China Employment Law Network
Shanghai Business Lawyer
Legal Updates
The Interpretation (IV) of the Supreme People's Court of Several Issues on the Application of Law in the Trial of                Labor Dispute Cases
released by£ºboooming Time£º2013-4-25 14:34:09 Read£º10600Time

 The Interpretation (IV) of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases

 

(adopted at the 1,566th session of the Judicial Committee of the Supreme People's Court on December 31, 2012, is hereby issued and shall come into force on February 1, 2013.)

 

For the correct trial of labor dispute cases, this Interpretation of several issues on application of law is made in accordance with the Labor Law of the People's Republic of China, the Labor Contract Law of the People's Republic of China, the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other relevant laws and in consideration of civil trial practice.

 

Article 1 Where the labor and personnel dispute arbitration committee refuses to accept a labor dispute case on the ground that it has no jurisdiction over the case, and a party to the case files a lawsuit in a people's court, the people's court shall handle the case according to the following provisions:

(1) Deeming that the labor and personnel dispute arbitration committee has no jurisdiction over the case upon examination, the people's court shall notify the party to apply for arbitration to the labor and personnel dispute arbitration committee having jurisdiction.

(2) Deeming that the labor and personnel dispute arbitration committee has jurisdiction over the case upon examination, the people's court shall notify the party to apply for arbitration and notify in writing the labor and personnel dispute arbitration committee of its examination opinion; and if the labor and personnel dispute arbitration committee still refuses to accept the case, and the party files a lawsuit for the labor dispute, the people's court shall accept the case.

 

Article 2 The type of an arbitral award shall be determined according to the written arbitration award.

 

Where an arbitral award is not clearly stated as a final or interlocutory award in the written arbitral award, and the employer files a lawsuit in a basic people's court against the arbitral award, the basic people's court shall handle the case according to the following provisions:

(1) Deeming that the arbitral award is an interlocutory award upon examination, the basic people's court shall accept the case.

(2) Deeming that the arbitral award is a final award upon examination, the basic people's court shall not accept the case but shall notify the employer that the employer may apply for revocation of the arbitral award to the intermediate people's court at the place where the labor and personnel dispute arbitration committee is located within 30 days after receiving the non-acceptance ruling; or if the case has been accepted, shall make a ruling to dismiss the lawsuit.

 

Article 3 An intermediate people's court shall form a collegial bench to try a case in which an employer applies for revocation of a final award in a court session. Where, after consultation of the case file, investigation and questioning of the parties, no new fact, evidence or reason is submitted, the collegial bench may decide not to hold a court session if deeming a court session unnecessary.

 

An intermediate people's court may organize mediation between both parties. Where a mediation agreement is reached, a consent judgment may be entered. Where one party fails to perform the mediation agreement during the prescribed time period, the other party may apply to the people's court for enforcement.

 

Article 4 Where a mediation agreement is reached only on payment obligations upon mediation by a people's mediation committee, both parties may jointly apply to the basic people's court at the place where the people's mediation committee is located for the judicial confirmation of the mediation agreement if they deem it necessary.

 

Article 5 Where an employee is transferred from the original employer to a new employer for reasons not attributable to the employee, the original employer fails to pay any economic indemnity, and the employee rescinds his or her labor contract with the new employer in accordance with Article 38 of the Labor Contract Law or the new employer proposes the rescission or termination of the labor contract with the employee, if the employee requests the consolidation of his or her length of service in the original employer and that in the new employer in the calculation of the length of service for the purpose of payment of economic indemnity or compensation, the people's court shall support such a request.

 

If an employer falls under any of the following circumstances, it shall be determined that “an employee is transferred from the original employer to a new employer for reasons not attributable to the employee”:

(1) The employee still works in the original work place and post, and one party to the labor contract changes from the original employer into the new employer.

(2) The employer transfers the employee in the form of delegation or appointment.

(3) The employee's work transfer is caused by a merger, split or any other modification of the employer.

(4) The employer and its affiliated enterprises enter into labor contracts with the employee in turn.

