economic compensation, calculated from the date of implementation of this law and economic compensation period; before the promulgation of this Law in accordance with the relevant regulations, use the the employer shall pay the economic compensation to the laborer in accordance with the relevant provisions of, at that time."
Therefore, enterprises should be in accordance with the provisions of the labor contract law to pay zhaomou economic compensation, calculated from the date of implementation of this Law and economic compensation period. Therefore, the labor arbitration commission to make a ruling, support Zhao's request.

41A fake diploma, workers and employers to sign labor contract, the labor contract is invalid

The case:

In 2007 August, A company through recruitment, recruit from Shanghai University of Finance and Economics (Business Administration) Diploma Yemou to sales manager, the two sides in August 12, 2007 signed a contract, the contract sales manager for a monthly salary of 5000 yuan. In February 29, 2008 the company notice since March 1, 2008, Yemou to terminate the contract. After receive payment only 2008 February the wages of 2000 yuan. In March 8, 2008, Yemou labor arbitration filed, require the company to reissue only pay 3000 yuan in February, and to pay economic compensation to terminate the contract in advance of 5000 yuan and 5000 yuan wages instead of the notice period..

 Labor arbitration committee after review that fraudulent means, a contract is invalid. Invalid labor contract, from the beginning not legally binding. The relevant provisions of Yemou violation of the labor contract law, to deceive the employing units and the signing of a labor contract. Therefore, Yemou and A company labor contract is invalid, the contract has no legal effect. Although both sides of a contract is null and void, but only in A company as a sales manager, have to pay the labor, A company shall be issued only in 2008 February wages 3000 yuan, dismissed Yemou demanding terminates the contract in advance of compensation and replacement notice period salary request.

Comment on:

 This case is a fake diploma workers off professionals and employers to sign labor contract and the labor contract is invalid case. The main problem in this case is whether the employee fraud, the two parties should bear what responsibility.

 Take a fraud, threats and other means of invalid labor contract. The two-way choice between employers and individuals, shall comply with the relevant laws and regulations, and shall not infringe upon the legitimate rights and interests of the parties. The employer and the individuals in each other when the choice, should just introduced to each other their basic situation and requirements. The employer shall publish the open recruitment of personnel, a quasi quantitative, staff posts and the required degree, title and treatment conditions. Individual candidates should be valid documents to produce their identity cards, work permits, certificates etc.. Should sign the contract in equal voluntary, consensus based on.

China's "labor law" provisions, an invalid labor contract, is not legally binding. The relationship between Ye Wei and poly and the company's return to the state before the parties entered into the contract. Ye Wei asked the poly and the company in accordance with the relevant provisions of lifting the effective labor payment instead of the advance notice period wages and economic compensation is not based on.

42Whether can accept employee, verbal resignation?

 [The basic facts of the case]

 Mr A at B have been working for 3 years. In 2006 July, Mr. A and B company labor contract under review in two months' time, when Mr. A learned that the company not to renew the contract with him. So, Mr. A for the month to oral B company offered to resign, and formal left and after a month. Mr A's departure, B company was for Mr A to handle the formalities. In September the same year one day, B company suddenly received notice of court session of the labor dispute arbitration commission. Originally, Mr A to "B company dismissed without cause he" on the grounds, the B company to the labour dispute arbitration committee, economic compensation for B company to pay the unilateral termination of labor contract (equivalent to 3 months salary). Labor arbitration court, Mr. A offers from B company issued proof, proof is B company fired him. At this time, B company does not have a written proof of Mr A resigned, of course, also cannot make effective interpretation on the basis of "retired workers that". Finally, the labor arbitration according to Mr. A and B each provide evidence, and the principle of the "labor dispute in favor of the laborers", support A at the request of mr..

[Legal analysis]

 "Labor contract law" provisions of article thirty-seventh, the employee shall in writing thirty days in advance notice to the employer terminates the labor contract. As the laborer and the employing unit shall sign a written labor contract, it can regulate the parties of labor relationship of rights and obligations, to avoid a small number of loopholes, intended to obtain improper benefits dispute. Therefore, the employer in the labor induction is recommended, can be written characters inform the workers, workers should be in written form to resign, or the direct write unit of rules and regulations, the labor contract. Moreover, given the diversity of labour contract subject matter, the employer should as far as possible for the workers in the labor contract notice, stating the reasons for his resignation, to avoid the occurrence of workers before and after the dissolution of the labor contract reason inconsistency.
If the worker only with "verbal" terminate labor contract, the labor contract is effective? It should be said to be effective, because the law does not prohibit the workers in the form of oral terminate labor contract. But when this happens, the employer must be treated with caution, if laborers and enterprises have occurred contradictions, or the conduct is not trustworthy, employers require him to provide advice to terminate labor contract by written notice, or take other measures to handle this matter.

43If the rules and regulations of the enterprise, can be arbitrarily set?

