배움과 공유의 시간

01 Labor dispute

Korean companies tend to be overly afraid of labor lawsuits. Thus, if there is a labor dispute with an employee, it can be a case of visiting Wuxi, or of trying to get a handle on the issue while in a hurry to reach a compromise with the employee himself.
In China, "labor litigation" is a matter of daily plurality. Instead of making a ruling, whether it is a labor arbitration or a court, the arbitrator or a judge always tries to adjust (reconciliation) to the right line between labor and management. Therefore, it is also necessary to take the initiative in encouraging employees to file labor lawsuits, rather than on sensitive issues that threaten the order of the workplace or affect other employees.

1. Labor arbitration

In the event of a labor dispute, the party shall not be allowed to file a suit directly with the court. First, the arbitration shall apply to the Labor Arbitration Commission for arbitration (the "principle" of the arbitration panel). In the event of objection to the arbitration decision made by the arbitration panel, the party may, as a rule, file a suit with the court.

Current trend of labor arbitration (corporate view)

1 Submission of arbitration application
Workers shall prepare and submit written work arbitration application form 1 and 2 to the Labor Arbitration Commission.
2 Repair and repair costs
The Labor Arbitration Commission shall determine whether repairs are carried out within five days of receipt of the arbitration application. In the event of determining non-repair, or within five days, the worker may file a suit with the court. Labor arbitration is free.
3 An application for arbitration of workers to a company from the arbitration committee
If the arbitration committee decides to repair the application, it shall send a notice of appeal, together with an application for arbitration, to the company within five days. The notice requires an enterprise to submit an answer to the arbitration committee within 10 days of receipt of the application for arbitration.

[Point]
Answers refer to replies and explanations submitted by the entity in relation to the worker's application for arbitration, and may specify the opinions and reasons of recognition or disapproval of claims claimed by the worker. However, an entity’s submission of an answer is not mandatory, and is not at any disadvantage. When an entity submits an answer, the arbitration board sends it to the worker within five days, so the entity does not have to submit the answer in advance to expose the company’s views to the workers in advance. Through lawyers, submit it at the time of the revision of the Labor Arbitration Act, or give an oral answer.

4 Notice of Revision
The Arbitration Commission shall notify the parties in writing of the date of the amendment and the location of the amendment five days before the amendment. The party may apply for postponement up to three days before the amendment, if there is a valid reason, and the arbitration committee shall make the final decision on the postponement.
Fifth Amendment hearing
During the hearing process of the Labor Arbitration Commission, both labor and management are allowed to argue with each other. The preparation work before the revision, the method of claiming the management position in case of revision, and the strategy of litigation are important keys to eliciting favorable arbitration decisions.
6 Arbitration decision (裁决)
Mediation decisions are divided into two types: one final arbitral decision, two non-substantial arbitration decision.
(a) Determination of eventual arbitration;
The ultimate arbitration decision is a system to protect the interests of workers on small agendas, as specified in the "Adjustment and Arbitration of Labor Disputes Act." Regarding the arbitration panel's final judgment, the staff may complain and file a complaint with the court, but the company shall not be allowed to file a complaint with the court in protest of the court.

[Iljizongguk system]
Before the Labor Dispute Arbitration Act was enacted in May 2008, there were many cases in which a company intentionally filed a complaint with the court to prolong the court hearing to the maximum extent possible under the 1裁2 (Labor Arbitration Act). In the process, workers were often forced to accept management`s proposal for coordination due to time and cost issues. This system is intended to prevent users from over-issuing lawsuits after arbitration decisions, in the case of small-scale or clear labor standards of labor,
It was stipulated that the issue should be terminated by the decision of the Arbitration Commission.
Labor remuneration, expenses for casual medical care, economic compensation or economic compensation and national labor
A clear standard, small labor not exceeding 12 months of the local minimum wage.
a matter of dispute

(b) Determination of non-subsidiary arbitration (裁决)
In the event of a general labor dispute that does not constitute a final arbitration decision, the arbitration committee shall make a non-final arbitration decision. In this case, the entity and its employees may file a suit with the court within 15 days of receipt of the arbitration decision, if either party does not comply with the arbitration decision. If a lawsuit is not filed within 15 days, the arbitration decision will go into effect and the litigant will face its arrest.

2. Labour litigation

1 Submit the indictment to the court.
Where no non-substantial arbitration decision has been made by the Labor Arbitration Commission, enterprises and employees may submit an indictment to the competent court either way.
2 Repair
The competent court shall conduct a formal review of the documents submitted and, if accepted as conforming to the repair conditions, issue a notice of legal cost payment to the plaintiff.
3 PREPARATION OF Suit costs (P
The plaintiff shall prepay the costs of the case (10元 in one case) within seven days of receipt of the notice. The final responsibility of the plaintiff and the defendant for the legal costs of this 10元 shall be determined by the outcome of the court ruling.
4 Appointment (former)
The court should book the plaintiff within seven days after receiving the plaintiff's indictment (Article 112 of the Civil Procedure Act), but in reality, it is common for the plaintiff to check the deposit of the plaintiff's charge and then to charge it. The date of the booking is very important because it is the date of reckoning.
5 Notice to the defendant
The court sends a notice of return with the indictment to the defendant within five days of the date of the charge. The defendant shall submit a reply within 15 days of the date of receipt (Article 113 of the Civil Procedure Act).
6 Send an answer sheet
The court shall send this letter to the plaintiff within five days of receipt of the reply from the defendant (Article 113 of the Civil Procedure Act).
7 Notice of Revision
Up to three days before the date of amendment, the court shall notify the parties of the revised notice and the time and location of the amendment (Article 115 of the Civil Procedure Act).
8 Words of a Single Decision
The first court must end the hearing on the agenda within six months of the date of the booking and make a ruling. For special reasons, it can be extended by six months with the approval of the respective court chief. If an extension is required, the higher court shall grant it (Article 135 of the Civil Procedure Act).
9 appeal
In the event that a party dissents from the first trial, it may appeal to the higher court within 15 days of the delivery of the first trial decision. Failure to appeal within 15 days will result in the 1st judgment being effectuated and the parties being arrested (Article 147 of the Civil Procedure Act). In the event of appeal, the appeal chief shall submit it to the court which made the first decision.
Notice of Appeal: 1The court which has made the decision shall send the subpoena of the Appeal within 5 days after receiving the Appeal and require the submission of the reply within 15 days from the date of receipt of the appeal (Article 150 of the Civil Procedure Act).
10 Second Judgement (final trial)'s)
The second court must end the hearing of the case within three months from the date of the second trial and make a ruling. If there is a special reason, it can be extended with the permission of the head of the court concerned (Article 150 of the Civil Procedure Act).

