If I terminate the contract early, will I be compensated for the other party s liquidated damages?

Article 31 of the Labor Law, which stipulates that "an employee shall notify the employer in writing 30 days in advance of the termination of a labor contract", is a provision on the notification obligation and statutory form of the termination of the labor contract, and should not be simply understood as the employee's right to freely choose employment and the right to unilaterally terminate. The term of the contract is the main clause of the labor contract, and it is also the main contractual obligation that both parties to the contract should abide by, Chen terminated the labor contract in accordance with the provisions of Article 31 of the Labor Law during the contract period, and the act of terminating the contract became legally effective, but the unilateral termination of the contract violated the contract, and of course he should bear the liability for breach of contract in accordance with the contract.

As to whether the employer has the right to claim liquidated damages from the employee without making any capital contribution, according to the Regulations of Shanghai Municipality on Labor Contracts, which came into effect on May 1, 2002, "the labor contract shall set liquidated damages for the employee's breach of contract only in the following circumstances: (1) the employee violates the service period; (2) Violating agreements on the preservation of commercial secrets. The amount of liquidated damages shall be agreed upon in accordance with the principles of fairness and reasonableness.

Therefore, only the liquidated damages clause in the two circumstances stipulated in the Regulations is legal and valid for the employee. However, since the three contracts involved in this case were all signed before May 2002, the original Shanghai Provisions on Labor Contracts should be applied to this case. Since the original Shanghai Labor Contract Provisions did not prohibit the employer from agreeing on liquidated damages with the employee on their own, according to the principle of agreement followed by agreement, the amount of breach of contract for Chen's early resignation had been set in the contract between Chen and the employer on the settlement of the household registration, and if the amount of breach of contract was not obviously excessively high, Chen should of course bear the liability for breach of contract for his early termination.

According to Article 4 of the Measures for Compensation for Violations of the Labor Law, when an employee terminates a labor contract in advance, he or she shall first handle the compensation for training fees in accordance with the provisions of the labor contract. According to Article 3 of the Reply of the General Office of the Ministry of Labor on October 10, 1995 on the Basis of the Termination of the Labor Contract during the Probationary Period, the compensation for training fees shall be calculated as follows: if the service period is agreed, the amount of capital contribution shall be divided equally according to the service period, and the payment shall be reduced according to the service period performed by the employee.

Whether liquidated damages are required for early termination of an employment contract depends on the employment contract and the time when the employment contract is signed.

If the employment contract was signed before 2008, the early termination of the employment contract is generally subject to the contract. However, if the employment contract was signed after the implementation of the Labor Contract Law in 2008, in addition to Article 22, "if the employer provides special training expenses for the employee and provides him with 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. and 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 an employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement", and the labor contract may be terminated in advance only by notifying the employer in writing 30 days in advance in accordance with Article 37 of the Labor Contract Law. If the employee notifies the employer three days in advance during the probationary period, he or she may terminate the labor contract" without paying any liquidated damages.

1. Is there a penalty for the termination of the contract?

1) It depends on the specific situation

1. If one party terminates the contract, the act constitutes a breach of contract and liquidated damages need to be paid.

2. If the two parties negotiate to terminate the contract, it needs to be decided according to the content of the negotiation, and it is not necessary to pay liquidated damages.

2) Article 562 of the Civil Code provides that the parties may terminate the contract if they reach a consensus through consultation. The parties may agree on the grounds for one party to terminate the contract. In the event of a notice of termination of the contract, the person with the right to terminate the contract may terminate the contract.

2. Two types of liquidated damages.

1) The first is punitive liquidated damages, i.e., punitive liquidated damages. The main function of this type of liquidated damages is to punish the defaulting party. If one party breaches the contract and the other party suffers losses due to the breach of contract of the other party, then the breaching party shall compensate the non-breaching party for the losses in addition to paying liquidated damages.

2) The second type is liquidated damages with the nature of compensation, that is, compensatory liquidated damages. This kind of liquidated damages means that the parties to the contract have agreed in advance that the property loss caused by the breach of contract by one party has been estimated, and as long as the liquidated damages are paid, the other party will not be compensated for the losses suffered by the other party due to the breach of contract. Even if the liquidated damages are not enough to compensate the other party's losses, there is no need to compensate for them.

3. Settlement of contract disputes over the termination of Lloyd's Register.

In the event of a labor contract termination dispute, the employee can take the following measures to resolve the dispute.