 [The basic facts of the case]
 For Ms. A to an airline company, for miss A's situation is very satisfied, decided to hire A miss, but also tell Miss A, miss A company provided jobs will work 45 hours per week, and do not pay overtime wages. Miss A agree. Thus, the two sides signed a labor contract. Five years later, miss A resigned to the airlines don't pay overtime wages on the grounds, shortly after labor arbitration filed, require companies to pay five years without pay overtime wages, overtime, and put forward the economic compensation for termination of the labor contract. The labor arbitration court verdict, support all requests to miss A. The airline refuses to accept this, but also to the court, the court still decision airlines must pay overtime wages and economic compensation for violation of miss A, the extended working hours of workers for the aviation company rules and regulations, it shall pay overtime wages of the law, should be regarded as invalid provisions. But the airline does not pay overtime wages, infringement of the miss A to receive remuneration rights, so miss A so the dissolution of the labor contract and asked the airlines to pay economic compensation, overtime requests, in accordance with the law, should be supported.

[Legal analysis]
 The law clearly stipulates that the weekly working time of not more than 40 hours, more than part of the need to pay overtime, the rules and regulations of the company in violation of the provisions of the law. Therefore, miss A reference units specified in the labour contract law rules and regulations against the interests of employees, employees may terminate the labor contract and economic compensation, the request is the support.
Formulate rules and regulations is one of the important rights of laborers granted "labor contract law", an important test is also proposed to the enterprise HR. Because the rules and regulations of the content including aspects, it is difficult to have is entirely legal number all the rules and regulations which of my company. While the "labor contract law" gives workers the right of rescission, this is very bad, therefore, enterprise HR must be fully revised the rules and regulations of enterprises, and strive to avoid legal, in a passive position.
Employers in the formulation, amendment or decisions directly relates to the interests of the laborers can not be in violation of rules and regulations, or beyond the laws and regulations, otherwise it is not only the invalid provision, can not control the laborer, and if so damaged the rights and interests of workers, the workers also can dissolve the labor contract.

44Whether the company can be arbitrarily adjusted, wages of employees?

 [The basic facts of the case]

 Liu is a company salesman. The two sides agreed in the labor contract: labor remuneration for a fixed salary plus commission. Fixed monthly salary is 1000 yuan, calculated according to 2% of sales commission. Two months ago, Xiao Liu is the sales season, fixed monthly salary plus commission reached 1800 yuan. In third months, Liu sales dropped significantly, with economic benefit is bad for oral decision will be fixed wage Liu dropped to 800 yuan, the commission calculation to calculated in accordance with the 1% of sales by sales 2%.

 Half a year later, again to economic benefit is bad for oral decision, the fixed wage Liu dropped to 700 yuan. Xiao Liu said that both sides in the labor contract agreed to a fixed monthly salary of 1000 yuan, the royalty is calculated according to 2% of sales, but the company's wage to fall again, many times to find the company representations fail, then apply for arbitration to the local labor dispute arbitration committee, asked the company in accordance with the labor contract, the replacement of the salaries.

[Legal analysis]

 The focus of dispute in this case is: in the performance of the labor contract process, unilateral can arbitrarily change the content of the labor contract.

 "Labor contract law" twenty-ninth stipulates: the employer and the employee shall in accordance with the stipulations of the labor contract, fully perform their respective obligations. The so-called comprehensive performance, refers to complete the contract obligation to bear their labor contract both parties in accordance with the labor contract labor time, labor remuneration, working conditions and other terms and conditions. According to the "labor law" the seventeenth paragraph second, the labor contract concluded according to law is legally binding, the parties must perform the obligations as stipulated in the labor contract. Therefore, no statutory change to happen, nor in the negotiation of both parties of the case, any party shall not arbitrarily change the contents of the contract. In this case, small Liu the company signed a labor contract is legitimate, effective, the company should conscientiously, and complete performance of the contents of the contract, it would constitute a violation of the labor contract act.

 The labor dispute arbitration committee according to the relevant provisions of the "labor contract law" and "labor law", to support the small Liu appeal.

45, employee resignation, whether to obtain approval of the company?

 [Case synopsis]

 In June 1, 2008, general manager Mr. A to his B company submitted resignation, says he will resign in thirty days. At this time, a major project, Mr. A is responsible for B company. B believes that Mr. A in the project is not completed during the resignation, and B company is very difficult in the ten days to find alternative work for Mr A, it may cause a company program interrupt, causing economic losses the company. So, B, told Mr. A: because you did not complete the job offered to resign, does not conform to the law, I decided not to agree with you resign, you must continue to work in the original post.
In June 30th the same year, Mr. A is no longer B company to work, at the same time, one paper indictment of B company to the labour dispute arbitration committee, require the company to handle the formalities for the compensation, and not in time for formalities, cause its not normal employment economic loss. Soon, the labor arbitration committee will make decisions in support of A, the request of mr.. B against the company, filed a lawsuit to the court, the court also ruled against B company. Labor arbitration and court backed Mr A reasons are: according to the law, Mr A has the right to terminate the labor contract with B company unilaterally, without B approval. If B believes that A company to terminate the labor contract in violation of the provisions of laws, economic loss caused to the company, can ask Mr. A compensation.

[Legal analysis]

 Some employers think, enjoy the right to employment management of employer, employee proposes to terminate the labor contract, if the employer is not approved, the workers will not terminate the labor contract. In fact, the employing unit that is inappropriate, but also with the original labor system in china.
In the early 90's and before twentieth Century, workers and enterprises do not sign labor contract. Apart from the temporary workers, workers are fixed for workers, when they resign must be approved by the enterprises. In 1994, after the introduction of "labor law" and other laws and regulations, workers and employers to establish labor contract relationship, both parties agree to establish labor contract relationship, as long as in the scope of legal provisions, any party may unilaterally terminate the labor contract relationship. Therefore, labour contract, does not require the employer approval.

