20. 중국 노동법 (노동계약의 종료, 계약만기, 사전 통보 등 절차)

04 Termination of Labor Contracts

Termination of labor contracts is much easier than termination. This is because the contract ends naturally when it expires. However, it is only available for the first fixed contract and at the end of the second fixed contract the user is no longer entitled to terminate the employment. Another problem is that, even when the contract expires, the contract expiration is automatically deferred until the situation expires if the employee is in a special situation, such as a medical device or three female planes.

 

1. Requirements for termination of labor contracts


Concept of termination of labor contract
The termination of a labor contract means that the labor relations formed between users and workers are automatically extinguished by the emergence of legal reasons. In other words, unlike the lifting of a labor contract, neither labor nor management is required to express their opinions, and if legal reasons are met, labor relations are extinguished.
ᄋ Termination of maturity: By fulfilling the contract by the expiration of the contractual term promised in a fixed-term labor contract and not renewing the contract at maturity, this means that the contract is terminated naturally (unapplicable for indefinite-term labor contracts).
ᄋ Court termination: if a worker retires, dies, or the company goes bankrupt or is liquidated;

In case the contract cannot be terminated at the time of the contract expiration;
In some cases, the management cannot unilaterally terminate the labor contract unless the negotiation is lifted even if the labor contract expires.
1 If a worker meets the requirements of a non-fixed contract
In case a contract for two consecutive fixed-term labor is signed, and the contract for ten consecutive years of continuous service is reached;
2 In case of special reasons for being restricted from dismissal
a If a special reason for legal protection exists, the termination of the contract shall be automatically postponed until the expiration date of the special reason. There is no need to sign a separate labor contract during the net period.
3 female employees (pregnancy, childbirth, breastfeeding period) and legal medical period due to illness
b Employees with less than five years of service until retirement (no termination of contract until retirement)

[Article 44 of the Labor Contracts Act]
1 In case of a disease or injury, it is allowed to remain in the hospital until the expiration of the legal medical period.
2 For pregnant female employees, the contract expiration is automatic until the infant is 1 year old.
3 If the company has 15 years of service and less than five years of legal retirement, the contract is not terminated until retirement.

Mandatory 30 days prior notice at the end of the contract term - only applicable to some localities
It is a provision that does not exist in the central labor law or contract law. However, some provinces (Daeryeon, Kang So-seong, etc.) were required to give prior notice 30 days by local law before the labor contract law took effect.
In addition, since the Labor Contract Act was not repealed even after its entry into force, companies based there are obliged to choose between giving prior notice 30 days before the expiration of the labor contract, or paying one month of advance notice, and ending the labor relationship early.
Nearly all companies are paying one month's advance notice and ending labor relations early, as normal work is not expected for a month until the expiration of the contract.

[working-level measures]

1 Areas where prior notice is mandatory (Bukgyeong, Gangsoseong, Daeryeon, etc.)
Special reasons such as a disease or pregnancy that limits termination of a contract may arise if the labor relationship continues to be maintained after prior notice 30 days. Therefore, it is recommended to pay an additional one-month notice in advance, sign a transfer agreement, and then take over and retire. Even if the company did not give prior notice for various reasons, the contract will end naturally and the company will have to pay as many days more for violating the prior notice.

[Requirement clause for early termination of contract]
If the labor contract matures on 30 September 2015, it is necessary to insert a clause in the turnover agreement, "For the convenience of sufficient time needed to find new jobs for the room (workers), Eulbang will raise its end of business as of 1 September 2015 and the company agrees to this."
(CAUTIONS)
If the above turnover agreement ends a month early, there is a possibility that the worker will seek illegal dismissal and economic compensation in the future, saying, "It is not the termination of the labor contract but the termination of the labor contract."

2 Areas without prior notification obligation
It is safe to notify you on the date of the expiration of the contract, but it is advisable to notify you by one or two weeks before the termination of the contract, receive a confirmation form, pay the remaining monthly salary and economic compensation, and complete the retirement procedure promptly. It is important to note that too early notice may create special reasons for limiting termination of the contract, such as the submission of a sick person, to delay the termination of the contract.