3. Responsible for proving labor disputes

In civil proceedings, the principle of "the principal (proven by the captain)" is established. In other words, in the case of claiming something, the captain must prove it by submitting evidence backing up his argument (Article 64 of the Civil Procedure Act).
Although labor disputes are basically in accordance with this principle, labor relations have the characteristics of human subjugation of "manage-defence" and, in light of the fact that many of the evidence is kept in the enterprise, the enterprise is obliged to submit these evidence (Article 6 of the Arbitration of Labor Dispute Act). For this reason, an entity needs to manage and take care not to lose documentation about its labor relationship from day to day. Failure to submit necessary documents through negligence may result in disadvantages in labor litigation.

(1) Applies burden of proof to workers (general burden of proof)

Not all evidence of workers should be proved by an enterprise by submitting counterargument evidence. Where a worker makes the following claims, the worker himself shall present evidence to prove it.
1 Where overtime is claimed to be unpaid, it shall be demonstrated that overtime is not paid.
2 Where a labor relationship with a company is claimed to have been established, evidence of the establishment of a labor relationship shall be submitted.
3 Where the received wages are claimed to be less than the agreed wages, the worker shall certify the agreed wages.
4 If a woman claims the right to special protection during the third term (fertile breastfeeding), she must submit evidence of misbirth, miscarriage, etc.
5 In the case of filing an application for arbitration with the Labor Arbitration Commission, not on corporate property, and filing a suit with the court, the worker must prove where the labor contract is to be carried out.
6 If a non-fixed labor contract is claimed, it shall be demonstrated that it conforms to the requirements for the conclusion of an indefinite labor contract.

(2) Applies burden of proof to enterprises (Special burden of proof - Conversion of burden of proof)

1 In the case of labor disputes concerning termination of employment, reduction of wages, and determination of the length of service, the enterprise shall submit evidence (Article 13 on the slight application of the highest People's Court labor dispute proposal). In other words, the entity must present data proving its legitimacy by demonstrating the reasons for firing the worker, the reason for the reduction in wages and the basis for calculating the number of years of service.
2 In the event of a dispute between an entity and a worker over whether it is a fantasy, the entity shall:
It shall be borne the burden of proof and shall prove that it is not a fantasy (article 19 of the Commercial Insurance Ordinance).
3 Since the wage payment statement, social insurance purchase and insurance premium payment records, and absenteeism and tardiness inspection records are kept by the company, the company is responsible for submitting these evidence (Article 2 of the Ministry of Labor and Social Security's Notice on Establishing Labor Relations)
These evidence is under the management of the entity and the employee cannot submit them. If the entity does not submit these evidence, it is assumed that the employee’s argument is established. For example, if an employee claims not to have received wages, it is assumed that the entity did not pay wages if it did not submit a wage statement.

03 Care of sick leave

One of the most complicated and difficult areas of Chinese labor law is the issue of sick leave. In particular, problems such as long-term sick leave due to illness and injury, how to calculate the medical period, and how to pay sick leave wages during the period of sick leave have no clear criteria across China and are operated differently by provinces.
In China, the payment of sick leave wages is mandatory even during the period of sick leave, and it is not possible to lay off the medical plane during the period of employment protection, so there are frequent cases of abuse of sick leave such as false disease and fake illness. Therefore, companies need to take measures to prevent abuse of sick leave.

1. Concepts of medical devices

(1) Understanding medical devices

If an employee is absent from work for reasons unrelated to his or her work, the employee shall apply for sick leave to the company by attaching a doctor's certificate, and the company shall grant" sick leave" if the employee complies with the sick leave conditions. In case of a disease or injury that requires months of long-term care, the company cannot wait until it is fully recovered indefinitely, although an employee may need a period of employment guarantee to be treated with confidence. In order to reconcile these conflicting interests between labor and management, there is an unfamiliar rule for us called "medical period."
Medical devices are not "duration of care," but "enjoying legal rights to care" by employees.
Means the period. During this period, the company cannot unilaterally terminate the labor contract, and the period is
Even if the labor contract expires within the period, the contract expiration date is automatically deferred until the end of the medical period.
However, even during this period, the lifting of disciplinary action due to the negligence of workers (Article 39 of the Labor Contract Act) and
The lifting of the mutual agreement (article 36) is possible.

the difference between sick leave and medical equipment
"Sick leave" and "medical machine" have different personalities. "Sick leave" is the period during which a worker is suspended and treated with the approval of the company, with the approval of the company, the period varies according to the condition, and is a kind of physiological concept. On the other hand, the "medical machine" is a legal concept, and the medical period is a worker.
The period of employment is defined according to the years of service, and the period of employment is protected according to the regulations.

