One day in November 2016, at a law firm in Beijing, I saw a middle-aged woman holding a mediation statement and crying bitterly. What happened during this period, things have to start three months ago......

An urgent call in the morning.

One day in August 2016, after staying up late to read all the files of a case, I finally ushered in a rare moment of rest. When I was sleepy, a rapid phone call came, which may be my professional habit. At any time, my mobile phone will be turned on for 24 hours to prevent others from contacting me in an emergency.

Looking at the phone, it was my best friend Wang mou who had been in Beijing for many years. She must have something urgent to call so early. Sure enough, she opened her mouth with a loud voice and a fast tone. I couldn't wait to finish all the words in one breath. I couldn't help but wonder in my heart: What's wrong with this? I haven't met her like this at ordinary times. Is there anything wrong with her?

After listening for a long time, I found out what happened. It turned out that her college classmate Pei had worked in Beijing for many years and worked in a good company, and the salary was pretty good. But suddenly the news came out recently that the company was about to close down. As a result, the whole company was in a panic and had no intention of working. Pei has never encountered such a big thing, and he was at a loss for a while, especially worried about whether he could resign now and whether the company could finally give him financial compensation. After listening patiently, I said to her, don't worry, I just arrived at the institute this afternoon, and it is best to arrange your classmates to meet and talk to us at 2: 00 p.m.

The "New World" in the Labor Contract"

As promised, we met, from Pei's eyes, I observed her anxiety, but also a little tired. After introducing each other routinely, we entered the theme. Pei began to tell the root cause of her recent headache: the tangled process of the company facing bankruptcy but she could not leave.

On January 1, 2000, Pei joined a science and technology investment limited liability company (hereinafter referred to as the company). Through years of hard work and company training, Pei was promoted from the initial cashier to the current financial manager. He is the "finance minister" of the company ". On July 19, 2012, the two parties signed an open-ended labor contract. On July 16, 2016, the shareholders' meeting of the company decided to liquidate and cancel the company and set up a liquidation group. On August 10, 2016, the Changping Branch of the Beijing Municipal Administration for Industry and Commerce approved the liquidation group filing application submitted by the company and issued a filing notice. The employees in the company began to talk about it. Pei was the same as everyone thought. Once the company was canceled, where to go in the future would be a problem. She also tried to find the company's leaders several times. At the beginning, the leaders also said that they would hold a meeting to discuss this issue, but then it has been shunned for various reasons. In this case, she hopes to find a professional lawyer to help her solve the current problem.

While listening to Pei's story, I looked at the only piece of evidence she brought, that is, the open-ended labor contract signed by both parties on July 19, 2017. When I asked about her previous contract, she said that she could not find it, which virtually added another problem to us. The labor contract can not only prove the existence of labor relations, but also reflect the relevant information such as the working years of the laborer in the employer, the wage standard, the termination conditions and the standard of economic compensation payment. However, when I read her contract, I was surprised to find that several high economic compensations were agreed in the terms of the contract, for example: "Party A's shareholders decide that Party A terminates its operations and dissolves and liquidates the contract, which leads to the termination of this contract... Party A shall not only pay Party B economic compensations according to Article 19 of this contract, but also pay Party B additional economic compensations and medical insurance subsidies according to the following circumstances; if Party B has served Party A for more than ten years (including ten years), Party A shall pay Party B three times the annual salary as Party B's additional economic compensation, and at the same time pay Party B 100,000 yuan as Party B's medical insurance subsidy", and the above-mentioned high economic compensation and subsidy are after tax.

Seeing such content, I think it is tantamount to discovering a "new continent" in a labor contract ". In other words, this means that in the case of company liquidation and dissolution, if the labor contract is terminated or terminated, Pei can obtain additional high economic compensation and medical insurance subsidies in addition to the statutory economic compensation. To be honest, over the years, I have handled hundreds of labor dispute cases, but this is the first time I have seen such a high amount of economic compensation in the labor contract.This aroused my curiosity. What is the reason for this agreement between the two parties in labor?

