[转载] 中华人民共和国劳动合同法(英文版)

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Article 46 In any of the following circumstances, the Employer shall pay the Employee severance pay: (1) The employment contract is terminated by the Employee pursuant to Article 38 hereof; 2 S5 e" M3 f8 B1 ^, B(2) The employment contract is terminated after such termination was proposed to the Employee by the Employer pursuant to Article 36 hereof and the parties reached agreement thereon after consultations; & {' I# K6 m* H v, n(3) The employment contract is terminated by the Employer pursuant to Article 40 hereof; (4) The employment contract is terminated by the Employer pursuant to the first paragraph of Article 41 hereof; ' N- Y! L% i4 N3 t2 v(5) The employment contract is a fixed–term contract that ends pursuant to item (1) of Article 44 hereof, unless the Employee does not agree to renew the contract even though the conditions offered by the Employer are the same as or better than those stipulated in the current contract; (6) The employment contract ends pursuant to item (4) or (5) of Article 44 hereof; (7) Other circumstances specified in laws or administrative statutes. " F2 K& J5 q* I l. OArticle 47 A Employee shall be paid severance pay based on the number of years worked with the Employer at the rate of one month’s wage for each full year worked. Any period of not less than six months but less than one year shall be counted as one year. The severance pay payable to a Employee for any period of less than six months shall be one-half of his monthly wages. # A5 p, d/ n5 A K3 HIf the monthly wage of a Employee is greater than three times the average monthly wage of employees in the Employer’s area as published by the People’s Government at the level of municipality directly under the central government or municipality divided into districts of the area1 where the Employer is located, the rate for the severance pay paid to him shall be three times the average monthly wage of employees and shall be for not more than 12 years of work. % L/ R5 |5 j1 FFor the purposes of this Article, the term “monthly wage” means the Employee’s average monthly wage for the 12 months prior to the termination or ending of his employment contract. Article 48 If an Employer terminates or ends an employment contract in violation of this Law and the Employee demands continued performance of such contract, the Employer shall continue performing the same. If the Employee does not demand continued performance of the employment contract or if continued performance of the employment contract has become impossible, the Employer shall pay damages pursuant to Article 87 hereof.

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Article 49 - R) m% c3 N. i- X7 N* sThe state will take measures to establish a comprehensive system that enables Employees’ social insurance accounts to be transferred from one region to another and to be continued in such other region. Article 50 : I# E1 @" `$ f( BAt the time of termination or ending of an employment contract, the Employer shall issue a proof of termination or ending of the employment contract and, within 15 days, carry out the procedures for the transfer of the Employee’s file and social insurance account. 4 A! u: R8 o- S5 g$ y2 u+ ZThe Employee shall carry out the procedures for the handover of his work as agreed by the parties. If relevant provisions of this Law require the Employer to pay severance pay, it shall pay the same upon completion of the procedures for the handover of the work. The Employer shall keep terminated or ended employment contracts on file for not less than two years, for reference purposes. 4 T k, O. @1 P. Z' s8 [8 A, W 6 j4 R1 V' r2 S a6 K) O$ u9 OCHAPTER 5 SPECIAL PROVISIONS " l) j( t1 l% e2 N: L1 K, I SECTION 1 COLLECTIVE CONTRACT 3 J; n/ N' J0 d7 P, w. r6 g1 z Article 51 ( d3 f% ?8 K2 H5 r; r, ^6 L: ]5 |After bargaining on an equal basis, enterprise employees, as one party, and their Employer may conclude a collective contract on such matters as labor compensation, working hours, rest, leave, work safety and hygiene, insurance, benefits, etc. The draft of the collective contract shall be presented to the employee representative congress or all the employees for discussion and approval. A collective contract shall be concluded by the Trade union, on behalf of the enterprise’s employees, and the Employer. If the Employer does not yet have a Trade union, it shall 1 Translator’s note: The phrase “of the area” does not appear in the Chinese text. It has been added by us in view of the context. Conclude the collective contract with a representative put forward by the Employees under the guidance of the Trade union at the next higher level. # b% l: Y, [3 L) k U: A. eArticle 52 - w+ R: k( p: t% {2 \Enterprise employees, as one party, and their Employer may enter into specialized collective contracts addressing labor safety and hygiene, protection of the rights and interests of female employees, the wage adjustment mechanism, etc. " _. e4 H8 s3 @; z9 u8 IArticle 53 # c+ q, k) @3 y* s7 u$ [Industry-wide or area-wide collective contracts may be concluded between the Trade union on the one hand and representatives on the side of the enterprises on the other hand in industries such as construction, mining, catering services, etc. within areas below the county level. Article 54 After a collective contract has been concluded, it shall be submitted to the labor administration authority. The collective contract shall become effective upon the lapse of 15 days from the date of receipt thereof by the labor administration authority, unless the said authority raises any objections to the contract. A collective contract that has been concluded in accordance with the law is binding on the Employer and the Employees. An industry-wide or area-wide collective contract is binding on Employers and Employees in the industry or in the area in the locality concerned.

