【 micro law 】 “labor contract PK labor contract”, a word difference results are very different!

2022-05-04 0 By

Uncle Zhang in the community is over 50 years old and has recently found a job as a cleaner. His neighbor Aunt Zhang has just retired and works as a cashier in the nearby supermarket. Uncle Liu is over 60 years old and was a surgical expert when he was young.After looking for a job to had become the choice of many people to be able to enrich oneself already time can continue to develop again “surplus heat” like this kind of the contract that still continues to work after reaching emeritus age and unit of choose and employ persons is labor contract or service contract?Don’t worry, let me show you a real case first!Case plaintiff Liu mou joined the defendant company in 2011, as the marketing director.Both parties sign the Labor Contract and agree that the term of the contract shall be from December 19, 2011 to December 18, 2014, after which the contract shall be renewed to December 18, 2019.On May 18, 2018, Liu mou and the company signed the “termination of labor employment agreement”, agreed that the labor employment relationship between the two parties terminated on May 18, 2018, the company owes Liu mou 157,200 yuan labor fees divided into three payments, and agreed the payment period, after the expiration, the company still owes 100,000 yuan did not pay.In 2019, the plaintiff applied for labor arbitration to the Arbitration Commission. On the same day, the arbitration Commission issued a Notice of Rejection on the grounds that the arbitration request of the applicant was not within the scope of acceptance of labor and personnel dispute arbitration.The plaintiff filed a lawsuit to Beijing Tongzhou Court, the court has changed the case according to law for labor contract dispute, judgment defendant to pay plaintiff labor costs of 100,000 yuan, the case is now effective.The judge said that in this case, the court found that the plaintiff reached the statutory retirement age in 2012 and began to receive his pension.According to article 44 of the Labor Contract Law, “A labor contract shall be terminated under any of the following circumstances:(2) laborers begin to enjoy basic old-age insurance benefits according to law;(3) the laborer dies, or is declared dead or missing by the people’s court;(4) The employing unit is declared bankrupt according to law;(5) where the employing unit has its business license revoked, is ordered to close down or be cancelled, or the employing unit decides to dissolve ahead of schedule;(6) Other circumstances stipulated by laws and administrative regulations.”So, although both sides signed “labor contract”, but since plaintiff begins to enjoy the day of pay of primary endowment insurance rises, the labor concern of both sides terminated.According to the Interpretation of the Supreme People’s Court on the Legal Issues applicable to the trial of Labor Dispute cases (I), article 32 clause 1: Where an employing unit brings a lawsuit against the persons it employs who have enjoyed pension benefits or have received pension benefits according to law, the people’s court shall handle the case according to the labor relationship.Delimit focus: labor relations, labor relations only one word difference, but in judicial practice is often confused, what is the difference between the two and the connection?Labor contract is an agreement between a laborer and an employing unit to establish labor relations and clarify the rights and obligations of both parties.Labor contract: Labor contract refers to employment contract.◆ The nature of the contract is different: the labor contract is between the employer and the laborer to determine the labor relationship of the employment contract, is to become the employer’s internal employees for the purpose;A labor contract is a contract in which the party providing labor services provides services to the party receiving labor services, and the labor behavior of the party providing labor services is the subject matter of the contract.◆ Different rights and obligations: there are not only property relations between the two sides of the labor contract, but also personal relations, workers must abide by the rules and regulations of the employing unit, the two sides are the leadership and the leadership, the domination and the domination of the subordinate relationship, the employing unit has the legal responsibility to pay social insurance for the workers;There is only property relationship between the two subjects of the labor contract, the legal status of both parties is equal, there is no subordinate relationship, the party providing labor need not become a member of the employer.◆ Different ways of relief: labor disputes need arbitration procedures, one party should first apply for labor arbitration to the labor arbitration commission, labor arbitration can not accept the legal period to the people’s court to Sue;After the labor contract dispute appears, the disputing parties can directly file a lawsuit to the people’s court without “arbitration”.◆ Labor control right and labor risk responsibility is different: labor control right in the labor contract, labor risk responsibility is also borne by the labor provider;The labor control right in the labor contract is in the unit of choose and employ persons, and the labor risk is borne by the society, the unit of choose and employ persons and the laborer.◆ Different nature of remuneration and payment methods: remuneration is determined according to the labor market price, agreed by the parties, the state has no mandatory provisions, payment method is generally lump sum or batch payment;Labor remuneration is decided according to the quantity of labor and quality, agree by both parties, but must abide by the mandatory provision such as national minimum wage.(Source/Jing Fa Net matter, home of Legal Affairs)