What is the difference between the termination of an indefinite employment contract and the terminat

Termination of an indefinite labor contract is only an indefinite term labor contract between the employer and the employee, and the employee and the employer can only terminate the employment relationship through resignation and dismissal.

There is no time limit for the termination of the employment relationship in the employment contract, which may be automatically terminated due to the expiration of the contract period, or it may be due to resignation or dismissal.

Article 12 of the Labor Contract Law provides that labor contracts are divided into fixed-term labor contracts, indefinite-term labor contracts, and labor contracts with a term of completion of certain work tasks.

Article 13 A fixed-term labor contract refers to a labor contract in which the employer and the worker agree on the time of termination. The employer and the employee may enter into a fixed-term labor contract if they reach an agreement through consultation.

Hello, indefinite labor contract compensation: 1. According to the length of service, one month's economic compensation will be paid after one year. 2. If the employer dissolves or terminates the labor contract in violation of the provisions of this Law, it shall pay compensation to the employee twice the standard of economic compensation stipulated in Article 47 of this Law.

In the employment relationship of an indefinite-term employment contract versus a fixed-term employment contract, if the enterprise has operational difficulties, the employee with an indefinite-term employment contract will be preferentially retained. The amount of severance or compensation is the same.

Legal Analysis: The difference between the termination of the labor contract and the same as that of the labor contract is as follows: the termination of the labor contract refers to the early termination of the labor relationship within the labor contract period; The term of the employment contract refers to the period of validity of the contract, which generally begins on the effective date of the contract and ends at the end of the contract.

Any labor process is carried out in a certain time and space. Depending on the circumstances, the termination of an employment contract requires different legal procedures, and failure to comply with the necessary legal procedures will result in penalties.

Legal basis: Labor Contract Law of the People's Republic of China Article 38 The employee may terminate the labor contract under any of the following circumstances: (1) failing to provide labor protection or working conditions in accordance with the labor contract; (2) Failure to pay labor remuneration in full and in a timely manner; (3) Failing to pay social insurance premiums for workers in accordance with law; (4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers; (5) The labor contract is invalid due to the circumstances provided for in the first paragraph of Article 26 of this Law; (6) Other circumstances in which the labor contract may be terminated as provided by laws and administrative regulations.

If the employer forces the employee to work by means of violence, threat or illegal restriction of personal freedom, or if the employer violates the rules and regulations and forces the employee to perform risky work that endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.

1. Termination through negotiation, i.e., the employer and the employee reach an agreement through consultation;

2. It is a negligent dismissal, that is, the employee has seriously violated the rules and regulations of the employer, and has been investigated for criminal liability in accordance with the law;

3. The notice is lifted, that is, the worker is incompetent for the job, and after training or job adjustment, he is still unable to do the job;

4. Economic layoffs, that is, the employer has serious difficulties in production and operation.

The employee may also take the initiative to terminate an indefinite-term employment contract with the employer, which includes notice of termination in addition to the method of termination through negotiation, i.e., 30 days in advance written notice of the termination. Immediate termination, that is, if the employer fails to pay labor remuneration in full and in a timely manner or fails to pay social insurance premiums for the employee in accordance with the law, the employee may terminate the employee at any time.

With an indefinite labor contract, the employee can work in a unit or department for a long time. This type of contract is suitable for positions with strong job confidentiality, technical complexity, and the need to maintain personnel stability. For employers, this kind of contract is conducive to safeguarding their economic interests and reducing the losses caused by frequent replacement of key personnel in key positions.

It is also beneficial for workers to achieve long-term stable employment and to study business skills.