(5) Other reasonable circumstances.

 

Article 6 Where, in the labor contract or confidentiality agreement, the parties agree on non-competition but fail to agree on the payment of economic indemnity to the employee after the rescission or termination of the labor contract, if the employee performs the non-competition obligation and claims a monthly payment of economic indemnity from the employer as per 30% of the employee's average monthly wage for the 12 months before the rescission or termination of his or her labor contract, the people's court shall support such a claim.

 

If the 30% of the employee's monthly average wage in the preceding paragraph is lower than the minimum wage standard at the place where the labor contract is performed, the indemnity shall be paid as per the minimum wage standard at the place where the labor contract is performed.

 

Article 7 Where the parties agree on non-competition and economic indemnity in the labor contract or confidentiality agreement, except as otherwise agreed on, when a party rescinds the labor contract, if the employer requests the employee to perform the non-competition obligation or the employee claims economic indemnity from the employer after performing the non-competition obligation, the people's court shall support such a request or claim.

 

Article 8 Where the parties agree on non-competition and economic indemnity in the labor contract or confidentiality agreement, if the employee requests the removal of the non-competition clause on the ground of non-payment of economic indemnity for three months after the rescission or termination of the labor contract for reasons attributable to the employer, the people's court shall support such a request.

 

Article 9 Where the employer requests the rescission of a non-competition agreement during the non-competition period, the people's court shall support such a request.

 

If the employee claims an additional three-month economic indemnity for non-competition from the employer during the rescission of the non-competition agreement, the people's court shall support such a claim.

 

Article 10 Where the employer requests the employee's continued performance of the non-competition obligation as agreed on after the employee pays a penalty for his or her breach of the non-competition clause to the employer, the people's court shall support such a request.

 

Article 11 Where a labor contract is not modified in writing, but the orally modified labor contract has been actually performed for over a month, and the provisions of the modified labor contract do not violate any law, administrative regulation, national policy, public order or good custom, if a party claims invalidity of the modified labor contract on the ground that the contract is not modified in writing, the people's court shall not support such a claim.

 

Article 12 Where an employer that has established a labor union rescinds a labor contract in compliance with Articles 39 and 40 of the Labor Contract Law but fails to notify the labor union in advance in accordance with Article 43 of the Labor Contract Law, if the employee claims compensation from the employer on the ground that the employer illegally rescinds the labor contract, the people's court shall support such a claim, unless the employer has undergone the required relevant procedures before the lawsuit is filed.

 

Article 13 Where, after the Labor Contract Law came into force, a labor contract cannot continue to be performed because the employer no longer continues its business operation after its term of business operation expires, if the employee claims economic indemnity from the employer, the people's court shall support such a claim.

 

Article 14 Where a foreign national or a stateless person without legally obtaining a work permit enters into a labor contract with an employer within the territory of China, or a resident in the Hong Kong Special Administrative Region, the Macao Special Administrative Region or the Taiwan region without legally obtaining a work permit enters into a labor contract with an employer in the mainland, if the party requests a confirmation of his or her labor relationship with the employer, the people's court shall not support such a request.

 

Where a foreign national who holds a Foreign Expert Certificate and has obtained a Permit for Foreign Experts to Work in China establishes a working relationship with an employer within the territory of China, such a relationship may be determined as a labor relationship.

 

Article 15 The relevant judicial interpretations issued by the Supreme People's Court before this Interpretation comes into force which are in conflict with this Interpretation shall no longer apply from the date of entry into force of this Interpretation.

 

This Interpretation shall apply to labor dispute cases for which a final judgment has not been made after this Interpretation comes into force; and this Interpretation shall not apply, where a final judgment has been made before this Interpretation comes into force and a party files a petition for retrial or a retrial decision is made under the trial supervision procedure.

 
 
Print | Close | Back
 
copyright@Shanghai Barry Law Firm
Add£ºSuite 701 Huanan Mansion, No.1988 Dongfang Road, Shanghai 200125 Tel£º(86)13917214000 :(86-21)58819909,
Fax£º(86-21)58818085
>