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Article 55 2 f. b5 v+ O1 R- i$ H, K) KThe rates for labor compensation, standards for working conditions, etc. stipulated in a collective contract may not be lower than the minimum rates and standards prescribed by the local People’s Government. The rates for labor compensation, standards for working conditions, etc. stipulated in the employment contract between an Employer and a Employee may not be lower than those stipulated in the collective contract. Article 56 3 F: R. K8 u' f4 F3 v- GIf an Employer’s breach of the collective contract infringes upon the labor rights and interests of the employees, the Trade union may, in accordance with the law, demand that the Employer assume liability. If a dispute arising from the performance of the collective contract is not resolved following consultations, the Trade union may apply for arbitration and institute an action according to law. ! f* g9 `: O' I/ xSECTION 2 Placement Article 57 , b' L5 ^) Z: e: B) u) a& }Staffing firms shall be established in accordance with the relevant provisions 6 N( l# m7 p o6 Y- m% {of the Company Law and have registered capital of not less than RMB￥500,000. Article 58 Staffing firms are Employers as mentioned in this Law and shall perform an Employer’s obligations toward its Employees. The employment contract between a staffing firm and a Employee to be placed shall, in addition to the matters specified in Article 17 hereof, specify matters such as the unit with which the Employee will be placed, the term of his placement, his position, etc. The employment contracts between staffing firms and the Employees to be placed shall be fixed term employment contracts with a term of not less than two years. Staffing firms shall pay labor compensation on a monthly basis. During periods when there is no work for Employees to be placed, the staffing firm shall pay such Employees compensation on a monthly basis at the minimum wage rate prescribed by the People’s Government of the place where the staffing firm is located. - X) z2 ^$ c. M% Y% LArticle 59 ) l6 j& C# ?$ w6 CWhen placing Employees, staffing firms shall enter into staffing agreements with the units that accept the Employees under the placement arrangements (“Accepting Units”). The staffing agreements shall stipulate the job positions in which Employees are placed, the number of persons placed, the term of placement, the amounts and methods of payments of labor compensation and social insurance premiums, and the liability for breach of the agreement. An Accepting Unit shall decide with the staffing firm on the term of placement based on the actual requirements of the job position, and it may not conclude several short-term placement agreements to cover a continuous term of labor use.

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Article 60 Staffing firms shall inform the Employees placed of the content of the placement agreements. Staffing firms may not pocket part of the labor compensation that the Accepting Units pay to the Employees in accordance with the placement agreement. Staffing firms and the Accepting Units may not charge fees from the Employees placed. 9 c! y, |+ F2 e6 v( N) Z& L% ]1 k+ V: yArticle 61 # o$ q9 C9 y, N1 R; h: r* t: x/ KIf a staffing firm places a Employee with an Accepting Unit in another region, the Employee’s labor compensation and working conditions shall be in line with the rates and standards of the place where the Accepting Unit is located. Article 62 , l( w: e/ p# M% p& w! PAccepting Units shall perform the following obligations: (1) Implement state labor standards and provide the corresponding working conditions and labor protection; (2) communicate the job requirements and labor compensation of the Employees placed; & }' D% k$ O. J8 g(3) Pay overtime pay and performance bonuses and provide benefits appropriate for the job positions; (4) Provide the placed Employees who are on the job with the training necessary for their job positions; and 3 w8 H8 t4 B( Y5 |& P) P(5) In case of continuous placement, implement a normal wage adjustment system. Accepting Units may not in turn place the Employees with other Employers. Article 63 Placed Employees shall have the right to receive the same pay as that received by Employees of the Accepting Unit for the same work. If an Accepting Unit has no Employee in the same position, the labor compensation shall be determined with reference to the labor compensation paid in the place where the Accepting Unit is located to Employees in the same or a similar position. Article 64 6 W' @' b/ I; d2 YPlaced Employees have the right to lawfully join the Trade union of their staffing firm or the Accepting Unit or to organize such unions, so as to protect their own lawful rights and interests. 8 `7 N2 j! p: T& p% }5 U* ^# @Article 65 / S6 X Z' F3 ]; A4 uPlaced Employees may terminate their employment contracts with their staffing firms pursuant to Article 36 or 38 hereof. If any of the circumstances provided for in Article 39 and items (1) and (2) of Article 40 hereof applies to a placed Employee, his Accepting Unit may return him to the staffing firm, which may terminate its employment contract with him in accordance with the relevant provisions of this Law.

