December 29, 2020

Law Interpretation (2020) No. 26

 

Supreme People's Court

 

Interpretation on the applicable legal issues in the trial of labor dispute cases (1)

 

(December 25, 2020, the Judicial Committee of the Supreme People's Court

 

Adopted at the 1825th meeting, effective from January 1, 2021)

　　In order to correctly hear labor dispute cases, according to the “Civil Code of the People’s Republic of China”, “Labor Law of the People’s Republic of China”, “Labor Contract Law of the People’s Republic of China”, “Labor Dispute Mediation and Arbitration Law of the People’s Republic of China”, and “Civil Procedure Law of the People’s Republic of China”, etc. According to legal provisions, this interpretation is formulated in conjunction with trial practice.

 

　　Article 1 The following disputes between workers and employers are labor disputes. If the parties disagree with the ruling made by the labor dispute arbitration institution and file a lawsuit in accordance with the law, the people's court shall accept:

 

　　(1) Disputes between laborers and employers in the process of performing labor contracts;

 

　　(2) Disputes that occur after the laborer and the employer have not concluded a written labor contract, but have formed a labor relationship;

 

　　(3) Disputes between the laborer and the employer whether the labor relationship has been terminated or terminated, and whether the economic compensation should be paid for the termination or termination of the labor relationship;

 

　　(4) After the laborer and the employer dissolve or terminate the labor relationship, request the employer to return the labor contract deposit, security deposit, mortgage, or mortgage that it has collected, or handle the laborer’s personnel file, social insurance relationship, etc. Disputes arising from transfer procedures;

 

　　(5) Disputes in which the employee requests the employer to compensate for losses due to the employer’s failure to go through the social insurance procedures and the social insurance agency’s inability to re-apply so that he cannot enjoy the social insurance benefits;

 

　　(6) After the employee retires, disputes with the original employer who have not participated in the social insurance co-ordination for recourse of pension, medical expenses, work-related injury insurance benefits and other social insurance benefits;

 

　　(7) Disputes where workers request the employer to grant work-related injury insurance benefits in accordance with the law due to work-related injuries or occupational diseases;

 

　　(8) Disputes in which workers require the employer to pay additional compensation in accordance with Article 85 of the Labor Contract Law;

 

　　(9) Disputes arising from enterprises' independent restructuring.

 

　　Article 2 The following disputes are not labor disputes:

 

　　(1) Disputes involving workers requesting social insurance agencies to issue social insurance funds;

 

　　(2) Disputes on the transfer of public housing between workers and employers due to the reform of the housing system;

 

　　(3) Disputes of disagreements between workers on the evaluation conclusion of the disability rating of the Labor Ability Evaluation Committee or the evaluation conclusion of the occupational disease diagnosis and evaluation of the Occupational Disease Diagnosis and Evaluation Committee;

 

　　(4) Disputes between families or individuals and domestic service personnel;

 

　　(5) Disputes between individual craftsmen and helpers and apprentices;

 

　　(6) Disputes between rural contracting operators and employees.

 

　　Article 3 Labor dispute cases shall be under the jurisdiction of the basic people's court at the place where the employer is located or where the labor contract is performed.

 

　　If the place of performance of the labor contract is not clear, it shall be under the jurisdiction of the basic people's court where the employer is located.

 

　　If the law provides otherwise, follow those regulations.

 

　　Article 4 Where both the worker and the employer disagree with the same ruling of the labor dispute arbitration institution and file a lawsuit in the same people’s court, the people’s court shall hear the case together. Both parties shall be the plaintiff and defendant. The people’s court shall agree on the claims of both parties. And make a ruling. In the process of litigation, if one party withdraws the lawsuit, the people's court shall continue the trial based on the litigation request of the other party. If both parties to the same arbitration award separately file a lawsuit in a people's court with jurisdiction, the people's court that accepts it later shall transfer the case to the people's court that accepts it first.

