Labor Contract Law Problems of liquidated damages_6848

1、Labor Contract Law Problems of liquidated damages      Abstract labor contracts set of liquidated damages and payment is the most common labor disputes, the most sensitive and most complex problems. In reality the employing unit through the setting of the labor contract

2、 agreed upon high premiums to "circle" live workers, restrictions on the rational flow of workers. Therefore, liquidated damages system theoretical analysis and to explore the labor contract law of liquidated damages clause restrictions are reasonable and rational norms liability for breac

3、h of labor contracts is very important.       Key words breach of labor contract law, restrictions on the agreed payment of liquidated damages              1, Labor Contract Law of the liquidated damages  

4、            The labor contract agreed liquidated damages, referring to the labor contract agreed upon in the employing unit, or laborers in violation of the labor contract agreed upon in the relevant, it should be paid compensation to each other

5、. It is a modern civil law system in order to achieve the principle of good faith to ensure the fulfillment of contracts, and developed. Breach of contract breach of contract payment is compulsory by law to pay the other party a certain amount of money a kind of economic sanctions, in general terms

6、as agreed in the contract indicated. Most scholars, the liquidated damages with compensatory and punitive dual nature. Punitive disciplinary penalty has a role, regardless of whether there is economic loss, breach of contract party shall be paid, and the defaulting party in the payment of punitive l

7、iquidated damages, the bear still continue to perform the contract and compensation for the loss of responsibility; compensation for breach of contract payment is of the parties pre-estimate of one party to the other party breach the total economic losses, the party in breach to pay compensation of

8、breach of contract payments are no longer bear to continue to perform the contract or compensation for the loss thereof.       Of a punitive nature of liquidated damages is not properly applied in the area of civil law, because China and France belongs to the field of p

9、rivate law. The labor law both public and private law nature, belong to social law. Social law is a special measure the status of the parties and the distribution of benefits. These special standards rooted in the social weak "status" found that special status is to determine the distribut

10、ion of benefits, so that the results of this allocation is conducive to a "vulnerable status" side. In labor relations and workers from the property status, social law is to adjust the unequal relationship between the main responsibility, focus on substantive equality. Of liquidated damage

11、s in the labor contract if applicable, can easily be dominated by a strong principal. Therefore, in the labor contract legislation, only the first to determine the nature of the liquidated damages provision can be more conducive to the protection of workers rights, more conducive to labor disputes.

12、             Second, Chinese and foreign labor contract legislation, the provisions of liquidated damages the status quo              Contract legislation and judicial practice in

13、China has always attached importance penalty system, liquidated damages for breach of contract law is one important way of relief. However, in the labor contract, the liquidated damages if liability for breach of labor contracts as a commitment to way of the provisions of national laws vary, some co

14、untries in accordance with recognized principles of contract law, liquidated damages provisions, some countries in the legal prohibition of labor contracts agreed liquidated damages amount.       (1) China's labor contract legislation, breach of contract payments sy

15、stem       China's "Labor Law" had been responsible for this breach of contract made by way of clear rules, but in the practice of labor contracts, liquidated damages for breach of responsibility as a way be universally applicable. The majority of our scho

16、lars liquidated damages provisions are divided into two types: restrictions on payments and any breach of contract agreed liquidated damages agreement. In China's "Labor Contract Law", the Labor Contract Law will be set to limit the liquidated damages agreed upon liquidated damages. Re

17、strictions agreed upon liquidated damages is only for special workers have special benefits because of employer expenditure on inputs and other special circumstances the formation of a special obligation to the use of liquidated damages.       (B) abroad on labor contra

18、cts liquidated damages provision       International Labor Organization, adopted in 1930, "Forced Labor Convention," the second article provides that the purpose of this Convention, forced or compulsory labor refers to the threat of punishment oblige anyone to

19、 engage himself doing all the work is not voluntary and services. Which forced embodied in the threat to punish, breach of contract payment system from the perspective of the employing unit, is a compulsory; while from the perspective of workers, with non-voluntary.      