1. The worker may negotiate with the employer, or ask the labor union or a third party to negotiate with the employer to reach a settlement agreement;

2. If the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the enterprise mediation committee or grassroots mediation organization for mediation;

3. If you are unwilling to mediate, fail to mediate, or fail to perform after reaching a mediation agreement, you can apply to the Mianzhu Labor Dispute Arbitration Commission for arbitration;

4. Unless otherwise provided in the Labor Dispute Mediation and Arbitration Law, a lawsuit may be filed with the people's court if the person is dissatisfied with the arbitral award.

Contract Law of the People's Republic of China

Article 114.

The parties may agree that one party shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach of contract, 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, the parties may request the people's court or arbitration institution to increase them;

If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to appropriately reduce them.

If the parties agree on liquidated damages for delayed performance, the breaching party shall also perform the debt after paying the liquidated damages.

Legal Analysis: Yes. When the creditor or debtor does not perform the debt at all or improperly, it must pay a certain amount of money to the other party as agreed.

Liquidated damages are a kind of guarantee for debts, and they are also a kind of economic sanctions for default. The establishment of liquidated damages is to ensure the performance of the debt, and even if the other party has not suffered any property loss, it is necessary to pay liquidated damages in accordance with the provisions of the law or the contract. The standard of liquidated damages shall be prescribed by law or agreed in writing by both parties in the contract.

Article 577 of the Civil Code of the People's Republic of China: Where one of the parties fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the agreement, it shall bear liability for breach of contract such as continuing to perform, taking remedial measures, or compensating for losses.

Legal analysis: liquidated damages refer to a certain amount of money or property that one party should pay to the other party when it breaches the contract. How much should be paid for the liquidated damages of the lease agreement.

According to the provisions of the current Civil Code, liquidated damages have the following legal characteristics: (1) they are pre-agreed in the contract (one of the contract clauses); (2) It is a certain amount of money (fixed damages) paid by one party to the other party in the event of a breach of contract; (3) It is an agreement to bear the liability for compensation (different from the general contractual obligation of renting a lead scale).

Legal basis: Article 577 of the Civil Code: If one of the parties fails to perform its contractual obligations or the performance of the contractual obligations by the agitator does not conform to the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.

1. Both parties do not necessarily need to pay liquidated damages for early termination of the contract, if one party breaches the contract and the purpose of the contract cannot be achieved and the contract needs to be terminated, then the party who abides by the contract can request the other party to pay the liquidated damages.

2. In practice, if one of the parties to the contract has indeed breached the contract, and there is evidence to prove that it has breached the contract, then even after the termination of the contract negotiated by both parties, the party who guards the agreement still has the right to hold the breacher accountable.

3. Liquidated damages are subdivided downwards and can be specifically divided into statutory liquidated damages and agreed liquidated damages. Statutory liquidated damages refer to those expressly stipulated by laws and regulations, and under certain circumstances, when one party breaches the contract, it is necessary to take the initiative to pay the corresponding liquidated damages. Statutory liquidated damages are also divided into fixed and floating forms of liquidated damages, which have their own specific calculation standards, and are mandatory to a certain extent for both parties to the contract.

The agreed liquidated damages are quite different, they are not as fixed as the statutory liquidated damages, and there is no specific amount and calculation standard, and the parties to the contract are mainly required to make a more reasonable agreement according to their actual situation.

1. How to compensate the employer for early termination of the contract?

The employer does not necessarily need to pay compensation to the employee for early termination of the contract, but only after the following circumstances occur:

Labor Contract Law of the People's Republic of China

Article 46 Under any of the following circumstances, the employer shall pay the worker compensation for the hardships of the worker:

1) The worker terminates the labor contract in accordance with the provisions of Article 38 of this Law;

2) The employer proposes to terminate the labor contract to the employee in accordance with Article 36 of this Law and terminates the labor contract through consultation with the employee;

3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;

4) The employer terminates the labor contract in accordance with the provisions of Paragraph 1 of Article 41 of this Law;

5) Except in the case where the employer maintains or improves the agreed conditions of the labor contract and the employee does not agree to renew, the fixed-term labor contract is terminated in accordance with the provisions of Paragraph 1 of Article 44 of this Law;

6) Termination of the labor contract in accordance with the provisions of Paragraphs 4 and 5 of Article 44 of this Law;

7) Other circumstances stipulated by laws and administrative regulations.