 

　　Article 5 The labor dispute arbitration institution does not accept labor dispute cases on the grounds of lack of jurisdiction. If the parties file a lawsuit, the people's court shall handle the cases according to the following circumstances:

　　(1) After examination, it is found that the labor dispute arbitration institution does not have jurisdiction over the case, it shall notify the parties to apply for arbitration to a labor dispute arbitration institution with jurisdiction;

 

　　(2) If the labor dispute arbitration institution is deemed to have jurisdiction after review, the parties shall be notified to apply for arbitration, and the review opinions shall be notified in writing to the labor dispute arbitration institution; the labor dispute arbitration institution still refuses to accept it, and the parties file a lawsuit on the labor dispute The people’s court shall accept the case.

 

　　Article 6 The labor dispute arbitration institution makes a written ruling, decision or notice of inadmissibility on the grounds that the matter applied for arbitration by the parties is not a labor dispute, and if the parties are not satisfied with the lawsuit, the people's court shall deal with them separately:

 

　　(1) If it is a labor dispute case, it shall be accepted;

 

　　(2) Although it is not a labor dispute case, other cases under the jurisdiction of the people's court shall be accepted in accordance with the law.

 

　　Article 7 The labor dispute arbitration institution makes a written ruling, decision or notice of inadmissibility on the grounds that the subject applying for arbitration is unqualified. If the party dissatisfied with the law and filed a lawsuit, the people's court shall not accept it if the subject is found to be unqualified after review; If it has been accepted, it shall be ruled to dismiss the prosecution.

 

　　Article 8 The labor dispute arbitration institution makes a new ruling in order to correct the error of the original arbitration award, and if the parties are not satisfied with the lawsuit, the people's court shall accept it.

 

　　Article 9 The matters arbitrated by labor dispute arbitration institutions are not within the scope of cases accepted by the people's courts. If the parties are not satisfied with the lawsuit, the people's court will not accept it; if it has already accepted it, it shall be ruled to reject the suit.

 

　　Article 10 If the party dissatisfied with the ruling made by the labor dispute arbitration institution to pay the laborer's labor remuneration, work injury medical expenses, economic compensation or compensation, and file a lawsuit in accordance with the law, the people's court will not accept it.

 

　　If the employer fails to perform the payment obligations in the above-mentioned ruling, and the employee applies for compulsory execution in accordance with the law, the people's court shall accept it.

 

　　Article 11 The mediation statement made by the labor dispute arbitration institution has become legally effective, and if one of the parties repents to file a lawsuit, the people's court will not accept it; if it has accepted it, it shall rule to reject the lawsuit.

 

　　Article 12 If a labor dispute arbitration institution fails to make an acceptance decision or an arbitration award within the time limit, and the parties directly initiate a lawsuit, the people's court shall accept it, unless the case for arbitration has the following reasons:

 

　　(1) Transferred to jurisdiction;

 

　　(2) The delivery is in progress or the delivery is delayed;

 

　　(3) Waiting for the result of another lawsuit and the conclusion of disability evaluation;

 

　　(4) Waiting for the hearing of the labor dispute arbitration institution;

 

　　(5) Initiating the appraisal procedure or entrusting other departments to investigate and collect evidence;

 

　　(6) Other legitimate reasons.

 

　　Where the parties file a lawsuit on the grounds that the labor dispute arbitration institution has not made an arbitration award within the time limit, they shall submit the acceptance notice issued by the arbitration institution or other vouchers and certifications that have accepted the arbitration application.

 

　　Article 13 If the worker applies for a payment order to the people’s court in accordance with the second paragraph of Article 30 of the Labor Contract Law and Article 16 of the Mediation and Arbitration Law, the people’s court shall grant a payment order to the people’s court in accordance with the provisions of Chapter 17 of the Civil Procedure Law. Accept.

 

　　After the people’s court decides to terminate the supervision procedure in accordance with the second paragraph of Article 30 of the Labor Contract Law, the people’s court shall inform them to apply for arbitration to the labor dispute arbitration institution first.

 

　　After the people’s court decides to terminate the supervision procedure in accordance with Article 16 of the Mediation and Arbitration Law, if the laborer directly initiates a lawsuit based on the mediation agreement, the people’s court shall accept it.

 

　　Article 14 After the people’s court accepts a labor dispute case, if the parties increase the claim, if the claim is inseparable from the labor dispute in the litigation, the trial shall be combined; if it is an independent labor dispute, the parties shall be notified to arbitrate the labor dispute. The agency applies for arbitration.

