Article 44 of Labor Contract Law: Termination of Labor Contract

In any of the following circumstances, the labor contract shall be terminated:

(a) the expiration of the labor contract;

(two) workers began to enjoy the basic old-age insurance benefits according to law;

(3) The laborer dies, or is declared dead or missing by the people's court;

(4) The employing unit is declared bankrupt according to law;

(5) The business license of the employing unit is revoked, ordered to close down or revoked, or the employing unit decides to dissolve in advance;

(6) Other circumstances stipulated by laws and administrative regulations.

interpret

This article provides for the termination of the labor contract. The termination of a labor contract refers to the automatic elimination of the labor relationship between the employer and the employee due to some legal fact after the conclusion of the labor contract. The dissolution and termination of a labor contract are different. The termination of a labor contract refers to the termination of the labor contract by one or both parties after the conclusion of the labor contract. The termination of the labor contract is voluntary and premature (the most common reason is that the employee resigns or the employer dismisses the employee), and the termination of the labor contract is natural (the most common reason is that the labor contract expires).

This article stipulates that the labor contract shall be terminated when there are six situations (legal facts).

Then the question is coming. Apart from these six legal facts, can the employer agree with the laborer on other conditions for termination? For example, can the employer and the employee agree that "the labor contract will be terminated when the weather turns cold" or "the labor contract will be terminated after three months of assessment, and the labor contract will be terminated if the assessment fails"?

Answer: No, because Article 13 of the Regulations for the Implementation of the Labor Contract Law has clearly stipulated: "The employer and the employee shall not agree on other conditions for dissolving the labor contract other than those stipulated in Article 44 of the Labor Contract Law." That is to say, the six situations of dissolving the labor contract stipulated in this article are legal and unique, and there are no other agreed exceptions except the six situations stipulated in this article.

For example, in the non-litigation case "Civil Judgment of the Appellant Shenzhen Chuanxx Catering Management Co., Ltd. and the Appellee Li Moumou on the Dispute of Recovering Labor Remuneration and Economic Compensation" (20 10 Shenzhongzi No.3427), the part of "Opinions of our hospital" wrote: "Chuanxx Company agreed in the labor contract that' Party A's unit will conduct democratic appraisal twice a year, and Party B's appraisal twice failed (passed). According to Article 87 of People's Republic of China (PRC) Labor Contract Law, compensation should be paid to Li. "

The six situations of labor contract termination are as follows:

First, the labor contract expires.

This is the most common reason to terminate the labor contract. Fixed-term labor contracts have clear starting and ending times. When the termination time comes, the labor contract will be terminated. A labor contract whose term is to complete a certain task shall be based on the date when the task ends.

Generally speaking, when the labor contract expires, both the employer and the employee will face the choice of whether to renew it.

In case of renewal, the employing unit shall complete the renewal within a reasonable period (one month) after the expiration of the labor contract. Then, if the employer continues to use workers without renewing the labor contract, how should its effectiveness be determined? According to Article 16 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases: "After the expiration of the labor contract, the laborer still works in the original employer, and if the original employer does not raise any objection, it is deemed that both parties agree to continue to perform the labor contract under the original conditions, and the people's court that one party proposes to terminate the labor relationship shall support it." In other words, if the labor contract is not renewed at the expiration of the term, it will continue to be performed according to the original conditions, and the salary and working conditions cannot be reduced. Of course, "it is deemed that both parties agree to continue to perform the labor contract under the original conditions" does not mean that the employer and the employee have signed a written labor contract. If the employer fails to sign a written labor contract in time within a reasonable period (one month), it may face the risk of paying twice the salary compensation according to Article 82 of the Labor Contract Law (see the labor dispute case between Guigang Brilliance Transportation Co., Ltd. and Wu cited at the end of the Interpretation of Article 10 of this Law for the case).

If the contract is not renewed, according to Item (5) of Article 46 of the Labor Contract Law, the employer may have to pay economic compensation. Divided into the following situations: 1. If the employer maintains or improves the conditions stipulated in the labor contract, but the employee himself is unwilling to renew it, he may not pay economic compensation; 2. If the employer reduces the conditions stipulated in the labor contract and the employee is unwilling to renew it, he needs to pay economic compensation; 3. If the laborer is willing to renew the contract, but the employer is unwilling to renew it, it needs to pay economic compensation.

