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中华人民共和国劳动合同法 法律对照

Regulation on the Implementation of the Employment Contract Law of the People’s Republic of China

Regulation on the Implementation of the Employment Contract Law of the People’s Republic of China

The Regulation on the Implementation of the Employment Contract Law of the People’s Republic of China, which was adopted at the 25th executive meeting of the State Council on September 3, 2008, is hereby promulgated, and shall come into force on the date of promulgation.

Premier Wen Jiabao

September 18, 2008

Regulation on the Implementation of the Employment Contract Law of the People’s Republic of China

Chapter I General Provisions

Article 1 This Regulation is formulated to implement the Employment Contract Law of the People’s Republic of China (hereinafter referred to as Employment Contract Law).

Article 2 The people’s governments at all levels, the labor administrative departments of the people’s governments at or above the county level, and the labor unions, etc. shall take steps to promote the implementation of the Employment Contract Law and develop a harmonious employment relationship.

Article 3 Legally established accounting firms, law firms and other partnerships and foundations are employers defined in the Employment Contract Law.

Chapter II Conclusion of Employment Contracts

Article 4 A branch office established by an employer as defined in the Employment Contract Law which has obtained its business license or registration certificate according to law may conclude employment contracts with employees in the name of an employer; if it has failed to obtained a business license or registration certificate, it may conclude employment contracts with employees only upon the authorization of the employer.

Article 5 Where any employee, after being notified by the employer in writing, fails to conclude a written employment contract with the employer within one month from the day when he is employed, the employer shall terminate the employment relationship with the employee and notify the employee in writing, in which case, the employer is not required to make any economic compensation to the employee, but shall pay the employee for his actual working time.

Article 6 Where an employer fails to conclude a written employment contract with an employee after the lapse of more than one month but less than one year from the date when the employee is employed, it shall pay to the worker his monthly wages in double amount according to Article 82 of the Employment Contract Law, and shall conclude a written employment contract with the employee. Where an employee refuses to conclude a written employment contract with his employer, the employer shall terminate the employment relationship, notify the employee in writing, and make economic compensations to the employee according to Article 47 of the Employment Contract Law.

The start time of the period when an employer is required to pay an employee his monthly wages in double amount shall be the day following the full month from the day when the employee is employed, and the end time shall be the day before the day when the written employment contract is concluded.

Article 7 Where an employer fails to conclude a written employment contract with an employee after the lapse of one full year from the day when the employee is employed, under Article 82 of the Employment Contract Law, the employer shall pay his monthly wages in double amount from the day next to the lapse of a full month to the day before it is a full year since the employee’s employment, and it shall be deemed that the employer has concluded an employment contract without a fixed term with the employee on the day when it is a full year since the employee’s employment, and a written employment contract without a fixed term shall be concluded with the employee immediately.

Article 8 The roster of employees as mentioned in Article 7 of the Employment Contract Law shall contain the employees’ name, gender, citizen’s identity number, registered permanent residence address and current address, contact information, form of employment, start time of employment, and term of the employment contract, etc.

Article 9 The start time of the term “10 consecutive years” as mentioned in Paragraph 2 of Article 14 of the Employment Contract Law shall be the day when the employer hired the employee, including the time of employment before the Employment Contract Law came into force.

Article 10 Where an employee is transferred to a new employer for reasons not attributable to himself, his working time with the original employer shall be consolidated into his working time with the new employer. If the original employer has made economic compensations for his working time with the original employer, the new employer shall not consider the employee’s working time with the original employer when calculating economic compensations made to such employee for dissolving or terminating the employment contract with him.

Article 11 Where an employee proposes the conclusion of an employment contract without a fixed term with the employer under Paragraph 2, Article 14 of the Employment Contract Law, the employer shall conclude an employment contract without a fixed term with him, unless it is otherwise agreed to by both parties. The contents of an employment contract shall be determined by both parties under the principles of legality, equity, free will, consensus and good faith. Any dispute over the contents shall be settled according to Article 18 of the Employment Contract Law.

Article 12 For the public welfare posts arranged by the local people’s governments at various levels and the relevant departments of the local people’s government at or above the county level for people with employment difficulties which enjoy post-based subsidies and social insurance subsidies, the provisions of the Employment Contract Law with respect to employment contracts without a fixed term and economic compensations are not applicable to the employment contracts for those posts.

