Viewpoint... Analysis of the validity of the breach of contract terms of the employment contract of the institution.
Published:
2023-04-10
Foreword Under the background of the marketization of the allocation of human resources, the flow of staff in public institutions is inevitable. Because public institutions have certain social welfare attributes, the state has made different provisions on the resignation right of staff in public institutions from the Labor contract Law. The "Regulations on Personnel Management of Public Institutions", which came into effect on July 1, 2014, has become the most important legal basis for adjusting the personnel relations of public institutions. Article 17 of the Regulations stipulates: "A staff member of a public institution may terminate the employment contract upon 30 days' written notice to the institution. However, unless the two parties agree otherwise on the termination of the employment contract." This provision has become one of the most controversial legal provisions in the case of the resignation of personnel employed by public institutions. From the perspective of the employing unit, this paper combs the controversial views in judicial practice, and provides ideas for the employing unit in the face of similar situations. Text The employment contract is an agreement between the institution and the employee in accordance with the requirements of relevant national laws and regulations and related policies, on the basis of equality, voluntariness and consensus, to clarify the rights and obligations of the employer and the employed person related to the work. In practice, in order to retain talents and ensure the normal development of work, public institutions often agree with employees on the service period and the corresponding liability for breach of contract in the employment contract. When an employee unilaterally terminates the employment contract in advance in violation of the service period agreement and causes disputes, the employing unit will often require the employee to bear the liability for breach of contract in accordance with the provisions of Article 17 of the Regulations on Personnel Management of Public Institutions and the provisions of the employment contract, but the employee will usually defend against the provisions of Article 25 of the Labor Contract Law in violation of such provisions. However, there are disputes in the judicial practice on the validity of this kind of breach of contract clause, and the standard of judgment varies from place to place. One view is that, according to Article 17 of the "Regulations on Personnel Management of Public Institutions", "However, unless the parties agree otherwise on the termination of the employment contract", the public institution may make a reasonable restriction agreement on the unilateral early termination of the employment contract by the employee. Therefore, the liability for breach of contract can be agreed in the employment contract. For example, in the 2022 typical case of labor and personnel dispute arbitration issued by the Beijing Municipal Bureau of Human Resources and Social Security, in the case of a personnel dispute between a university affiliated middle school and Yao, the Arbitration Commission held that the relevant agreement between a university affiliated middle school and Yao on the termination of the employment contract and the payment of liquidated damages does not violate the mandatory provisions of laws and regulations, and is the true intention of both parties. It is binding on both parties. Therefore, Yao was ruled to pay liquidated damages to a university affiliated high school. Another example is: in the case of a personnel dispute between a university in Shijingshan and a certain person, the court held that: from the content stipulated in Article 17 of the Regulations on Personnel Management of Public Institutions, public institutions can negotiate with their staff on the specific circumstances of the termination of the employment contract and whether to assume corresponding responsibilities. According to the employment contract signed by both parties, if a party terminates the agreement in advance, it shall pay liquidated damages in accordance with the contract. The agreement does not violate the mandatory provisions of laws and regulations and shall be valid. Another example: in the case of a personnel dispute between a university in Huainan and Cheng, the court held that Cheng was a person with full capacity for civil conduct and had a high level of education. He should know the legal consequences caused by signing the contract. The contract was Cheng's choice after weighing the rights and interests of resignation and liability for breach of contract, which was his true intention. Therefore, the contract is the true intention of both parties, does not violate the mandatory provisions of laws and regulations, should be legal and effective, and has legal binding force on both parties. Therefore, Cheng's argument that the breach of contract clause is invalid cannot be established. Another view is that the "Regulations on Personnel Management of Public Institutions" does not provide for liquidated damages, so the provisions of the "Labor Contract Law" should be applied to determine that the relevant employee's unilateral early termination of the employment contract is invalid. For example, in the personnel dispute between Huaiyin Normal University and Wang, the court held that although the two parties agreed on the service period and liquidated damages in the Agreement on the Establishment, Employment and Performance of Senior Professional and Technical Posts, the agreement violated Article 25 of the Labor Contract Law, and the agreement should be invalid, so the court did not support the request according to law. Another example: In a personnel dispute between a college in Hubei and He, the court held that: Regarding the liquidated damages for the service period, although the minimum service period is stipulated in the documents of a college in Hubei and the Agreement on Entrusted Training and Studying for a Doctoral Degree, the service