In practice, when the labor contract expires, the employer can issue a Notice of Renewing the Labor Contract to the laborer, which states, "XX laborer: the labor contract you signed with our company expires on X, X, and our company agrees to renew the labor contract with you on the premise of maintaining/improving the agreed conditions of the labor contract. Please reply in time after receiving this notice and let us know whether you agree to renew it. If you agree to renew it, please renew it on X, X, X, which is beneficial for obtaining evidence. It should be noted here that in the notice of renewing the labor contract, it must be clearly stated that "the company agrees to maintain or improve the agreed conditions of the labor contract", otherwise the workers may "bite back" in the following circumstances.

For example, the non-litigation case "Chengdu Rongcheng Taxi Co., Ltd. v. Zhou Lin Civil Judgment of Second Instance on Labor Dispute" (20 17 Chuan 0 1 Zhong Min No.3441) reads: "According to the facts, the relevant notice of renewing the labor contract was signed by Zhou Lin, but the notice only contained" You and. It can only prove the fact that Rongcheng Taxi Company informed Zhou Lin to renew the labor contract, but it can't prove that Rongcheng Taxi Company has the intention of "maintaining or improving" the labor conditions involving Zhou Lin's individual labor rights, and it can't prove that there is a negotiation process between the two parties on the relevant labor conditions of the labor contract to be renewed. Therefore, in the absence of other evidence, the notice of renewing the labor contract cannot be regarded as Rongcheng Taxi Company's intention to renew the labor contract to Zhou Lin under the agreed conditions of maintaining or improving the labor contract. Both parties are consistent, but Zhou Lin is unwilling to renew it. ..... The court of first instance found that Rongcheng Taxi Company should pay economic compensation to Zhou Lin when the evidence submitted by Rongcheng Taxi Company could not prove that it had asked Zhou Lin to renew the labor contract in order to maintain or improve the agreed conditions of the labor contract, but Zhou Lin did not agree to renew it. "

Second, workers began to enjoy basic old-age insurance benefits according to law.

How do workers in China enjoy basic old-age insurance? According to Article 16 of the Social Insurance Law: "Individuals who participate in the basic old-age insurance will pay a total of 15 when they reach the statutory retirement age, and receive the basic pension on a monthly basis." In other words, there are two conditions for workers to enjoy basic old-age insurance benefits according to law: one is to reach retirement age, and the other is to pay accumulated contributions 15 years.

However, in practice, due to problems left over from history such as imperfect system and lax law enforcement in China, some workers have reached retirement age, but they have not paid the old-age insurance premium 15 (so they certainly have not started to enjoy the old-age insurance benefits)-should the labor contract be terminated for workers who have reached retirement age but have not started to enjoy the old-age insurance benefits? In this regard, Article 21 of the Regulations on the Implementation of the Labor Contract Law stipulates: "When the laborer reaches the statutory retirement age, the labor contract is terminated." In other words, if the laborer has started to enjoy the basic old-age insurance benefits according to law, the labor contract will of course be terminated; Even if the laborer does not begin to enjoy the basic old-age insurance benefits according to law, the labor contract should be terminated as long as he reaches the legal retirement age.

Then, for those who are over retirement age, can they still establish labor relations with employers? Can they still be "laborers" in the sense of labor law? At present, there are two controversial views in practice. Different legal provisions lead to different judgments in practice. On this point, the author has discussed it in detail in the explanation of article 2 of this law in this book, so I won't repeat it here. For the case, please refer to the second-instance civil judgment of the case of confirming labor relations with Danyang Lotte Packaging Products Factory (20 16 Su 1 1 Minzhong No.2182) and the first-instance civil judgment of the case of Wang Shuquan and Alar Oasis Construction Engineering Co., Ltd. claiming labor remuneration cited at the end of the Interpretation of Article 2 of this Law. In these two cases, people who are also over the retirement age were identified as non-labor relations by the former court and labor relations by the latter.

Third, the worker died or was declared dead or missing by the people's court.