Surprise beyond unease

In the process of telling about her working in the company for more than ten years, I seemed to see the scene of her struggle in that year. When the company was first established, everyone was preparing for the establishment together. In the process of the company's operation, I could see clearly the joy of helping each other in the same boat and overcoming difficulties together... In the most difficult time, she stuck to her job for several months, after hundreds of days of staying up all night, the company finally survived the difficulties, and she also received the recognition of the company's leaders. In the twinkling of an eye, she seems to think of the current situation again, but sobbing to say, youth are dedicated to the company, more than 40 years old embarrassing age, difficult to find a job, facing unemployment, two sons are still in primary school......, Wang and I will be patient to comfort her, slowly, Pei a mood calm a lot.

At that time, Pei's fixed-term labor contract with the company was about to expire, and Pei had a better choice, but the company leaders agreed that Pei was a rare talent, loyal, down-to-earth, hardworking, hard-working, and never had any mistakes in his work. Therefore, after the meeting decided to employ him for a long time with a high salary, he immediately signed an open-ended labor contract with Pei, and appointed him to the position of finance manager.As a result, this "sky-high compensation" clause of the open-ended labor contract came into being. But what makes Pei uneasy is that after the company signed the labor contract, the original was taken back by the company, on the grounds that the company wanted a unified archive management.

After patiently listening to the introduction of the case, I answered her question. At present, it is not difficult to prove that you have a labor relationship with the company, and it is not difficult to negotiate to ask for economic compensation. The key to the problem is how to obtain the maximum benefit in accordance with the law. That is, it is a difficult problem to obtain high compensation after resignation according to the terms agreed in the labor contract. Those who want to obtain compensation must have the original labor contract. After hearing my answer, Pei looked at us helplessly like a withered eggplant, very anxious and uneasy.

We continued to communicate around the dispute matters. We explained to Pei the legal procedures of labor dispute cases, the reasonable submission of appeals, the basic burden of proof, and informed him of litigation risks and difficult problems in the case. At the same time, we also explained the uncertainty of whether high economic compensation can be supported by arbitration institutions or courts in judicial practice.As a worker, should bear the basic burden of proof,For example: entry time, working years, salary standard and structure, release time and reason, etc. Regarding the number of years of work, provide the entry approval form, social security payment certificate to prove, wage standards and structure, because you are the company's financial manager, so it should not be difficult to provide payroll and calendar year bonus payment vouchers.On the issue of the original labor contract,Can we ask the human resources department through the company's leaders? If we can't get the original, will the copy be provided? Just as we were trying to do everything possible to prompt Pei, she suddenly interrupted my speech, saying that she thought that when the company issued a document to withdraw the labor contract, a colleague and she had been to the notary office. The labor contract seemed to have a notarized document. If found, could it be used as evidence? Sure, I'll answer right away. The next moment of communication was much easier.

A long way to go

After sending off Pei and Wang, my heart became heavy. The middle-aged woman was at a loss and at a loss when facing unemployment, which made me feel sad. For this seemingly simple case, I understand that it is different from regular previous cases and has certain difficulties, especially the high economic compensation agreed in the labor contract, which is a blank in the current legal provisions. However, for a long time, only this kind of difficult and complicated case can stimulate my fighting spirit, and it is this kind of case that can better reflect the value of a lawyer.

On August 24, 2016, Pei formally entrusted me as his agent and signed a proxy contract. When I saw her trusting eyes, I once again realized that I had a great responsibility. She might only encounter this legal dispute in her life, so she placed all her hopes on me. I secretly made up my mind to do a good job in this case. Although lawyers may not be able to represent justice, lawyers will definitely strive for the greatest rights and interests for their clients within the scope permitted by law.

After accepting Pei's entrustment, I began the intense preparatory work. It was her hope and my duty to resolve the dispute for her as soon as possible and push the case into legal proceedings. That night, my assistant and I sorted out and listed the existing evidence to refine the controversial focus of the case. While I was thinking, my assistant asked me, "Is it necessary to be so urgent?" I looked up at him and asked, "What if you are Pei?" He said nothing, lowered his head and continued to work silently.

