Viewpoint... Analysis of the legal liability of the employer to issue a certificate of separation for the worker.
Published:
2021-12-01
The so-called resignation certificate is called the certificate of termination or termination of the labor contract in the labor law. In practice, disputes caused by the employer's failure to issue a resignation certificate and the content that should be stated in the resignation certificate are common. It is the legal obligation of the employer to issue the resignation certificate of the 1.. The first paragraph of Article 50 of the "Labor Contract Law" stipulates: "The employer shall issue a certificate of termination or termination of the labor contract when the labor contract is terminated or terminated, and handle the transfer of files and social insurance relations for the laborer within 15 days. formalities." Article 24 of the "Regulations on the Implementation of the Labor Contract Law" stipulates: "The certificate of termination or termination of the labor contract issued by the employer shall specify the term of the labor contract, the date of termination or termination of the labor contract, the job position, and the number of years of work in the unit." The "shall be stated" in this article can be understood as "must be stated", which is a necessary clause of the resignation certificate, but is it not allowed to record other contents? There are different understandings in practice. The author thinks that the content of the certificate issued by the employer to terminate or terminate the contract should be judged from the nature of the subject of the employer's act. Both employers and workers are equal civil subjects in civil acts. According to the general principle of civil acts of "freedom without prohibition by law", although the "Regulations on the Implementation of the Labor Contract Law" stipulates that employers issue the termination or termination of labor contracts. The content of the certificate, but there is no prohibition on the relevant matters issued by the employer to terminate or terminate the labor contract. Therefore, it does not violate the provisions of laws and regulations for the employer to specify the reasons for the termination of the contract in the certificate of termination or termination of the labor contract. The first paragraph of Article 50 of the "Social Insurance Law" stipulates: "The employer shall promptly issue a certificate of termination or termination of the labor relationship for the unemployed, and notify the list of the unemployed within 15 days from the date of termination or termination of the labor relationship. Social insurance agency." In practice, many employers do not issue resignation certificates because the workers still have outstanding matters and have not yet been handed over clearly. Can the employer defend against this? According to the above provisions, it is the legal obligation of the employer to issue a resignation certificate, and whether the worker is clearly handed over is not a prerequisite for the employer to issue a resignation certificate. Therefore, the employer cannot refuse to issue a resignation certificate on the grounds that the worker has outstanding matters. 2. the legal liability of the employer for not issuing the resignation certificate There are two legislative purposes for the employer to issue a resignation certificate: one is the requirement for the reemployment of workers, and the other is the need for workers to register for unemployment. Article 89 of the "Labor Contract Law" stipulates: "If the employer violates the provisions of this law and fails to issue a written certificate to the laborer to terminate or terminate the labor contract, the labor administrative department shall order it to make corrections; if damage is caused to the laborer, it shall be liable for compensation." If the employer does not issue a resignation certificate to the laborer in accordance with the regulations, it may prevent the laborer from re-employment, and may also cause the loss of the laborer's unemployment insurance benefits. If the employer causes damage to the laborer, it shall be liable for compensation in accordance with the law. In practice, there are two main types of compensation disputes caused by the employer's failure to issue a resignation certificate: one is to compensate the worker for the loss of wages caused by the lack of a resignation certificate, and the other is to compensate the worker for the loss of unemployment insurance benefits. Loss of wages due to (I) non-employment Article 91 of the "Labor Contract Law" stipulates: "If an employer recruits a worker whose labor contract with other employers has not yet been terminated or terminated, and causes losses to other employers, it shall bear joint and several liability for compensation." In practice, most employers require new employees to provide proof of separation based on risk control requirements. If the employer does not issue a separation certificate to the worker, it may affect the employment of the worker and there is a risk of liability. Loss of (II) unemployment insurance benefits The second and third paragraphs of Article 50 of the Social Insurance Law stipulate: "An unemployed person shall go through unemployment registration at a designated public employment service agency in a timely manner with a certificate of termination or dissolution of labor relations issued by his or her unit. The unemployed person shall go through the formalities of receiving unemployment insurance benefits at a social insurance agency with his or her unemployment registration certificate and personal identity certificate. The period for receiving unemployment insurance benefits shall be calculated from the date of unemployment registration." Article 19 of the Ministry of Human Resources and Social Security's "Several Provisions on the Implementation of the the People's Republic of China Social Insurance Law" (Order No. 13 of the Ministry of Human Resources and Social Security) stipulates: "If the employer refuses to issue a termination or termination certificate to the employee when terminating or terminating the labor contract, resulting in the employee being unable to enjoy social insurance benefits, the employer shall be liable for compensation according to law." The certificate of termination or dissolution of the labor relationship issued by the employer is a necessary condition for the worker to register for unemployment. Without a resignation certificate, workers may not be able to enjoy unemployment insurance benefits, and the employer shall bear the corresponding liability for compensation.