It should be noted that although the employer and the employee have signed an indefinite employment contract, it does not mean that the employer has signed an employment contract with the employee. In practice, many employers ignore the provisions of the law and still do not conclude labor contracts with employees. For this state of the ante, the law stipulates that:

If an employer violates the provisions of this Law by not concluding an indefinite labor contract with an employee, it shall pay the employee twice the monthly wage. ”

1. What are the provisions on compensation for the termination of an indefinite term labor contract?

If both parties agree to dissolve or terminate the labor contract through consultation, the employer shall pay severance in accordance with Article 47 of the Labor Contract Law; If the employer unilaterally dissolves or terminates the labor contract, the employer is in violation of the law and shall pay double compensation in accordance with Article 87 of the Labor Contract Law.

1. Article 47 of the Labor Contract Law stipulates that economic compensation shall be paid to the employee according to the standard of one month's salary for each full year of service in the employer. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary.

If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of severance shall be paid to him at the rate of three times the average monthly wage of the employee, and the maximum period of payment of severance shall not exceed 12 years.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract.

2. Article 87 of the Labor Contract Law stipulates that if an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the employee in accordance with twice the standard of economic compensation stipulated in Article 47 of this Law.

Article 82 of the Labor Contract Law stipulates that "if an employer fails to conclude a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage". Article 6 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China stipulates that "if an employer fails to conclude a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly salary in accordance with Article 82 of the Labor Contract Law, and make up a written labor contract with the employee; If the employee does not conclude a written labor contract with the employer, the employer shall notify the employee in writing to congratulate the employee on the termination of the labor relationship and pay economic compensation in accordance with Article 47 of the Labor Contract Law. The starting date for the employer to pay twice the monthly salary to the employee as stipulated in the preceding paragraph shall be the day after the expiration of one month from the date of the employee's empty assignment, and the deadline shall be the day before the written labor contract is supplemented."

The following documents may be referred to when determining the labor relationship: (1) wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums; (2) "Work Permit", "Service Certificate" and other documents issued by the employer to the worker that can prove the identity; (3) Recruitment records such as the "registration form" and "registration form" of the employer's recruitment filled in by the worker; (4) Attendance records; (5) Testimony of other workers, etc. If the negotiation fails, the employer may apply for labor dispute arbitration or litigation at the place where the employer is located.

Circular of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations

Article 2. If the employer has not signed a labor contract with the employee, the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums;

(2) "Work Permit", "Service Certificate" and other documents issued by the employer to the worker that can prove the identity;

(3) Recruitment records such as the "registration form" and "registration form" of the employer's recruitment filled in by the worker;

(4) Attendance records;

(5) Testimony of other workers, etc.

Among them, the employer shall bear the burden of proof for the relevant documents in items (1), (3) and (4).

Article 31 of the Labor Law of the People's Republic of China stipulates that "an employee shall notify the employer in writing 30 days in advance of the termination of a labor contract", which clearly gives the employee the right to resign, which is absolute, and the employee does not need any substantive conditions to unilaterally terminate the labor contract, but only needs to fulfill the obligation of advance notice (i.e., 30 days in advance written notice to the employer). The General Office of the former Ministry of Labor also pointed out in the "Reply to Issues Concerning the Termination of Labor Contracts by Employees":

The employee's written notice to the employer 30 days in advance is not only a procedure for terminating the labor contract, but also a condition for terminating the labor contract. The employee shall notify the employer in writing 30 days in advance to terminate the labor contract without the consent of the employer. If the employee applies to the employer for the termination of the labor contract after 30 days, the employer shall handle the formalities."

The employment contract with a fixed term without fixed disturbances can be terminated under various circumstances, as follows:

1. If the enterprise and the employee reach an agreement on the termination of the contract, the two parties can terminate the labor contract for an indefinite period through consultation. Of course, if the termination of the contract is proposed by the enterprise, a severance payment needs to be paid according to the employee's working years. If the employee wants to terminate the contract, the enterprise does not need to pay economic compensation.

2. If the employee seriously violates the rules and regulations of the enterprise, the enterprise may unilaterally terminate the indefinite labor contract between the two parties. Of course, the enterprise shall bear the burden of proof for the employee's violation of discipline and regulations. There is also a major premise that the rules and regulations formulated by the enterprise are legal.