On August 31, 2016, we went to the Xicheng District Labor and Personnel Dispute Arbitration Commission of Beijing to submit an arbitration application and successfully completed the filing procedures. It is proposed that the labor contract shall be terminated according to law, and the company shall pay Pei a contract economic compensation of 470936.64 yuan, additional economic compensation of 810205 yuan, medical insurance subsidy of 100000 yuan and other complaints.

Pre-trial settlement hopes fall through

On September 2, 2016, the Xicheng District Labor and Personnel Dispute Arbitration Commission of Beijing issued a "Notice of Filing a Case" and determined the time of the hearing.

Only one month before the hearing, on the one hand, the company proposed to terminate/terminate the labor relationship with Pei, but on the other hand, it did not issue an order to stop Pei's work. On the contrary, after Pei filed an application for arbitration, he was arranged to go to the company's liquidation working group to continue to work and assist the company in the financial and tax finishing work. This arrangement makes us very embarrassed, because according to the agreement of the labor contract between the two parties, the prerequisite for the payment of economic compensation is "after the termination or termination of the labor contract......". If, in the current state, even if the claim is established, the conditions for payment are not met, and the company ceases to exist when the conditions for payment are fulfilled, how can the interests of the workers be realized?In view of the new problems, after discussion, our team members actively responded and took the initiative to guide Pei to issue a written "notice of termination of labor contract" to the company, and made clear the facts, reasons and specific date of termination of labor relations in the notice.

Swords in the trial

There was a proverb in ancient Rome: "Where the proof is, where the defeat is." If you want to win this arbitration, you must have sufficient evidence.

On the day of the trial, the people in court were really in a position of "great disparity between the enemy and ourselves. The company's lawyer team has a strong team, led by the company's legal representative, two lawyers appeared in court, the headquarters sent the general manager and legal manager to attend, we only Pei himself and me.In the arbitration court, we made a request according to the original claim: to terminate the labor contract in accordance with the law, the company shall pay economic compensation and medical insurance subsidies to Pei in accordance with the labor contract.

How difficult is it to terminate the contract?

　　The company argues that:The company is currently in the stage of property liquidation. It is conducting asset evaluation and making preliminary preparations for asset realization. The liquidation compensation plan has not yet been formulated. There is great uncertainty when the liquidation work will be completed. At this stage, the conditions for termination of the contract have not been met. The labor relationship between the two parties continues to exist; Pei's request for the company to pay economic compensation has no factual and legal basis and should not be supported.

　　In response to these defences, we present the following observations and evidence:According to the "Letter of Solicitation for Opinions on the Form of Company Cancellation" and "Shareholder Reply"; Meeting documents of shareholder resolutions; Changping Branch of Beijing Administration for Industry and Commerce approved the liquidation group filing application submitted by the company and made the "Filing Notice"; The content of the "Cancellation Announcement", combined with the provisions of Articles 181, 184, and 189 of the "Company Law", the company is dissolved due to resolutions of the shareholders meeting or shareholders meeting, A liquidation group shall be established within 15 days of the occurrence of the cause of dissolution to commence liquidation. The liquidation group of a limited liability company shall be composed of shareholders, and the liquidation group of a joint stock limited company shall be composed of directors or persons determined by the general meeting of shareholders. After the liquidation of the company is completed, the liquidation group shall prepare a liquidation report, submit it to the shareholders' meeting, the shareholders' general meeting or the people's court for confirmation, and submit it to the company registration authority, apply for cancellation of the company's registration, and announce the termination of the company. According to the (V) paragraph of Article 44 of the "Labor Contract Law", if the employer's business license is revoked, ordered to close, revoked, or the employer decides to dissolve early, the labor contract shall be terminated.

Based on the above legal provisions and relevant evidence, the first meeting of the company's liquidation group held on July 16, 2016 made a resolution: "the company organizes the liquidation group and dissolves the company in advance."This means that the legal termination conditions of the labor contract have been fulfilled, and the labor contract between the two parties should be terminated in accordance with the law, rather than the company's claim that the conditions for the termination of the labor contract have not been met.