46, enterprise production and management difficulties, whether can the deferred payment of wages?

 [Case synopsis]

 B is a company operating the scale small trading companies, only 4 staff. Recently, due to multiple payment did not return, B company capital turnover affected, for 2 consecutive months, unable to timely payment of wages. Because of the smaller companies, B managers believe that employees know why don't pay, so there is no will be the 2 consecutive months without pay for employees, a formal written notice. At this time, see Mr. A company condition, to resign, but did not specify the reasons for his resignation. Following the resignation of Mr. A, labor arbitration filed, the economic compensation for B company failed to timely payment of wages paid to Mr A's resignation. In the trial, Mr. A offers payroll bank transaction card, proof of B company for 2 consecutive months without payment of wages. B said non payment of wages is because the company did not return loan, capital turnover affected, the staff members are all very clear. But Mr A to be denied, B company also cannot produce evidence to prove. Finally, the labor arbitration in support of Mr A's request for arbitration.

[Legal analysis]

 In this case, what is the reason of B company lost? To deal with the matter in accordance with the relevant provisions of B company failed to lawful, reasonable. "Shanghai enterprise wage payment method" the tenth stipulation: the employer due to difficulties in production and operation, capital turnover is affected, temporarily unable to pay wages, is consistent with the unit union negotiations, can delay the payment of wages to the employees within a month. The deferred payment of wages time shall be notified to all workers, and report to the competent authorities for the record, no departments reported to the city or district, county labor and social security administrative departments for the record. If B was in accordance with the provisions of the handling of the matter, can avoid the dispute.

47,"Death from overwork"A dispute

The case:

 Liu Department of Bazhong City, Sichuan Province, a town village, in 2000 June was the village of Wang and she a call to Bazhong City, a casing factory work. In November the same year one day, Liu after work to bed rest, the next morning 6 when, in Wang called Liu wake up, found that Liu has died, then to the Bazhong city public security bureau. Via checking, non violent injury Liu body, no symptoms of poisoning, Public Security Bureau Liu Department of mortality. Liu Mouzhi mother Peng suspect Liu is the king, she murdered, think two people collaborate with others to make false autopsy report, then to the court in 2001 November, asked the king to a death compensation solatium, travel and other costs more than 40 yuan. Wang argued that, with Liu is a partnership rather than employment relations, Liu's death does not constitute a work-related injury, and it has no fault, do not agree to compensate. Court that, Liu in the office work, is a partnership for lack of evidence, that is the employment relationship. The defendant in hiring workers working period, let the workers in poor working conditions, labor intensity big environment, labor, and labor time is too long, resulting in Liu by overwork dies of an illness, the defendant shall bear civil liability according to law, decision support the defendant compensate the plaintiff lost wages, the deceased former and support person living expenses, funeral mental damage solatium fee, a total of 45000 yuan.

Comment on:　

 This is a typical "death from overwork" case. Death from overwork, is a new concept for medicine, refers to the labor intensity of extreme over physical capacity resulting in excessive fatigue sudden death and form, or because of overwork and cause other diseases caused by the death. This kind of death usually occurs in the work environment, or in the relevant labor and environment.

Cause death from overwork behavior should be identified as a tort, but death from overwork, infringement of rights is what? The victims in the case of death from overwork death, direct damage and not forced laborers labor and behavioral consequences, that is to say, forcing others to overwork people does not deprive the lives of others faults, and no such intention, and therefore can not be considered violations of the right to life; but the aggrieved persons dead, how to against his people? The author thinks, cause death from overwork behavior violated is a constitutional right to rest. China's "constitution" regulation, citizens have the right to rest, deprived of workers the right to rest, cause death from overwork consequences, constitute infringement. Of course, there is a civil judgment can invoke the "constitution" of the problem. In drafting the civil code draft of tort law, the majority of scholars believe that the constitution, civil rights and not required by law, you can invoke the constitutional principle judgment. I think that, for some civil rights since the constitutional requirements are made, although no relevant content of the civil law, the court also have no reason to not invoke.

Infringement right of rest had caused the tort liability to death, and invade the body right, right to health and life of the infringement behavior is not the same, it should have the conditions: first, the identity of the perpetrator is specific, i.e. behavior should be to the labor of laborer has the right people, the enterprise or unit managers, including the employer. Second, people with extreme behavior forced laborers beyond its physical capacity of labor, the mandatory labor violations of labor protection laws or regulations. Third, resulting in the death of a worker consequences, and the death and forced labor and a causal relationship, specific performance for the sudden death in the labor of workers, or is the result of workers suffering from other diseases caused by death. Fourth, intentional behavior person has forced laborers in subjective on super strength work, but for the death of workers the consequences of not foreseen, and only has a fault. If the worker deaths foreseen but still, for violations of the right to life of tort.

Infringement of right of rest had caused the tort liability to death, death from overwork should be caused by the unit or the employer. If the unit or the employer's liability caused by the legal person, in accordance with the provisions of tort liability of infringement or the employer by the legal person or the employer liability, if the person directly responsible, and the burden of fault, or employer liability, can to recover. If individual employers hiring, cause death from overwork, personal liability of employer.