Criteria for setting up medical devices
When an employee ceases to work and receives treatment, he or she is granted medical equipment ranging from three to two to four months depending on the number of years of service (Article 3 of the Regulations for Medical Periods due to Corporate Work Disease or Non-Work Injury) in 1994.

(2) Criteria for setting up medical devices

The length of the medical period depends on the employee's service life. In accordance with the above provisions, common national medical period standards are applied, but in the case of Shanghai, it is important to note that independent medical period regulations are promulgated and independent calculation methods are employed.

1 Common medical device setup across the country

The national common "medical instrument" setup standard stipulates that not only one's own company but also another's service years are combined. 1 The "Tongsan Service Years," including the years of service of the company in which I worked in the past, and 2 The "Medical Machines" are calculated on two axes. Employees' past service years in the company are responsible for proof, and the company does not need to accept claims of years of service that have not been clearly identified by social insurance payment records.

National Commercial Medical Instruments Standards (Shanghai is subject to separate rules)
third-party
Calculation cycle of "Total Service Years" in this company for the legal period of medical care
Less than five years, three months and six months
More than five years, six months, 12 months.
10 years or less, 6 months and 12 months
not more than five years, not more than ten years, nine months, and fifteen months.
For more than 10 years, 15 years, 12 months, 18 months.
18 months and 24 months, 15 years or less.
More than 20 years, 24 months and 30 months.

calculation of medical instruments
If an employee is on sick leave and continues to receive treatment without going to work, the medical device is terminated at the expiration of the applicable medical deadline. However, if the employee is treated repeatedly and is on a regular basis, the medical device calculation is calculated as a cumulative number of sick leave within a given medical device’s computation cycle. In other words, if the legal medical period is three months, the medical instrument calculation cycle is given six months, during which the medical device expires at a time when the accumulated number of sick days reaches three months.

[Method of calculation of medical instruments]
1 Determining the legal medical period based on the number of years of service
2 Determining the "calculation cycle" based on the medical period
3 The accumulated number of sick days within the "calculation cycle" determined in paragraph 2 above confirms the maturity of the medical device.

After the calculation cycle has passed without exceeding the legal period, the acquired "medical instrument" is reset and, in the event of a disease or injury, a new "medical instrument" can be acquired. For example, if a medical care period of three months was granted as a six-month calculation cycle, and the medical care period used as a cumulative period is 2 months and 29 days, and the calculation cycle of the six-month period has elapsed, and the disease and injury occur again at any point since then, again, six-month calculation cycle and within that cycle.
The medical care period is given three months.

[Example] In case sick leave starts on March 1, 2008 and medical equipment is 3 months and calculation cycle is 6 months
ᄋ If you have applied for consecutive sick leave without going to work: medical flight expiry on June 1, 2008
ᄋ If sick leave and rush hours are repeated on a regular basis: The medical period expires on September 1, 2008 when the accumulated time of sick leave exceeds 90 days

extension of medical instruments
For employees with some special diseases (cancer, mental illness, and hemiplegia), it is possible to extend the medical deadline appropriately after 24 months of inactivity and ratification by the corporation and the local labor bureau. However, the company has the right not to approve the agreement, as it only stipulates "possible" on the condition of ratification by the Company and the Bureau of Labor, and is not legally enforced (in the event of "corporate occupational disease or non-commercial injury).
Notice on the Pipeline of the Medical Term Regulations, 劳部发[1995]236].

2 Method of setting the medical period in case of injury (only applicable to companies with materials in case of injury)

The city of Shanghai is employing its own "medical period" calculation method. In the case of Shanghai, it is considered unreasonable to calculate the combined service life of another company and only calculates medical instruments based on the number of years worked by this company (Rules on the Standards of Medical Devices in the event of a disease or non-commercial injury during the period of the performance of the labor contract, 15[2015]).

the termination of negotiations on a labor contract

The lifting of the labor contract is the disposal of the rights that the worker holds.
Unless it violates the enforcement regulations, will it be entrusted to the free will of the workers? Therefore, the lifting of the negotiations is a workforce reduction method that minimizes legal risks. If compensation terms are agreed with employees, such as three women who are legally restricted from firing, labor contracts can be lifted by the lifting of negotiations at any time.

1. The concept of the lifting of negotiations

Advantages of Dismissing Negotiation
It is highly likely that the lifting of labor contracts in a one-way way will directly lead to labor lawsuits. For this reason, it is often more likely to take a negotiating approach than a high-risk court release.

The way the negotiations are negotiated is...
1 Reasons for court release are not necessary.
2 Minimize the risk of labor disputes,
3 It is advantageous in that it can avoid legal fees and compensation for the bankruptcy.

Meanwhile, it is possible to negotiate with employees for special reasons, who are restricted from dismissal, if agreed.

[Limited Disclaimer Staff]
Female employees in women's 3rd year, employees in medical equipment due to disease injury, employees with grade 1-6 disability rating due to industrial accidents, and employees working for 15 consecutive years
Employees who are under five years of legal retirement, etc.

Payment of Economic Compensation
In Korea, the company is required to pay severance pay in whatever form it retires, but in China, there is no obligation to pay compensation to management upon retirement due to employee reasons. In other words, the cancellation of the negotiations will determine whether the economic compensation is paid or not, depending on who first raised it. When a user raises an obligation to pay economic compensation, he or she does not have to give economic compensation if the worker first raises it.

[Example] Unnecessary economic compensation payment by the company's offer of early termination of negotiations

K signed a three-year labor contract with a parent company, but after a year and a half, he was preparing to resign due to poor health conditions due to work pressure. Then the company noticed the move by K to resign and raised the lifting of the labor contract, and K agreed to it and lifted the labor contract by a negotiation match. After the cancellation of the contract, K demanded an economic compensation ban, but insisted the company could not give economic compensation because it lifted the labor contract through a consensus of negotiations.
In support of K's claim, the Labor Arbitration Commission decided to pay two months' economic compensation.