　　Seeing that the appeal debate failed to effectively defend, the company also proposed that Pei was an important member of the company's liquidation working group and could not terminate the labor contract with the company before the end of the liquidation work.As the person in charge of the company's finance and the only accountant, Pei is responsible for the specific implementation of the statutory tasks such as "cleaning up the company's property, preparing the balance sheet and property list" that must be completed in the liquidation process as stipulated in Article 186 of the Company Law. Its work content cannot be replaced, and its work responsibilities should be among the necessary businesses of the liquidation house, and it is also responsible for completing subsequent tasks.

　　In view of the fact that the other party has always wanted to firmly control Pei and does not want to terminate the labor contract, we put forward our point of view: first,Pei was one of the members of the liquidation working group that the company decided to arrange for him to be a member of the liquidation working group without obtaining his own consent in advance. We believe that Pei, as a financial manager, should cooperate and assist the company in completing liquidation and cancellation and other related matters from the perspective of his responsibilities. In fact, when the company decided to dissolve ahead of schedule, there were five people in the company, including chairman Xu, Pei (financial manager), Sun (finance), Yu (cashier) and Zhang (driver). The above-mentioned personnel were all listed as members of the liquidation working group, not only Pei;Second,Regarding the company's claim to apply the company law, we believe that the labor relationship is a personal relationship and property relationship that occurs between the laborer and the employer in the process of realizing the purpose of labor. The subject is specific, and the two parties have personal subordination. It is adjusted by the "Labor Law" and "Labor Contract Law" and related laws and regulations. The enterprise legal person is an economic organization, and its establishment, change and cancellation are regulated by the Company Law and its relevant laws and regulations. The decision of an enterprise legal person to dissolve or cancel early is different from the dissolution and termination of labor relations in terms of subject, nature, procedure and application of law. Therefore, as long as the decision made by the employer in the process of employment conforms to the provisions of the Labor Contract Law and its relevant laws, the legal conditions for the termination of the labor contract will be achieved. The labor relationship between the two parties is not limited by the stage and state of the enterprise legal person organization in the later stage. The two are not the same legal relationship and do not have inevitable relevance;Third,If according to the company, after the company is liquidated and dissolved, the legal entity is canceled in accordance with the law, the labor relationship between the two parties to reach the conditions for dissolution or termination. I would like to ask, if Pei and other workers have any objection, the complaint will have no subject, and the successful case will not be implemented. Obviously, their legitimate rights and interests cannot be realized. Therefore, the company's defense is completely inconsistent with the objective reality.

Can high economic compensation be obtained?

　　Regarding the issue of high compensation economic funds in this case, whether and how much can be supported is another focus of the confrontation between the two parties.

Based on the evidence "Labor Contract" and "Notary Certificate" submitted to the court, we confirm that both parties have clearly agreed in the "Labor Contract" that if the company's shareholders decide to terminate the company's operation and dissolve and liquidate the company, Pei can receive economic compensation for the termination of the labor contract, additional economic compensation and medical insurance subsidies. The labor contract is an expression of the true intentions of both parties and is legal and valid.

　　The company argues that:"The payment of additional economic compensation and medical insurance subsidy does not comply with the provisions of Article 47 of the Labor Contract Law, exceeds the statutory standard, and has no basis for support. At the same time, the compensation agreement also violates the relevant provisions of the Company Law. Therefore, the company should not pay additional economic compensation and medical insurance subsidy."

　　We believe that:At present, the Labor Law and the Labor Contract Law and related judicial interpretations do not clearly stipulate the agreed economic compensation. We combine the facts and demonstrate the following based on relevant principles:

　　First, according to Article 26 of China's Labor Contract Law:"By means of fraud, coercion or taking advantage of the danger of others, the other party concludes or changes the labor contract against the true meaning; the employer exempts itself from legal responsibility and excludes the rights of workers; violates the mandatory provisions of laws and administrative regulations, These labor contracts are invalid or partially invalid." According to Article 35 of the "Interpretation (I) of the Supreme People's Court on the Application of Laws in the Trial of Labor Dispute Cases": "The agreement reached between the worker and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, and economic compensation Or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, coercion or taking advantage of the danger of others, it shall be deemed valid. If there is a material misunderstanding or apparent unfairness in the agreement mentioned in the preceding paragraph, and the parties request revocation, the people's court shall support it." Now that the company and Pei have agreed in the labor contract that the high amount of economic compensation does not violate the mandatory provisions of the law and administrative law, nor does it exist in cases of fraud, coercion or taking advantage of people's danger, then the labor dispute arbitration institution should not interfere, and it should be determined that the terms of the labor contract are legal and valid.