Article 13 An employer and an employee may not agree on any other term for the termination of the employment contract beyond the circumstances for the termination of employment contracts as prescribed in Article 44 of the Employment Contract Law.

Article 14 Where the place of performance of an employment contract is not the place of registration of the employer, such matters about the employee as the maximum wage level, labor protection, work conditions, prevention against occupational harm and the local average monthly wages in the last year shall be governed by the relevant provisions of the place of performance of the employment contract. If the relevant standards at the place of registration of the employer are higher than those at the place of performance of the employment contract and both the employer and the employee have agreed on following the relevant provisions of the place of registration of the employer, the relevant provisions of the place of registration of the employer shall apply.

Article 15 A employee’ wages during probation shall not be less than 80% of the minimum wages for the same post of the employer or 80% of the wages stipulated in the employment contract, and shall not be less than the minimum wage level of the place where the employer is located.

Article 16 The training expenses as mentioned in Paragraph 2, Article 22 of the Employment Contract Law include the training expenses spent by the employer on providing professional technical trainings for an employee, the travel expenses during the training, and other direct expenses spent on the employee as a result of the training.

Article 17 Where an employment contract expires when the term of service stipulated by the employer and the employee according to Article 22 of the Employment Contract Law has not expired yet, the employment contract shall performed until at least the expiration of the term of service, unless it is otherwise stipulated by both parties.

Chapter III Dissolution and Termination of Employment Contract

Article 18 Under any of the following circumstances, an employee may, according to the conditions and procedures prescribed in the Employment Contract Law, dissolve an employment contract with a fixed term, an employment contract without a fixed term or an employment contract that sets the completion of a specific task as the term of the contract concluded with the employer:

1. the employee and the employer so agree;

2. the employee has notified the employee of the dissolution in writing at least 30 days in advance;

3. the employee has notified the employer of the dissolution three days in advance during probation;

4. the employer fails to provide labor protection or work conditions as it has promised in the employment contract;

5. the employer fails to pay labor remunerations on schedule or in full amount;

6. the employer fails to pay social insurance premiums for the employee as required by law;

7. some of the employer’s rules or procedures have contravened the law and damaged the rights and interests of the employee;

8. the employer, by means of deception or coercion or by taking advantage of the employee’s difficulties, forces the employee to conclude or change the employment contract against the employee’s true will;

9. the employer disclaims its legal liability or denies the employee’s rights in the employment contract;

10. the employer violates the mandatory provisions of any law or administrative regulation;

11. the employer compels the employee to work by force, threat or illegally restricting the personal freedom of the employee;

12. the employer gives orders in violation of the safety regulations or forces the employee to risk his life; or

13. other circumstances under which the employee can dissolve the employment contract as set forth in laws or administrative regulations.

Article 19 Under any of the following circumstances, an employer may, according to the conditions and procedures prescribed in the Employment Contract Law, dissolve an employment contract with a fixed term, an employment contract without a fixed term or an employment contract that sets the completion of a specific task as the term of the contract concluded with an employee:

1. the employer and the employee so agree;

2. the employee is proved to have failed to meet the employment conditions during the probation;

3. the employee seriously violates the rules and procedures set up by the employer;

4. the employee seriously neglects his duties or engages in malpractice for personal gains and has caused severe damages to the employer;

5. the employee simultaneously enters an employment relationship with any other employer and thus seriously affects his completion of the tasks assigned by the employer, or the employee refuses to correct after the employer has pointed out the problem;

6. the employee, by means of deception or coercion or by taking advantage of the employer’s difficulties, forces the employer to conclude or change the employment contract against the employer’s true will;

7. the employee is under investigation for criminal liabilities;

8. the employee is sick or is injured for a non-work-related reason and cannot resume his original position after the expiration of the prescribed time period for medical treatment, nor can he assume any other position arranged by the employer;

9. the employee is incompetent for his position or is still so after training or being assigned to another position;

10. the objective situation on which the conclusion of the employment contract is based has changed considerably, which makes it impossible to perform the employment contract, and no agreement on changing the contents of the employment contract has been reached after negotiations between the employer and the employee;

11. the employer is being restructured according to the Enterprise Bankruptcy Law;

12. the employer encounters serious difficulties in production and business operations;

13. the employer changes its products, makes important technological renovations, or adjusts the way of business operations, and it is still necessary to lay off some employees after modifying the employment contract; or

14. other objective economic situations in which the employment contract is based change substantially, which makes it impossible to perform the employment contract.