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Article 66 The placement of Employees shall generally be practiced for temporary, auxiliary or substitute job positions. Article 67 Employers may not establish staffing firms to place Employees with themselves or their subordinate units. 9 m2 w! @' x7 w' JSection 3 Part-Time Labor . ?& E" g6 r) E1 N9 t; C, r+ eArticle 68 # ^2 |4 D2 g S* y8 DThe term “part-time labor” means a form of labor for which the compensation is chiefly calculated by the hour and where the Employee generally averages not more than 4 hours of work per day and not more than an aggregate 24 hours of work per week for the same Employer. 3 s& `/ o9 W2 _; _' [Article 69 5 b3 e6 K- @. T5 q+ BThe two parties to part-time labor may conclude an oral agreement. A Employee who engages in part-time labor may conclude an employment contract with one or more Employers, but a subsequently concluded employment contract may not prejudice the performance of a previously concluded employment contract. Article 70 The two parties to part-time labor may not stipulate a probation period. 5 @) I1 B) k7 H) EArticle 71 " d" M8 v* A: Q5 CEither of the two parties to part-time labor may terminate the use of the labor by notice to the other party at any time. No severance pay shall be payable by the Employer to the Employee upon termination of the use of the labor.

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Article 72 ( X6 {1 l8 H$ {' z; a1 X4 ]The hourly compensation rate for part-time labor may not be lower than the minimum hourly wage rate prescribed by the People’s Government of the place where the Employer is located. 0 }- l( q" p0 q. z6 ?The labor compensation settlement and payment cycle for part-time labor may not exceed 15 days. CHAPTER 6 MONITORING INSPECTIONS Article 73 The State Council’s labor administration authority shall be responsible for overseeing the implementation of the employment contract system nationwide. The labor administration authorities of local People’s Governments at the county level and above shall be responsible for overseeing the implementation of the employment contract system in their respective jurisdictions. $ H, a) Q. j) ?- OIn the course of overseeing the implementation of the employment contract system, the labor administration authorities of People’s Governments at the county level and above shall consider the opinions of the Trade unions, the representatives on the side of the enterprises and the authorities in charge of the industries concerned.

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Article 74 7 j8 w( o/ m' P( I4 o, E' UThe labor administration authorities of local People’s Governments at the county level and above shall conduct monitoring inspections of the implementation of the following aspects of the employment contract system, in accordance with the law: (1) Employers’ formulation of rules and regulations that have a direct bearing on the immediate interests of Employees, and the implementation thereof; (2) The conclusion and termination of employment contracts by Employers and Employees; (3) Compliance with relevant regulations on placement by staffing firms and Accepting Units; 1 ~' w; v0 g6 k; |3 Q: L(4) Employers’ compliance with state regulations on Employees’ working hours, rest and leave; (5) Employers’ payment of labor compensation as specified in the employment contracts and compliance with minimum wage rates; # R7 ~7 \7 X& O# M( W* |7 B- X(6) Employers’ enrollment in the various types of social insurance and payment of social insurance premiums; and $ x' D, P5 z2 C$ u) F; w+ Y+ H3 `(7) Other labor matters requiring monitoring inspections, as specified in laws and administrative statutes.

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Article 75 9 s( I( C1 ?1 u& w; ~' \When the labor administration authority of a local People’s Government at the county level or above conducts a monitoring inspection, it has the authority to review materials relating to the employment contracts and collective contracts and conduct an on the-spot inspection of the work premises. Both the Employer and the Employees shall truthfully provide relevant information and materials. When working personnel of a labor administration authority conduct a monitoring inspection, they shall show their IDs, exercise their functions and powers according to law and enforce the law in a well-disciplined manner. ) m( j/ i; J3 o+ `Article 76 Such competent authorities as construction authorities, health authorities, production safety regulators, etc. of People’s Governments at the county level and above shall, to the extent of their respective purviews, oversee the implementation of the employment contract system by Employers. 3 C) `6 U$ S+ ^7 jArticle 77 `( i6 u* ]+ b% ]1 W% i! YA Employee whose lawful rights and interests have been infringed upon shall have the right to request that the relevant authority deal with the infringement according to law, or to apply for arbitration and institute an action according to law. Article 78 % ~3 r7 V' T+ k* A, I& QTrade unions shall safeguard the lawful rights and interests of Employees in accordance with the law and monitor the performance of the employment contracts and collective contracts by Employers. If an Employer violates labor laws or statutes or breaches an employment contract or collective contract, the Trade union has the right to voice its opinion or require that the matter be rectified. If a Employee applies for arbitration or institutes an action, the Trade union shall provide support and assistance in accordance with the law. Article 79 All organizations and individuals are entitled to report violations of this Law. The labor administration authorities of People’s Governments at the county level and above shall timely check and handle the violations reported and reward those persons whose reports are valuable. CHAPTER 7 LEGAL LIABILITY Article 80 / ^2 Z! u8 ]1 E" ^If an Employer’s rule or regulation with a direct bearing on the immediate interests of Employees violates laws or administrative statutes, the labor administration authority shall order rectification and give a warning. If the said rule or regulation caused a Employee to suffer harm, the Employer will be liable for damages. $ k$ \" A! U+ }7 M: h5 h; RArticle 81 # w7 n: i( J6 |6 ?' O. wIf the text of an employment contract provided by an Employer lacks any of the mandatory clauses which this Law requires to be included in such contracts or if an Employer fails to deliver the text of the employment contract to the Employee, the labor administration authority shall order rectification; if the Employee suffered harm as a result thereof, the Employer will be liable for damages.