　　Second, the labor contract signed between the company and Pei is the true intention of both parties, in line with the principle of autonomy in the the People's Republic of China contract Law.Labor law has both public law and private law attributes, and the economic compensation higher than the legal standard is agreed in the labor contract, which is precisely the embodiment of the spirit of private law autonomy. Although in the labor law on the performance of the contract, the content of the labor contract has a considerable number of public law factors, such as the wage system has the characteristics of public law forced norms, the typical is the minimum wage. But even if there is a minimum wage system, we can still agree on a wage higher than the minimum wage standard, which does not violate the forced law normative characteristics of public law. In the same way, in this case, the company and Pei agreed on high economic compensation in the labor contract law, but it did not contradict the legal economic compensation system. China's Labor Law and Labor contract Law and other relevant laws and regulations do not explicitly prohibit employers and workers from agreeing that employers should pay economic compensation beyond the legal provisions, in the case of a system of additional economic compensation that is higher than the statutory economic compensation, the contract should be fully performed in accordance with the principle of conscious autonomy.

　　Third, the reason why the company signed an open-ended labor contract and gave high treatment was to retain talents. The company's decision to dissolve the company ahead of schedule due to business adjustments has met the statutory conditions for terminating the labor contract. It should follow the principle of good faith and pay compensation for labor consideration to Pei.Shakespeare said, "We shall not make the law a thing to frighten the ravens, and erect it only to frighten the birds of food." We believe that since the two parties have made a clear agreement in the labor contract, and the contract agreement does not violate the law, they should be protected by law, otherwise the law is useless. If the law of a country has no authority, judicial injustice, and citizens do not believe in the law, then the law is like a scarecrow.

　　Fourth, according to Article 47 of the Labor Contract Law:"Economic compensation shall be paid to the laborer according to the standard of one month's salary for each full year of work in the unit. If it is more than six months but less than one year, it shall be calculated as one year; if it is less than six months, the laborer shall be paid economic compensation of half a month's salary. If the monthly salary of a worker is higher than three times the average monthly salary of the employee in the previous year announced by the people's government of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard for paying economic compensation to him shall be three times the average monthly salary of the employee. The maximum number of years for paying economic compensation shall not exceed twelve years." In this case, Pei, as a worker, worked in the company for 15.9 consecutive years. From July 1, 2015 to August 30, 2016, his average salary for the 12 months before the termination of the labor contract was 29433.54 yuan. According to the notice of Beijing Municipal Bureau of human resources and social affairs and Beijing Municipal Bureau of statistics on publishing the average wage of employees in Beijing in 2015, the average wage of employees in Beijing in 2015 was 85038 yuan, and the average monthly wage was 7086 yuan. In 2015, three times the average salary of employees in Beijing and Beijing was 21258 yuan. Based on the above provisions, Pei's economic compensation was paid at three times the average monthly salary of employees in Beijing at 2015 degrees, and the company paid economic compensation to him for a maximum period of no more than twelve years. Therefore, Pei's legal economic compensation should be 255056 yuan. The additional economic compensation is three times Pei's annual salary, his salary in 2013 is 227600 yuan, his salary in 2014 is 193600 yuan, and his salary in 2015 is 389005 yuan, based on his average annual salary in the previous three years. Three times, Pei's additional economic compensation is 810205 yuan. And according to the labor contract, when the labor contract is terminated, it shall also be paid a medical insurance subsidy of 100000 yuan.

Unexpected, unexpected.

