23. 중국노동법 (경제보상금 관련 Q&A)

(1) Should an economic reward be paid for resigning based on my opinion?

There is no legal obligation to pay economic compensation when voluntary retirement is due to the workers themselves. However, a written resignation signed by the company must be accepted in preparation for the possibility that the company may ask for economic compensation, saying that it later retired at the request of the company. If an employee submits a letter of resignation to disentangle the working relationship, it shall be stated in the resignation letter that he or she will transfer to the "individual cause".

Economic compensation for careless receipt of resignation
In his transfer, Chang only submitted to employees who did not list the cause of the transfer and resigned.
After that, Chang said, the company did not pay social insurance, so he had to resign from his position as a passive employee due to the company's misconduct.
Claiming to have done so, it raised labor arbitration to demand the payment of economic compensation.
(Analysis)
It is true that the company did not pay social insurance, but the cause of Chang's retirement was society.
He had nothing to do with insurance, but later raised labor arbitration on the pretext of doing so.
If employees do not specify employees when submitting their resignations, use them after retirement
It needs to be noted that compensation can be demanded.

(2) Is there any legal risk when you retire and ask for a retirement certificate as "corporate retirement"?

In China, unemployment insurance is available after retirement, but voluntary resignation is not the case. Tooth
As a result, it is often requested to check the ‘Company’ item on the management’s retirement certificate. If you issue such documents, the employees will be able to receive several months' worth of unemployment insurance, but if they change their minds later on, they did not receive any financial compensation even though they retired on the grounds of the company. Or, they will take the risk of facing labor lawsuits for economic compensation or economic compensation for being forcibly dismissed. In this case, the company's loss rate is 100%, so you should never comply with this.

(3) After resigning from his own position, saying that the company did not provide social insurance, he applied for labor arbitration, which he claimed was due to the company's reasons. Is the company obligated to pay?

The Labor Contract Act imposes an obligation for the payment of economic compensation money on a company for the cause provided by the management if the worker resigns due to the management's misconduct. Workers who want to move to another company anyway can raise labor arbitration to demand economic compensation.
However, in this case, the worker must notify the management by specifying the reason for his resignation in the written resignation and prove the management's corresponding misconduct in the labor arbitration. If a worker issues a letter of resignation stating the cause of personal affairs and subsequently files a labor lawsuit for misconduct, it is unlikely that the employee will be recognized in court because he has already established another cause-based resignation at the time of his resignation, as the worker has refused to notify the management at the time of his resignation.
In general, the most frequent occurrence of a company is the case of a labor lawsuit filed with the company on the grounds that it was submitted to the company by stating the reason for non-subscription of social insurance upon retirement. In this case, even if the employee resigns voluntarily, the worker is entitled to economic compensation (but only from January 2008 because of the newly created provision). Since workers can take advantage of this method at any time when they do not have social insurance, the company should not comply with the request even if the worker does not apply for social insurance upon entering the company. In the event of a decision not to pay social insurance less than this, it is necessary to have a written confirmation that it is voluntary by the workers.

(4) There is a person with a high salary of more than 20,000 yuan in the staff. Should we calculate the full amount of compensation? Is there a cap in the law?
As a socialist country of China, therefore, to prevent excessive disparity in the amount of economic compensation between high and low wage earners, the upper limit of the monthly wage is limited to three times the average wage of the previous year of the city, and the ceiling of the total number of years of benefits, to 12 months. For example, if the average monthly wage for a worker in the previous year is 4,000元, the maximum economic compensation that a wage earner can receive is 12,000元 x 12 months.
In the case of Korean employees hired there, special attention is needed. For example, if you are a Korean earning 20,000 won a month, and if your average social wage here is 4,000 won, then 12,000 won will be the basis for calculating the economic compensation, and you are mistaken for the Korean method of severance pay, a dispute could arise.
Therefore, in the event of a local employment contract, it is advisable to make this clear to the party from the beginning. In addition, if some are received in Korea, for example, it would be a way to avoid unnecessary friction at the time of retirement if some are received from Korea, for which Chinese recipients are counted according to China’s economic compensation scheme, and for which Korean recipients are counted according to the Korean-style severance pay system.

(5) Should the economic compensation be given 20,000元 legally, but can a lawsuit be filed later to reverse it and ask for a difference in consultation with employees?

The employee's wage remuneration and economic compensation are completed in the agreement, and how about between the two parties?
Where the phrase "no dispute exists" is specified, it is legally considered to have disposed of its own rights.
The Supreme People's Court's judicial interpretation (3) issued in September 2010 clearly stated that the agreement between labor and management has legal effect. After the conclusion of the agreement, if the worker subsequently asks for cancellation, the worker shall "verify" that there is a grave misunderstanding or a situation that is remarkably lacking in fairness in the agreement.
In the case of" day-to-day" compensation generally, if the user’s compensation falls far short of the fantasy insurance standard, the agreement itself is often nullified when the worker files a lawsuit. However, agreements on general matters, not fantasy, are legally valid unless workers present "proven" evidence that users inadvertently entered into an unfair agreement through threats or coercion.

