Whether the employer can terminate the labor contract if the employee violates the criminal law

If an employee violates the criminal law, the employer may terminate the labor contract. The time for rescission of the contract shall be after the court has rendered a guilty verdict.

The law stipulates that Article 39 of the Labor Contract Law may terminate the labor contract if the employee falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

According to Article 25 of the Labor Law, if an employee is investigated for criminal liability in accordance with the law, the employer may terminate the labor contract.

The General Office of the Ministry of Labor gave a specific explanation of this provision in the Explanation on Several Articles of the Labor Law (Lao Ban Fa [1994] No. 289). Criminal liability refers to:

2. Those who have been exempted from criminal punishment by the people's courts in accordance with article 37 of the new Criminal Law.

Therefore, the employee is investigated for criminal liability, and the employer can terminate the labor contract. However, if the employer believes that the employment contract can continue to be performed, it may not terminate the employment contract.

If an employee is suspected of committing a crime and is investigated for criminal liability in accordance with the law, the employer may terminate the labor contract. According to the law, "being investigated for criminal responsibility in accordance with law" includes the following two situations:

1. Sentenced to criminal punishment by the people's court.

According to the provisions of the Penal Code, the types of punishment are divided into principal and supplementary punishments. Circumstances in which a people's court has been sentenced to a criminal penalty include:

1. Main punishment: controlled release, short-term detention, fixed-term imprisonment, life imprisonment, death penalty;

2. Waived from criminal punishment by the people's courts in accordance with the provisions of the Criminal Law.

The Criminal Law stipulates that where the circumstances of the crime are minor and no criminal punishment is required, criminal punishment may be waived, but depending on the different circumstances of the case, a reprimand or order a statement of repentance, a formal apology, or compensation for losses may be given, or an administrative punishment or administrative sanction may be imposed by the competent department.

If an employee is subject to compulsory measures on suspicion of committing a crime, the employer cannot terminate the labor contract on this basis.

No one may be found guilty without a judgment made by a people's court in accordance with law. Therefore, criminal coercive measures do not constitute criminal liability in accordance with the law. The employer cannot assume that the employee has been investigated for criminal responsibility in accordance with the law just because the employee has been criminally detained or arrested, and then dismiss the employee.

For an employee whose crime is minor and the People's Procuratorate has made a decision not to prosecute in accordance with the law, the employer cannot terminate the employment contract with the employee on the grounds that the employee is "investigated for criminal liability".

Only after the people's court makes a judgment in accordance with the law can it be determined whether the employee has been investigated for criminal liability in accordance with the law. At all stages from criminal detention to the time the criminal verdict takes effect, the employee may be found innocent only if he or she is suspected of committing a crime. In addition, China's criminal trials are two-instance final adjudication system.

Therefore, as long as the employee is dissatisfied with the first-instance judgment and files an appeal within the statutory appeal period, the first-instance judgment will not take effect, and it will only be determined by the effective judgment or ruling of the second-instance instance that it will be known whether the employee has been investigated for criminal liability.

Legal basis] Article 39 of the Labor Contract Law, the employer may terminate the labor contract if the employee falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

OK. Article 25 of the Labor Law of the People's Republic of China stipulates that if a worker is investigated for criminal liability in accordance with the law, the labor contract may be terminated by the unit that disturbs the Li people.

1. Is there a legal basis for the employee to terminate the labor contract?

According to the Labor Contract Law of the People's Republic of China, if the employee and the employer reach an agreement through consultation, the labor contract may be terminated; According to the Labor Law of the People's Republic of China and the Labor Contract Law of the People's Republic of China, if an employee terminates a labor contract, he or she shall notify the employer in writing 30 days in advance, and the employee during the probationary period shall notify the employer 3 days in advance. If there is a violation of the relevant provisions of the Labor Law of the People's Republic of China and the Labor Contract Law of the People's Republic of China, the employee may terminate the labor contract at any time by notifying the employer.

2. Can an employee terminate a labor contract after being investigated for criminal liability?

The Labor Contract Law of the People's Republic of China stipulates that the employer may terminate the labor contract if the employee falls under any of the following circumstances: (1) The employee is proved to be ineligible for employment during the probationary period. (2) Seriously violating the employer's system of congratulatory manuscripts.

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer. 4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request; (5) The labor contract is invalid due to statutory circumstances.

6) Those who have been pursued for criminal responsibility in accordance with law.

3. Whether the termination of the labor contract during the period of detention is in accordance with the regulations.

During the period of detention, the performance of the labor contract may be suspended, but the labor contract may not be terminated, and the employee may only be terminated if he or she has been investigated for criminal liability in accordance with the law. Circumstances under which the employer may unilaterally terminate the labor contract: the employee seriously violates the rules and regulations of the employer; The worker is seriously derelict in his duties, engages in malpractice for personal gain, and causes major damage to the employer; The worker is proved to be ineligible for employment during the probationary period; Other.

Article 25 of the Labor Law of the People's Republic of China The employer may terminate the labor contract if the employee falls under any of the following circumstances: (1) it is proved that the employee does not meet the employment requirements during the probationary period; (2) Seriously violating labor discipline or the rules and regulations of the employer; (3) Serious dereliction of duty, malpractice for personal gain, causing major harm to the interests of the employer; (4) They have been pursued for criminal responsibility in accordance with law.

Legal Analysis: Yes. Article 25 of the Labor Law of the People's Republic of China If a worker is investigated for criminal liability in accordance with the law, the labor contract may be terminated if the employer is absent from the position.

Legal basis: Law of the People's Republic of China on the Command of Laoyu Town Article 25 The employer may terminate the labor contract if the worker falls under any of the following circumstances: (1) it is proved that he does not meet the employment requirements during the probationary period; (2) Seriously violating labor discipline or the rules and regulations of the employer; (3) Serious dereliction of duty, malpractice for personal gain, causing major harm to the employer's interests; (4) They have been pursued for criminal responsibility in accordance with law.

Legal Analysis: Yes. Article 25 of the Labor Law of the People's Republic of China stipulates that if an employee is investigated for criminal liability in accordance with the law, the employer may terminate the labor contract.

Legal basis: Labor Law of the People's Republic of China Article 25 The employer may terminate the labor contract if the worker falls under any of the following circumstances: (1) it is proved that he does not meet the employment requirements during the probationary period; (2) Seriously violating labor discipline or the rules and regulations of the employer; (3) Serious dereliction of duty, leniency in malpractice for personal gain, causing major harm to the interests of the employer; (4) They have been pursued for criminal responsibility in accordance with law.

Legal Analysis: Employees can be terminated from their employment contracts if they are criminally punished. If the employee is investigated for criminal liability, the employer may terminate the labor contract.

If the employer believes that the labor contract can continue to be performed, it may not terminate the labor contract. If an employee is placed under surveillance or serving a sentence outside of prison or given a suspended sentence, and the employer does not terminate the contract, it is obliged to cooperate with the local public security organ in supervising the criminal.

Legal basis: Law of the People's Republic of China on Labor Cooperation》 Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus, and good faith. The labor contract concluded in accordance with the law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

Article 10 A written labor contract shall be concluded for the establishment of labor relations. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment.

Article 36 The employer and the worker may terminate the labor contract if they reach a consensus through consultation.