After the trial, the legal representative of the company said that he hoped and was willing to solve the problem through reconciliation, which surprised us a little. In the process of negotiation, although they fought for their own interests, there was no tension in the trial process. Regarding the date of termination of the labor contract, the company stated that since Pei has served as the company's financial manager for a long time, he has a better understanding of the company's financial situation, and the company is in the asset liquidation stage, and basically reached an agreement, Pei continues to work in the company for the time being. Serve as the company's financial manager and participate in the company's asset liquidation work. Both parties agree on a time as the date for the termination of the labor contract. However, the two sides have been deadlocked on the amount of economic compensation, and the company has expressed its concerns. It turns out that the labor contract signed by the company with high economic compensation is not only Pei, but also some people's labor contracts also have high economic compensation. Once the amount of mediation is too high, it will have a reference effect, which is not conducive to the subsequent handling of labor relations. Considering the company's difficulties, both sides made their own concessions.

On November 9, 2016, the Beijing Xicheng District Labor and Personnel Dispute Arbitration Commission issued a mediation letter confirming that the labor relationship between Pei and the company was terminated on December 31, 2017; the company paid Pei various expenses in installments, with a total of RMB before tax. 1269280 yuan. Then there was the first scene.

Is the case really over?

The moment you get the mediation letter, it means that the case is officially over. If you encounter a similar case again, if the two parties cannot resolve it through mediation, what will be the verdict? This is also a question I am thinking about. There are many cases of different judgments in the same case. In judicial practice, arbitrators or judges also hold different views on whether they should support high economic compensation.

Now the case has been settled, although Pei did not get all the economic compensation, but the result is still very satisfied with her. What makes us gratified is that the two parties in this dispute did not go their separate ways like the parties in previous cases, like enemies, but shook hands and made peace, continued to cooperate, and faced the company's problems together. This was beyond our expectations. It is also the result we are willing to see.

Is this a win-win situation after all? If such a case happens again, what will be the result? Suddenly, the familiar music sounded again......

Lawyer tips: reasonable setting of economic compensation, employers and workers should pay attention

After the implementation of the Labor Contract Law, workers' awareness of rights protection has gradually increased. Through the spread of online media and social media, the country has also continuously advocated citizens to learn the law. Today, the legal system has been further improved, labor dispute cases have risen sharply, and economic compensation disputes, The proportion is also large.Whether it is for employers, or workers, economic compensation is a focus of attention.

　　The contract is the law between the parties.Once the employer and the employee have signed a legal and effective labor contract, they should fully perform it. Under normal circumstances, the disputes between workers and employers on economic compensation are mostly focused on whether the two parties have labor relations, the number of working years of workers, and the standard of economic compensation.

For employers, in order to prevent the emergence of these disputes,First of all,The employer should conclude a written labor contract with the worker from the date of employment, which is not only conducive to defining whether the labor relationship is established, but also prevents the worker from claiming double wages from the employer;Secondly,In the labor contract, try not to agree on additional economic compensation, because the "Labor Contract Law" has clearly stipulated economic compensation. In this case, for example, it was because of the high amount of economic compensation agreed in the labor contract that the dispute finally arose.

However, if the employer really aims to attract outstanding talents, it can provide economic compensation beyond the statutory provisions in the labor contract, but it should not be too high.

　　When economic compensation is agreed upon in a labor contract, it must be clear,For example, the specific circumstances under which workers can obtain economic compensation, the amount of economic compensation, and the payment method of economic compensation;Again,The specific amount of economic compensation should be considered comprehensively in combination with the actual operating conditions of the enterprise, whether it has the ability to pay, as well as the ability of employees and the degree of contribution to the enterprise. It should not be too low or too high. In line with the principle of not only restricting talents, but also attaching importance to talents, the economic compensation should be agreed;And finally,In general, the termination of the labor relationship between the two parties is the expiration of the labor contract, so that the risk to the enterprise is small.For the workers,We must take the labor contract seriously. When signing the labor contract, we must carefully check it. If there is any ambiguity about the labor contract, we must promptly submit it to the employer. When the labor contract is terminated or terminated, it is necessary to claim economic compensation from the employer in accordance with the law, and to have the courage to safeguard their legitimate rights and interests.

Science and technology is the primary productive force, and the development of science and technology is inseparable from excellent talents. As workers, they must constantly improve their quality. Only in this way can they be reused by employers and obtain higher labor remuneration. However, while improving their labor skills, they should also learn some basic legal knowledge to effectively protect themselves when their legal rights are infringed.