In my opinion, if a worker breaches the contract, the employer requires him to pay liquidated damages, which has two functions:
First, the role of damages. The sudden resignation of employees will definitely have some negative effects on the production and operation of the employer, so employees should compensate or compensate the employer. It is difficult to measure how much economic losses are caused. In modern enterprises, the relationship between employees should be interrelated. One employee's problem is not enough to affect the whole situation. If the loss of an employee causes great losses to the employer, it can only show that the labor management of this enterprise is flawed. How to accurately determine the amount of compensation or compensation should grasp the principles of seeking truth from facts, the size of responsibility and giving full consideration to the ability of workers to pay.
Second, punish the breach of contract. In order to establish the concept of "honesty and credit" in the society, it is appropriate for the employer to collect liquidated damages from the workers who break the contract, and it can also be regarded as a little punishment for those who do not keep their promises. Based on the above two functions, it can be seen that the laborer has to pay liquidated damages for breach of contract, and the amount should be reasonably determined by considering the laborer's ability to pay and the economic losses caused.
2. liquidated damages should not be unfair.
Chai Liping (Beijing Labor Dispute Arbitration Commission)
At present, although there is no punishment in the labor law, it is not prohibited. This makes the agreement on liquidated damages have a legal premise, because under the current legal system, the agreement is legal as long as it does not violate the state's prohibitive provisions. However, we should also pay attention not to violate the provisions of Article 18 of the Labor Law when concluding the breach clause: "That is, we must not violate laws and administrative regulations and adopt fraud, threats and other means." Signing a labor contract shall not violate the principle of equality and voluntariness. Secondly, we should follow the principle of good faith and learn from Confucius when fulfilling the relevant contract terms. If the amount of breach of contract in some labor contracts exceeds the total wages of employees during their employment in the employer, it is actually a fair clause. Some employees resigned immediately after their employers spent a lot of money to transfer them to Beijing. The third problem arising from this is the improvement of labor laws and regulations. The Labor Law came into effect in June 1 995+1October1,which is far from meeting the requirements of labor relations under the market economy. As mentioned above, obviously unfair clauses are revocable clauses in the contract law, but they are not involved in the labor law at all. There are no corresponding punishment measures for acts that violate the principle of good faith in the performance of labor contracts, which affects the performance of labor contracts.
3. The court does not support liquidated damages.
Chen Jiping (Beijing Higher People's Court)
The conclusion and dissolution of labor contracts are clearly stipulated by law, which clearly stipulates the conditions and ways of undertaking the dissolution of existing labor contracts. The labor law does not stipulate that the laborer shall bear the liability for breach of contract when unilaterally terminating the labor contract, but only stipulates that the laborer shall bear the responsibility if it unilaterally terminates the labor contract and causes losses to the employer; Moreover, the labor law does not restrict the free movement of workers on the premise of ensuring the stability of labor relations. From the above point of view, the so-called "liquidated damages" concluded by both parties violate the labor law and should not be supported.
4. Responsibility is only relative to economic loss.
(Labor and Personnel Department of the Center)
Article 19 of Beijing Labor Contract Regulations, which came into effect in February this year, clearly stipulated the penalty clause, which finally legalized the common but controversial penalty clause in the performance of labor law. Although this article stipulates that the liquidated damages shall not exceed the total salary of 12 months before the termination of the contract, if employees breach the contract, especially those who have worked for a short time, there is the possibility of working hard in vain and losing one. If we consider that wages are a necessary condition for labor reproduction, its significance can be imagined.
When enterprises sign labor contracts with employees, many enterprises will stipulate the content of liquidated damages in the labor-related clauses. Does this clause meet the requirements of the labor law? There is some controversy. The labor law stipulates the obligations and responsibilities that both parties should bear when they violate the labor contract. However, it is not clear whether this kind of responsibility can appear in the form of liquidated damages. However, Article 19 of Beijing Labor Contract Regulations, which came into effect in February this year, clearly stipulated the penalty clause. The document stipulates that when concluding a labor contract, it may be agreed that the laborer terminates the labor contract in advance, and the liquidated damages paid by the laborer to the employer shall not exceed the total salary of 12 months before the termination of the labor contract.