Section 3 of Chapter 2 of the General Principles of the Civil Law (Articles 40 to 45) stipulates the declaration of the disappearance and death of natural persons, so I won't extract them one by one. In short, if a worker is declared missing or dead, his subject qualification will be lost and the labor contract relationship will naturally terminate.

Then, if the worker dies, who will exercise the right to appeal against the employer's labor dispute? This provision is in Article 25 of the Labor Dispute Mediation and Arbitration Law: "Workers who have lost or partially lost their capacity for civil conduct shall participate in arbitration activities on their behalf by their legal representatives; If there is no legal representative, the labor dispute arbitration commission shall appoint an agent for him. If a worker dies, his close relatives or agents shall participate in arbitration activities. "

For example, the part "We think" in the civil judgment of the second instance of labor dispute of Wang and Haiyang Clothing Co., Ltd. (20 16 Lu 06 No.4706) reads: "According to Article 25 of the Labor Dispute Mediation and Arbitration Law, Wang, as the wife of Jiang Chongqiang, can participate in arbitration activities after Jiang Chongqiang's death, which can be used as the basis of this case. The clothing company appealed that Wang had no qualification as a litigation subject, had no legal basis and did not support it according to law. " In this case, Wang sued the employer instead of his late husband, demanding to pay double wages, overtime pay and economic compensation for the unsigned labor contract.

Fourth, the employer was declared bankrupt according to law.

After the employer is declared bankrupt according to law, the legal person qualification will be irreversibly lost. The loss of the employer's subject qualification will lead to the disappearance of one of the subjects of the labor contract, and the labor contract relationship should be terminated.

According to Item (6) of Article 46 of the Labor Contract Law, if the labor contract is terminated according to this item, the employer shall pay economic compensation.

For example, the non-litigation case "Civil Judgment of Second Instance of Labor Contract Dispute between Yongsheng Computer Hardware (Dongguan) Co., Ltd. and Tian" (20 14 East China Famen Wu Zhong ZiNo. 1970) reads: "Yongsheng Company was declared bankrupt and the labor relationship between the two parties was terminated. According to Articles 44 and 46 of the People's Republic of China (PRC) Labor Contract Law, Yongsheng Company shall pay economic compensation to Tian. "

Fifth, the employer's business license is revoked, ordered to suspend business, cancelled, or the employer decides to dissolve in advance.

Similarly, the loss of the employer's subject qualification will lead to the disappearance of one of the subjects of the labor contract, and the labor contract relationship should naturally be terminated.

According to Item (6) of Article 46 of the Labor Contract Law, if the labor contract is terminated according to this item, the employer shall pay economic compensation.

For example, in the "We believe" part of the civil judgment of the second instance of the labor dispute case between Bao Yuehua and Huafangzi Coal Mine in Linshui County (20 15 Guangfa Zhongminzi No.586), it was written: "In this case, Huafangzi Coal Mine in Linshui County was identified as permanently closed due to national policy reasons. According to Article 46 of the Labor Contract Law, in any of the following circumstances, the employer shall pay the employee. Accordingly, Huafangzi Coal Mine in Linshui County should pay Bao Yuehua the economic compensation for the termination of the labor contract. "

Sixth, other circumstances stipulated by laws and administrative regulations.

This is the bottom line clause to avoid omission.

For example, Article 45 of the Labor Contract Law stipulates: "When a labor contract expires and falls into any of the circumstances stipulated in Article 42 of this Law, the labor contract shall continue until the corresponding circumstances disappear. However, the termination of the labor contract of workers who have lost or partially lost their ability to work as stipulated in the second paragraph of Article 42 of this Law shall be implemented in accordance with the relevant provisions of the state on industrial injury insurance. " This provision on the extension and termination of the labor contract is a situation stipulated by law.

For another example, Article 21 of the aforementioned Regulations on the Implementation of the Labor Contract Law stipulates: "When a worker reaches the statutory retirement age, the labor contract is terminated." That is, the termination of the labor contract as stipulated by administrative regulations.

But beyond that, is there anything else?

I haven't found it yet.

The effect of "deemed" 1 has been discussed in detail in this book when explaining Article 10 of this law.

Paragraph 2 of Article 70 of the Enterprise Bankruptcy Law stipulates that an application for bankruptcy reorganization shall be made before bankruptcy is declared.