 

　　Article 15 Workers directly file a lawsuit based on the employer’s wage arrears as evidence. If the claim does not involve other disputes in the labor relationship, it shall be regarded as a labor remuneration dispute, and the people’s court shall accept it in accordance with ordinary civil disputes.

 

　　Article 16 After a labor dispute arbitration institution makes an arbitration award, if the parties disagree with some of the matters in the award and file a lawsuit in accordance with the law, the labor dispute arbitration award shall not have legal effect.

 

　　Article 17 After a labor dispute arbitration institution makes an arbitration award on a labor dispute of multiple workers, some workers are dissatisfied with the arbitration award and file a lawsuit in accordance with the law, the arbitration award will not have legal effect on the worker who brought the lawsuit; Part of the workers involved in the lawsuit has legal effect. If they apply for enforcement, the people's court shall accept it.

 

　　Article 18 The type of arbitration award shall be determined by the arbitration award. The arbitration award does not specify that the award is final or non-final, and if the employer refuses to accept the arbitration award and file a lawsuit with the basic people’s court, it shall be dealt with according to the following circumstances:

　　(1) If the arbitration award is deemed to be non-final after review, the basic people's court shall accept it;

 

　　(2) If the arbitration award is deemed to be final after review, the basic people’s court shall not accept it, but the employer shall be informed that the employer can report to the intermediate people where the labor dispute arbitration institution is located within 30 days from the date of receipt of the non-acceptance ruling. The court applied for annulment of the arbitration award; if it has already been accepted, it ruled to reject the suit.

 

　　Article 19 The arbitration award does not specify that the award is final or non-final, and the worker claims labor remuneration, work injury medical expenses, economic compensation or compensation in accordance with Article 47, Paragraph 1 of the Mediation and Arbitration Law If the arbitration award involves several items, and the amount determined in each item does not exceed the twelve-month amount of the local monthly minimum wage standard, it shall be dealt with in accordance with the final award.

 

　　Article 20 The same arbitration award made by a labor dispute arbitration institution contains both final awards and non-final awards. If the parties disagree with the arbitration award and file a lawsuit with the people's court, they shall be dealt with as non-final awards.

 

　　Article 21: Workers file a lawsuit in the basic people’s court in accordance with Article 48 of the Mediation and Arbitration Law, and the employer shall apply to the intermediate people’s court where the labor dispute arbitration institution is located to revoke the arbitration award in accordance with Article 49 of the Mediation and Arbitration Law. If it is accepted, the intermediate people’s court shall not accept it; if it has already accepted it, it shall rule to reject the application.

 

　　If the lawsuit is rejected by the people's court or the worker withdraws the lawsuit, the employer may, within 30 days of receiving the ruling, apply to the intermediate people's court where the labor dispute arbitration institution is located to revoke the arbitration award.

 

　　Article 22 The employer shall apply to the Intermediate People's Court to revoke the arbitration award in accordance with Article 49 of the Mediation and Arbitration Law. The ruling of the Intermediate People's Court to reject the application or cancel the arbitration award shall be the final ruling.

 

　　Article 23 Intermediate people’s courts shall form a collegiate panel to hear cases in which an employer applies for revocation of a final ruling. After reviewing the files, investigating and questioning the parties, if there are no new facts, evidence or reasons, the collegial panel does not need to hold a hearing, it may not hold a hearing.

 

　　The Intermediate People’s Court may organize mediation between the parties. If a mediation agreement is reached, a mediation statement may be made. If one party fails to perform the mediation agreement within the time limit, the other party may apply to the people's court for compulsory execution.