It is mainly reflected in the legal content of the rules and regulations, the legal formulation procedures (after the democratic movement procedure), and the formulated rules and regulations have been publicized to the employees, otherwise the rules and regulations of the enterprise are not legally binding on the employees.

3. The employee's serious dereliction of duty has caused major damage to the enterprise. For example, the illegal operation of employees causes a short circuit in the equipment of the enterprise and burns the valuable equipment.

4. The employee has established labor relations with other units without the permission of the enterprise, which has a serious impact on the completion of the work tasks assigned by the enterprise, and refuses to make corrections after being proposed by the unit. The enterprise may notify the termination of the indefinite-term labor contract after obtaining relevant evidence.

5. If an employee is investigated for criminal liability, the enterprise may also terminate him.

Employment contracts. Of course, it should be noted that administrative detention cannot be a basis for terminating an indefinite-term employment contract.

6. If an employee is unable to perform his or her original job or work arranged by the enterprise after the expiration of the prescribed medical treatment period due to his or her own illness or non-work-related injury, the enterprise may terminate the labor contract for an indefinite period by notifying the employee 30 days in advance or paying the employee an additional month's salary. It should be noted that in this case, the employer terminating the labor contract needs to pay a certain amount of economic compensation according to the employee's working years.

7. If the employee is unable to complete the work task according to the requirements of the job responsibilities, is not competent for the job, and is still incompetent for the job after training or transfer, the enterprise may terminate the labor contract between the two parties by giving 30 days' notice or paying the employee an additional month's salary. Of course, in this case, the employer who terminates the labor contract must also pay the employee a certain amount of economic compensation according to the employee's working years.

In addition to the above-mentioned circumstances, there are many other circumstances under which an employment contract can be terminated. Such as: enterprise reorganization, layoffs due to operational difficulties, adjustment of business methods, etc.

In the same way, if the employer fails to pay labor remuneration, provide necessary working conditions, provide necessary rest time, grant vacation benefits, pay social insurance for employees, and other situations that infringe on the legitimate rights and interests of employees, the employee can also propose to terminate the indefinite term labor contract between the two parties.

The Labor Contract Law stipulates several circumstances for the dissolution or termination of an employment contract for reference.

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

Article 37 A worker may terminate a labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

Article 38 An employee may terminate a labor contract under any of the following circumstances:

1) Failure to provide labor protection or working conditions in accordance with the provisions of the labor contract; Bi Xi's hand.

(2) Failure to pay labor remuneration in full and in a timely manner;

(3) Failing to pay social insurance premiums for workers in accordance with law;

(4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers;

(5) The labor contract is invalid due to the circumstances provided for in the first paragraph of Article 26 of this Law;

(6) Other circumstances in which the labor contract may be terminated as provided by laws and administrative regulations.

If an employer forces an employee to work by means of violence, threats or illegal restriction of personal freedom, or if the employer violates rules and regulations and forces the employee to perform risky work that endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.

Article 39 The employer may terminate the labor contract if the worker 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.

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:

1) The worker is sick or injured not due to work, and is unable to perform his original job or work arranged by the employer after the prescribed medical treatment period has expired;

2) The worker is incompetent for the job, and is still incompetent for the job after training or job adjustment;

3) There is a major change in the objective circumstances on which the labor contract was concluded, making it impossible to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after consultation.

Article 44 The labor contract shall be terminated under any of the following circumstances:

1) The term of the labor contract has expired;

2) The worker begins to enjoy the basic pension insurance benefits in accordance with the law;

3) The worker dies, or is declared dead or missing by the people's court;

4) The employer has been declared bankrupt in accordance with law;

5) The employer's business license has been revoked, ordered to close down, or revoked, or the employer has decided to dissolve before the employer decides to raise the issue;

6) Other circumstances provided for by laws and administrative regulations.