Article 20 Where an employer decides to dissolve the employment contract with an employee by paying the latter an additional month’s wages according to Article 40 of the Employment Contract Law, the amount of the additional month’s wages shall be determined according to the employee’s wages in the last month.

Article 21 An employment contract shall be terminated when an employee reaches the mandatory age for retirement.

Article 22 Where an employment contract that sets the completion of a specific task as the term of the contract is terminated upon the completion of the specific task, the employer shall make economic compensations to the employee according to Article 47 of the Employment Contract Law.

Article 23 Where an employer terminates the employment contract with an employee injured at work, it shall, apart from making economic compensations according to Article 47 of the Employment Contract Law, pay medical subsidies for the work-related injury and employment subsidies to the disabled once and for all according to the state provisions on work-related injury insurance.

Article 24 A employment contract dissolution or termination certificate issued by an employer shall bear the term of the employment contract, the date when it is dissolved or terminated, the position of the employee and the working time of the employee with this employer.

Article 25 Where any employer dissolves or terminates the employment contract with an employee against the Employment Contract Law, if it has paid a compensation according to Article 87 of the Employment Contract Law, it is not required to make economic compensations. The working time based on which the said compensation is calculated shall be calculated from the day when the employee was hired.

Article 26 If an employer and an employee have stipulated the period of service in the employment contract, when the employee dissolves the employment contract according to Article 38 of the Employment Contract Law, it is not against the stipulation of the period of service, and the employer is not entitled to ask the employee to pay a penalty for breach of contract.

If the employer dissolves the employment contract which has stipulated the period of service under any of the following circumstances, the employee shall pay a penalty for breach of contract to the employer:

1. the employee seriously violates the rules and procedures set up by the employer;

2. the employee seriously neglects his duties or engages in malpractice for personal gains and has caused severe damages to the employer;

3. the employee simultaneously enters an employment relationship with any other employer and thus seriously affects his completion of the tasks assigned by the employer, or the employee refuses to correct after the employer has pointed out the problem;

4. the employee, by means of deception or coercion or by taking advantage of the employer’s difficulties, forces the employer to conclude or change the employment contract against the employer’s true will; or

5. the employee is under investigation for criminal liabilities.

Article 27 According to Article 47 of the Employment Contract Law, the monthly wages for calculating the economic compensation to be paid to an employee shall be the monthly wages that the employee deserves, including the hourly wages or piecework wages and other monetary incomes such as bonuses, allowances and subsidies. If the average wages of the employee in the 12 months before the employment contract is dissolved or terminated are below the local minimum wages level, the economic compensation shall be calculated based on the local minimum wages. If the working time of the employee is less than 12 months, the average wages shall be calculated based on the actual work time.

Chapter IV Special Provisions on Labor Dispatch

Article 28 According to Article 67 of the Employment Contract Law, a labor dispatch entity funded by an employer or a subsidiary entity thereof or established in the form of partnership may not dispatch any employee to the employer or the subsidiary entity.

Article 29 An employer shall fulfill its obligations set forth in Article 62 of the Employment Contract Law and safeguard the legitimate rights and interests of the dispatched employees.

Article 30 No labor dispatch entity may employ part-time to-be-dispatched employees.

Article 31 Economic compensations to be made after a labor dispatch entity or a dispatched employee has lawfully dissolved or terminated the employment contract shall be made according to Article 46 or 47 of the Employment Contract Law.

Article 32 Where any labor dispatch entity illegally dissolves or terminates the employment contract with a dispatched employee, Article 48 of the Employment Contract Law shall apply.

Chapter V Legal Liability

Article 33 Where any employer violates the provisions of the Employment Contract Law on setting up a roster of employees, the competent labor administrative department shall order it to correct within a certain time limit, and, if it fails to do so, impose a fine of not more than 20,000 yuan but not less than 2000 yuan upon it.