 

 

 

2. Risk related to termination of labor contract

(1) Termination of the net deferral of the contract

This means that the contract cannot be terminated due to the occurrence of a special reason just before the expiration of the labor contract, and after automatic postponement until the special reason is lost, the labor contract is terminated. However, it is possible to negotiate as much as possible if labor and management agree. The question is how much compensation will be offered as a condition of negotiation.
Especially, for female 3rd grade employees, employment is guaranteed for up to 1 year and 10 months from the time of conception.
Since we have the right to receive a living allowance for four months of maternity leave, we ask for substantial compensation
There is a possibility of doing it. In this case, the company enters into a long-term unpaid leave agreement (social insurance payment terms),
Select appropriate measures, such as lifting negotiations (pay preservation conditions during maternity leave) and job adjustment, to respond
I need it.

[Example] The contract cannot be terminated during the medical period due to illness
K worked for a parent company for three years and is due on Jan. 5, 2008. By the way, K had an accident while traveling to the suburbs on January 1, 2008, which resulted in a amputation of his right leg and three months of treatment. On January 5, 2008, the company notified K that it would not renew the labor contract at the time of the expiration of the contract, but K disagreed, saying that the company could terminate the contract only after the expiration of the medical term.
(Analysis)
In the case of a medical period within the prescribed period of the law, the company cannot terminate the labor contract even if the labor contract expires. Only after the medical device expires can the company terminate the labor contract on a non-executive basis.


(Question) Handling of 3rd term female employees with expired contracts
I would like to inquire about employees who are pregnant, delivered, and breastfeeding among the employees whose contracts have expired. There are departments whose jobs have been transferred to other countries, where several employees are pregnant, delivered and delivered. I know that because I don't have any more work, I don't want to sign any additional contracts at the expiration of the contract, but I can't because of the provisions of the Labor Contract Act. Do I have to make an additional contract at the expiration of the contract or can I not terminate the contract?
(answer)
At the expiration of the contract, but at the 3rd term (pregnancy, birth and breastfeeding) the labor contract is automatically re-enacted until the expiration of the legal protection period (until the infant is one year old). However, since there is nothing to do with your company in the real world, we should try to negotiate a settlement on the condition that you give compensation of economic compensation plus three months of maternity leave. 　

 

(2) Risk of termination of employment after the expiration of the contract

If the term of the contract has expired but is left unrenewed, a "factual labor relationship" is formed, and if this condition exceeds one month, a payment obligation of double wages is imposed on the user (there is no one month grace period in Beijing). In fact, in the event of labor relations forming, the company shall promptly conclude a written contract to prevent the accumulation of double-wage penalties.
After the expiration of the contract with the worker, ending the labor relations is regarded as a middle-of-the-road solution, and the economic compensation amount is calculated from January 2008 but not from January 2008. For those who entered the company before 2008, the amount of economic compensation will increase significantly.
In addition, if the company disposes of labor relations after the expiration of the contract, it may be deemed as an illegal release and may result in an economic indemnity payment risk. Therefore, it is necessary to choose between termination of employment or signing a renewal contract before the term of the contract expires

[Example] Risk of termination of employment after expiration of contract
J joined the parent company in 2000, the last labor contract was signed on May 1, 2007, and the maturity date was April 30, 2008. By the time the labor contract was due to expire soon, the company had announced that it would no longer renew the contract because it was in bad management and needed to cut jobs. Instead, since J had worked for a long time, he acknowledged his contribution to the company and gave him the opportunity to find a new job for two months without going to work, during which time he paid his wages normally. Two months later, the company gave J half-month economic compensation, and J applied for labor arbitration to calculate the economic compensation based on the total number of years of service after retirement.
(Explain)
Since J has in fact formed a labor relationship with the Company after the expiration of the labor contract, the termination of employment is considered to be a middle-of-the-road termination rather than a termination of the labor contract, so an economic compensation of 7.5 months shall be paid on the basis of the total service life. In this case, terminating employment at the expiration of the labor contract and giving a two-month wage on a per-unit basis would be a way to avoid unnecessary legal risks.


(3) Other precautions at the end of the contract expiration

1 Delivery of a notice to terminate a labor contract
If the company sends a notice of termination at the time of the expiration of the labor contract, but the company refuses to sign the contract, leaving it unattended will not be legally effective. Therefore, EMS should be sent to the place where the labor contract is contracted to be delivered to the place where it is sent, and the EMS delivery card with the name and the document title must be kept.
2 Check if unused date of annual leave exists
If an unused annual leave exists at the time of retirement, a compensation of 200 per cent shall be paid, so the employee who ends the employment shall be notified to use the unused annual leave by a fixed period prior to the notice of termination of employment.
3 Alternative vacation days for extra work (Tuesdays and Sundays.
200 per cent of overtime payment risks are avoided by arranging alternative leave prior to notice of termination of employment.