(Explain)
Although the contract has been terminated by a negotiation match, since the company first raised it, economic compensation must be paid.

[Decommission of negotiations by management offer ]

If the management wants to terminate the contract halfway before the contract expires, the user must negotiate with the worker.
If there is no reason for the lifting of the law on the part of the workers, negotiations between labor and management need to be negotiated through a tug-of-war
In the course of negotiations, the proposal for the payment of economic compensation based on years of service is basically necessary, and how much more will be added to this will depend on individual lifting situations and labor-management negotiation skills.

As the labor contract law stipulates unilateral notice of dismissal and payment of economic compensation (two times the amount of economic compensation) instead of economic compensation, the amount of the negotiation is generally determined between the minimum compensation for resignation (the legal compensation) and the maximum compensation for resignation (the maximum amount that a worker can receive as much as the economic compensation x 2 times as much as the economic compensation).

In the course of negotiations, most workers take the one-month layoff allowance for granted, but there is no legal basis for this argument. (For cancellation of negotiations, no notice of dismissal was given a month ago.) However, in order to facilitate negotiations with workers, it is often necessary to add an additional one month or so in addition to legal economic compensation.

In the event of no violation of the company, it is often agreed upon on the terms of economic compensation, such as N (service training) +1 (for promoting negotiations).
However, in the case of a company that normally has many loopholes in its labor management, it is likely that workers will use them as bargaining chips in the negotiation process (payment of overtime fees, non-payment of labor contracts, lack of social insurance, etc.). If such unfair labor practices exist in practice, the layoff course may be increased as management will be placed at a disadvantage in negotiating the termination of the contract.

[working-level measures]

There is a formal method of signing [Sample10-8] and a simple process in the form of 2 [Confirmation] when negotiating a labor contract.

If a formal proposal is made, it is highly likely that the other party will take time off by questioning the outside world in doubt about the content.
If the company is small in size, does not raise the other party's alert, and wants to quickly terminate its employment, it may be a good idea to sign a brief confirmation that states, "Work is settled and we agree that there are no more disputes."

With such confirmation, it can basically prevent any act of reversing post-retirement agreements and requiring additional compensation.

[Confirmation]
I am relieved of my labor relations with the company because of the cause of the (negotiation) cancellation. I hereby voluntarily 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 one-off compensation_____元 (including wages in the month).
3. The labor conservancy etc. has already been settled, and no other dispute exists between the two parties.

[Transferred Agreement]
The biggest advantage of the lifting of negotiations on labor contracts is not only the termination of the contract, but also the package of all potential labor dispute issues during his tenure. In addition to the economic compensation, the negotiation can be concluded neatly by inserting a package of agreements into the turnover agreement, offering one-month wages for "promoting negotiations."

(Major clauses of the relocation agreement)
ᄋ In addition to the payment of ____ in a lump sum to Eulbang a year before the end of the month, the payment of economic compensation to Eulbang due to the termination of the labor contract, and all other expenses for the compensation of the surplus to be obtained by Eulbang, the item of which is the only and all compensation for the ultimate Eobang.
Eulbang shall voluntarily give up the compensation and compensation for the portion of economic compensation lower than the legal standard and other expenses.

ᄋ Confirmation of Eulbang: During his tenure, Eulbang received full pay (e.g., overtime expenses, etc.) and there are no labor disputes, such as pay remuneration, between the two parties.
ᄋ Acceptance of Eulbang: Eulbang shall not again file any demands, arbitration or litigation with the Affiliates. For whatever reason, no arbitration or litigation shall be filed against the party to question its economic and civil responsibilities, nor shall any other economic dispute exist between the two parties.

2. Dispute Case When Negotiation is Dismissed

Risk of payment under legal economic compensation
If an entity proposes to negotiate a settlement, it shall pay economic compensation (Article 46 of the Labor Agreement Act). However, if the negotiation is lifted at a lower rate than the legal economic compensation standard, a labor action can be filed against the shortfall later.
However, because law enforcement agencies respect "self-government" on both sides, there is no legal risk if an employee knows the legal economic compensation standard but agrees to a lower amount than the court, i.e. if his rights are disposed of.

In the statement of the transfer, one can add to the clause, "The worker is aware of the legal economic compensation he is required to obtain, and the other party (company) has fulfilled its obligation to declare."

[Case] Decree of invalidity on the payment of economic compensation under the court

J joined a clothing manufacturer of Quang Zhou in April 2004, and the last labor contract was from January 1, 2008 to December 31, 2008. In August 2008, the company offered to negotiate with J because it needed to cut its workforce due to poor management, and J agreed, and retired after signing a "Discussion of Labor Contract Negotiation Agreement" stipulating the receipt of three-month wages for economic compensation. After retirement, J filed a net claim knowing that under the Labor Contract Act, he could receive five months of economic compensation, but the company rejected the request on the grounds that the two sides had already signed an agreement in the Labor Contract Release Agreement.

(Explain)
The economic compensation money under the Labor Contract Abolition Consultation between labor and management is invalid because it violates the labor contract law's mandatory provisions. The company must give J five months' compensation. However, if the user satisfies the "notified obligation" at the conclusion of the agreement, the company does not need to pay additional economic compensation. This is because the worker is deemed to have given up his rights if the user has agreed to a lower economic compensation amount at the same time as notifying the legal economic compensation standard that the worker can receive in the agreement.

