Shandong province Qingdao City Intermediate People's court

Civil judgment

(2012) young people with the word no. 1667th

The appellant (the plaintiff) Wang Xugang, male, Han nationality, born 1 December 1958, without industry, live in the city of Qingdao Licang District Wang Bu Cun No. 742 B, identity card number 370221195812010538.

Attorney: Liu Qing, male, Han nationality, born 24 December 1971, without industry, Licang District, Qingdao City, Tiger Hill Road No. 38 1 unit 602.

Appellee (defendant in the original instance) Shandong CDC Property Management Co., Ltd. Qingdao branch, Jintan City Road, Qingdao City, where 32 1 Building No. 1401 households, organization code 68675233-7.

Legal representative: Chen Weiqi, manager.

Attorney: Zhou Zhimin, female, the Han nationality, born 10 May 1982, the company staff, live in Inner Mongolia Hulun Buir Ewenki Autonomous Banner of Ba Zhen Yimin LU Hong Qi Jie Agricultural Bank Building 1 unit 201, resident identity card number 152101198205100324.

The appellant and appellee Wang Xugang Shandong Expression Property Management Co., Ltd. Qingdao branch (hereinafter referred to as the expression property company) a labor dispute case, the people's Court of Qingdao city against city (2012) No. 60063rd South issued Spain in the early Republican word civil judgment, in 2012 17 July, the hospital filed an appeal. The hospital in August 15, 2012 after acceptance, in accordance with the law by judge Zhang Xinlin as the presiding judge and presiding the case, judge Li Xiaobo, acting judge? Participate in the deliberations of the collegial panel, after marking examination, the school believes the case with "the Civil Procedure Law of the people's Republic of China" 152nd "and the Supreme People's Court on the application 'some problems of Civil Procedure Law of the PRC' opinions" provisions of article 188th, decided on the case without trial, and in August 30, 2012 the organization of Party of evidence and facts. Attorney Liu Qing Wang Xugang's appeal, be entrusted agent Zhou Zhimin to the property company to participate in the litigation. Now the trial has been closed.

Wang Xugang in the original trial reported, in July 1, 2010 to look at the property company engaged in security work, place of work for the 401 Hospital of PLA, north house, monthly wages 1100 yuan. Wang Xugang repeatedly asked the signing of a written labor contract with the appearance of property companies, property companies have been rejected but look. Wang Xugang only had 2 days off a month, vivid property companies don't pay the rest day overtime pay, also do not according to the provisions of the state pay a statutory holiday pay. In September 14, 2011, Wang Xugang informed by the project manager to 401 south hospital training, engaged in the work in the South West parking. In September 17, 2011, the south hospital security guard captain Wang Xugang notice training end back north institute. Wang Xugang returned to the hospital 401 hospital north, North hospital manager said: "Courtyard South of North Hospital don't you, don't you." Wang Xugang thinks the expression property companies without illegal remove labor contract, a serious violation of the legitimate rights and interests of Wang Xugang. Request according to the judgment: 1, confirmed the existence of both sides of labor relations from July 1, 2010 to September 17, 2011; 2, look the payment of property companies Wang Xugang did not sign a written labor contract double wages 29700 yuan; 3, look the payment of property companies Wang Xugang without advance notice of termination of labor relations instead of gold 1100 yuan, illegal remove labor contract damages 3300 yuan; 4, look the property company to pay economic compensation to Wang Xugang in 2011 August, pay 775.2 yuan in September, 25% of the 193.8 yuan; 5, look the payment of property companies Wang Xugang in 2010 July to 2011 September the rest day overtime pay 8The economic compensation of 568 yuan and 25% 2142 yuan, a statutory holiday overtime wages   1Economic compensation 989 yuan and 497.25 yuan 25%; 6, look the payment of property companies Wang Xugang not take years off economic compensation wage of 918 yuan and 229.5 yuan 25%.

Look at the property company argued that: 1, look the property company and Wang Xugang have signed a labor contract, the labor contract period is from July 1, 2010 to August 31, 2011, so there is no two times salary Wang Xugang advocated; 2, property companies and Wang Xugang look for the labor contract in accordance with the law to lift, so there is no third Wang Xugang claims request; 3, the property company has paid look Wang Xugang in 2011 August wages, which have been identified in the labor arbitration, Wang Xugang also has been approved, in 2011 September, Wang Xugang did not work, and look the property company has lifted the labor contract with Wang Xugang, the existence of non payment of the monthly wages, there is no economic compensation gold 25%; 4, after the implementation of, Wang Xugang in the whole working period total overtime for 8 days, and the expression property companies have paid overtime to overtime, so there is no fifth Wang Xugang advocated requirements; 5, according to the enterprise workers annual leave system, Wang Xugang should take 1 days of annual leave, therefore, the Wang Xugang doctrine of sixth request expression property companies agreed to pay 1 days annual leave expenses.