period The liability for breach of contract is not clearly stipulated in laws, administrative regulations or the State Council, so the court does not support the request in accordance with the law. The above two views, the author tends to the first view, that is, institutions can agree with employees in the employment contract to unilaterally terminate the contract of breach of contract, and the agreement has legal effect. The main reasons are as follows: According to Article 96 of the Labor Contract Law and Article 1 of the Reply of the Supreme People's Court on the Application of Laws to Personnel Dispute Cases in Public Institutions (Fa Han [2004] No. 30), the substantive handling of personnel dispute cases shall give priority to the application of personnel laws, administrative regulations or relevant provisions of the State Council. The Regulations on Personnel Management of Public Institutions are administrative regulations and are an important basis for handling personnel dispute cases. They should be applied preferentially. The proviso in Article 17 of the Regulations stipulates that both parties can unilaterally terminate the employment contract in advance. The circumstances and whether to bear the corresponding responsibilities and other issues are negotiated and agreed. At the same time, according to Article 4 of the "Opinions of the General Office of the State Council on Forwarding the Ministry of Personnel on the Trial Implementation of the Personnel Employment System in Public Institutions" (Guo Ban Fa [2002] No. 35), the responsibility for violating the employment contract is one of the provisions that must be included in the employment contract. This opinion belongs to the provisions of the State Council and is also the basis for the handling of personnel dispute cases, and shall be applied on a priority basis. Article 25 of the Labor Contract Law does not apply to employment contracts based on personnel relations. In summary, the employment contract can be agreed on the employee's unilateral early termination of the employment contract breach of contract clause, and the clause should be recognized as a valid clause. Suggestion: in order to avoid disputes and the risk of losing the lawsuit, it is suggested that the public institution should agree on the liability clause for breach of contract when signing the employment contract, and fully negotiate with the employees on the specific liability for breach of contract. The liability clause for breach of contract should be determined after comprehensive consideration of various factors such as the employment cost of the public institution, the service life of the employees, the working position and the economic losses that may be caused by the breach of contract, avoid the legal risk of losing a lawsuit due to failure to agree on liability for breach of contract or being adjusted because the amount of liquidated damages is too high. At the same time, while retaining talents, institutions should look at the rational flow of talents objectively and rationally. In the event of a dispute over liquidated damages due to the resignation of an employee, if it cannot be resolved through independent negotiation, it shall be resolved through arbitration and litigation in a timely manner in accordance with the law. Relevant legal provisions 1. Regulations on Personnel Management of Public Institutions Article 17 A staff member of a public institution may terminate an employment contract by notifying the institution in writing 30 days in advance. However, unless the parties agree otherwise on the termination of the employment contract. 2. Labor Contract Law Article 25 Except for the circumstances specified in Articles 22 and 23 of this Law, the employing unit shall not agree with the laborer that the laborer shall bear the liquidated damages. Article 96 Where laws, administrative regulations or the State Council provide otherwise for the conclusion, performance, modification, dissolution or termination of labor contracts between public institutions and staff members under the employment system, such provisions shall prevail; if no such provisions are made, the relevant provisions of this Law shall prevail. 3. Reply of the Supreme People's Court on the Application of Law and Other Issues in Personnel Dispute Cases of Public Institutions (Fa Han [2004] No. 30) Article 1 of the 1. "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Personnel Dispute Cases by Public Institutions by the People's Courts" (Fa Shi [2003] No. 13) stipulates that "disputes arising from resignation, dismissal and performance of employment contracts between public institutions and their staff shall be handled in accordance with the provisions of the the People's Republic of China Labor Law." Here, "applying the provisions of the the People's Republic of China Labor Law" means that the procedures of the people's court in hearing personnel dispute cases of public institutions apply the relevant provisions of the the People's Republic of China Labor Law. The people's court shall apply the legal provisions on personnel matters to the substantive handling of personnel dispute cases in public institutions, but if the content involving the labor rights of the staff of public institutions is not stipulated in the personnel law, the relevant provisions of the the People's Republic of China Labor Law shall apply. 4. "The General Office of the State Council Forwarding the Opinions of the Ministry of Personnel on the Trial Implementation of the Personnel Employment System in Public Institutions" (Guo Ban Fa [2002] No. 35) Standardize the contents of the employment contract The employment contract shall be concluded in writing by the legal representative of the employing unit or the person entrusted by it and the employed person. The employment contract must have the following clauses: (I) the term of the employment contract; (II) positions and their responsibilities; (III) post discipline; (IV) the working conditions of the post; (V) wages; (VI) the conditions for modification and termination of the employment contract; (VII) liability for breach of employment contract.
