What is a de facto contractual relationship? How to restrain the labor aspect?

We believe that the termination of a de facto employment relationship is different from the termination of a fixed-term employment contract, and that an employee can terminate a de facto employment relationship at any time according to the relevant regulations of the Supreme People's Court and the Ministry of Labor. There is no legal basis for your employer to seize your documents on the grounds that you did not give one month's notice.

The Ministry of Labor and the Supreme People's Court have special provisions on the issue of the employee continuing to work for the employer after the expiration of the labor contract. In 1996, the Ministry of Labor's Circular on Several Issues Concerning the Implementation of the Labor Contract System (Lao Bu Fa [1996] No. 354) stipulated that after the expiration of a fixed-term labor contract, if the employer fails to go through the termination or renewal procedures for reasons on the part of the employer and a de facto labor relationship is formed, the labor contract shall be deemed to be renewed. The employer shall negotiate the term of the contract with the employee in a timely manner and go through the renewal procedures.

If the loss is caused to the employee, the employer shall be liable for compensation in accordance with the law. In 2001, the Supreme People's Court stipulated in the Interpretation of Several Issues Concerning the Application of the Management and Trial of Labor Disputes that if an employee continues to work for the original employer after the expiration of the labor contract, and the original employer does not raise any objection, it shall be deemed that both parties have agreed to continue to perform the labor contract under the original conditions. Where one party proposes to terminate the labor relationship, the people's court shall support it.

Judging from the regulations of the Ministry of Labor and the Supreme People's Court, there is no provision requiring employees to give 30 days' notice, and the regulations of the Supreme People's Court can be regarded as clearly indicating that employees have the right to immediately terminate their employment contracts.

Therefore, you can ask your employer to pay your wages immediately and return your documents, and if you refuse to do so, you can report them to the labour inspectorate.

According to the labor law, you should give 30 days' notice, but there is no basis for the employer to seize the work permit.

Yes, you are now in a de facto labor relationship with the employer, you are tantamount to acquiescing in the extension of the contract, you need to notify the employer 30 days in advance and do a good job of handing over accordingly, there is no basis for withholding the employment permit.

The judgment of whether there is an employment relationship is not based on what kind of agreement has been signed between the two parties, but on the actual legal relationship between the two parties. As long as there is actual employment, the existence of an employment relationship is determined, so the determination of the existence of an employment relationship is only a matter of determination criteria and proof. The basic criterion for determining an employment relationship should be that there is a relationship between the employer and the employee, between the employer and the employee, between the management and the management, the command and the directed, and the supervision and the supervision.

The employer's payment of remuneration to the employee, the employer's provision of working conditions, and the labor provided by the employee are an integral part of the employer's business, all of which are auxiliary criteria for determining the employment relationship.

Labor Contract Law of the People's Republic of China

Article 82.

If the employer fails to conclude a written labor contract with the 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.

If an employer violates the provisions of this Law and does not conclude an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should be concluded.

Legal Analysis: A de facto employment contract refers to a labor contract in which the employer and the employee have established an employment relationship, but have not entered into a written employment contract. If the employer has not concluded a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee double wages every month.

Legal basis: Labor Contract Law of the People's Republic of China

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.

The de facto employment relationship should be a subtle return to refer to the fact that, relative to the employment relationship adjusted by the labor contract, the two parties do not meet the formal requirements for the establishment of the labor contract (generally manifested as not signing the labor contract) when establishing the labor relationship or changing the labor relationship, but the two parties have formed a subordinate labor relationship in actual work. Notice on Matters Concerning the Establishment of Labor Relations, No. 12, 2005.

1. If an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances, the labor relationship shall be established. (1) The employer and the worker meet the entity qualifications provided for by laws and regulations; Laborers, who are subject to the labor management of the employer and engage in paid labor arranged by the employer; (2) The labor provided by the worker is an integral part of the employer's business; (3) The labor rules and regulations formulated by the employer in accordance with the law shall apply. 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 burden of proof for the relevant documents in items (1), (3) and (4) is borne by the employer The de facto labor relationship is also a form of labor relationship, and its composition also conforms to the three elements of the labor law relationship, that is, the three elements of subject, object and content. Therefore, the determination of the de facto employment relationship should also be considered from the perspective of these three parties.