 

　　Article 24 The parties apply to the people’s court to execute the legally effective awards and mediation documents issued by labor dispute arbitration institutions. The respondent provides evidence to prove that the labor dispute arbitration awards and mediation documents have one of the following circumstances, which have been reviewed and verified The people’s court may, in accordance with the provisions of Article 237 of the Civil Procedure Law, rule not to execute:

 

　　(1) The matter awarded does not fall within the scope of labor dispute arbitration, or the labor dispute arbitration institution has no right to arbitrate;

 

　　(2) The applicable laws and regulations are indeed wrong;

 

　　(3) Violating legal procedures;

 

　　(4) The evidence on which the ruling is based is forged;

 

　　(5) The other party concealed evidence that could affect the fairness of the decision;

 

　　(6) When arbitrating the case, the arbitrator had acted in soliciting or accepting bribes, engaging in malpractice for personal gain, or ruling in violation of the law;

 

　　(7) The people’s court determined that the enforcement of the labor dispute arbitration award violated the public interest of the society.

 

　　In the non-enforcement ruling, the people's court shall inform the parties that within 30 days from the day after receiving the ruling, they can file a lawsuit with the people's court on the labor dispute.

 

　　Article 25 If the labor dispute arbitration institution makes a final ruling, the worker applies to the people’s court for enforcement, and the employer applies to the intermediate people’s court where the labor dispute arbitration institution is located for cancellation, the people’s court shall rule to suspend enforcement.

　　If the employer withdraws the application for revocation of the final award or its application is rejected, the people's court shall rule to resume execution. If the arbitration award is revoked, the people's court shall rule to terminate the execution.

 

　　After the employer applies to the people's court for revocation of the arbitration award and is rejected, the people's court shall not support the defense of non-enforcement for the same reason in the enforcement procedure.

 

　　Article 26. If an employer merges with other units, the labor dispute that occurred before the merger shall be the party after the merger; if the employer is split into several units, the labor dispute that occurred before the split shall be determined by the actual employer after the split. The unit is the party.

 

　　After the employer is divided into several units, if the specific unit that bears the labor rights and obligations is not clear, the units after the division are all parties.

 

　　Article 27 The employing unit recruits laborers who have not terminated the labor contract, and the labor dispute between the original employing unit and the laborer may be listed as the third party.

 

　　If the original employer filed a lawsuit on the grounds of infringement by the new employer, the employee may be listed as the third party.

 

　　If the original employer filed a lawsuit on the grounds of joint infringement by the new employer and the worker, the new employer and the worker shall be listed as co-defendants.

 

　　Article 28 During the contractual operation period between the employer and other equal entities, if a labor dispute arises with either or one of the contracting party and the contracting party, the contractor and the contracting party shall be the parties to the lawsuit.

 

　　Article 29 If a laborer has a dispute with an employer that has not applied for a business license, has its business license revoked, or continues to operate after the expiry of the business period, the employer or its investor shall be listed as the party.

 

　　Article 30 If an employer that has not applied for a business license, its business license has been revoked, or continues to operate after the expiry of its business period, if it borrows another person's business license to operate by means of affiliation, etc., the employer and the lender of the business license shall be listed as the parties.

 

　　Article 31 If the parties dissatisfied with the arbitration award made by the labor dispute arbitration institution, they file a lawsuit in accordance with the law, and the people's court reviews that the arbitration award has omitted parties who must participate in the arbitration together, and the missing persons shall be added as litigants in accordance with law.

 

　　If the additional party should bear the responsibility, the people's court shall deal with it together.

 

　　Article 32 If an employer has a labor dispute with its recruited persons who have enjoyed pension insurance benefits or received pensions in accordance with the law, and file a lawsuit, the people's court shall deal with it in accordance with the labor service relationship.

 

　　If an enterprise stays without pay, retires before the statutory retirement age, laid-off workers, and enterprise business suspension of production and long-term leave, the people’s court shall deal with it in accordance with the labor relationship.

 

　　Article 33 Foreigners and stateless persons sign labor contracts with employers within the territory of the People's Republic of China without obtaining employment certificates in accordance with the law, and the people's courts shall not support them if the parties request confirmation of the labor relationship with the employers.

 

　　Foreigners who hold the "Foreign Expert Certificate" and obtain the "Work Permit for Foreigners in China" who have established employment relationships with employers in the People's Republic of China can be recognized as labor relationships.

 

　　Article 34 After the expiration of the labor contract, if the employee is still working at the original employer and the original employer does not express any objections, it shall be deemed that both parties agree to continue to perform the labor contract on the original terms. If one party proposes to terminate the labor relationship, the people's court shall support it.

