Questions about employment agreements and liquidated damages

The Labor Contract Law of the People's Republic of China (adopted at the 28th Session of the Standing Committee of the 10th National People's Congress on June 29, 2007) clearly stipulates that:

Article 23 The employer and the employee may agree in the labor contract to keep the employer's trade secrets and confidential matters related to intellectual property rights.

For employees who are obliged to maintain confidentiality, the employer may stipulate a non-compete clause with the employee in the employment contract or confidentiality agreement, and stipulate that after the termination or termination of the labor contract, the employee will be compensated monthly during the non-compete period. If the employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement.

Article 24 The persons subject to non-competition restrictions are limited to the senior management personnel, senior technical personnel and other personnel who have the obligation of confidentiality of the employer. The scope, region, and duration of the non-compete restriction shall be agreed upon by the employer and the employee, and the agreement on the non-compete restriction shall not violate the provisions of laws and regulations.

After the dissolution or termination of the labor contract, the period of non-competition for the personnel provided for in the preceding paragraph to go to another employer that has a competitive relationship with the unit that produces or sells the same kind of products or engages in the same kind of business, or starts their own business to produce or operate the same kind of products or engage in the same kind of business, shall not exceed two years.

Article 25 Except as provided for in Articles 22 and 23 of this Law, an employer shall not agree with a worker that the worker shall bear liquidated damages.

Therefore, you don't need to worry about liquidated damages, you can study the labor law carefully and protect your rights and interests.

For breach of contract, the school generally requires that there is a legitimate reason to negotiate with the contracting unit, that is, the levy unit agrees, otherwise it cannot sign another contract. As for how to obtain the consent of the unit, it is up to you, most of them have to pay liquidated damages, and if there is an opportunity, it should be decided early.

According to the law, the specific provisions of the employment agreement on liquidated damages are: the parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach; It may be agreed that the method of calculating the amount of compensation for losses arising from breach of contract may be agreed.

Article 585 of the Civil Code of the People's Republic of China The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method of calculating the amount of compensation for losses arising from the breach. If the agreed liquidated damages are lower than the losses caused by the imitation, the people's court or arbitration institution may increase them at the request of the parties; If the agreed liquidated damages are excessively higher than the losses caused, the people's court or the arbitration institution may appropriately reduce them at the request of the parties. If the parties agree on liquidated damages for delayed performance, the breaching party shall also perform the debt after paying the liquidated damages.

The maximum amount of liquidated damages for the employment agreement is 5,000 yuan.

According to the provisions of the Labor Contract Law, which came into effect in 2008, there are only two circumstances in which the employer and the employee can agree on liquidated damages. The two situations are: Article 22 of the Labor Contract Law:

The meaning of this article is that the employer pays to send the worker to a special training institution to study, and the worker agrees to serve the unit for a certain number of years after completing the study. However, if the employee breaches the contract within a certain number of years, the employee shall pay liquidated damages. The calculation of the breach or breach of contract is the training fee divided by the agreed length of service, multiplied by the number of years of contract, which is the liquidated damages that the employee should bear.

Article 23: If a worker engages in confidential business for the employer, and after terminating the contract of the Labor Corps, the worker agrees not to work in a position that competes with the original employer for a certain number of years, and the employer shall pay a confidentiality fee. If the employee defaults, the employee pays liquidated damages.

With the exception of these two cases, any other form of liquidated damages is illegal. Article 25 of the Labor Contract Law: Except in the case of the contradiction between Articles 22 and 23 of this Law, the employer shall not agree with the employee that the employee shall bear the liquidated damages.

Therefore, if you are a college student who has just graduated, you don't need to worry about other liquidated damages except for the liquidated damages that the company promised you to send you training. Because other liquidated damages are naturally invalid.

In China, the employer and the employee can only agree on liquidated damages under two circumstances: Article 22 of the Labor Contract Law: If the employer and the employee agree on the length of service, and the employee breaches the contract, the employee shall pay liquidated damages.

Article 23: If an employee engages in confidential business for the employer, after terminating the labor contract, the employee signs a non-compete agreement, and if the employee breaches the contract, the employee shall pay liquidated damages.

The employment agreement signed cannot stipulate liquidated damages. Liquidated damages can only be agreed upon when the employer provides special training to the employee for the agreed service period or has trade secrets that need to be kept by the employee. However, the employment agreement for college graduates does not stipulate the actual employment training for college graduates and the actual trade secrets of the employer for college graduates, and the employer violates the provisions of the Labor Contract Law by stipulating liquidated damages clauses in the employment agreement for college graduates, and it should be said that the agreement is invalid.

Legal basis] Article 22 of the Labor Contract Law provides that if an employer provides an employee with special training expenses and professional and technical training, it may enter into an agreement with the employee to stipulate the service period. If the employee violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training fees provided by the employer.

The liquidated damages required by the employer shall not exceed the training expenses that should be apportioned for the unfulfilled part of the service period. If the employer and the employee agree on the service period, it will not affect the increase of the employee's labor remuneration during the service period in accordance with the normal wage adjustment mechanism.