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China's "Labor Law" was implemented on January 1, 1995 and has been effective until now; however, due to various reasons, the "Labor Contract Law" implemented on January 1, 2008 has attracted more attention. It is also the current adjustment of labor relations and the handling of labor disputes in China. The main law. Due to space limitations, the revision of the Labor Law will be discussed in detail later. In this article, I only want to say that when discussing and amending the Labor Contract Law, only by paying more attention to and even paying more attention to the revision of the Labor Law can we build high-rise and highlight labor. The status of the law in the law eliminates the inherent conflicts in the labor legal system and frees the embarrassing situation that labor laws lag behind social reality.
The Labor Contract Law has received attention and discussion from the date of promulgation. From April last year to the beginning of this year, the then Minister of Finance Lou Jiwei expressed his views on different occasions and said that the Labor Contract Law reduced the flexibility of the labor market. The voice of the revision of the Labor Contract Law is once again rampant.
On this topic, the author believes that it is of little significance to talk about or ventilate emotions in general; the so-called (single protection, "double protection" and "inclined protection" are basically in the concept of disputes, current labor legislation It was originally the result of the game between the parties. The implementation of the classification of employers (different legal norms for large, medium and small enterprises) and the stratification of workers (distinguish between ordinary workers and "high-end" workers such as senior executives) are estimated to have a longer road in China. Going.
Since the end of last year, the Ministry of Human Resources and Social Security has begun to promote increased labor market flexibility. At the end of this summer and the beginning of autumn, it is said that the revision of the Labor Contract Law has been included in the agenda of the relevant departments; however, there are different opinions on how to amend it. The revision of the law will cover all aspects; among them, it is worth noting that it is said that the flexible employment relationship under the new economic model (such as “sharedâ€) and the new employment form (such as “platform typeâ€) is included in the scope of labor law adjustment. It is also possible to appropriately increase the reasons for the employer to terminate the labor contract. For example, the parties are allowed to agree on the reasons for dismissal, and the employee’s breach of loyalty or fiduciary duty is listed as one of the causes of “misappropriation dissolution†in Article 39 of the Labor Contract Law. Workers obey the obligation of labor discipline. As a professional lawyer, we are also pleased to learn that the relevant departments will coordinate the promotion of the "Labor Contract Law" and the "Labor Law", "Social Insurance Law" and "Labor Dispute Mediation and Arbitration Law" and other amendments, and pay attention to justice in the process of repairing the law. Coordination.
Objectively speaking, the implementation and revision of the Labor Contract Law may have some internal connection with the recent withdrawal of foreign capital, the decline of the real economy and even the “de-capacityâ€. However, the above topics are too ambitious and the law will be protracted. We may wish to calm down. First, let's talk about how the Labor Contract Law should be revised from a technical perspective.
In the early years, the author participated in the legislative process in the central ministry (the drafting of the Labor Law), knowing that the introduction of a law is not easy, sometimes dominated by accidental factors; in the current interests of diversification is more involved in all aspects of the game. Many problems, without the support of big data, slogans and ideas, but will be counterproductive. For example, in addition to some scholars on paper and officials with ulterior motives, I am afraid that people will think that the Labor Contract Law increases the cost of enterprises; but how to increase, increase how, how should the accounts be calculated, and whether the increase is the legitimate rights and interests of workers It is difficult to generalize because there are too many variables.
On October 29, 2007, the author published a "some omissions in the "Labor Contract Law" on the Peking University Law Information Network" (hereinafter referred to as "the omission"), pointing out the nine issues of the Labor Contract Law. Three of them have been resolved through the follow-up legislation of the State Council and the Ministry of Human Resources and Social Security.
As for the two minor problems contained in Question 5 of the "Omissions", the first one is whether the laborer needs to notify the labor contract in advance according to Article 38 of the Labor Contract Law. The author is only too rude to the legislator. The verbs are not a problem in terms of legislative intent, arrangement and actual execution, that is, no prior notice is required; the second is whether the invalid labor contract is to be further “dismissed†(this problem is again in Article 39, Item 5 of the Act) Appeared), unfortunately, the Labor Contract Law was not involved in the last revision, and it is not correct. Question 7 (Article 47, paragraph 2 of the Labor Contract Law) Regarding the standard of economic compensation, high-paid employees are “uncapped†in certain circumstances, which may lead to unfairness, but only to a small number of employees, without hindering social harmony; Question 9 (Article 92 of the Labor Contract Law), the joint liability of the labor dispatching unit and the employer for the dispatched laborer is not based on fault, and instead of correcting it, it is in the thirtieth of the Implementation Regulations. The five articles are treated in the same way, showing that the legislators have their own logic. However, the above are all minor details, and they are not changed.