 

　　According to Article 14 of the Labor Contract Law, if the employer should sign an open-term labor contract with the employee without signing it, the people’s court may consider that there is an open-term labor contract relationship between the two parties, and determine both parties based on the original labor contract. The relationship of rights and obligations.

 

　　Article 35 The agreement reached between the worker and the employer on the termination or termination of the labor contract through the relevant procedures, payment of wages, overtime, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and does not Where there is fraud, coercion, or risk taking advantage of others, it shall be deemed valid.

 

　　If there is a major misunderstanding or obvious unfairness in the agreement in the preceding paragraph, and the parties request cancellation, the people's court shall support it.

 

　　Article 36 The parties have agreed on the restriction of competition in the labor contract or confidentiality agreement, but have not agreed to give the employee economic compensation after the termination or termination of the labor contract. The employee has fulfilled the obligation of the restriction of competition and requires the employer to comply with the employee’s current situation. If 30% of the average salary in the twelve months before the termination or termination of the labor contract is paid monthly, the people's court shall support it.

 

　　If 30% of the monthly average wage as specified in the preceding paragraph is lower than the minimum wage standard in the place where the labor contract is performed, it shall be paid in accordance with the minimum wage standard in the place where the labor contract is performed.

 

　　Article 37 The parties have agreed on the restriction of competition and economic compensation in the labor contract or confidentiality agreement. When the parties terminate the labor contract, unless otherwise agreed, the employer requires the employee to perform the restriction on competition, or the employee has performed If the employer is required to pay economic compensation after the obligation of non-competition, the people's court shall support it.

 

　　Article 38 The parties have agreed on competition restriction and economic compensation in the labor contract or confidentiality agreement. After the termination or termination of the labor contract, the employer has not paid the economic compensation for three months, and the worker requests the lifting of the competition restriction. If agreed, the people's court shall support it.

 

　　Article 39 If the employer requests the cancellation of the non-competition agreement within the non-competition period, the people's court shall support it.

 

　　When the laborer requests the employer to pay the laborer's three-month non-competition economic compensation when the non-competition agreement is lifted, the people's court shall support it.

 

　　Article 40 After the employee violates the agreement on the restriction of competition and pays liquidated damages to the employer, and the employer requires the employee to continue to perform the obligation of restriction of competition in accordance with the agreement, the people's court shall support it.

 

　　Article 41 If the labor contract is confirmed to be invalid and the laborer has already paid for the labor, the employer shall pay the laborer to the laborer in accordance with the provisions of Article 28, Article 46, and Article 47 of the Labor Contract Law. Remuneration and financial compensation.

 

　　If the employer concludes an invalid labor contract and causes damage to the employee, the employer shall compensate the employee for the economic loss caused by the invalid contract.

 

　　Article 42 If a worker claims overtime pay, he shall bear the burden of proof for the existence of overtime. However, if the employee has evidence to prove that the employer has the evidence of the fact that the employer has worked overtime, the employer shall bear the adverse consequences if the employer does not provide it.

 

　　Article 43 The employer and the employee agree to change the labor contract through negotiation. Although the written form is not adopted, the verbal change of the labor contract has actually been performed for more than one month. The content of the changed labor contract does not violate laws, administrative regulations and does not In violation of public order and good customs, if the parties claim that the labor contract is invalidated on the grounds of not adopting a written form, the people's court shall not support it.

 

　　Article 44 The employer shall bear the burden of proof for labor disputes arising from decisions made by the employer to expel, remove, dismiss, terminate the labor contract, reduce labor remuneration, and calculate the working life of the employee.

 

　　Article 45 If the employing unit is under any of the following circumstances and forces the worker to propose to terminate the labor contract, the employing unit shall pay the worker's labor remuneration and economic compensation, and may pay compensation:

 

　　(1) Forced labor by means of violence, threats or illegal restrictions on personal freedom;

 

　　(2) Failing to pay labor remuneration or provide labor conditions in accordance with the labor contract;

 

　　(3) Deducting or unreasonably owing wages to laborers;

 

　　(4) Refusing to pay the worker's wages for extended working hours;

 

　　(5) Paying workers' wages below the local minimum wage.