48Determination of injury, and the trial

The case:
In October 24, 2002, Siyang County of Jiangsu province Qiao Xing cotton textile factory workshop to building the self-employed Song Zhibing construction, song Zhibing will Chinese roof steel powerhouse package to Siyang County, color steel tile factory, Siyang Huaxia color steel tile factory to provide materials and roof frame project package for Li Fei and Zhang Wensheng to Li Fei and Zhang Wensheng, Zhou Shouguo et al. Construction organization. The December 28, 2002 Siyang Qiaoxing cotton textile factory inspection found that the roof subsidence, asked to rework Siyang Huaxia color steel tile factory.

December 29, 2002 in the rework process, falling Zhou Shouguo died, his wife Dong Yuzhen in 2003 January 28 to the Siyang County Labor Dispute Arbitration Committee for, Siyang Huaxia color steel tile factory take the industrial accident insurance liability. In March 19, 2003, Siyang county labor dispute arbitration committee commissioned by the Siyang County Labor and Social Security Bureau (appraisal committee inductrial injury accident) accident inductrial injury on the death of Zhou Shouguo. In April 14, 2003, Siyang County Labor and social security bureau make Si Lao she dead word (2003) No. first "industrial injury and death of determining", Zhou Shouguo determination for the industrial injury and death accident unit, Siyang Huaxia color steel tile factory.

The Siyang County Huaxia color steel tile factory, an administrative reconsideration, Siyang County People's Government in July 31, 2003 made the Si Zheng referendum (2003) No. eighth the reconsideration decision, that labor contract relationship has been formed between Siyang Huaxia color steel tile factory with Li Fei and Zhang Wensheng; labor relationship has been formed between Li Fei and Zhang Wen and Zhou Shouguo of the dead; there is no direct labor relations between Siyang Huaxia color steel tile factory and the dead Zhou Shouguo, Siyang County Labor and Social Security Bureau Zhou Shouguo who died without properly, but that Siyang Huaxia color steel tile factory for the accident unit of insufficient evidence, reason is not sufficient, so that death to revoke the decision of Siyang County Labor and Social Security Bureau injury.

Dong Yuzhen refuses to accept, filed an administrative litigation to the people's Court of Siyang county.

Trial.

The court held that the parties to the death, and the employing units of labor relations have produced significant controversy, accepting applications for the Siyang county labor dispute arbitration committee, not the labor relations disputes ruling, directly commissioned to Zhou Shouguo death accident inductrial injury, Siyang County Labor and Social Security Bureau in the labor relations disputes not yet confirmed cases, namely to death and the employing units of labor relations, the responsibility of the accident and injury deaths were identified, apparently there is no legal basis. Siyang County People's Government on the parties of labor relations disputes for reconsideration, beyond the obvious law review. Si Zheng the decision to revoke the Siyang County People's government made a referendum (2003) No. eighth administrative reconsideration decision.

Siyang Huaxia color steel tile factory refuses to accept the decision, appeal to the intermediate people's court, the judgment error of fact, improper application of the law, request cassation. Dong Yuzhen argued that the request was upheld. Siyang County People's government argues that beyond the reconsideration reconsideration is improper, requested the court of the second instance shall be amended according to the law.

The second instance trial think, 1, Siyang Huaxia color steel tile factory of Siyang County Labor and Social Security Bureau work-related injury confirmation may have the right to apply for reconsideration to the people's Government of Siyang county. The first instance court ascertained that the Siyang County People's Government of the reconsideration decision is beyond the scope of the review of improper legal provisions. 2, Siyang County People's Government of the reconsideration decision that "Siyang County Labor and Social Security Bureau Zhou Shouguo for the accident unit died for the Chinese color steel tile factory insufficient evidence, not a good enough reason" and "make Siyang County Labor and social security bureau decision, that Zhou Shouguo at work falling death belongs to the worker deaths no improper" contradictions, facts are unclear, it shall be revoked. 3, the first instance court ascertained that the "workers after death, the labor dispute arbitration institution in accept the arbitration application, the employer and the labour disputes occurred should be the first award", the lack of legal basis, but the original judgment to revoke the administrative reconsideration decision results are correct. Siyang Huaxia color steel tile factory grounds of appeal can not be established, so the decision: 1, upheld; 2, Siyang County People's Government shall be ordered to make the decision of reconsideration.

Comment on:

"Labor law" seventy-seventh article "the unit and the laborer labor dispute occurs, the parties concerned may apply for mediation, arbitration, litigation, can also be resolved through consultation". "Labor law" stipulates that the seventy-ninth "labor dispute occurs, the parties may apply to the labour dispute mediation committee unit for mediation; if the mediation fails, the parties to a request for arbitration, may apply to the labour dispute arbitration committee for arbitration. A party may apply for arbitration to the labor dispute arbitration committee. Refuses to accept the arbitration award, may bring a lawsuit to a people's court".

Analysis of this case from the specific provisions of the law, accept the application for Siyang county labor dispute arbitration committee, should the existence of parties of labor relations or the existence of labor dispute review, only in the labor relationship is established and the labor relationship is established and no dispute case, can be entrusted to the Siyang County labor and social security bureau the ascertainment of the work-related injury death. If the existence of labor relations disputes between the parties, shall be in accordance with the "labor law" article seventy-seventh and article seventy-ninth, the parties may apply for mediation, arbitration in accordance with the law, to file a civil suit can arbitration disaffected, can also be resolved through consultation.