Precautions for Resolving Negotiation of Employees with Reason for dismissal
If there is a possibility of losing a case in the event of dismissal, because the company does not have sufficient evidence, the contract may be terminated by disciplinary action and pressuring the employee to resign for reasons. In this case, simply asking to resign can be strongly opposed, so it is also possible to conclude labor relations by signing the Transfer Agreement in a way that gives part of the legal economic compensation.
In this case, the Transfer Agreement effectively prevents legal risks if the workers themselves (excluding the management’s obligation to pay economic compensation) indicate that the company pays a certain amount of compensation for consideration.

[Example] Discipline and remove wrongful negotiation with the subject

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 after much consideration suggested to S that the negotiations be resolved. Originally, it was supposed to give 16,000 won in compensation, but it was wrong and thus could not give all of the compensation money, so it finally signed a consultation paper on the cancellation of the negotiations. "The two parties terminate the contract on a negotiation basis, and the entity also pays S half of the economic compensation."

(Explain)
The contents of the agreement were written against the enterprise. If S later requires additional shortfalls, the entity loses. 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 a negotiation agreement with the entity, and the entity pays S some compensation" because the management does not have to pay economic compensation, and some compensation is paid to the entity as a consideration.

Retention of Retired Persons

In the case of women’s 50 (aged 55) and men over 60, civil relations laws, such as the Contracts and the Rules of Civil Code, which are not labour laws, such as the Labor Contracts Act and the Public Insurance Ordinance, are subject to the commencement of the provision of nursing benefits, or already beyond the legal retirement age. There is no obligation to pay economic compensation or to get social insurance upon termination of employment and no obligation to pay legal overtime costs arises.
However, in case of personal injury, the user is liable for personal injury, so personal injury insurance, etc. is required. In addition, it is necessary to make clear and specific arrangements in the Retirement Material Employment Consultation document to prevent civil disputes.
These days, as in Korea, Chinese people are in better shape, so for female public figures, there is nothing wrong with continuing to work beyond the age of 50. The employment of retired workers has the advantage of drastically lowering labor costs due to factors such as social insurance, non-payment of kitchen utilities and non-payment of economic compensation.

[working-level measures]

1 Retired employees should check their health conditions carefully through physical examinations.
It is important to note that older people are more likely to suffer from high blood pressure or chronic disease, and that there is always a risk of accidents occurring at any time, and that if they are injured in an accident during work, civil lawsuits against the company for personal injury compensation are filed. However, unlike industrial accidents, the company is liable for compensation in accordance with the ratio of malpractice of workers and companies that the court rules because they are in a civil accident relationship.

2 The use of stock for legal retirees should be thoroughly checked.
In the event that the employees are not properly identified as legal retirees, the company may ask for double the number of unpaid labor contracts and payment of supplemental wages and social insurance to the company, saying that "labor relations" with the company have been established while resigning after a certain period of work. Therefore, the employee must submit a certificate for the receipt of the old pension to verify the legal retirement age and, in the case of an old pension beneficiary, verify the excess of the legal retirement age by verifying the identity of the old pensioner.

3 The agreement requires specific arrangements for work accidents and disease outbreaks.
In case of personal injury resulting from the work regulation, violation of discipline, and serious negligence of the worker, the person shall be liable for compensation in the event of an accident, so as to prepare for any eventuality. In addition, the medical expenses for the occurrence of the disease shall be stipulated by the company itself and the company shall purchase personal injury insurance as compensation for injury or death.

4. Employment of Special Identifiers

In the case of social insurance unpaid leave, in-house retirees, early retirees, and long-term leave, the employees with the company signed the term "no-pay leave agreement" with the company for early transfer of the company and are receiving social insurance maintenance and basic living expenses. They are virtually retired and are able to get jobs at other companies even before the agreement expires.

[Questioning]
Since our company is a ship manufacturing industry, we need to work hard with welding technology, but these days it's too hard to find welders. Therefore, we are currently working for another shipping company that has been suspended due to management problems, and we are planning to fill vacancies with welders who are currently on leave for only the minimum wage. Due to the quantity of order, we will be hiring in the near future. So, I want to ask you what problems you have with hiring employees who have written down in other companies, and how do you deal with them?

In September 2010, the Supreme People's Court Judiciary Analysis (3) was promulgated, and the employees who were on leave for a long time were required to sign a written labor contract with another company, and 1 upon completion of a written labor contract, 3 economic compensation payments were paid for the termination of employment as a result of a fantasy accident, which was recognized as a fantasy, 4 economic compensation for illegal dismissal, and other workers.
Social insurance payments are not required when hiring such workers, but they must sign a written labor contract and hire them. However, the employment time shall strictly check labor relations with the former company and the social insurance payment status, and the company shall notify the change of its status when the special labor relationship with the former company is terminated during the period of employment, and take the relevant procedures such as social insurance subscription.

The biggest problem here is social insurance against industrial accidents. This is because with the original company continuing to pay social insurance, social insurance cannot be paid double. As there is always a risk of industrial accidents for field workers, it is necessary to contact the social insurance bureau of the location to make sure that only industrial insurance can be paid (in Shanghai, only non-Japanese employees can pay for fantasy insurance).

[working-level measures]

1 As the company under the contract pays social insurance, but the company is solely responsible for industrial accident compensation in the event of an industrial accident, it should seek ways to pay only industrial insurance under the name of the company.
If only industrial insurance is not available, personal injury or illness insurance may be purchased through a commercial insurance company, but in the event of an industrial accident, the compensation amount corresponding to the Industrial Accident Insurance Ordinance shall not be fully covered. In particular, in the event of death or severe aftereffect, management is under great pressure, so it is necessary to avoid the arrangements for dangerous work.