There is no provision for liquidated damages in the labor law. The content of the labor contract is specified in detail in the Labor Law. Include necessary clauses and unnecessary clauses. Item 7 of the essential clauses of the labor contract stipulates: liability for breach of the labor contract. For this responsibility, enterprises and workers are different. For enterprises, the responsibilities for early termination of labor contracts include: giving economic compensation in accordance with relevant state regulations; If losses are caused to the workers, they still have to pay compensation. For workers, this responsibility includes: "If a worker terminates the labor contract in violation of the conditions stipulated in this law or violates the confidentiality matters stipulated in the labor contract, causing economic losses to the employer, he shall be liable for compensation according to law." (Article 102 of the Labor Law), that is, this kind of responsibility only includes the liability for compensation.
There is no provision in the labor law on whether the two parties can agree on liquidated damages. Paragraph 2 of Article 4 of the Measures for Compensation for Violation of Labor Law Provisions on Labor Contracts issued by the Ministry of Labor expands the liability for breach of contract, stipulating that if a worker terminates the labor contract in violation of regulations or the labor contract, causing losses to the employer, the worker shall compensate the training expenses paid by the employer. If both parties agree otherwise, it shall be handled according to the agreement. 19961June 3 1 Notice of the Ministry of Labor on Several Issues Concerning the Mobility of Employees in Enterprises, Item 3 stipulates that "the employer and employees may agree on liquidated damages in the labor contract. The termination of the labor contract shall be implemented in accordance with the relevant provisions of the Labor Law ". Therefore, when many enterprises sign labor contracts, especially when they sign labor contracts with college students or skilled employees, a considerable number of liquidated damages are stipulated in the labor contracts, and it is getting more and more serious. Moreover, many enterprises, especially state-owned enterprises and private enterprises with low wages, have taken the clause of high liquidated damages as an effective means to retain and prevent employees from leaving the enterprise. At this time, signing a labor contract is equivalent to a prostitution contract.
What needs to be emphasized here is that the penalty clause in the labor contract is generally only aimed at the responsibilities agreed upon when the employee terminates the contract in advance. In fact, if there are other forms of breach of contract between the two parties to the labor contract, do you need to pay liquidated damages? For example, employees must go to work at normal hours according to the contract. Is it a breach of contract if an employee is late? Is it a breach of contract if the enterprise suddenly works overtime, and it needs to pay liquidated damages and so on. At the same time, if the enterprise terminates the contract in advance in violation of the contract, whether to pay the equivalent liquidated damages will not affect the payment of economic compensation. If we do some analysis at that time, we can see that it is worth considering to stipulate liquidated damages in the labor contract.
First of all, from the nature of the source of liquidated damages, liquidated damages have a specific meaning, not a general liability for breach of contract. Liquidated damages are not equal to liability for breach of contract. In the contract law, the liability for breach of contract is mainly manifested in the forms of compensation for losses, non-refundable deposit and payment of liquidated damages. Liquidated damages are a form of liability for breach of contract. In an economic contract, liquidated damages mean that one or both parties who conclude an economic contract pay a certain amount of money to the other party according to the law or the agreement reached by both parties when they fail to perform or perform the contract incorrectly. Liquidated damages are a punitive legal sanction against the defaulting party, which is paid to the other party when the defaulting party is subjectively at fault, fails to perform or improperly performs the contract.
At the same time, liquidated damages are generally a kind of compensation for the losses caused by the breaching party's breach of contract. For example, if the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; On the contrary, you can ask for an appropriate reduction, so the amount of liquidated damages cannot be higher than the total amount of the subject matter of the contract. At the same time, for some contracts, the law clearly stipulates the amount. For example, the contract for the purchase and sale of industrial and mining products before the promulgation of the contract law stipulates that "the penalty for general products is 1-5% of the total amount of undeliverable parts of the goods, and the penalty for special products is 10-30% of the total amount of undeliverable parts of the goods".