Siyang County Bureau of labor and social security (appraisal committee inductrial injury accident) after accepting the entrustment, the death and the employing units of labor relations disputes for confirmation, beyond the scope of its powers, but according to the Siyang county labor dispute arbitration committee, have confirmed the parties of labor relations established basis (including mediation civil litigation, arbitration, and other legal documents) are whether the identification of work-related death. Otherwise, party to the labor relationship is established dispute exercise of the right of defense, if it is not labor relations exist between the parties of litigation, confirm that, has been identified as the appraisal conclusion of work injuries and death must be revoked.

Siyang County People's Government of the reconsideration decision only on Siyang County Labor and Social Security Bureau (appraisal committee made the industrial injury and death accidents) properties and conclusions characterization of reconsideration. If a party refuses to accept the labor dispute arbitration committee for Labor Relations Award, shall be by means of civil litigation. Siyang County People's government decision of reconsideration on the parties of the labor dispute between the confirmation, is obviously inappropriate, beyond the scope of administrative authority.

These comments, in the trial practice, occurred in the in the course of labor workers in the accident, after death, the dependents shall enjoy survivor benefits, labor dispute arbitration institutions to accept the arbitration application, the employer and the labor dispute arising shall be ruled, refuses to accept the arbitration ruling, may bring a civil a lawsuit to the people's court. Between the employer and the parties to the labor relations in accordance with the law after the confirmation, inductrial injury accident appraisal committee of a labor dispute arbitration institution shall be entrusted to administrative department of labor and social security at or above the county level to the casualty accident properties and conclusions made identification. The parties to the casualty properties and conclusions made by the identification of disaffected, can apply for administrative reconsideration, refuses to accept the decision of administrative reconsideration, it may bring an administrative lawsuit to the people's court.

49Because of my injury, violation can get compensation

The case:
In 1998 July, Wang was assigned to pick up on the way traffic accidents out driving, vehicle scrapping. Public security departments all responsibility Wang negative traffic accident. Wang to the labor administrative departments identify industrial application, the local labor department by the Ministry of labor on driver injury confirmation reply, that King belong to inductrial injury. But the company believes that Wang vehicles speeding and listen to another driver for advice, there is "the deliberate violation" circumstances, should not the ascertainment of the work-related injury, then puts forward the administrative reconsideration, the reconsideration organ to the company on the grounds of insufficient evidence, maintain the conclusion that of Wang's injury. Against the company, again to Wang Mou to result in the loss of 130000 yuan, constitute the crime of traffic accident should not be identified as work-related injuries, to the court, and also to the court of criminal private prosecution. During the trial, several issues concerning the specific application of laws provisions on the trial of criminal cases of traffic accidents caused by the Supreme People's court, public property or other direct property loss, negative accident or the primary responsibility, no compensation in the amount of 300000 yuan circumstances that constitute the crime of traffic accident. The court of second instance judgment on Mr. Wang does not constitute the crime of traffic accident. Thus, the Labor Department identified as work-related injuries conclusion is maintained.

Comment on:　
The focus of this case is that Wang was "deliberate violation". According to the "trial workers industrial injury insurance regulations" in article ninth, workers due to the deliberate violation caused by injury, disability, death should not be identified as work-related injuries. This rule is often cause disputes in practice, even become the employer or employer refused to common reason to assume liability for injury. So, how should this provision?

First of all, we should be on the relationship between "illegal" and work-related injuries and have a correct understanding. That is to say, the workers in the work due to their illegal behavior caused his injury can be identified as work-related injuries? The answer should be yes. Because one of the principles of industrial injury insurance is "the principle of liability without fault", regardless of is the responsibility of the employer, occupation harm others or oneself, the victims should be given the necessary compensation; the compensation is unconditional, even if the individual is at fault. Therefore, the "no responsibility for compensation for disabled persons", timely material help, is the first rule of insurance law. The first time defined in 1884 Germany promulgated the industrial injury insurance act "accident insurance law": Workers by industrial injury and injury, disability, death, regardless of fault or liability where employers have an obligation to compensate their workmen, loss of income, the disabled are entitled to economic compensation. Since then, this principle is known as the "occupation harm" or "no responsibility for compensation" principle. At the beginning of the twentieth Century, almost all industrialized countries will this principle written into its labor laws, the principle of "no responsibility for compensation" become the world to determine the most generally applicable rules for employment injury insurance liability.

From the development of the industrial injury insurance system, liability principle of compensation is also experienced from the "fault liability" principle to the "no fault liability" principle to. In the "fault liability" principle, by the injured workers or dependents proof, employers have subjective fault for the occurrence of accident must be, otherwise it can not get compensation: "the principle of liability without fault", workers by accident or occupation disease harm, without proof can enjoy the right to compensation. As for the fault may have various occasions and situations: such as labor lax discipline, safety consciousness, or violation of operating rules lead to injury accidents; or because the enterprises, employers management confusion, poor facilities, safety production responsibility can not be implemented; there may be both parties are at fault, such as enterprise for the pursuit of economic benefits, and the workers for more money to work overtime, working with fatigue; and other accidents, such as the workers because of negligence causing damage etc.. It is based on these conditions, the establishment of industrial injury insurance system, the establishment of the principle of "no fault liability". It is shown that once the occupation harm accident, regardless of the employer or employee whether there is fault, victims can get compensation principle. Change this one principle, has played the function of the social insurance law, simplify procedures, improve efficiency, timely, fairly protect hurt the rights and interests of workers, at the same time, also make the enterprise, the employer out of industrial injury compensation lawsuit, conducive to the development of the normal production and operation activities.