(6) What do you need to pay attention to when the worker commits a breach of discipline, but wants to pay only a small amount of economic compensation for lack of evidence and end the employment in the form of "negotiation"?

In the case of the cancellation of negotiations, the company shall pay the legal economic compensation (based on the total service training), as shown in the above example, but in the case of negligence of the workers, the legal risk can be minimized if the company makes a payment in the manner of compensation for consideration after stipulating in the agreement that the company raised the cancellation of negotiations.

[Example] Let's draw up a consultation paper for the cancellation of negotiations
S is an employee of a foreign-invested company, and one day he committed a breach of discipline and his boss was furious and could no longer work with him, and asked the Ministry of Personnel Management to dismiss him. The Ministry of Personnel Management confirmed that S's violation of discipline was not enough to punish and dispose of it, and offered to cancel the negotiations after much consideration. Originally, it was supposed to give 16,000 won in compensation, but it persuaded S that it could not give all of the compensation because it was wrong, and eventually signed a consultation on the dissolution of the merger. The terms of the agreement "are to terminate the contract on a consultation basis, and the entity also pays half the compensation to S."
(Explain)
The contents of the agreement were written against the enterprise. Because of the use of the ambiguous wording of a two-way agreement, if S subsequently requests an additional shortfall, the entity is highly likely to lose. A written agreement must be drawn up with the following raise of the lifting of the negotiations by the workers, so that they can escape from these legal risks. "As S raises the termination of labor contracts, it has reached post-negotiation consultations with the entity, and the entity pays S a small amount of compensation." Because this would result in a situation in which management does not have to give economic compensation, a small amount of compensation would be paid out of consideration by the entity.

(7) At the time of the economic compensation payment, how can we prevent the company from raising labor arbitration in the future?

After receiving full economic compensation from users, it is often the case that the company is harassed by applying for labor arbitration with other issues (such as overtime costs, unused annual leave, etc.).

For small and medium-sized enterprises, it is difficult for the company to fully legalize labor management, so when paying the remaining wages and economic compensation upon retirement, the use of the written form provided below may be used to prevent future labor lawsuits from being filed, provided that "labor compensation has already been settled and no labor disputes exist between the two parties" may be included (non-compunishment).

 

[Confirmation] Simple transfer certificate
I am relieved of my labor relations with the company because of the cause of the (negotiation) cancellation. of one's own accord
Check the details below. .
1. The two sides will terminate the labor relations by a negotiation match, and the employee labor contract will be terminated after signing this confirmation.
2. After verifying the employees, the company shall pay the employees the economic compensation_____Wien.
3. The labor conservancy etc. has already been settled, and no other dispute exists between the two parties.
因,公,公。
1,商,。。
2, 经员工确认, 元。
3,等,。。


(8) I would like to reconsider a person who has resigned as a volunteer from the company in the past. In this case, is the past service year included in the calculation of economic compensation?

Employees who have worked for the company in the past and who have been sent out without payment of economic compensation should not be re-employed. The Labor Contracts Act stipulated that economic compensation is calculated as the number of years of service for the companies concerned. In other words, it is important to note that it is not a "continuous" service life but a "accumulated" service life. Even if the labor relationship is suspended, the service life is calculated in sum (excluding the period for which economic compensation was paid upon retirement in the past). Therefore, it is necessary to make sure that the recruiter has served in his or her company in the past.

(9) When calculating economic compensation, whether or not the period during which the work stoppage was to be completed;

The average monthly wage standard, which is the basis of economic compensation, is determined based on the 12-month period excluding the period of suspension of operations, i.e. non-normal production conditions. In other words, the period of suspension of operations is not included in the first 12 months of the economic compensation calculation period.

[Regulations on Economic Compensation in the event of labor contract violation and termination (劳部发[1994]481)]
Article11 The wage calculation standard for economic compensation in this Regulation refers to the monthly average wage of 12 months before the termination of a worker's contract under the normal circumstances of production of the enterprise.

(10) How should we interpret the "misunderstanding" and "abnormal" of the legal literature on the calculation of economic compensation?

An accurate understanding of the entry and exit of economic compensation money at the time of calculation is needed. "abnormal" "below" "within" includes the principal and "less than" and "other" does not include the principal. Therefore, if the service life is exactly six months, it is not less than six months, so it is calculated that the service life is equivalent to six months and one month.