Article 34 Where any employer fails to pay employee his monthly wages in double amount or compensations when it is so required by the Employment Contract Law, the competent labor administrative department shall order it to make the payment.

Article 35 Where any employer violates the provisions of the Employment Contract Law or this Regulation on dispatching employees, the competent labor administrative department or other competent department shall order it to correct and, if the circumstances are serious, impose a fine of 1000 yuan to 5000 yuan per dispatched employee. If any damages have been caused to the dispatched employee, the dispatch entity and the employer shall assume joint and several liabilities.

Chapter VI Supplementary Provisions

Article 36 For the reported or complained acts in violation of the Employment Contract Law or this Regulation, the labor administrative departments of the local people’s governments at or above the county level shall handle them according to the Regulation on Labor Security Supervision.

Article 37 For any dispute occurred in the conclusion, performance, modification, dissolution or termination of an employment contract between an employee and his employer, the Law of the People’s Republic of China on the Mediation and Arbitration of Labor Disputes shall apply.

Article 38 This Regulation shall come into force on the date of promulgation.

中华人民共和国劳动合同法

第一章 总则
第一条 为了贯彻实施《中华人民共和国劳动合同法》(以下简称劳动合同法),制定本条例。
第二条 各级人民政府和县级以上人民政府劳动行政等有关部门以及工会等组织,应当采取措施,推动劳动合同法的贯彻实施,促进劳动关系的和谐。
第三条 依法成立的会计师事务所、律师事务所等合伙组织和基金会,属于劳动合同法规定的用人单位。
第二章 劳动合同的订立
第四条 劳动合同法规定的用人单位设立的分支机构,依法取得营业执照或者登记证书的,可以作为用人单位与劳动者订立劳动合同;未依法取得营业执照或者登记证书的,受用人单位委托可以与劳动者订立劳动合同。
第五条 自用工之日起一个月内,经用人单位书面通知后,劳动者不与用人单位订立书面劳动合同的,用人单位应当书面通知劳动者终止劳动关系,无需向劳动者支付经济补偿,但是应当依法向劳动者支付其实际工作时间的劳动报酬。
第六条 用人单位自用工之日起超过一个月不满一年未与劳动者订立书面劳动合同的,应当依照劳动合同法第八十二条的规定向劳动者每月支付两倍的工资,并与劳动者补订书面劳动合同;劳动者不与用人单位订立书面劳动合同的,用人单位应当书面通知劳动者终止劳动关系,并依照劳动合同法第四十七条的规定支付经济补偿。