2 It is necessary to verify that a binding agreement has been entered into with a company in office (e.g., ineligible to work at another company, etc.). Where such a consultation is signed, a lawsuit, including a claim for damages, may be filed from the company in office.

3 A written labor contract must be signed (risk of payment of double wages in the event of non-conformity).

 Employment of trainees

Corporate apprenticeship generally refers to students in vocational technical schools. Since the original purpose of the exercise is to conduct functional training, the student status of the trainee remains unchanged and should continue to be managed by the school. If an enterprise employs a student who is in school as an trainee, it shall proceed in such a way as to conclude an exercise consultation among the three parties of the business-school-student relationship because there is no working relationship with the student.

[Regulations on Practical Management for Secondary School Students]
Article 10
Before a student comes to an exercise company and is assigned to an exercise post, the student body or the head of the student body shall conclude written consultations with the school, the trainee company to clarify the responsibilities, rights and duties of each party.

Since the relationship between trainees and the use company is not legally "labor relations," if personal injury occurs to the trainee during the exercise period, the Civil Service and the Civil Service Act, not the labor-related law, applies.

[Regulations on the Employment Ratio of Practitioners]

Some companies hire large numbers of trainees to reduce labor costs, or infringe upon the legal rights and interests of trainees. For this reason, some local governments have issued a series of regulations that strictly limit the employment rate of trainees in their use companies.
For example, Kwang Dong-sung’s "Guidelines for Practical Practice and Employment of Graduates of Guangdong High School" stipulates that the number of trainees should not exceed 30 percent of the total number of employees employed by the company.
Soju City is more stringent than this, and Article 2 of "A Opinion that Normalizes Practical Practice for Secondary School Regents in Employment Units" stipulates that the number of trainee students does not exceed 5 percent of the total number of employees in the Practical Company. Therefore, if an entity employs trainees, it must check the local government’s restriction on employment rates for trainees.

[Experimental Remediation]

Since there is no legal labor relationship between trainees and the use company, the trainee's compensation is basically not subject to the minimum wage standard of labor-related laws.
However, it is important to note that the Strict Labor Agreement Ordinance, which went into effect in May 2013, stipulates that the trainee’s compensation promised by an enterprise with students should not be lower than the minimum wage here, and obligates some provinces to pay more than the minimum wage standard for students in the province.

[Hour]
The National Regulations for Practical Practice for Secondary School Students stipulates that a student’s working hours cannot exceed eight hours per day.
Guangdong Province’s Higher Student and Graduation Labs Ordinance provides more detail that a student’s one-week training session cannot exceed 40 hours. In the case of Kang So-sung, the Stiff Labor Relationship Ordinance limits the number of trainees to less than 12 months, four hours a day, and very 40 hours a day. Therefore, it is required to note that if an entity employs trainees, it is necessary to verify the country and local local government regulations and, in particular, may cause undue overtime or nighttime work arrangements for trainees.

[In case of personal injury or injury during practice time]
Because there is no legal labor relationship between trainees and the use company, if an trainee is injured during the exercise period, it is not recognized as an industrial accident and cannot enjoy industrial insurance treatment. Alternatively, an trainee may request the provision of a liability for infringement of the rights on the basis of the Rights Violation Liability Act and the Rules for the Handling of Accidental Accidents, if he or she is injured during an exercise.
In the event that a student is injured due to negligence by the school, student or other parties concerned, the party concerned shall be held responsible on the basis of the percentage of negligence in its own conduct and the causal relationship between itself and the consequences (Article 8 of the Rules for the Handling of Accidental Accidents).
In order to minimize responsibility for personal injury or illness, the company needs to have commercial insurance, such as personal injury insurance, for the trainee before employment. In case of an insurance contract, the beneficiary of the insurance premium shall be the company in the event of an accident, and the company shall negotiate with the victim to settle the compensation issue once it receives the insurance payment.

(1) Labor contractingism

Until the Labor Contract Act came into force in 2008, small and medium-sized companies did not properly comply with the labor contract’s arrest and social insurance premium burden. Because of this phenomenon, there have been many cases of unfair labor in rural areas and foreign spending where even the fact of the existence of labor relations is not recognized in court even if injured in a fantasy accident. The labor contract law, which went into effect in 2008, designed companies to pay punitive compensation to workers when they hire them without signing labor contracts
The labor contract law sharply increased the law's violation of the law to the point that it is virtually impossible to hire without signing a written contract. The grace period for the signing of a labor contract is one month from the date of hiring workers or continuing to hire them after the termination of the contract. From the point of exceeding one month, the entity will face a lifetime employment risk after one year, as well as a double pay reimbursement.

The labor contract is signed from an equal relationship to a negotiating match, and once signed, it turns into a subjugation relationship of "command-submission." However, if some of the provisions of the arrangement are required to be changed during the contract period, they face the difficult problem of having to change the agreement back to an equal relationship. The Labor Contracts Act clearly stipulates the conclusion of written Change Consultations, which imposes many restrictions on companies that frequently need the rational placement and adjustment of personnel according to changes in management conditions and the ability of individual employees.

(2) You can specify the grounds for dismissal in the employment rules.

South Korea's Labor Standards Act does not set specific conditions for possible layoffs, but comprehensively stipulates them as "objective and reasonable reasons and cases that are recognized as substantial in social concepts." On the other hand, China's labor contract law stipulates that the specific "why the court can be removed" from the contract as a legal clause. In order to terminate a labor contract, it must comply with one of these legal reasons, and the non-compliance is considered "criminalization."
For this reason, unlike Korea, employment rules play a very important role in China. The labor law gave companies the right to conduct employee management on the basis of establishing employment rules. The company may exercise the right to dismiss workers if they violate the labor discipline stipulated in the employment rules strictly.
However, there are many real limitations to the exercise of the right to fire. For example, even if there is a reason for the removal of a court saying, "A major loss to the company by committing a fraud has occurred, there is a risk of being deemed "law-inflicted" if the company is to have "evidence" to prove the cheating and dismisses the employee without being notified in advance of the critical loss criteria. Therefore, it is very important in China to list in detail what acts constitute reasons for court release in the company’s employment rules and to obtain a notification confirmation from the workers.