The second is how we should understand "deliberate"? According to the "modern Chinese Dictionary" Interpretation: "deliberate: have the meaning of (a bad); deliberately, such as deliberately sabotage, deliberate provocation." This is actually a kind of vandalism production behavior, or illegal crime legal recognition. This kind of behavior in the "Trial Measures for industrial injury insurance for enterprise employees" Ninth first "clear provisions have been made or the crime of illegal", then to "the deliberate violation" as the fifth addition to cause misunderstanding and dispute, no other benefits. In order to enforce the law, and make some specific provisions, but get the opposite of what one wants. Such as "Beijing city industrial area of enterprise staff explained" Eleventh "the deliberate violation" is defined as the cause, enterprise employees during working hours by the enterprise personnel casualties, that is my practical joke caused casualties, belong to "the deliberate violation", can not be identified as work-related injuries. "The deliberate violation" into the "practical joke" and did not let the people China Academy of Social Sciences Institute of language dictionary editing room series of "modern Chinese Dictionary", 1290 pages, business printing the museum, Beijing, 1980

To understand what is "the deliberate violation", but make the person a "practical joke" feeling.

The reason why the "deliberate violation" and work-related injuries that were not mesh, the fundamental reason is that "the deliberate violation" in the original intention is "and the principle of no fault liability" conflict. The industrial injury insurance law will be "the principle of no fault liability" as basic principles, its theoretical basis are mainly: risk of labor environment, man and machine is always in a relatively weak position compared, workers hurt is inevitable; the risk from the employer, or where the use of machines to engage in production activities employers may have caused harm to the employee occupation; workers hurt is involuntary, that even if the workers hurt sometimes is your fault, but it is not voluntary. Industrial society legal presumption of workers will not hurt myself. It is the condition of the workers, labor conditions, labor hygiene, production equipment are directly related to the workers' safety based on, and it is the principle of no fault liability theory based on consensus, so, when workers are hurt, whether employers are not lost, either due to the laborer or his colleagues negligence, carelessness, and other reasons, it shall be borne by the employer compensation liability. Because labor is an important factor of production, occupation harm is caused in the production in the course of labor, is paid for the cost of production to create economic benefits, the employer shall bear all the insurance premium. Like to pay for the repairs, maintenance and equipment costs, is completely necessary, reasonable and necessary. Marx called the "labor ability repairs".

"The deliberate violation" say clearly with the legal principle and its theoretical basis are incompatible. In the face of this provision in practice caused by misunderstanding and trouble, timely through appropriate choice.

50Intermittent work injury, should give compensation

The case:
 Xuan is a transportation company with the car loader. Go out in a shipment of steel to wait for other vehicles bearing the intermittent, he lay down on the car after the shade avoidance rest (after the incident that is found in the trunk drops of oil in the check and repair), driver know when reversing will claim that a crushed into severe disability. Xuan one apply for work-related injuries and enjoy the treatment of work-related injuries. The labour administrative department that Xuan is the stevedores, responsibilities not vehicle repair, is due to the work of intermittent rest disability caused by improper place, not in conformity with the scope of work-related injury, should not be identified as work-related injuries. Some may bring an administrative lawsuit. The court held that the injury situation, Xuan some do not belong to inductrial injury shooting range, it should be identified as belonging to the scope of work-related injury, undo the labor administrative department shall not be recognized as work-related injuries and conclusion. The labour administrative department filed an appeal, the second instance court thinks, intermittent work is the objective need of labor process, as a part of the work, the employer shall provide the necessary rest place for employees. Xuan A is place of rest properly, but the employing unit shall bear the responsibility. At the same time, according to the principle of legislation of industrial injury insurance to protect the rights and interests of vulnerable groups, think announced some injuries should be identified as work-related injuries, maintain the trial court's decision.

Comment on:　
 The case identified differences in both the source on different interpretations of "injury" in theory, but also due to the different interpretation of the law.

In theory, people will "injury" is defined as being due to work injury, also known as the occupation harm, refers to workers in the production, labor process, due to the work, carry out the job behavior or engaged in production activities related to an accident, injury, disability, death by or suffer from occupation disease. In practice it is further simplified to "" injured "in work time, because the job is hurt" (such as China); or more direct expression for "hurt because of work" (Germany). These two points are emphasized "hurt because of work", the difference lies in that the former have requirements in time.

Even if we will understand the injury is "work" hurt, do not seem to have the differences. Because the definition of "work" is still a controversial issue. If we will "work" strict, strict principles of interpretation, will be strictly limited the scope of "work". Because it would hurt workers must be engaged in the job at the time of injury, and its behavior and job must also have "direct", both in time and space "uninterrupted", "no intermediate links" links, such as the driver must be driving; lathe must be lathe is operating the boiler work, must be burning boiler. It is simple, but the interests of laborers greatly damaged, also set up "industrial" compensation system and people's intention is inconsistent.