The so-called resignation certificate is called the certificate of termination or termination of the labor contract in the labor law. In practice, disputes caused by the employer's failure to issue a resignation certificate and the content that should be stated in the resignation certificate are common.
It is the legal obligation of the employer to issue the resignation certificate of the 1..
The first paragraph of Article 50 of the "Labor Contract Law" stipulates: "The employer shall issue a certificate of termination or termination of the labor contract when the labor contract is terminated or terminated, and handle the transfer of files and social insurance relations for the laborer within 15 days. formalities." Article 24 of the "Regulations on the Implementation of the Labor Contract Law" stipulates: "The certificate of termination or termination of the labor contract issued by the employer shall specify the term of the labor contract, the date of termination or termination of the labor contract, the job position, and the number of years of work in the unit." The "shall be stated" in this article can be understood as "must be stated", which is a necessary clause of the resignation certificate, but is it not allowed to record other contents? There are different understandings in practice.
The author thinks that the content of the certificate issued by the employer to terminate or terminate the contract should be judged from the nature of the subject of the employer's act. Both employers and workers are equal civil subjects in civil acts. According to the general principle of civil acts of "freedom without prohibition by law", although the "Regulations on the Implementation of the Labor Contract Law" stipulates that employers issue the termination or termination of labor contracts. The content of the certificate, but there is no prohibition on the relevant matters issued by the employer to terminate or terminate the labor contract. Therefore, it does not violate the provisions of laws and regulations for the employer to specify the reasons for the termination of the contract in the certificate of termination or termination of the labor contract.
The first paragraph of Article 50 of the "Social Insurance Law" stipulates: "The employer shall promptly issue a certificate of termination or termination of the labor relationship for the unemployed, and notify the list of the unemployed within 15 days from the date of termination or termination of the labor relationship. Social insurance agency." In practice, many employers do not issue resignation certificates because the workers still have outstanding matters and have not yet been handed over clearly. Can the employer defend against this? According to the above provisions, it is the legal obligation of the employer to issue a resignation certificate, and whether the worker is clearly handed over is not a prerequisite for the employer to issue a resignation certificate. Therefore, the employer cannot refuse to issue a resignation certificate on the grounds that the worker has outstanding matters.
2. the legal liability of the employer for not issuing the resignation certificate
There are two legislative purposes for the employer to issue a resignation certificate: one is the requirement for the reemployment of workers, and the other is the need for workers to register for unemployment.
Article 89 of the "Labor Contract Law" stipulates: "If the employer violates the provisions of this law and fails to issue a written certificate to the laborer to terminate or terminate the labor contract, the labor administrative department shall order it to make corrections; if damage is caused to the laborer, it shall be liable for compensation." If the employer does not issue a resignation certificate to the laborer in accordance with the regulations, it may prevent the laborer from re-employment, and may also cause the loss of the laborer's unemployment insurance benefits. If the employer causes damage to the laborer, it shall be liable for compensation in accordance with the law. In practice, there are two main types of compensation disputes caused by the employer's failure to issue a resignation certificate: one is to compensate the worker for the loss of wages caused by the lack of a resignation certificate, and the other is to compensate the worker for the loss of unemployment insurance benefits.
Loss of wages due to (I) non-employment
Article 91 of the "Labor Contract Law" stipulates: "If an employer recruits a worker whose labor contract with other employers has not yet been terminated or terminated, and causes losses to other employers, it shall bear joint and several liability for compensation." In practice, most employers require new employees to provide proof of separation based on risk control requirements. If the employer does not issue a separation certificate to the worker, it may affect the employment of the worker and there is a risk of liability.
Loss of (II) unemployment insurance benefits
The second and third paragraphs of Article 50 of the Social Insurance Law stipulate: "An unemployed person shall go through unemployment registration at a designated public employment service agency in a timely manner with a certificate of termination or dissolution of labor relations issued by his or her unit. The unemployed person shall go through the formalities of receiving unemployment insurance benefits at a social insurance agency with his or her unemployment registration certificate and personal identity certificate. The period for receiving unemployment insurance benefits shall be calculated from the date of unemployment registration." Article 19 of the Ministry of Human Resources and Social Security's "Several Provisions on the Implementation of the the People's Republic of China Social Insurance Law" (Order No. 13 of the Ministry of Human Resources and Social Security) stipulates: "If the employer refuses to issue a termination or termination certificate to the employee when terminating or terminating the labor contract, resulting in the employee being unable to enjoy social insurance benefits, the employer shall be liable for compensation according to law." The certificate of termination or dissolution of the labor relationship issued by the employer is a necessary condition for the worker to register for unemployment. Without a resignation certificate, workers may not be able to enjoy unemployment insurance benefits, and the employer shall bear the corresponding liability for compensation.
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