Compensation for liquidated damages for foreign training, and no compensation for liquidated damages

Let's throw bricks and lead the way.

Contract: 1 year of training abroad, 15 years of work for the company.

2. At that time, the leader verbally promised to work abroad for 3 years (including 1 year of study).

3. Now the company's written contract requires 8 years of work abroad.

Analysis: 1. At that time, the training contract was signed, indicating the overall working hours, and whether there was a clear time for working at home and abroad?

2. The leader's verbal promise is whether you can find other witnesses or materials.

It is necessary to clarify these issues before we can say whether there are any inconsistencies and changes between the 2011 labor contract and the 2010 training contract.

3. As far as your current situation is concerned, if you are already an employee of the unit at that time, and now you change the labor contract according to the training agreement, and you do not agree to change the terms and conditions to sign the labor contract, you should bear the liquidated damages, because you signed the training contract after all.

4. The clause on liability for breach of contract in the training contract you signed in 2010 does not meet the requirements of the Labor Contract Law, and you can raise objections to this clause if you compensate.

1) Relevant provisions of the Labor Contract Law: "Article 22 Where an employer provides a worker with special training expenses and professional and technical training, it may enter into an agreement with the worker 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.

2) Regulations for the Implementation of the Labor Contract Law of the People's Republic of China.

Article 16 The training expenses provided for in Paragraph 2 of Article 22 of the Labor Contract Law include the training expenses paid by the employer for the purpose of providing professional and technical training to the employee, the travel expenses during the training period and other direct expenses incurred by the employee as a result of the training.

Interpretation] Article 22 of the Labor Contract Law stipulates 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. However, the Labor Contract Law does not stipulate the specific composition of training expenses, and this article clarifies that training expenses include training expenses with proof of payment, travel expenses during the training period and other direct expenses incurred for the employee due to the training.

5. One thing I don't understand, didn't you sign a labor contract during the training in 2010? In what capacity do you train?

If you go abroad for training, the cost involved is relatively large, and it is recommended that you go to the labor administrative department or a professional legal institution to consult the policy thoroughly.

Hello. If you are leaving, you should pay for the company's special training. This expense is also not based on the company's contract, but the company's actual expenses. In my view, the cost of the stipend should not be considered as the cost of training.

Legal analysis: Of course, the liquidated damages in the training contract must be compensated, but if the other party does not agree on the amount of liquidated damages in advance, the two parties can negotiate to deal with it. Where the liquidated damages stipulated in the law are excessively higher than the losses caused, the people's court or arbitration institution may appropriately reduce them at the request of the parties.

Legal basis: Article 585 of the Civil Code of the People's Republic of China provides that 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 calculation method of compensation for losses arising from the breach.

If the agreed liquidated damages are lower than the losses caused, the people's court or arbitration institution may increase them at the request of the parties; Where the agreed liquidated damages are excessively higher than the losses caused, the people's court or 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.

Legal analysis: If the breaching party fails to pay the penalty for violating the contract, the non-breaching party may file a lawsuit with the people's court, and the time for calculating the liquidated damages can be determined until the date when the judgment takes effect.

Legal basis: Civil Code of the People's Republic of China

Article 577: If 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 the liability for breach of contract such as continuing to perform, taking measures to rescue the imitation lead, or compensating for losses.

Article 578:Where one of the parties expressly states or shows by its own conduct that it does not perform its contractual obligations, the other party may request that it bear liability for breach of contract before the expiration of the performance period.

Article 579:Where one of the parties fails to pay the price, remuneration, rent, or interest, or fails to perform other monetary debts, the other party may request payment from the other party.

Article 584:Where one of the parties fails to perform its contractual obligations or performs its contractual obligations in an inconsistent manner with the agreement, causing losses to the other party, the amount of compensation for the losses shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract; provided, however, that it shall not exceed the losses that may be caused by the breach of contract that the breaching party foresaw or should have foreseen at the time of entering into the contract.

The first is the limitation on the application of liquidated damages. That is to say, the establishment of liquidated damages is limited to the violation of the service period and the violation of trade secrets, and the establishment of the service period is limited to the employees who are recruited by the employer, provided such training or provide special treatment. Personally, I believe that the original intention of the legislator was that only employees who received special treatment from the employer were bound by the service period, and other workers still had the right to terminate the contract with one month's notice, and could not restrict the legal flow of labor in the form of the service period.

It can also be seen from the law itself that the burden of proof for the employee's breach of the service period agreement requires the employee to bear the liability for liquidated damages: the premise is that the establishment of the service period is legal, and the service period is not established by the employer to fund recruitment, training or special treatment.

It is generally believed that most of the investment recruitment refers to entrusted training or similar, investment training refers to the sending of employees to specialized institutions for training, enterprises are generally called external training, and special treatment generally refers to the treatment that ordinary employees cannot enjoy, such as buying houses and cars for workers. As a result, many employers have not been able to support the demand for liquidated damages on the grounds that the employer requires a certain amount of money to recruit employees, sends teachers to guide or participate in in-house training, and pays the employee a slightly higher salary than other employees. There are also units that do not agree on a service period with the employee before receiving training and enjoying benefits, and the employee terminates the contract upon the expiration of the labor contract, and the employer requires the employee to pay the training fee or exercise the right to claim liquidated damages, which cannot be supported, because the contractual obligations agreed upon by the two parties have been fulfilled, and the employee has not breached the contract, and of course there is no liability for breach of contract.

The second condition for the establishment of the liquidated damages clause is that the employee who has the obligation to keep the trade secret may be subject to two kinds of agreements: one is a period of no more than six months of advance notice and a period of no more than three years, and the other is a non-compete clause of no more than three years. This type of liquidated damages clause protects the trade secrets of the entity.

Employees are obliged to keep confidentialTrade secrets refer to commercial or technical information that cannot be known without special procedures and which the employer has taken effective measures to protect. Moreover, the trade secret has not entered the state of public knowledge, and once it has entered the state of public knowledge, the employee is no longer obliged to keep it confidential; The employee's performance of the confidentiality obligation is generally conditional on the employer paying the corresponding consideration, which is an obligation agreed upon by both parties, such as confidentiality fees or certain economic compensation. Some units regard general technical data or unkept business and customer information as trade secrets, which obviously do not fall within the scope of protection provided by law.

If the labor contract law signed with Chi Pei Fiber provides that training is required, and Party A pays for it, and no training is carried out, it is necessary to pay compensation for violating the code.

No, because the company asked you to go, and without training, it was also the company's decision.

Need. Because it takes a lot of money for the company to send you abroad for training, you need to compensate for liquidated damages if you do not train according to the requirements.