20、60;Europe and the United States national labor laws, from the surface is not the relevant provisions of liquidated damages, but generate social law in those countries can see the history of Europe and the United States agreed liquidated damages attitude. The early 19th century, "French Civil Co

21、de," the employment relationship as an independent, free of ties to come back. And in the adjustment of labor relations on the implementation of "autonomy" principle. This relationship is only seen as an equal employment relations and property relations have become an object of privat

22、e law adjustments. After the national bourgeoisie, the Civil Code, such as "the German Civil Code", "Swiss Civil Code" and used the "Employment" as a separate contractual relationship to provide for the recognition of such employment relationship is a "free" c

23、ontractual relationship. Of private law after the tilt of the social law to protect the weak production, liquidated damages do not exist and the use of more space, labor law, and naturally there is no need to carry out the provisions of liquidated damages.       Large n

24、umber of countries in Asia were not allowed to establish liquidated damages provisions. Such as South Korea's Labor Standards Law clearly stipulates that the user may not provide workers in the non-compliance with the labor contract to pay liquidated damages, or damages. Japan's Labor Standa

25、rds Act prohibits employers to sign a pre-specified non-performance of the labor contract when the breach of, or damage to the amount of compensation contracts. Reposted elsewhere in the paper for free download :/       Third, China's "Labor Contract Law"

26、in respect of liquidated damages restrictions              (A) The scope of application of liquidated damages       China's "Labor Contract Law" is limited to the employing unit due to financing t

27、he training period of service with the signing of the terms and conditions of workers labor violation of the conservative trade secrets or non-competition agreement both cases, liquidated damages because the employer on these two issues in advance have input.       &quo

28、t;Labor Contract Law" on the case of service can be set to limit some of being too strict. One of the three constraints that "full-time", "6 months", "professional and technical training." However, the training of technical personnel, often combining the actual wor

29、k needs and long-term full-time training, but not conducive to the technical knowledge applied to actual production. Given to staff training and business is not limited to full-time professional and technical training, such as overseas training and so forth. These training needs of businesses to inv

30、est in significant cost, but these are not part of the training more than 6 months full-time professional and technical training, can not be agreed upon period of service, and liquidated damages.       (B) the amount of liquidated damages restrictions    

31、   Labor Contract Law provides that where a breach of the agreed period of service, the penalty shall not exceed the period of service have not fulfilled their part of the share of training costs; such as violation of the non-competition agreement, the employing unit shall not exceed

32、the non-competition payments to the worker the economic compensation 3 times. The amount of liquidated damages should follow the principle of fair and reasonable agreement. And that the agreed liquidated damages shall be specific to ensure its feasibility, as follows:      &

33、#160;1. Liquidated damages can only be a compensatory, not punitive, and will compensate the losses to be limited to the employing unit has been paid to the workers special treatment. Therefore, the amount of liquidated damages shall not exceed the worker has had the amount of special treatment.

34、60;     2. Liquidated damages amount should be subject to the remaining period of service agreed upon period of service with the original ratio of constraints. Is part of the service worker has complied with the case, has fulfilled its period of service should be based on th

35、e agreed services in the same period the proportion of the corresponding reduction in the amount of liquidated damages.       3. Arbitration body or court shall be ex officio or at the request of the workers of liquidated damages are fair and reasonable review of the is

36、sues that the unfair amount of liquidated damages and reasonable and should be appropriate reduction in the amount of liquidated damages.       "Labor Contract Law" in respect of liquidated damages the restrictive provisions are fully reflected in the protecti

37、on of labor relations in the weak position of workers interests. I think that restricting the amount of liquidated damages is reasonable agreement on the service conditions of some of the restrictions were too strict to be in the practical application of the process to be improved, so that the reali

38、zation of truly protecting the legitimate rights and interests of workers, build and develop harmonious and stable labor relations.              References:       1 Guo Dan cloud. National legislation, comparat

39、ive study on the nature of liquidated damages. Hebei Law, 2005, (6).       2 Dong Baohua, the sea red. Labor Contract legislation assess liquidated damages. Chinese labor, 2005, (2).       3 Liu Jian, ZHAO Feng. On the nature of liquidated

40、damages and system reconfiguration. Jiangnan University, 2006, (4). Reposted elsewhere in the paper for free download :/更好的翻译建议感谢您为 Google 翻译提供翻译建议。提供更好的翻译建议：Labor Contract Law Problems of liquidated damages       Abstract labor contracts set of liquidated damages and p

41、ayment is the most common labor disputes, the most sensitive and most complex problems. In reality the employing unit through the setting of the labor contract agreed upon high premiums to "circle" live workers, restrictions on the rational flow of workers. Therefore, liquidated damages sy

42、stem theoretical analysis and to explore the labor contract law of liquidated damages clause restrictions are reasonable and rational norms liability for breach of labor contracts is very important.       Key words breach of labor contract law, restrictions on the agree

43、d payment of liquidated damages              1, Labor Contract Law of the liquidated damages              The labor contract agreed liquidated damages, referring to the labor contr

44、act agreed upon in the employing unit, or laborers in violation of the labor contract agreed upon in the relevant, it should be paid compensation to each other. It is a modern civil law system in order to achieve the principle of good faith to ensure the fulfillment of contracts, and developed. Brea