From the essence of labor contract, there are great differences between labor contract and economic contract, among which there are essential differences from the purpose of concluding the contract. For workers, the fundamental purpose of labor contract is to establish labor relations through labor contract, so as to obtain wage income of their own labor, and its fundamental purpose is to obtain necessities necessary for their survival. Compared with enterprises, it is to make profits by producing products or services through employees' labor. Therefore, we believe that from the perspective of labor relations, especially because labor is still the basic means for workers to make a living, giving workers liquidated damages violates the legislative spirit of the labor law and does not conform to the provisions of the labor law. Similarly, for enterprises, it is unfair to assume the responsibility of liquidated damages on the premise that dismissing employees has already assumed the responsibility of economic compensation, which not only increases the operating costs of enterprises, but also objectively limits the market-oriented flow of labor.
In fact, before the implementation of the Labor Law, the relevant documents had similar provisions on the terms of liquidated damages:
199 1 the management regulations of the employment training center issued by the Ministry of Labor on February 25th stipulate that if a part-time teacher is employed, an employment contract shall be signed with the employed teacher and his unit, including the liability for breach of contract, that is, the employed teacher may stipulate liquidated damages when signing the employment contract.
1993 On May 24th, the State Administration of Foreign Experts Affairs issued the Interim Measures for the Administration of Employment Contracts of Foreign Cultural and Educational Experts, in which Article 6 stipulates that contracts may contain clauses on liability for breach of contract.
1approved by the State Council on June 6, 9871Interim Provisions on the Implementation of Technician Appointment System issued by the Ministry of Labor and Personnel on June 20, 987 stipulates in Article 7 that "the unit where the technician works shall sign an employment contract with the hired technician, stipulating the employment period, rights and obligations of both parties, resignation, dismissal and liability for breach of contract."
1996 10 10 on October 30th, Article 14 of the Training Regulations for Enterprise Employees issued by the Ministry of Labor and the State Economic and Trade Commission stipulated that "employees shall sign a training contract with the enterprise to participate in full-time or non-full-time training funded by the enterprise. The training contract shall specify the training objectives, content, form, duration, rights and obligations of both parties and the liability for breach of contract. "
1994 65438+1The Employment Training Regulations issued by the Ministry of Labor on February 9, 1994 stipulates that "employment training units shall sign training contracts with trainees. Its contents include training majors, time, expenses, teaching practice, assessment and certification, and liability for breach of contract. "
As can be seen from the above terms, the contracts bound by these terms are not labor contracts, but contracts for training or hiring (experts or technicians with certain expertise), that is, as individuals, their similarities include intelligence or intellectual expertise. Since the reform and opening up, "knowledge is productivity", and knowledge can become the actual situation of production materials and enterprise shares. Then, can we see that the contract signed by such individuals and the other party is actually an economic contract, or contains certain economic contract elements? If we analyze a large number of high-paid scientific and technological personnel in high-tech enterprises, they are no longer simple laborers, and their so-called wages actually contain a large part of intellectual profits. For them, knowledge is capital, and high wages are the profits brought by this capital.
But in real life, although there are so-called differences between blue-collar workers and white-collar workers, they are mainly idioms, or they are only reflected in the theoretical level, but they have not been confirmed and distinguished in the system. In this way, it is difficult to determine how to distinguish whether a worker belongs to knowledge workers or pure manual workers, and what is their respective ratio. Under the premise that it is still difficult to clearly distinguish, we believe that the responsibilities of workers and enterprises in the performance of labor contracts should not be stipulated in general terms, but should be treated differently. If this distinction is difficult to perform, then the liability for breach of contract between workers and enterprises should be limited to whether the loss is the only standard clearly stipulated in the labor law.
This is not in line with the legislative spirit of the labor law, and it is also a very unfair performance. In fact, it is the embodiment of the inequality between workers and enterprises in the labor field in the terms of the labor contract. This kind of behavior has laid a foundation for the future infringement of workers' labor rights and interests, and is not conducive to the flow and rational allocation of labor talent resources in the labor market, which fundamentally infringes on China's healthy labor and employment system.