【作者】 张志鹏；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 经济法， 2008， 硕士

【摘要】 劳动合同解除和终止的经济补偿是《劳动法》的一个独特的制度内容,充分体现了《劳动法》追求劳动关系实质公平的立法理念和倾斜保护劳动者的立法技术。我国《劳动合同法》在《劳动法》基础上,对用人单位支付经济补偿金的情形进行了丰富,增加了劳动合同期满,满足一定条件时,用人单位支付经济补偿金的情形。应当说,《劳动合同法》的颁布实施,对于建立与社会主义市场经济体制相适应的用人单位与劳动者双向选择的劳动用工制度,实现劳动力资源的市场配置,促进劳动关系和谐稳定,发挥了十分重要的作用。然而,在实践中,由于对解除和终止劳动合同支付经济补偿金理解上的不一致,导致在实务中出现了许多问题,直接影响到《劳动合同法》的正确实施。就此问题,本文从探讨经济补偿金的法律性质,适用范围,经济补偿金和赔偿金、违约金的关系辨析及其并存问题,实务中经济补偿金的计算、支付、适用等问题入手进行了论述。更多还原

【Abstract】 Economic compensation for the termination and ending of employment contracts is a unique institutional content of LABOUR LAW OF THE PEOPLE’S REPUBLIC OF CHINA, fully embodying the lawmaking concept of seeking essential equality of the employment relationships and legislation technique of intending to protect laborers. On the basis of LABOUR LAW OF THE PEOPLE’S REPUBLIC OF CHINA, LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS enriches the situation which employers should pay economic compensation to employees by adding that when the employment contract expires, employers should pay economic compensation to the employees with certain conditions being met. It’s fair to say that the promulgation and implementation of LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS plays a vital role in establishing a“two-way choice”employment system adapted to the socialist market economy system, realizing the market allocation of labor force resources and promoting the harmony and stability of employment relationships. However, in practice, due to different comprehensions on the economic compensation for the termination and ending of employment contracts, there have appeared many problems in the actual situation, which directly influenced the proper implementation of LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS. This article discusses several aspects concerning the issue including the legal property and applicable scope of the economic compensation, the relationship between the economic compensation, liquidated damages and penal bonds and coexisting problems, the calculation, payment and application of the economic compensation, and so on. This article comprises three parts:Chapter 1 makes an analysis of the legal property of the economic compensation, and on the basis of which makes a summary of its applicable scope.At present, there are three theories concerning the property of economic compensation in academe: First, the theory of "compensation for contribution", claiming that the economic compensation is a kind of material compensation for the employee’s accumulated contribution for the employing unit during the effective employment relationship, is recognition of his past working achievements, therefore the amount of the economic compensation should be hooked with his working years in the employment unit; Second, the theory of "penalty bonds", defining economic compensation as the legal penalty bonds, regarding the economic compensation for the termination of employment contracts as the result of the nation’s forcing interference in the agreement between employers and employees in order to protect the lawful rights and interests of the employees; Third, the theory of " social security", taking the economic compensation system as a composing part of the social security system which aims to provide necessary guarantee for his basic living expenditure after the termination of the employment contract and before finding a new job. So it’s a kind of social security fund.To define the property of the economic compensation, all the above three theories can’t interpret its legal quality completely and can’t stand the theoretical deliberation. The writer thinks that the economic compensation firstly reflects a kind of idea with fair essence and legislative spirit of fairness and justice, secondly, the economic compensation is a kind of economic means that the country regulates employment relationship, and lastly, the economic compensation is a kind of fair shared responsibilities of employee’s employing risks between employing unit and individual employee. It is the mandatory obligation of the employ unit regulated by employment legislation during the process of exercising the legal right of terminating the contract, a result of shouldering part of social obligation shifted by the country.After combing and summing up the applicable scope of the economic compensation, the writer concludes that the employing units should pay the economic compensation in seven situations. In view of the great change between the applicable scope of the economic compensation of LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS and LABOUR LAW OF THE PEOPLE’S REPUBLIC OF CHINA and related regulations, the write sums up the changes into the following five aspects: first, LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS adds and clears the regulation of economic compensation payment in contract ending situation; second, it specifies the economic compensation payment when terminating the contract in probationary period; third, it defines the issue whether the employing unit should pay the economic compensation when the two parties of the employment contract terminate the contract through negotiation; fourth, LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS adds the regulation that the employing unit with industrial limitations and without lawful operational qualifications should pay economic compensation when terminating or ending the employment contract; fifth, for the situation that the employing unit“denies to pay for overtime”and " pays employees lower than the local minimum wage standard, although LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS has not listed in the legal situations of the economic compensation for the termination of the contracts, employees can unilaterally exercise the right of termination and ask for economic compensation in accordance with the 38th Article of LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS, in addition, it stipulates that the employing unit not only should pay for overtime or pay wage balance, if it fails to make the payment with the charge of the labor administrative department, it should also pay the liquidation damages. At the same time, the writer also makes a summary of the five situations when employing units don’t need to pay the economic compensation.In Chapter 2 the writer emphatically differentiates and analyzes the economic compensation, liquidation damages and penalty bonds which are applicable to the legal relationship of the employment contract, and also discusses the existing problems concerning the above three concepts.Firstly, the writer differentiates and analyzes the economic compensation and liquidation damages. The writer thinks that the economic compensation and liquidation damages are different in five aspects including paying part, character, subjective factor, amount and applicable conditions. For the problem whether the employees can claim for both economic compensation and liquidation damages to employers or not acually under the same lawful fact, based on the current Chinese legislation, in the situation when the employee and the employer without legal operational qualification establishes employment relationship, the writer discusses seven situations in which the employing unit should pay both economic compensation and liquidation damages.Immediately after, the writer differentiates and analyzes the economic compensation and penalty bonds. The writer thinks the character of penalty bonds prescribed by LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS is typically compensatory, that is to say, it takes an attitude of limited compensation, limiting the applicable scope and maximum amount. Therefore, economic compensation and penalty bonds are different mainly in four aspects, namely, their legal characters, defined by law or not, applicable objects and paying agents. With regard to the coexisting of economic compensation and penalty bonds for the employees, the writer thinks there is no possibility of coexistence of the two because the employee is not the legal agent of economic compensation. They can only coexist in the same employing unit.Lastly, the writer differentiates and analyzes penalty bonds and liquidation damages. The writer thinks that both penalty bonds and liquidation damages are forms of liability in employment contract, but they are different in property and applicable agent. As for the coexistence of penalty bonds and liquidation damages, Article 23, LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS stipulates that the employee should pay penalty bonds to the employing unit if he violates competition restriction engagement Article 90 regulates that the employee should take on responsibility of paying liquidation damages if he causes losses to the employing unit by violating competition restriction engagement. But the liquidation damages and penalty bonds the employee should pay should not exceed the actual losses of the employing unit.In Chapter 3, combining cases the writer illustrates the specific applications of the economic compensation from the following aspects: the calculation of the economic compensation, the payment of the economic compensation, several frequently happening problems in practice, for example, whether or not the employing unit should pay the economic compensation when laying off employees in probationership period, whether or not the employee should pay income tax for the economic compensation, whether or not the economic compensation enjoys priority to get paid with bankruptcy of the enterprise, and the like.更多还原