前款规定的用人单位向劳动者每月支付两倍工资的起算时间为用工之日起满一个月的次日,截止时间为补订书面劳动合同的前一日。
第七条 用人单位自用工之日起满一年未与劳动者订立书面劳动合同的,自用工之日起满一个月的次日至满一年的前一日应当依照劳动合同法第八十二条的规定向劳动者每月支付两倍的工资,并视为自用工之日起满一年的当日已经与劳动者订立无固定期限劳动合同,应当立即与劳动者补订书面劳动合同。
第八条 劳动合同法第七条规定的职工名册,应当包括劳动者姓名、性别、公民身份号码、户籍地址及现住址、联系方式、用工形式、用工起始时间、劳动合同期限等内容。
第九条 劳动合同法第十四条第二款规定的连续工作满10年的起始时间,应当自用人单位用工之日起计算,包括劳动合同法施行前的工作年限。
第十条 劳动者非因本人原因从原用人单位被安排到新用人单位工作的,劳动者在原用人单位的工作年限合并计算为新用人单位的工作年限。原用人单位已经向劳动者支付经济补偿的,新用人单位在依法解除、终止劳动合同计算支付经济补偿的工作年限时,不再计算劳动者在原用人单位的工作年限。
第十一条 除劳动者与用人单位协商一致的情形外,劳动者依照劳动合同法第十四条第二款的规定,提出订立无固定期限劳动合同的,用人单位应当与其订立无固定期限劳动合同。对劳动合同的内容,双方应当按照合法、公平、平等自愿、协商一致、诚实信用的原则协商确定;对协商不一致的内容,依照劳动合同法第十八条的规定执行。
第十二条 地方各级人民政府及县级以上地方人民政府有关部门为安置就业困难人员提供的给予岗位补贴和社会保险补贴的公益性岗位,其劳动合同不适用劳动合同法有关无固定期限劳动合同的规定以及支付经济补偿的规定。
第十三条 用人单位与劳动者不得在劳动合同法第四十四条规定的劳动合同终止情形之外约定其他的劳动合同终止条件。
第十四条 劳动合同履行地与用人单位注册地不一致的,有关劳动者的最低工资标准、劳动保护、劳动条件、职业危害防护和本地区上年度职工月平均工资标准等事项,按照劳动合同履行地的有关规定执行;用人单位注册地的有关标准高于劳动合同履行地的有关标准,且用人单位与劳动者约定按照用人单位注册地的有关规定执行的,从其约定。
第十五条 劳动者在试用期的工资不得低于本单位相同岗位最低档工资的80%或者不得低于劳动合同约定工资的80%,并不得低于用人单位所在地的最低工资标准。
第十六条 劳动合同法第二十二条第二款规定的培训费用,包括用人单位为了对劳动者进行专业技术培训而支付的有凭证的培训费用、培训期间的差旅费用以及因培训产生的用于该劳动者的其他直接费用。
第十七条 劳动合同期满,但是用人单位与劳动者依照劳动合同法第二十二条的规定约定的服务期尚未到期的,劳动合同应当续延至服务期满;双方另有约定的,从其约定。
第三章 劳动合同的解除和终止
第十八条 有下列情形之一的,依照劳动合同法规定的条件、程序,劳动者可以与用人单位解除固定期限劳动合同、无固定期限劳动合同或者以完成一定工作任务为期限的劳动合同:
(一)劳动者与用人单位协商一致的;
(二)劳动者提前30日以书面形式通知用人单位的;
(三)劳动者在试用期内提前3日通知用人单位的;
(四)用人单位未按照劳动合同约定提供劳动保护或者劳动条件的;
(五)用人单位未及时足额支付劳动报酬的;
(六)用人单位未依法为劳动者缴纳社会保险费的;
(七)用人单位的规章制度违反法律、法规的规定,损害劳动者权益的;
(八)用人单位以欺诈、胁迫的手段或者乘人之危,使劳动者在违背真实意思的情况下订立或者变更劳动合同的;
(九)用人单位在劳动合同中免除自己的法定责任、排除劳动者权利的;
(十)用人单位违反法律、行政法规强制性规定的;
(十一)用人单位以暴力、威胁或者非法限制人身自由的手段强迫劳动者劳动的;
(十二)用人单位违章指挥、强令冒险作业危及劳动者人身安全的;
(十三)法律、行政法规规定劳动者可以解除劳动合同的其他情形。
第十九条 有下列情形之一的,依照劳动合同法规定的条件、程序,用人单位可以与劳动者解除固定期限劳动合同、无固定期限劳动合同或者以完成一定工作任务为期限的劳动合同:
(一)用人单位与劳动者协商一致的;
(二)劳动者在试用期间被证明不符合录用条件的;
(三)劳动者严重违反用人单位的规章制度的;
(四)劳动者严重失职,营私舞弊,给用人单位造成重大损害的;
(五)劳动者同时与其他用人单位建立劳动关系,对完成本单位的工作任务造成严重影响,或者经用人单位提出,拒不改正的;