Foreword
Under the background of the marketization of the allocation of human resources, the flow of staff in public institutions is inevitable. Because public institutions have certain social welfare attributes, the state has made different provisions on the resignation right of staff in public institutions from the Labor contract Law. The "Regulations on Personnel Management of Public Institutions", which came into effect on July 1, 2014, has become the most important legal basis for adjusting the personnel relations of public institutions. Article 17 of the Regulations stipulates: "A staff member of a public institution may terminate the employment contract upon 30 days' written notice to the institution. However, unless the two parties agree otherwise on the termination of the employment contract." This provision has become one of the most controversial legal provisions in the case of the resignation of personnel employed by public institutions. From the perspective of the employing unit, this paper combs the controversial views in judicial practice, and provides ideas for the employing unit in the face of similar situations.
Text
The employment contract is an agreement between the institution and the employee in accordance with the requirements of relevant national laws and regulations and related policies, on the basis of equality, voluntariness and consensus, to clarify the rights and obligations of the employer and the employed person related to the work.
In practice, in order to retain talents and ensure the normal development of work, public institutions often agree with employees on the service period and the corresponding liability for breach of contract in the employment contract. When an employee unilaterally terminates the employment contract in advance in violation of the service period agreement and causes disputes, the employing unit will often require the employee to bear the liability for breach of contract in accordance with the provisions of Article 17 of the Regulations on Personnel Management of Public Institutions and the provisions of the employment contract, but the employee will usually defend against the provisions of Article 25 of the Labor Contract Law in violation of such provisions. However, there are disputes in the judicial practice on the validity of this kind of breach of contract clause, and the standard of judgment varies from place to place.
One view is that,According to Article 17 of the "Regulations on Personnel Management of Public Institutions", "However, unless the parties agree otherwise on the termination of the employment contract", the public institution may make reasonable restrictions on the unilateral termination of the employment contract in advance, so it may be in the employment contract. The contract stipulates the liability for breach of contract. For example, in the 2022 typical case of labor and personnel dispute arbitration issued by the Beijing Municipal Bureau of Human Resources and Social Security, in the case of a personnel dispute between a university affiliated middle school and Yao, the Arbitration Commission held that the relevant agreement between a university affiliated middle school and Yao on the termination of the employment contract and the payment of liquidated damages does not violate the mandatory provisions of laws and regulations, and is the true intention of both parties. It is binding on both parties. Therefore, Yao was ruled to pay liquidated damages to a university affiliated high school. Another example is: in the case of a personnel dispute between a university in Shijingshan and a certain person, the court held that: from the content stipulated in Article 17 of the Regulations on Personnel Management of Public Institutions, public institutions can negotiate with their staff on the specific circumstances of the termination of the employment contract and whether to assume corresponding responsibilities. According to the employment contract signed by both parties, if a party terminates the agreement in advance, it shall pay liquidated damages in accordance with the contract. The agreement does not violate the mandatory provisions of laws and regulations and shall be valid. Another example: in the case of a personnel dispute between a university in Huainan and Cheng, the court held that Cheng was a person with full capacity for civil conduct and had a high level of education. He should know the legal consequences caused by signing the contract. The contract was Cheng's choice after weighing the rights and interests of resignation and liability for breach of contract, which was his true intention. Therefore, the contract is the true intention of both parties, does not violate the mandatory provisions of laws and regulations, should be legal and effective, and has legal binding force on both parties. Therefore, Cheng's argument that the breach of contract clause is invalid cannot be established.
Another view is that,The "Regulations on Personnel Management of Public Institutions" does not provide for liquidated damages, so the provisions of the "Labor Contract Law" should be applied to determine that the relevant employee's unilateral termination of the employment contract in advance is invalid. For example, in the personnel dispute between Huaiyin Normal University and Wang, the court held that although the two parties agreed on the service period and liquidated damages in the Agreement on the Establishment, Employment and Performance of Senior Professional and Technical Posts, the agreement violated Article 25 of the Labor Contract Law, and the agreement should be invalid, so the court did not support the request according to law. Another example: In a personnel dispute between a college in Hubei and He, the court held that: Regarding the liquidated damages for the service period, although the minimum service period is stipulated in the documents of a college in Hubei and the Agreement on Entrusted Training and Studying for a Doctoral Degree, the service period The liability for breach of contract is not clearly stipulated in laws, administrative regulations or the State Council, so the court does not support the request in accordance with the law.