"Injury" as a social insurance system originated in Germany, the first human history of industrial injury insurance law "promulgated in 1884 Germany accident insurance law" clearly stipulates: Workers by industrial injury and injury, disability, death, regardless of fault or liability where employers have an obligation to compensate their workmen, loss of income, the disabled has the right to get compensation. It focuses on the workers suffer from work, but does not emphasize the workers hurt only its own work. This has become the principle and system generally follow the national compensation of industrial injury insurance. For example, workers on the way to and from work injuries were identified as work-related injuries; going out during the emergency disease caused by death or by the first salvage therapy after total loss of ability to work shall be identified as work-related injuries. The workers of these injuries also identified as work-related injuries, is because people view the workers "working" as a whole, the workers "work" includes workers directly "work" and to "work" for behavior. "Work" here refers to "work" and "in order to work".

In addition, in the industrial injury insurance law "by" and "non due to different industry" will be attributed to the "occupation harm". "The occupation harm" is subject to injury and working environment, working conditions, process flow associated.

To "work" the understanding and interpretation is not only necessary, but also fair and reasonable. Because both the work behavior of workers or their "to work" behavior is to realize the employer or the employer's interests, but also are in the employing unit or employer arrangement, under the command of behavior. Therefore, to understand the "work" work-related injury should choose the generalized. In this regard, we can get the clear conclusion from a case in japan. At dawn on July 29, 2000, the 24 year old Han Ying went back home from work after the completion of food, the way is rides the bicycle man robbed bag, Han Ying after more than thirty meters to regain the bag, but it was the man with the abdomen knife in three, death in an hour. The escape. In August the same year, come to Japan for her daughter Han Linqi to "work the funeral disaster" to make insurance workers compensation for. The Japanese authorities to investigate the incident on the day, that occurred in the pedestrian fewer occasions, that on the way to work with potentially dangerous, confirmed in Osaka who was killed Chinese female students Han Ying belongs to "work disaster", and to her relatives to pay workers compensation of millions of yen.

51Compensation for work-related injury, should distinguish between labor relations and civil relations

The case:
 A villa built in the Mongolia unit of the hospital, people responsible for committing villa director infrastructure for woodworking Wang by contracting the project dry iron foreman. When the oral agreement by Wang tools for Mongolia construction carpentry, villa 40 yuan every payment of labor remuneration. A world with rain, the person in charge of works appointed Wang to help stem the ironworks. Wang in Mongolia to pack of iron, due to rain ski hit induced double heel of Achilles tendon rupture. The labour administrative department of the local basis Wang application, identified as work-related injuries. But the villa may, with Wang is not the workers, injury is caused by the privately to help iron work, and Wang after injury in addition to the payment of its treatment fee has a one-time payment of 5000 yuan, should not bear the responsibility of industrial injury insurance sued to the court. The court of first instance according to the labor department about the provisions on labor relations of fact "labor law" the implementation of the people's Republic of China of the opinions on several issues, said Wang and villa has not formed the factual labor relations, the labor administrative department decision to withdraw the conclusion that the injury. Not the labor administrative department, although not think villa with Wang signed a labor contract, but to date the forms of wages reward, there are specific work content, Wang Mou to Villa work arrangements, which belongs to the temporary employment, the formation of the fact labor relationship. During this period should be the ascertainment of the work-related injury accident. The labour administrative department for this reason appeal.

Comment on:　
 This case reflects that undertakes the main body responsibility accidents happened, that is industrial accident liability or tort liability? To hurt himself, according to the principle of no compensation for work-related injury insurance, they are no doubt should be identified as work-related injuries. Because they are injuries suffered in the labor process, and they are the main labor relations or the establishment of the factual labor relation should bear the responsibility of industrial injury insurance. And if it does not exist in labor relations, but the relations between equal civil subjects, and therefore it should not be identified as work-related injuries.

The law the employer's employment shall establish labor relations, sign labor contract. However, the labor contract is not signed in practice can be seen everywhere, especially private enterprises. All kinds of forms or to sign economic contract, contract, labor contract and so on to deny labor relations. In order to protect the rights and interests of workers, labor law applies "the facts labor relations situation" Regulations of labor administrative department. Therefore, as long as the employers and the formation of the factual labor relation, labor injury accidents occur in the process of labor, even in the absence of labor contract, the employer shall bear the same liability of employment injury insurance.

The industrial injury insurance system is no liability based on labor relations, which has essential difference with the civil compensation liability subject relations based on equality. Obviously, the problem of determining liability subject, that have labor relations is very important. So, what is the labor relationship? Because China is still not a legal definition of what is the labor relationship, therefore, in determining the relations between the two sides, the main focus on the differences between employees and employers of labor relations is still labor relation problems. In other words, is concentrated in the legal relationship between the employing unit and natural person for labor or services and pay the remuneration and the establishment of the labor relationship is the inevitable?