The trial court found that: in July 1, 2010 Wang Xugang to look at the work property company, salary standard is 1100 yuan. Wang Xugang said his work in the spirit of property companies to August 27, 2011, after 14 days off sick, during the period from September 14, 2011 to September 17, 2011 in 401 south hospital work for 4 days, after the expression property companies will Xugang orally dismissed king. Expression property company said Wang Xugang work in the spirit of property companies to look at August 31, 2011, the property company to the expiration of the contract by notice to terminate the labor relationship Wang Xugang.

Later, Wang Xugang to the Qingdao City Labor Personnel Dispute Arbitration Commission for arbitration, jurisdiction: 1, from July 1, 2010 to September 17, 2011 period both sides confirmed existing labor relations; 2, look the payment of property companies from July 1, 2010 to September 17, 2011 fails to conclude a labor contract with two times the wage of 29700 yuan; 3, to confirm the expression property company to terminate the labor contract law, and pay compensation 3300 yuan and terminate the labor relationship advance payment in lieu of notice 1100 yuan; 4, look the payment of property companies pay 775.2 yuan in September and 25% in 2011 193.38 yuan of economic compensation; 5, look the payment of property companies in 2010 July to 2011 September the rest day overtime pay 8The economic compensation of 568 yuan and 25% 2142 yuan, statutory holiday overtime 1Economic compensation 989 yuan and 810 yuan 25%; during the 6, look the payment of property companies from July 1, 2010 to September 17, 2011 unused paid annual leave pay economic compensation of 918 yuan and 229.50 yuan 25%. In December 13, 2011, the Commission issued 1271st award, award: 1, confirmed that Wang Xugang and expression property company from July 1, 2010 to August 31, 2011 period, labor relations; 2. The payment of property companies Wang Xugang overtime wage difference 600 yuan; 3, the property company paid Wang Xugang vivid unused paid annual leave wages 101 yuan; 4, rejected other arbitration request of Wang Xugang. Wang Xugang refuses to accept the ruling, the court of appeal.

In the trial, Wang Xugang to prove the facts provided in 2011, overtime, May June 2011 May February, attendance, wages, June declaration, 2010 October salary expenditure calculation table, vivid testimony said property company has any objection to the authenticity of the attendance sheet, the wage returns, not a certificate issued by the Department of property companies to look, 2010 in October the wage expenditure calculation table had no objection to the authenticity, it can prove that as long as Wang Xugang overtime expression property companies pay overtime. Expression property companies provide signed by Wang Xugang period from July 1, 2010 to August 31, 2011 of the labor contract, Wang Xu said the steel card is signed blank labor contract, do not know the contents of the contract, and the term of the labor contract is altered. Look from July to 2011 2010, the property company to provide during the August roster, payroll records, the rest day overtime for 7 days, 1 days holiday overtime, vivid property companies pay overtime totaling 439.7 yuan, Wang Xu steel card called the attendance table authenticity is not recognized, the attendance record and God mining property companies to submit in the case of the arbitration process attendance records are inconsistent.

The trial court held that: the two sides in July 1, 2010 to establish labor relations, Wang Xugang argues that both the existence of the labor relations through September 17, 2011, but did not provide the corresponding evidence, should bear the legal consequences no proof. Expression property company that both parties to the labor contract due to expire in August 31, 2011, and provide proof signed by Wang Xugang period from July 1, 2010 to August 31, 2011 of the labor contract, although Wang Xugang testimony said it signed labor contract is blank, don't know the content of the contract, and the term of the labor contract is altered, but did not provide evidence to to refute, so the court appearance property company claims, namely that the two sides to conclude a written employment contract established facts, the labor relations in the August 31, 2011 contract with termination, and confirmed the two sides during the period from July 1, 2010 to August 31, 2011 there is the labor relationship. Accordingly, Wang Xugang claims that both parties during the period from July 1, 2010 to September 17, 2011 the existence of labor relations request, the trial court to support. Wang Xugang advocates the spirit the payment of property companies did not sign a written labor contract double wages 29700 yuan, no advance notice of termination of labor relations instead of gold 1100 yuan, illegal remove labor contract damages 3Economic compensation 300 yuan, 2011 September wages 775.2 yuan, 25% 193.8 yuan request, the lack of factual basis, the court shall not support. About Wang Xugang advocate overtime overtime request, Wang Xugang should be the existence of facts bear the burden, although Wang Xugang said it is only a month to rest for 2 days, but the attendance sheet, the wage returns, no expression property company stamped confirmation, and property companies also look not recognized, therefore, the court rejected the claim, Wang Xugang in the overtime, the lack of effective evidence, shall not be recognized. According to the expression property companies provide attendance records, Wang Xugang the rest day overtime for 7 days, 1 days holiday overtime, vivid property companies only pay overtime wages 439.7 yuan, the property company should look for Wang Xugang overtime pay 420.07 yuan. The arbitration award. The payment of property companies Wang Xugang overtime pay 600 yuan difference, look the property company not to file the lawsuit, the court for confirmation, vivid property companies should pay Wang Xugang overtime pay 600 yuan difference. Now Wang Xugang advocated during 2010 July. The payment of property companies in 2011 to September the rest day overtime pay 8The economic compensation of 568 yuan and 25% 2142 yuan, statutory holiday overtime compensation costs 189 yuan and 25% of the 810 yuan request, the trial court to support. About Wang Xugang claims paid annual leave salary request, both during the period from July 1, 2010 to August 31, 2011 of labor relations, according to the relevant provisions, Wang Xugang should enjoy paid annual leave days less than 1 days, the arbitration award. The payment of property companies Wang Xugang without Hugh annual leave pay 101 yuan request, vivid property companies not to file the lawsuit, the trial court confirmation, Wang Xugang advocated spirit property companies not to take annual leave pay 918 yuan and 25% of economic compensation 229.5 yuan request, the trial court to support. To sum up, the trial court: A, confirmed that Wang Xugang and expression property company from July 1, 2010 to August 31, 2011 during the labor relationship; Wang Xugang overtime pay 600 yuan to pay the balance within ten days, the property company two expression effect on judgment day; three, look the property company within ten days of paid annual leave Wang Xugang without wages 101 yuan since the verdict on the date of entry into force; four, the king Xugang rejected the request of other proceedings. The 10 yuan of case acceptance fee shall be borne by the property company, look. After the verdict, Wang Xugang refuses to accept, to appeal to the court.

