最高人民法院关于审理劳动争议案件适用法律若干问题的解释(一)(英文版)
Interpretation of the Supreme People's Court on Several Issues about the Application of Laws for the Trial of Labor Dispute Cases
Fa Shi [2001] No.14
April 30, 2001
In order to correctly try labor dispute cases, the interpretation on several issues about the application of laws is made as follows according to the Labor Law of the People's Republic of China (hereinafter referred to as the Labor Law), the Civil Litigation Law of the People's Republic of China (hereinafter referred to as the Civil Litigation Law) and other pertinent laws:
Article 1 Where any of the following disputes arising between a worker and his employer belongs to the labor disputes as prescribed in Article 2 of the Labor Law, if either party involved is not satisfied with the award rendered by the labor dispute arbitration commission and lodges a lawsuit with the people's court, the people's court shall handle the lawsuit according to the following circumstances:
1. A dispute arising between a worker and his employer during the process of performing the labor contract;
2. A dispute arising where a worker and his employer have not concluded a written labor contract but have formed a labor relationship; or
3. A dispute arising between a worker and his former employer, which has not participated in overall social insurance plan, from the recourse of retirement pension, medical expense, insurance indemnity for work-related injury or other social insurance premium after the worker has retired.
Article 2 Where the labor dispute arbitration commission delivers a written award, decision or notice of refusal for the reason that the matter for which the party involved applies for arbitration does not belong to labor disputes, if either party involved is not satisfied and appeals a lawsuit to the people's court, the people's court shall handle the lawsuit in light of the following situations:
1. If the lawsuit is a labor dispute case, it shall be accepted; and
2. If the lawsuit is not a labor dispute case, but belongs to other cases under the jurisdiction of the people's court, it shall be accepted according to law.
Article 3 Where the labor dispute arbitration commission delivers a written award, decision or notice of refusal according to Article 82 of the Labor Law for the reason that the arbitration application of the party involved was filed after the time limit of 60 days, if either party involved is not satisfied and lodges a lawsuit with the people's court, the people's court shall accept the lawsuit; and if the lawsuit is lodged after the time limit for applying for arbitration, and there is no force majeure or any other justifiable cause, the people's court shall reject the claims.
Article 4 Where the labor dispute arbitration commission delivers a written award, decision or notice of refusal for the reason that the subject applying for arbitration is improper, if either party involved is not satisfied and lodges a lawsuit with the people's court, and the subject is indeed improper upon examination, the people's court shall deliver a ruling of refusal or reject the lawsuit.
Article 5 Where the labor dispute arbitration commission delivers a new award in order to correct an error in the original arbitration ruling, if either party involved is not satisfied and appeals a lawsuit to the people's court, the people's court shall accept the lawsuit.
Article 6 Where any party involved adds a claim after the people's court has accepted a labor dispute case, if the said claim is indivisible with the labor dispute in suit, the said claim shall be tried together; if it is an independent labor dispute, the people's court shall notify the party involved to apply for arbitration with the labor dispute arbitration commission.
Article 7 Where any matter on which the labor dispute arbitration commission has delivered an award does not belong to the case acceptance scope of the people's court, if either party involved is not satisfied and lodges a lawsuit with the people's court, the people's court shall deliver a ruling of refusal or reject the lawsuit.
Article 8 A labor dispute case shall be subject to the jurisdiction of the grassroots people's court at the place of the employer or at the place where a labor contract is complemented.
If the place where a labor contract is performed is not clear, the case shall be subject to the jurisdiction of the grassroots people's court at the place of the employer.
Article 9 If both parties involved are not satisfied with the same arbitration award as delivered by the labor dispute arbitration commission, and both lodge a lawsuit with the same people's court, the party involved who lodges the lawsuit at first shall be the plaintiff, however, the people's court shall deliver an award for the claims of both parties at the same time.
If both parties involved respectively lodge a lawsuit with the jurisdictional people's courts for the same arbitration award, the people's court which accepts the lawsuit later shall transfer the case to the one which accepts the lawsuit earlier.
Article 10 If an employer is combined with any other entity, for a labor dispute arising before the combination, the entity upon combination shall be the party involved; and if an employer is divided into several entities, for a labor dispute arising before the division, the actual employer after division shall be the party involved.
In case the entity for undertaking the labor rights and obligations is not clear after an employer is divided into several entities, all the entities upon division shall be the party involved.