Some scholars believe that, after the dispatch organization send employees to employers to provide services, two units of labor relations, employee and the dispatch organization is the labor relationship, while the real relationship between the unit and the employee is working relationship. This work cannot be called labor relations, because the existing legal provisions have a heavy labor relations workers only; but also can not be called is the labor relationship, otherwise once the work injury accident, workers can apply the subject of labor relations for treatment of inductrial injury insurance compensation, but also can require real employer shall bear civil liability for compensation on the basis of labor relations. There are scholars think, dispatch organization is the use of labor rights to really use it employer. If the accident occurred in work, it should be up to really use the labor by the subject of liability of employment injury insurance, regardless of the subject and the labor relations.

The general situation of the legal relationship between the employer and the natural person for the work and pay the lower is labor relations. Labor relation is the owner of the labour use and disposable labor and take possession of the means of production and the owner or manager of a form in the labor process in the social relations, it is the labor combine with production, through the organized labor to produce specific products or labor, therefore, whether the labor dispatch, or provide services for multiple the employer, as long as the workers through transferring labor rights for the employer and to receive remuneration, through the management, use labor employer, organized labor and labor relations, double side forming is the labor relationship, and social insurance relationship is also attached to the labor relationships, as long as the employee and employers to form a labour relationship, then employment subject should pay various social insurance includes inductrial injury insurance premium, for its. If the laborers have occupation harm in the work process, including whether personal negligence or other responsible person exists, the workers shall have the right to enjoy treatment of inductrial injury insurance, labor body also should undertake the responsibility of industrial injury insurance.

But individual citizens and between the employing units for labor and pay remuneration and the establishment of the relationship may be the civil legal relationship of equality. The main reason: one is the law is clear, for example on the basis of "insurance law" provisions, it is not the labor relationship between the insurance agent and insurance company, but the insurance agency relationship. Two is the "general rules of the civil law" provisions in addition to the natural person, the self-employed, rural contracting households and individual partnership also belongs to the category of natural person. Then the self-employed, rural contracting households and individual partnership with other employers because certain labor contract and labor remuneration paid to establish complete can be the civil legal relationship of equality. Because between two persons is unable to establish labor relations.

In reality, the labour and social security legislation is lagging behind, has no clear definition of labor relations from the angle of law; on the other hand, employers do not strictly in accordance with the law, perform the sign a labor contract with the laborer procedures; or intended to evade the law, signed the service agreement, and labor contract agreement, or only in the presence of personnel the relationship between labor relation and real file does not exist. For example, working with the unit (especially state-owned enterprises) signed an agreement to retain the relationship between social insurance archives or after work to another unit. Also become effective measures to control unemployment in some areas, the maintenance of social stability and this protocol retention relationship files or social insurance practice. However, these practices actually causes the employment behavior of confusion in the objective, labor relations, social insurance and the real is not unified. This case worker happening inductrial injury accident, also caused difficult to judge whether there is relationship between labor and labor relations, and thus become identified key and difficult responsibility main body!

In practice, the parties provide the differences and characteristics of labor relations and equal civil relationship established labor remuneration and pay the other party a paid labor laws in the process of on the side, as follows:

(1) of the subjects of labor relations is the workers and established in accordance with the law of labor employment (can be organs, enterprises and institutions, social groups, organizations and individual industrial and commercial households) (or legal person established according to law and legal person organization); the subject of civil legal relationship is (or legally established organization) and natural persons (including individuals, individual industrial and commercial households and contract households, individual partnership); natural person and natural person;

(2) the labor relations is in the form of signed labor contracts with workers and human body (the employer shall go through the procedures of recruitment), civil relations is in the form of negotiation or contract services agreement signed.

(3) the administrative affiliation of labor relations, the unequal status; workers should obey the organization, management and work arrangement; observe labor discipline and rules and regulations of the employing units. The subject of civil relationship is equal civil subjects, no subordinate relationship: it doesn't matter management and management, an independent production, labor, the other party will not intervene. Follow the good faith, the principle of equal consultation.

(4) the wage labor relations of distribution according to work, fellow worker and raise principles; shall comply with the minimum wage laws; civil relation by using the principle of equivalence paid, not subject to the minimum wage.

(5) characteristics of labor relations is the employing unit shall provide labor production data, production tools, production environment and other necessary working conditions, in accordance with the law or the standard, is responsible for providing the necessary production equipment, facilities and labor protection supplies; responsible and pay more attention to the organization and management of the whole process of labor. General characteristics of civil relations, labor party should be responsible for production data, production tools and working conditions and working environment and etc., can also be the equal consultation; labor only pay attention to the fruits of labor, not paying attention to the process of providing services.

(6) the labor relations law division responsibility for recruitment procedures, establish employee labor archives, responsible for employee training and occupation training, must fulfill their social insurance obligations and withholding of statutory obligations; civil relationship has nothing to do with the file, the labor party does not necessarily provide skills training, also don't burden the social insurance fee payment obligations.

(7) the labor relations adjustment by law; civil relationship of economic law, civil law.

In the determination of labor relations is still equal civil legal relations, must fully consider the content listed above, not only emphasize the difference between or characteristic of judgment, or tend to Overgeneralization errors, will directly influence the main body to judge the responsibility and liability. The difference of labor relations and the civil legal relationship issues, should also respect the parties expressed their intention. If both parties are equal civil legal relationship agreement established, then apply the general principles of the civil law "adjustment". But if the two sides did not sign the contract and dispute, should according to "labor law", the purpose of legislation to protect the vulnerable groups and the "labor law" that the legal relationship between the two sides.