The appellant Wang Xugang appeal to request for revocation of the original judgment, the judgment shall be amended according to. The main reason is: the appeal that mistake of fact, significantly altered, appellee submitted labor contract unreasonable; the attendance sheet and arbitration cases appellee submitted content, in a completely different form; the error law, even as the natural termination of labor contract, it shall pay compensation for damages to the appellant.

The appellee expression property companies oral argued in the second trial, the trial court finds that the facts are clear, the applicable law is correct, requests the court to dismiss the appeal the appellant requests.

The court found the facts and agree.

This house believes that, on the basis of both parties plea claims, the focus of controversy in this case for the labor contract with the attendance sheet can be identified as the facts of the case evidence, the appellant Wang Xugang advocates the spirit of property companies illegal remove labor contract requirement pay compensation 3 was submitted in the first instance the appellant expression property company300 yuan for establishment.

First, about the appellee expression property companies to submit a trial of labor contracts and the attendance sheet can be identified as the facts of the case on the basis of the problem.

According to the Supreme People's court "several regulations about the civil action evidence" of the provisions of article second, the parties on the basis of his claim facts or rebuts the facts have the responsibility to provide evidence to prove the. There is no evidence or the evidence is not sufficient to prove the claim, by the proof should bear the adverse consequences. In the first instance, the appellee expression property companies submitted by the appellant Wang Xugang signed the period from July 1, 2010 to August 31, 2011, the labor contract 1, the appellant Wang Xugang on its signature has no objection to the authenticity, said it signed a labor contract is blank, the contract content is not known, and the term of the labor contract is altered, but the appeal fails to provide relevant evidence to refute, the labor contract, the court be identified.

In accordance with the relevant legal provisions, the appellant Wang Xugang for its claim overtime request, should work overtime the facts bear the burden of proof, because the attendance sheet, the wage returns, no respondent expression property company stamped confirmation, the appellee expression property company also is not recognized, the court rejected the inappropriate. The court accepted the appellee expression property companies provide attendance records to support the appellant some overtime Wang Xugang advocated properly, the court shall sustain.

Second, about the appellant Wang Xugang advocated by the appellant expression property company to terminate the labor contract law require payment of damages of 3Determination of 300 yuan a can set up.

According to China's labor contract law article eighty-seventh, the labor contract is terminated by the employer or the illegal termination, ought to pay two times of the economic compensation standard. In this case, the parties sign a fixed term labor contract, after the expiry of the contract, the termination of the labor contract. This case does not belong to the provisions of the law shall pay compensation. Therefore, the appellant Wang Xugang in the case that the appellee expression property company to terminate the labor contract, the illegal request for payment 3300 yuan of appeal can not be established, the court shall not support.

To sum up, Wang Xugang's grounds for appeal can not be established, the court shall not support. The judgment of the first instance found the basic facts are clear, sentenced to correct result, the court shall sustain. In accordance with the "PRC Civil Procedure Law" article 153rd (a) the provisions of item, the decision as follows:

Dismiss the appeal, upheld the.

The second case acceptance fee of 10 yuan, the appellant Wang Xugang burden.

This judgment is the final judgment.      

The trial Sentenced Long   Zhang The letter Forest               

The trial Sentenced Member   Lee Xiao Wave

Acting judge   Horse     ?

Two, one or two August 31st

The book Note Member   The Priory Small Snow

The book Note Member   Xu Snow Peak