(六)劳动者以欺诈、胁迫的手段或者乘人之危,使用人单位在违背真实意思的情况下订立或者变更劳动合同的;
(七)劳动者被依法追究刑事责任的;
(八)劳动者患病或者非因工负伤,在规定的医疗期满后不能从事原工作,也不能从事由用人单位另行安排的工作的;
(九)劳动者不能胜任工作,经过培训或者调整工作岗位,仍不能胜任工作的;
(十)劳动合同订立时所依据的客观情况发生重大变化,致使劳动合同无法履行,经用人单位与劳动者协商,未能就变更劳动合同内容达成协议的;
(十一)用人单位依照企业破产法规定进行重整的;
(十二)用人单位生产经营发生严重困难的;
(十三)企业转产、重大技术革新或者经营方式调整,经变更劳动合同后,仍需裁减人员的;
(十四)其他因劳动合同订立时所依据的客观经济情况发生重大变化,致使劳动合同无法履行的。
第二十条 用人单位依照劳动合同法第四十条的规定,选择额外支付劳动者一个月工资解除劳动合同的,其额外支付的工资应当按照该劳动者上一个月的工资标准确定。
第二十一条 劳动者达到法定退休年龄的,劳动合同终止。
第二十二条 以完成一定工作任务为期限的劳动合同因任务完成而终止的,用人单位应当依照劳动合同法第四十七条的规定向劳动者支付经济补偿。
第二十三条 用人单位依法终止工伤职工的劳动合同的,除依照劳动合同法第四十七条的规定支付经济补偿外,还应当依照国家有关工伤保险的规定支付一次性工伤医疗补助金和伤残就业补助金。
第二十四条 用人单位出具的解除、终止劳动合同的证明,应当写明劳动合同期限、解除或者终止劳动合同的日期、工作岗位、在本单位的工作年限。
第二十五条 用人单位违反劳动合同法的规定解除或者终止劳动合同,依照劳动合同法第八十七条的规定支付了赔偿金的,不再支付经济补偿。赔偿金的计算年限自用工之日起计算。
第二十六条 用人单位与劳动者约定了服务期,劳动者依照劳动合同法第三十八条的规定解除劳动合同的,不属于违反服务期的约定,用人单位不得要求劳动者支付违约金。
有下列情形之一,用人单位与劳动者解除约定服务期的劳动合同的,劳动者应当按照劳动合同的约定向用人单位支付违约金:
(一)劳动者严重违反用人单位的规章制度的;
(二)劳动者严重失职,营私舞弊,给用人单位造成重大损害的;
(三)劳动者同时与其他用人单位建立劳动关系,对完成本单位的工作任务造成严重影响,或者经用人单位提出,拒不改正的;
(四)劳动者以欺诈、胁迫的手段或者乘人之危,使用人单位在违背真实意思的情况下订立或者变更劳动合同的;
(五)劳动者被依法追究刑事责任的。
第二十七条 劳动合同法第四十七条规定的经济补偿的月工资按照劳动者应得工资计算,包括计时工资或者计件工资以及奖金、津贴和补贴等货币性收入。劳动者在劳动合同解除或者终止前12个月的平均工资低于当地最低工资标准的,按照当地最低工资标准计算。劳动者工作不满12个月的,按照实际工作的月数计算平均工资。
第四章 劳务派遣特别规定
第二十八条 用人单位或者其所属单位出资或者合伙设立的劳务派遣单位,向本单位或者所属单位派遣劳动者的,属于劳动合同法第六十七条规定的不得设立的劳务派遣单位。
第二十九条 用工单位应当履行劳动合同法第六十二条规定的义务,维护被派遣劳动者的合法权益。
第三十条 劳务派遣单位不得以非全日制用工形式招用被派遣劳动者。
第三十一条 劳务派遣单位或者被派遣劳动者依法解除、终止劳动合同的经济补偿,依照劳动合同法第四十六条、第四十七条的规定执行。
第三十二条 劳务派遣单位违法解除或者终止被派遣劳动者的劳动合同的,依照劳动合同法第四十八条的规定执行。
第五章 法律责任
第三十三条 用人单位违反劳动合同法有关建立职工名册规定的,由劳动行政部门责令限期改正;逾期不改正的,由劳动行政部门处2000元以上2万元以下的罚款。
第三十四条 用人单位依照劳动合同法的规定应当向劳动者每月支付两倍的工资或者应当向劳动者支付赔偿金而未支付的,劳动行政部门应当责令用人单位支付。
第三十五条 用工单位违反劳动合同法和本条例有关劳务派遣规定的,由劳动行政部门和其他有关主管部门责令改正;情节严重的,以每位被派遣劳动者1000元以上5000元以下的标准处以罚款;给被派遣劳动者造成损害的,劳务派遣单位和用工单位承担连带赔偿责任。
第六章 附则
第三十六条 对违反劳动合同法和本条例的行为的投诉、举报,县级以上地方人民政府劳动行政部门依照《劳动保障监察条例》的规定处理。
 第三十七条 劳动者与用人单位因订立、履行、变更、解除或者终止劳动合同发生争议的,依照《中华人民共和国劳动争议调解仲裁法》的规定处理。