The author believes that it is necessary to reiterate the following three questions (the third of which is the most important):
I. About liquidated damages during the service period (Article 2, paragraph 2 of the Labor Contract Law, ie, “Omissionsâ€) (3).
"The laborer violates the service period agreement", "the amount of liquidated damages shall not exceed the training fee provided by the employer"; "The liquidated damages paid by the employer for the laborer shall not exceed the training expenses to be apportioned in the unfulfilled part of the service period". This paragraph stipulates that it clearly confuses the concept of liquidated damages and compensation, and confuses the two, greatly weakens the penalizing nature of liquidated damages and reduces the cost of default for workers.
Second, on the non-competition clause (Article 2, paragraph 2 of the Labor Contract Law, that is, "Omissions" 4).
"For workers who have the obligation to keep confidential, the employer may agree with the laborer in the labor contract or confidentiality agreement." If the employee violates the competition restriction, he shall pay the liquidated damages according to the relevant employer. .
In the above statement, the twelve words "in the labor contract or confidentiality agreement" can be completely deleted. It is still common for corporate customers to sign separate competition restrictions (competition prohibition) agreements with employees; according to the principle of freedom of contract, such separate agreements should be legal and valid as long as the content is appropriate.
However, according to Article 25 of the Labor Contract Law, “except for the circumstances stipulated in Articles 22 and 23 of this Law, the employer may not agree with the laborer that the laborer shall bear the liquidated damagesâ€; A non-compliance clause is not the same as a non-compliance clause. Therefore, the employer may have to incorporate the non-compete clause into the labor contract or confidentiality agreement, and try to avoid signing a separate non-competition agreement (at least referred to as the “confidentiality and non-competition agreementâ€), so as to avoid the penalty clause. It is considered invalid. Although the relevant jurisprudence has not yet been seen, as long as the above provisions of the Labor Contract Law are not changed, the lawyer will not be able to guarantee the breach of contract in the non-compete agreement.
3. The conditions for entering into a non-fixed-term labor contract (Article 14 (2) of the Labor Contract Law, that is, the question of “missing documentsâ€).
The most important issue is put in the end. Regarding the Labor Contract Law, this is still a big problem that I do not spit out.
Article 14 (2) of the Labor Contract Law stipulates: "The employer and the laborer may agree to conclude a labor contract without a fixed term. In any of the following circumstances, if the employee proposes or agrees to renew or conclude a labor contract, Except that the laborer proposes to conclude a fixed-term labor contract, it shall conclude a labor contract without a fixed term: (3) consecutively conclude a second fixed-term labor contract, and the laborer does not have Articles 39 and 40 of this Law. In the case of one or the second, the labor contract shall be renewed."
Then the question comes: After the employee has successively entered into a second fixed-term labor contract with the laborer, does the employer have the option to terminate the labor contract? The crux of the problem lies in the six words "renewing the labor contract" in this item. If the legislator’s intention is to determine the above options for the employer, then the six words “renewing the labor contract†(and the comma before the “renewalâ€) are completely superfluous. Because once the six words (and the comma before the “renewalâ€) are added, it should be understood that this item is separated by three commas in three parallel conditions: (1) “Continuously establish a second fixed-term labor contract†"(2) "The laborer does not have the circumstances as stipulated in Article 39 of this Law and Articles 1 and 2 of Article 40"; (3) (consent by both parties) to renew the labor contract.
In other words, if the employer does not agree to renew the labor contract, the three statutory conditions of this item are not fully met, and the employer is not obliged to sign a labor contract with the laborer without a fixed term.
In all fairness, the above understanding is completely established both literally and legally. As far as jurisprudence is concerned, the contract is the agreement of both parties; after the expiration of the contract, either party has the option to renew or not. This option is undoubtedly unquestionable and unsuitable for deprivation through legislation. Moreover, the first sentence of the second paragraph of Article 14 is that “the employer and the laborer can reach a contract without a fixed termâ€; if the employer does not agree, how can it be “consensusâ€?