(3) Combined operation of contract system and lifetime employment system

The Labor Contract Act limited fixed-term labor contracts to two times only in order to ensure social stability through the promotion of long-term employment relations and stabilization. In other words, they will take the mainstream of employment to long-term labor contracts and an indefinite employment system.
In China, there are generally two forms of fixed-term labor contracts and indefinite-term labor contracts, employing regular workers. Typically, the first time an entity enters into a two to three-year fixed-term labor contract and the user is free to terminate the employment at the end of the first labor contract. However, if a second labor contract is to be renewed, it shall be considered that the verification of the worker has been completed and the company shall comply with the request of the worker to sign a non-fixed contract unless there is a material defect to the worker at the expiration of the contract (the reason for the dismissal of the penalty, the job defect, and the disease).
The conclusion of an indefinite labor contract means that the contract will be converted to an "undated contract" and, in the event of a non-fixed contract, the employment is guaranteed up to the retirement age unless there is a reason for the removal of the law.

(4) Linking the reasons for retirement with economic compensation and economic compensation

China's economic compensation is different from Korea's retirement benefit system. In China, it is mandatory to pay economic compensation on the compensation level, considering that termination of employment due to the circumstances of the management upon termination of the contract due to the causes of management and termination of employment at the time of maturity resulted in unemployment by other parties, and there is no need to pay for voluntary retirement. If a company disposes a worker without permission and is judged to be "dismissed" in a labor action, it shall pay the worker an economic reward equal to twice the economic compensation.
On the other hand, in Korea, severance pay can be considered an accounting liability and thus cost can be processed annually as a "retirement benefit allowance" because there is a payment obligation for all workers, but in China, payment is uncertain for each individual and therefore only as a tax expense when the payment is actually made.

(5) Differentiating labor relations from employment relations

Labor and employment relationships are no different in that one party provides labor and the other pays labor remuneration. In China, however, "labor relations" are established only in the employment of workers prior to the retirement age, and only in the form of civil contract with retired people, students and others. The Labor Contract Act obligates workers to sign labor contracts with workers whose labor relations are established. If a labor contract has not been entered into despite the establishment of a labor relationship, it is considered a "factual labor relationship" and the labor law applies regardless of whether the contract is concluded or not.

[the qualifications of the principal in labor relations]

1. User
Labor relations with workers are formed only by a corporation, an organization, that is officially established in China. Individuals do not have a working relationship with employees, even if they are employers. Since "personal employment relations" (private contracts) are established with police departments and drivers hired by foreign residents for private purposes, there is no need to sign labor contracts and there is no restriction of labor laws. .

2. Worker
The qualifications of workers recognized by Chinese law are different from those of Korea. Those aged 16 and over are only entitled to work as long as they are before retirement (excluding repeat students). Labor relations are formed only when those over the age of 16 and graduates of schools do not reach the legal retirement age. Once a worker reaches the legal retirement age, he or she loses his or her legal status as a worker on that date and is not allowed to pay social insurance. If employed by a company after the legal retirement age is exceeded, a labor contract relationship (employment relationship) between the company and the equal entity to which civil law applies is formed. Labor contracts are short for "labor-services contracts" and mean contracts of the nature of exchanging costs with labor services on the basis of persons (students, retirees, etc.) and civil and contract laws, which are outside the scope of workers.

Core of the Labor Contract Law - Reparations to the Workers in the Case of management misconduct

To enhance the effectiveness of law enforcement, the Labor Contracts Act simply and clearly stipulated the losses (punishment) that a company would incur in the event of an offence and the benefits (reward) that a worker would gain from it.
It is designed to pay compensation directly to workers if they commit illegal labor activities. This gave workers the opportunity to take "unpaid income" in addition to their wages.
Indeed, since the enforcement of the Labor Contract Act, there have been a number of malicious cases in which workers who have been bitten by some collectivism have been unaware of corporate misconduct in the pursuit of punitive compensation, or have provoked management to file for dismissal.

[The Effects of the Labor Contract Act on Corporate Labor Management]
o Restrictions on the elasticity of employment
- It is difficult to adjust work/wage by obligating labor contract items (work, wages, work place)
- Elastic workforce adjustment due to changes in market and business conditions at any time
o the difficulty of laying off workers
- Difficulty in dismissal if legal cause/evidence/procedure of court proceedings, and burden of double compensation for illegal dismissal
- Increase in staff and costs as evidence is secured and legal procedures are implemented.
o prolonged and rigidity in labor relations;
- the increase in lifetime employment due to prolonged labor contracts and time lapse.
- Difficulty in selection and personnel metabolism of low performers
o Flooding of labour litigation
- Increased malicious lawsuits targeting poor corporate management and loopholes
- Retroactive claims against past unfair treatment are filed at the time of retirement.

the rise of workers' rights

The sense of workers' rights in the labor market was greatly enhanced in 2008 due to the effectuation of the Labor Contract Law, the advancement of higher education, and the rapid improvement of economic standards. Companies are having a hard time managing their labor because workers are quick to grasp labor laws and insist on even the smallest details.
Collective labor disputes such as strikes and sabotage are also taking place in a routine manner, and unless workers flock to the streets and destroy facilities, the Bureau of Labor and Public Security are also avoiding active intervention against the backdrop of the government's policy to protect workers.