The above two views, the author tends to the first view, that is, institutions can agree with employees in the employment contract to unilaterally terminate the contract of breach of contract, and the agreement has legal effect. The main reasons are as follows:
According to Article 96 of the Labor Contract Law and Article 1 of the Reply of the Supreme People's Court on the Application of Laws to Personnel Dispute Cases in Public Institutions (Fa Han [2004] No. 30), the substantive handling of personnel dispute cases shall give priority to the application of personnel laws, administrative regulations or relevant provisions of the State Council. The Regulations on Personnel Management of Public Institutions are administrative regulations and are an important basis for handling personnel dispute cases. They should be applied preferentially. The proviso in Article 17 of the Regulations stipulates that both parties can unilaterally terminate the employment contract in advance. The circumstances and whether to bear the corresponding responsibilities and other issues are negotiated and agreed. At the same time, according to Article 4 of the "Opinions of the General Office of the State Council on Forwarding the Ministry of Personnel on the Trial Implementation of the Personnel Employment System in Public Institutions" (Guo Ban Fa [2002] No. 35), the responsibility for violating the employment contract is one of the provisions that must be included in the employment contract. This opinion belongs to the provisions of the State Council and is also the basis for the handling of personnel dispute cases, and shall be applied on a priority basis. Article 25 of the Labor Contract Law does not apply to employment contracts based on personnel relations. In summary, the employment contract can be agreed on the employee's unilateral early termination of the employment contract breach of contract clause, and the clause should be recognized as a valid clause.
Recommendations:In order to avoid disputes and the risk of losing the lawsuit, it is suggested that the public institution should agree on the liability clause for breach of contract when signing the employment contract, and fully negotiate with the employees on the specific liability for breach of contract. The liability clause for breach of contract should be determined after comprehensive consideration of various factors such as the cost of employment of the public institution, the service life of the employees, the working position and the economic losses that may be caused by the breach of contract, avoid the legal risk of losing a lawsuit due to failure to agree on liability for breach of contract or being adjusted because the amount of liquidated damages is too high. At the same time, while retaining talents, institutions should look at the rational flow of talents objectively and rationally. In the event of a dispute over liquidated damages due to the resignation of an employee, if it cannot be resolved through independent negotiation, it shall be resolved through arbitration and litigation in a timely manner in accordance with the law.
Relevant legal provisions
1. Regulations on Personnel Management of Public Institutions
Article 17 A staff member of a public institution may terminate an employment contract by notifying the institution in writing 30 days in advance. However, unless the parties agree otherwise on the termination of the employment contract.
2. Labor Contract Law
Article 25 Except for the circumstances specified in Articles 22 and 23 of this Law, the employing unit shall not agree with the laborer that the laborer shall bear the liquidated damages.
Article 96 Where laws, administrative regulations or the State Council provide otherwise for the conclusion, performance, modification, dissolution or termination of labor contracts between public institutions and staff members under the employment system, such provisions shall prevail; if no such provisions are made, the relevant provisions of this Law shall prevail.
3. Reply of the Supreme People's Court on the Application of Law and Other Issues in Personnel Dispute Cases of Public Institutions (Fa Han [2004] No. 30)
Article 1 of the 1. "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Personnel Dispute Cases by Public Institutions by the People's Courts" (Fa Shi [2003] No. 13) stipulates that "disputes arising from resignation, dismissal and performance of employment contracts between public institutions and their staff shall be handled in accordance with the provisions of the the People's Republic of China Labor Law." Here, "applying the provisions of the the People's Republic of China Labor Law" means that the procedures of the people's court in hearing personnel dispute cases of public institutions apply the relevant provisions of the the People's Republic of China Labor Law. The people's court shall apply the legal provisions on personnel matters to the substantive handling of personnel dispute cases in public institutions, but if the content involving the labor rights of the staff of public institutions is not stipulated in the personnel law, the relevant provisions of the the People's Republic of China Labor Law shall apply.
4. "The General Office of the State Council Forwarding the Opinions of the Ministry of Personnel on the Trial Implementation of the Personnel Employment System in Public Institutions" (Guo Ban Fa [2002] No. 35)
Standardize the contents of the employment contract
The employment contract shall be concluded in writing by the legal representative of the employing unit or the person entrusted by it and the employed person. The employment contract must have the following clauses:
(I) the term of the employment contract;
(II) positions and their responsibilities;
(III) post discipline;
(IV) the working conditions of the post;
(V) wages;
(VI) the conditions for modification and termination of the employment contract;
(VII) liability for breach of employment contract.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