Article 11 Where an employer hires a worker who has not rescinded the labor contract with his former employer, if a labor dispute arises between the former employer and the worker, the new employer may be taken as the third party.
If the former employer lodges a lawsuit of infringement with the people's court against the new employer, the worker may be taken as the third party.
If the former employer lodges a lawsuit of joint infringement with the people's court against the new employer and the worker, the new employer and the worker shall be codefendants.
Article 12 Where, during the contracted operation period between an employer and any other equal subject, a labor dispute arises between a worker and the contract-out party & the contractor or either thereof, if a lawsuit is lodged with the people's court, both the contract-out party and the contractor shall be taken as the parties involved.
Article 13 With respect to a labor dispute arising due to a decision of an employer on expulsion, removal, dismissal, rescission of labor contract, reduction of labor remuneration, or calculation of the number of working years, the employer shall assume the burden of proof.
Article 14 After a labor contract is affirmed as invalid, with respect to the work done by a worker, the employer shall generally pay the labor remuneration by referring to the salary for the same period, same job and same position in itself.
If a contract concluded is invalid due to the cause of the employer and which has caused the damage to a worker according to Article 97 of the Labor Law, the employer shall compensate the worker for the economic loss resulted from the invalidation of labor contract by referring to the economic compensation for violation and rescission of labor contract.
Article 15 If an employer commits any of the following acts, and which forces a worker to require the rescission of labor contract, the employer shall pay labor remunerations and economic compensation to the worker, and may pay indemnity:
1. Forcing the worker to work by violence, threats or illegal restriction of personal freedom;
2. Failing to pay labor remuneration or provide labor conditions according to labor contract;
3. Deducting or defaulting in payment of salaries to the worker without cause;
4. Refusing to pay salary and emolument to the worker for overtime work; or
5. Paying the salary lower than the local minimum salary to the worker.
Article 16 If a worker still works for his former employer after the expiry of labor contract and the employer does not present any objection, it shall be regarded that both parties consent to continuously perform the labor contract in light of former conditions. If either party requests the termination of labor relationship, the people's court shall support the request.
If an employer shall conclude a labor contact without a fixed term with a worker according to Article 20 of the Labor Law, the people's court may regard that there is a labor contract relationship without a fixed term between both parties, and determine the rights and obligations of both parties according to the former contract.
Article 17 After the labor dispute arbitration commission renders an arbitration award, if either party involved is not satisfied with part of the award and lodges a lawsuit with the people's court, the labor dispute arbitration award will take no legal effect.
Article 18 After the labor dispute arbitration commission renders an arbitration award to a labor dispute involving several workers, if some workers are not satisfied with the arbitration award and lodge a lawsuit with the people's court, the labor dispute arbitration award will take no legal effect on the workers that have lodged the lawsuit; and take legal effect on the workers that have not lodged the lawsuit; if these workers apply for implementation, the people's court shall accept their application.
Article 19 With respect to those bylaws and rules as formulated by an employer according to Article 4 of the Labor Law and through democratic procedures, if they do not violate the laws, administrative regulations or rules of the state, and have been announced to the workers, they can be taken as the basis for the people's court to try a labor dispute case.
Article 20 If an employer is really wrong in expulsion, removal or dismissal, etc. of a worker or rescission of labor contract due to other reasons, the people's court can decide to revoke the said wrong conduct.
With respect to a case of asking for labor remuneration, retirement pension, medical expense, insurance indemnity for work-related injury, economic compensation, training fee or any other relevant fee, if the amount is improper, the people's court can alter the amount.
Article 21 Where either party involved applies to the people's court for implementing the award or mediation paper that was rendered by the labor dispute arbitration commission and has taken legal effect, if the party against whom an application is filed produces the evidence which proves that the labor dispute arbitration award or mediation paper is under any of the following circumstances, and which is found to be true upon examination and verification, the people's court can decide not to implement the said award or mediation paper according to Article 217 of the Civil Litigation Law:
1. The matters decided exceed the labor dispute arbitration scope, or the labor dispute arbitration commission has no authority to decide the said matters;
2. There is an error in the application of law;
3. The arbitrator commits an act of malpractice for personal benefits and perverts the law in the arbitration of the case; or
4. The people's court determines that the implementation of the labor dispute arbitration award would contradict social and public interests.
The people's court shall, in the written ruling of not implementing the award, notify the parties involved of their right to lodge a lawsuit with the people's court for the labor dispute within 30 days as of the day after the writing ruling is received.