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Article 82 If an Employer concludes a written employment contract with a Employee more than one month but less than one year after the date on which it started using him, it shall each month pay to the Employee twice his wage. If an Employer fails, in violation of this Law, to conclude an open-ended employment contract with a Employee, it shall each month pay to the Employee twice his wage, starting from the date on which an open-ended employment contract should have been concluded. Article 83 If the probation period stipulated by an Employer with a Employee violates this Law, the labor administration authority shall order rectification. If the illegally stipulated probation has been performed, the Employer shall pay compensation to the Employee according to the time worked on probation beyond the statutory probation period, at the rate of the Employee’s monthly wage following the completion of his probation. Article 84 If an Employer violates this Law by retaining a Employee’s resident ID card or other papers, the labor administration authority shall order the same returned to the Employee within a specified period of time and impose a penalty in accordance with the provisions of relevant laws. 7 d+ x) H. s5 }If an Employer violates this Law by collection property from Employees as security or under some other guise, the labor administration authority shall order the same returned to the Employees within a specified period of time and impose a fine on the Employer of not less than RMB￥500 and not more than RMB￥2,000 for each person; If the Employees suffered harm as a result of the said conduct on the part of the Employer, the Employer will be liable for damages. If an Employer retains a Employee’s file or other Article after the Employee has terminated or ended his employment contract in accordance with the law, a penalty shall be imposed in accordance with the preceding paragraph. 8 p" Z2 h' D9 u2 D- tArticle 85 If an Employer: ; `; T& V: n+ ^6 ]$ F) V/ f! L(1) Fails to pay a Employee his labor compensation in full and on time as stipulated in his employment contract or prescribed by the state; 9 |) o6 ^* e3 Z' Q+ C3 Q, t(2) Pays labor compensation below the local minimum wage rate; (3) Arranges overtime without paying overtime pay; or (4) Terminates or ends an employment contract without paying the Employee severance pay pursuant to this Law; then the labor administration authority shall order it to pay the labor compensation, overtime pay or severance pay within a specified period of time; if the labor compensation is lower than the local minimum wage rate, the Employer shall pay the shortfall. If payment is not made within the time limit, the Employer shall be ordered to additionally pay damages to the Employee at a rate of not less than 50 percent and not more than 100 percent of the amount payable.

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Article 86 If an employment contract is confirmed as being invalid in accordance with Article 26 hereof and the other party suffers harm as a result thereof, the party at fault shall be liable for damages. Article 87 , U$ z, K; D5 y: gIf an Employer terminates or ends an employment contract in violation of this Law, it shall pay damages to the Employee at twice the rate of the severance pay provided for in Article 47 hereof. # t- W6 u7 c3 k/ `Article 88 If an Employer: (1) uses violence, threats or unlawful restriction of personal freedom to compel a Employee to work; (2) Instructs in violation of rules and regulations, or peremptorily orders, a Employee to perform dangerous operations which threaten his personal safety; % ?+ b/ j9 A& n7 Y(3) Insults, corporally punishes, beats, illegally searches or detains a Employee; or (4) provides odious working conditions or a severely polluted environment, resulting in serious harm to the physical or mental health of Employees; it shall be subjected to administrative punishment; if the said conduct constitutes a criminal offense, criminal liability shall be pursued according to law; if the Employee suffers harm as a result of the said conduct on the part of the Employer, the Employer will be liable for damages. ' p5 ~% w# `4 ~( iArticle 89 If an Employer fails, in violation of this Law, to issue to a Employee a certificate evidencing the termination or ending of his employment contract, the labor administration authority shall order rectification. If the Employee suffers harm as a result of such failure, the Employer will be liable for damages. 2 R6 {& T/ E) O3 x! aArticle 90 If a Employee terminates his employment contract in violation of this Law or breaches the confidentiality obligations or competition restrictions stipulated in his employment contract, and if such violation or breach causes his Employer to suffer loss, he will be liable for damages.