 

　　Article 46: The worker is assigned to work from the original employer to the new employer without his own reasons, and the original employer fails to pay economic compensation. The worker terminates the labor contract with the new employer in accordance with Article 38 of the Labor Contract Law. , Or the new employer proposes to the worker to terminate or terminate the labor contract, and when calculating the working years for payment of economic compensation or compensation, the worker requests that the working years of the original employer be combined into the working years of the new employer, the people’s court Should be supported.

 

　　If the employer meets one of the following circumstances, it shall be deemed as “the worker was assigned to work from the original employer to the new employer without his own reasons”:

 

　　(1) The worker is still working at the original workplace or job position, and the subject of the labor contract is changed from the original employer to the new employer;

 

　　(2) Employers transfer workers in the form of organization assignment or appointment;

 

　　(3) Workers' job transfer due to the merger or division of employers, etc.;

 

　　(4) Employers and their affiliated enterprises shall enter into labor contracts with employees in turn;

 

　　(5) Other reasonable circumstances.

 

　　Article 47 The termination of the labor contract by an employer that has established a labor union organization complies with the provisions of Article 39 and Article 40 of the Labor Contract Law, but fails to notify the labor union in advance in accordance with the provisions of Article 43 of the Labor Contract Law. Where the employer requests the employer to pay compensation on the grounds that the employer illegally terminates the labor contract, the people's court shall support it, unless the employer has corrected the relevant procedures before the lawsuit.

 

　　Article 48 After the implementation of the Labor Contract Law, if the employer cannot continue to perform the labor contract due to the expiration of the business period of the employer, and the labor contract cannot be continued, and the employee requests the employer to pay economic compensation, the people's court shall support it.

 

　　Article 49 During the litigation process, the worker applies to the people’s court to take property preservation measures. Upon review, the people’s court finds that the applicant is in financial difficulties, or if there is evidence that the employer has the possibility of escaping from arrears of wages, it shall be mitigated or exempted. The laborer’s obligation to provide guarantees shall be promptly adopted for preservation measures.

 

　　In the property preservation ruling made by the people’s court, the parties shall be notified to apply for compulsory execution within three months after the award of the labor dispute arbitration institution or the judgment of the people’s court takes effect. If the application is not made within the time limit, the people's court shall rule to cancel the preservation measures.

 

　　Article 50 The rules and regulations formulated by the employing unit through democratic procedures in accordance with Article 4 of the Labor Contract Law, which do not violate national laws, administrative regulations and policies, and which have been disclosed to workers, can be used as the basis for determining the rights and obligations of both parties .

 

　　If the internal rules and regulations formulated by the employer are inconsistent with the content agreed in the collective contract or labor contract, and the employee requests the priority to be applied to the contract, the people’s court shall support it.

 

　　Article 51 The mediation agreement with labor rights and obligations reached by the parties under the auspices of the mediation organization stipulated in Article 10 of the Mediation and Arbitration Law is binding on the labor contract and can be used as the basis for the judgment of the people's court.

 

　　If the parties only reach a mediation agreement on labor compensation disputes under the auspices of the mediation organization stipulated in Article 10 of the Mediation and Arbitration Law, and the employer fails to perform the payment obligations determined in the mediation agreement, and the employee directly initiates a lawsuit, the people's court may accept it in accordance with ordinary civil disputes.

 

　　Article 52 The parties only reach a mediation agreement on payment obligations under the auspices of the People’s Mediation Committee. If both parties deem it necessary, they may jointly apply to the basic people’s court where the People’s Mediation Committee is located for judicial confirmation.

 

　　Article 53 If the employer’s expulsion, delisting, dismissal, etc., or the termination of the labor contract due to other reasons is indeed wrong, the people’s court may revoke it in accordance with the law.

 

　　In cases of recourse for labor remuneration, pensions, medical expenses, work-related injury insurance benefits, economic compensation, training fees, and other related expenses, the people's court may change the payment amount if the amount is inappropriate.

 

　　Article 54 This interpretation shall come into effect on January 1, 2021.