What is incredible is that, according to the author's knowledge, the mainstream opinion of the labor law and practice circles outside Shanghai, including Beijing, still believes that as long as there is no Article 39 of the Labor Contract Law and the first item of Article 40 In the case of the second stipulation, the laborer has the right to “determine everything†after successively entering into a second fixed-term labor contract with the employer; that is, from the moment the second fixed-term labor contract is concluded, the labor Those can foresee that they will sign a non-fixed-term labor contract with the employer in the future, unless they are unwilling. So far, the personnel management of enterprises in the above-mentioned areas is operated according to this, and labor dispute cases are also tried according to this.
After a lapse of nine years, there is a major flaw in Article 14, paragraph 2, of the Labor Contract Law. It is better to say that our legal person has a common problem. For a method that is obviously wrong, the legal practitioners, including our lawyers, will undoubtedly destroy their reputation and reduce the public's trust; the ultimate destruction is the authority of the law.
At the end of the writing, it is also the most important issue. The author realizes that it is not unreasonable to practice the law. Regardless of the interpretation, Article 14 (2) (3) of the Labor Contract Law shall be further clarified.
Therefore, to maintain the Labor Contract Law and safeguard the dignity of the law and the legal person, please start from the correct understanding and implementation of Article 14 (2) (3) of the Labor Contract Law. It is the main purpose of this article.
Here, the author wants to reiterate his point of view several years ago: no matter how the Labor Contract Law is amended, its basic framework and value orientation will not change much. Therefore, we should focus on the rigor of the law itself and the system design of law enforcement, so that violations must be investigated, and the evasion or response measures of some enterprises should not be slashed (avoiding or responding to the law is not equal to illegality). On the other hand, in the labor relationship, the employer and the laborer are opposite and unified; the Labor Contract Law can set the boundaries of rights and obligations, but should not deliberately create new oppositions, because fundamentally, the long-term perspective of the workers Benefits depend on the survival and development of the employer; Needless to say, the role of trade unions will become increasingly important; considering the factors of trade unions and the large number of groups of specific workers (including but not limited to middle and senior managers, professional technicians, etc.), legislators cannot "strong" and "employees" The weak-minded mindset runs through every legal provision, otherwise it must be overkill.
China is still a developing country, and the gap between rich and poor is large. Although the laborer's rights should be vigorously and continuously protected (the author never opposes laborers relying on the Labor Law and the Labor Contract Law for proper rights protection), but unfortunately, the Labor Contract Law has been implemented for nearly nine years, accompanied by a large number of law-abiding laws. The enterprise is struggling or unable to close, and we have also seen some workers (including senior managers) who lack integrity, disregard professional ethics, and abuse the right to appeal. It’s awkward, the legislation has been passed, and it’s clear at a glance. In fact, the problem cannot be completely attributed to the legislator. As a basic social relationship involving "people" or "identity", the root causes of many problems in labor relations cannot be separated from China's cultural education and political and economic reality. A rigorous and pragmatic law is only a necessary but not sufficient condition for constructing a harmonious and beautiful country.
(The author is a senior partner of Beijing Tianchi Juntai Law Firm Shanghai Branch and deputy director of the Labor Law Business Research Committee of Shanghai Lawyers Association. He worked in the former Ministry of Labor Policy and Regulations Judicial Regulations)
The Labor Contract Law may be amended: Is it more biased towards enterprises or workers?
Abstract Labor law is related to the basic rights and interests of national employment, and is known as the “second constitution†in foreign countries. The Labor Law Reform Act, promoted by the French Minister of Labor, Mr. Myriam ElKhomri, who was appointed last September,...
The labor law is related to the basic rights and interests of the national employment, and is known as the "second constitution" in foreign countries. The Labor Law Reform Act, which was appointed by the French Minister of Labor in May last year, Ms. Myriam El Khomri, once triggered protests for several months and was finally passed on July 21, 2016. The core of the original draft of the bill is to expand employer autonomy, especially the right to dismiss. Coincidentally, on the same day as France passed the above-mentioned bill, at the US Republican National Convention in Cleveland, Ivanka Trump, the eldest daughter of Trump’s eldest daughter, said in the 9th minute that his father would serve as president. Amend the labor law. The status of labor law in a country's political economy can be seen.