[Man]

o Frequent individual and group disputes due to increased awareness of rights
the frequency of labor lawsuits based on labor laws.
Difficulty in flexibly adjusting personnel according to changes in management and market conditions
o 80 and 90後 Decrease in the working spirit of new generation employees
Rising expectations such as working environment, training, and power generation space
Avoid simple work, short-term employment and career advancement
o Changing generations of farmers' workers
Unlike first-generation farmers, we expect the city to be settled (lack of the foundation of life in farming villages).
High education and high level of consumption, sensitive to wage treatment, and equipped with a high sense of rights

3. Current Status and Challenges of Human Resources Management in Korea

Korean companies in China are now facing an uneasy reality. Not only are employees clearly aware of their rights, but they are increasingly weighing and holding on to their rights and rights protection issues, and their needs exceed those of the lowest levels stipulated by the law.
In addition, unlike Koreans, who have low workforce liquidity, narrow job spans and lifetime job expectations, the Chinese value the development of self-carrier over short-term compensation and position at work, and a strong sense of individualism and rights protection, so lax labor management and seniority pay systems like Korea are bound to face major challenges after a few years of initial start-ups.

the limitations of intetation
Even if a loose Korean-style personnel management system is applied in the early days of the start-up of the Chinese corporation, it does not have any major problems. However, when the number of workers increases and the organization grows, Korean-style in-vitro management faces limitations, the phenomenon of over-staffing and post-inflation occurs, and the aging of the organization (aging, real complacency, metabolic congestion, etc.) is likely to occur after more than 10 years of entry. In accordance with the development of the Chinese corporation, if the personnel system is not localized and organized, we have no choice but to encounter a phenomenon where the control of manpower becomes difficult and the administrative efficiency is reduced by the day.

With the implementation of the labor contract law in 2008, China's labor law has shifted to a way that puts emphasis on protecting workers' rights and job security.
As workers' claims for various compensation for company misconduct became legally possible, labor lawsuits became frequent and the threshold for lifetime employment was lowered, which severely restricted the exercise of personnel rights. The time has come when it is difficult to operate a business properly in China unless the labor law is clearly understood and systematic personnel management is done.

1. The changing times of the labor law system

The Labor Act (1995) and the Labor Contracts Act (2008) are at the center of Chinese labor laws in line with the Korean Labor Standards Act. However, special attention needs to be paid to the fact that the labor law and the period in which the labor contract law were enacted are different. First, let’s look at the background of "labor law."
As the Tiananmen Square Civil War broke out in 1989, the reform-opening policy that had been pursued until then faces a major hurdle. The temporary suspension of reform and opening gained momentum again in the wake of the Namsun Ganghwa in Dengsopyeong in 1992, and the Kang Taek-min and Joo Yong-ki administrations, which were inaugurated just in time, began to pursue reform and openness policies in earnest.

Under the banner of the doctrine of Zen Buddhism advocated by Deng So-pyong, it was at that time that an extreme wave of economic commerce swept across China. The 1995 Labor Act is China's first basic labor law, which was enacted under this period. At the time of legislation, workers were not subject to protection from capitalists because the majority of workers were under the ironclad employment system of state-run companies. In addition, the need to support economic growth and absorb large amounts of rural workers rushing to cities existed, so such an era situation was reflected in the labor law as it was.

Age of Labor Law - Pro-business legislation focused on economic growth
The labor law applied the "principle of contract freedom" of labor-management equality to the fullest extent, as in civil relations, without considering the special nature of labor-management relations in unequal relations due to the inherent imbalance of power.

Based on this, companies were able to improve their employment elasticity and curb labor costs low by repeating their one-year labor contracts, and at that time, Chinese labor officials were mainly engaged in administrative work such as hiring and leaving. In other words, in the era of labor law, because the reaction to the "iron rice bowl" employment practices of the Mao Tse-dong era in the past allowed unlimited employment of short-term contracts based on the "principle of contract freedom," businesses had to concentrate only on production and operations, which in turn contributed greatly to China's growth into a "world factory."

Labor Contract Law - Pro-labor legislation focused on social stability
However, in the shadow of high economic growth, workers who have become socially weak have begun to complain as the gap between the rich and the poor has deepened day by day. The Hu Jintao-Wonjeobao government, which emerged in 2002, shifted the idea of state affairs from "economic growth" to "a harmonious society" and put forward a "pro-people policy" aimed at stabilizing social stability and governing power. In the labor sector, legislation was initiated to protect the weak from the strong capitalists, and the results were in the form of a series of pro-labor legislation, including the labor contract law.

By the way, the Labor Contracts Act, which took effect in January 2008, turned China's labor law environment into a labor-friendly one. Since the Labor Contract Act is a pro-labor law enacted by slanting to workers to correct the imbalance in power between labor and management, companies have been reduced from strong to weak, placed under restrictions in exercising personnel rights and greatly raised labor management risks.

Since then, eight years later, in 2016, workers have contributed to protecting their rights, but there have been moves to revise some rigid provisions in the future, as voices of concern have erupted from the government’s high-ranking and industrial circles that the flexibility of manpower employment and rising employment are causing corporate competitiveness and foreign companies to withdraw.


2. Labor contract law and personnel management

Labor Contract Act - Special Act on the "labor contract part" of the Labor Law
The Labor Contract Act was enacted as a special law, separating only the parts of labor contracts from the labor laws. Thus, the Labor Law, a comprehensive law that defines labor relations comprehensively, remains in effect after the Labor Contract Act took effect. However, due to the advent of the Labor Contract Act, the previous provisions of the Labor Contracts Act, which relate to labor contracts or contradicts the prestigious provisions of the Labor Contracts Act, are suspended.