45、ch of contract breach of contract payment is compulsory by law to pay the other party a certain amount of money a kind of economic sanctions, in general terms as agreed in the contract indicated. Most scholars, the liquidated damages with compensatory and punitive dual nature. Punitive disciplinary

46、penalty has a role, regardless of whether there is economic loss, breach of contract party shall be paid, and the defaulting party in the payment of punitive liquidated damages, the bear still continue to perform the contract and compensation for the loss of responsibility; compensation for breach o

47、f contract payment is of the parties pre-estimate of one party to the other party breach the total economic losses, the party in breach to pay compensation of breach of contract payments are no longer bear to continue to perform the contract or compensation for the loss thereof.    &#

48、160;  Of a punitive nature of liquidated damages is not properly applied in the area of civil law, because China and France belongs to the field of private law. The labor law both public and private law nature, belong to social law. Social law is a special measure the status of the parties

49、 and the distribution of benefits. These special standards rooted in the social weak "status" found that special status is to determine the distribution of benefits, so that the results of this allocation is conducive to a "vulnerable status" side. In labor relations and workers

50、from the property status, social law is to adjust the unequal relationship between the main responsibility, focus on substantive equality. Of liquidated damages in the labor contract if applicable, can easily be dominated by a strong principal. Therefore, in the labor contract legislation, only the

51、first to determine the nature of the liquidated damages provision can be more conducive to the protection of workers rights, more conducive to labor disputes.              Second, Chinese and foreign labor contract legislation, the provisio

52、ns of liquidated damages the status quo              Contract legislation and judicial practice in China has always attached importance penalty system, liquidated damages for breach of contract law is one important way of relief. However, i

53、n the labor contract, the liquidated damages if liability for breach of labor contracts as a commitment to way of the provisions of national laws vary, some countries in accordance with recognized principles of contract law, liquidated damages provisions, some countries in the legal prohibition of l

54、abor contracts agreed liquidated damages amount.       (1) China's labor contract legislation, breach of contract payments system       China's "Labor Law" had been responsible for this breach of contract made by way of cl

55、ear rules, but in the practice of labor contracts, liquidated damages for breach of responsibility as a way be universally applicable. The majority of our scholars liquidated damages provisions are divided into two types: restrictions on payments and any breach of contract agreed liquidated damages

56、agreement. In China's "Labor Contract Law", the Labor Contract Law will be set to limit the liquidated damages agreed upon liquidated damages. Restrictions agreed upon liquidated damages is only for special workers have special benefits because of employer expenditure on inputs and oth

57、er special circumstances the formation of a special obligation to the use of liquidated damages.       (B) abroad on labor contracts liquidated damages provision       International Labor Organization, adopted in 1930, "Forced Labor Co

58、nvention," the second article provides that the purpose of this Convention, forced or compulsory labor refers to the threat of punishment oblige anyone to engage himself doing all the work is not voluntary and services. Which forced embodied in the threat to punish, breach of contract payment s

59、ystem from the perspective of the employing unit, is a compulsory; while from the perspective of workers, with non-voluntary.       Europe and the United States national labor laws, from the surface is not the relevant provisions of liquidated damages, but generate soci

60、al law in those countries can see the history of Europe and the United States agreed liquidated damages attitude. The early 19th century, "French Civil Code," the employment relationship as an independent, free of ties to come back. And in the adjustment of labor relations on the implement

61、ation of "autonomy" principle. This relationship is only seen as an equal employment relations and property relations have become an object of private law adjustments. After the national bourgeoisie, the Civil Code, such as "the German Civil Code", "Swiss Civil Code" an

62、d used the "Employment" as a separate contractual relationship to provide for the recognition of such employment relationship is a "free" contractual relationship. Of private law after the tilt of the social law to protect the weak production, liquidated damages do not exist and

63、the use of more space, labor law, and naturally there is no need to carry out the provisions of liquidated damages.       Large number of countries in Asia were not allowed to establish liquidated damages provisions. Such as South Korea's Labor Standards Law clearly

64、 stipulates that the user may not provide workers in the non-compliance with the labor contract to pay liquidated damages, or damages. Japan's Labor Standards Act prohibits employers to sign a pre-specified non-performance of the labor contract when the breach of, or damage to the amount of comp

65、ensation contracts. Reposted elsewhere in the paper for free download :/       Third, China's "Labor Contract Law" in respect of liquidated damages restrictions              (A) The scope of application of liquidated damages       China's "Labor Contract Law" is limited to the employing unit due to financing the training period of service with the signing