Presiding judge:
I (the plaintiff in the original trial), as the retrial applicant of this case, refused to accept the civil ruling of Liaoning Higher People's Court (2008) Liaoli Ermin Zaishen Zi No.00347, and rejected Li Xiangdong's retrial application and Shenyang Intermediate People's Court (2008) Shen Min Zaizhong Zi No.35. How many questions do you have? Different opinions and opinions hold that the application of the law is wrong and improper: it violates the legal provisions, legal procedures, the law is not obeyed, the law is not strictly enforced, and the law is not unified. It should be corrected and amended to enhance the seriousness of the unity of the law and provide factual and legal basis. The core contents of the facts of this case are as follows:
One: The main reason for this case is that the defendant (Liaoning Hardware, Electrical and Chemical Company) (Liaoning Commercial Group Co., Ltd.) merged into one. After the labor contract of plaintiff Li Xiangdong expired, the defendant failed to sign and renew the labor contract with plaintiff Li Xiangdong. After the expiration of two years, the defendant did not arrange work, did not provide working conditions, did not have a clear right relationship, and the labor contract was protected by law. The defendant violated legal procedures, did not sign a labor contract for a long time and did not arrange work. It is illegal to occupy the plaintiff's "labor resources" for a long time, and the unit refuses to go to work, which infringes on the legitimate rights and interests of the plaintiff's employees. It is illegal to deduct thirteen years' wages for a long time and "escape with malicious arrears". It is illegal to deprive the plaintiff of his labor rights and survival rights and endanger his life. It is an infringement that should be stopped immediately, and the legitimate rights of citizens and employees should be protected by law.
Notice of the Ministry of Labor and Personnel and the State Economic and Trade Commission on the issue of employees leaving their jobs without pay (1983 No.6 1 1) Article 6: Upon the expiration of the "leave without pay", I am willing to return to my original unit. One month before the expiration,
Article 7 of the Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System (199613 1, Ministry of Labor) stipulates that if an employee who "leaves his job without pay" is willing to return to his original unit, the employer shall sign a "labor contract" with him to clarify the relationship between rights and obligations.
The plaintiff asked to return to work after the expiration of the "unpaid leave". The defendant should have arranged work for the plaintiff unconditionally according to the legal provisions of the "leave without pay" document. However, the defendant deliberately delayed today's investigation and talked about it tomorrow. He always refused to arrange tomorrow's work for various reasons and excuses. As a result, the plaintiff has been unable to go to work in his work unit so far, and his due right to work has been deprived, and his right to receive labor remuneration according to law cannot be realized, and the plaintiff and his family dependents have no living security.
The defendant has 110 thousand reasons. It is an ironclad fact that the defendant did not arrange the plaintiff's work and renewed the Labor Contract with the plaintiff, which violated the plaintiff's legitimate rights and interests and deprived him of his right to work. It is neither "unemployed, laid off, unemployed or not rich", nor can it enjoy preferential policies for social re-employment. Failure to sign a "labor contract" deprived the plaintiff of his right to work and lost his right to exist. The plaintiff believes that it is a legitimate request to ask the court to protect the Labor Contract signed with the defendant to arrange work and protect their basic rights at work, which should be protected by law. This is the duty and obligation of legal workers.
(1): The Higher People's Court of Liaoning Province (2008) Liao Li Ermin Zi No.00347 civil ruling, and the Municipal Intermediate People's Court (2008) Shen Min Zi No.35 adopted Article 58 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC), which stipulates that "laid-off workers from enterprises shall, in accordance with the relevant regulations of the local government,
The rulings and judgments of provincial and municipal courts that the facts are unclear are wrong. The defendant did not admit that the plaintiff was laid-off and unemployed, and there was no "legal evidence" to prove that the plaintiff was laid-off and unemployed in an enterprise. The plaintiff has "witness, circumstantial evidence" and the plaintiff's "employment certificate" of Liaoning Commercial Group, which proves that Liaoning Hardware and Electrical Appliance Company, a commercial group of Liaoning Province, deliberately delayed signing the contract. The defendant repeatedly refused to implement the spirit of the working document of the Ministry of Labor on signing a "labor contract" with the "leave without pay" personnel. The Municipal Intermediate People's Court did not take facts as the basis, violated legal procedures, and violated the clear provisions of the law: the application of the law was wrong and improper, so it requested the Supreme People's Court to use the trial supervision procedure for retrial and ascertain the facts. Distinguish responsibilities, identify responsibilities, investigate the truth of responsibilities, safeguard legal dignity, safeguard citizens' legitimate rights and interests, and make a fair and just ruling and revision.
1: The plaintiff and the defendant signed a paid "suspension agreement", and after the agreement expired, the plaintiff requested to resume work. The defendant should unconditionally arrange work for the plaintiff according to the legal provisions of the "leave without pay" document, but the defendant refused to arrange it for various reasons and excuses, and the responsibility was entirely on the defendant.
2. Liaoning Hardware & Electrical Company of Liaoning Commercial Group does not admit that the plaintiff is a "laid-off" employee, and there is no evidence to prove that the plaintiff is a "laid-off" employee.
3. When, where and which leader signed a contract with the plaintiff or told the plaintiff that he was a "laid-off and unemployed rich man". So far, there are no "laid-off and unemployed rich people" in the defendant's unit. How to talk about "laid-off and unemployed rich people" is really puzzling.
4: Leave without pay "is valid for 1 June 65438+July, 1997/day to1June 65438+ 1 the beginning of the month. At that time, Liaoning Hardware & Electric Company had no "laid-off, unemployed and rich" personnel.
1998 in the second half of the year, the provincial hardware & electric company was over 45 years old, which was in line with this period. Both men and women will "retire" in advance as long as they apply. At that time, I suggested that the defendant could retire without arranging work. The defendant still refused to seal the file, while the plaintiff still stood aside. Therefore, there are no "laid-off, unemployed and rich" personnel in the defendant unit.
Up to now, the plaintiff has not enjoyed any policies and treatment related to "laid-off, unemployed and well-off unemployed" and society. How can you talk about being laid off if you don't even give me the heating bill?
6. The plaintiff has witness evidence and circumstantial evidence to prove that the plaintiff is an on-the-job employee, and refusing to go to work deprives the employees of their legitimate rights and interests.
7. Over the years, the plaintiff has been looking for units and related units to ask for resumption of work, with complete witness circumstantial evidence. The judgment of the court of first instance has confirmed that "the plaintiff is still an employee of the defendant's unit", and it is a factual labor relationship that both parties have not dissolved the labor relationship.
8. The defendant intentionally escaped with malicious unpaid wages, and deducted the plaintiff's salary without any reason. How many people with more than 4,000 days can work and how many people with more than 4,000 days can live? The defendant is "killing the plaintiff's time and life", which is very bad in nature.
9. Deliberately delayed the signing of the labor contract, deprived of the right to work 13 years, stayed at home 13 years, and the defendant knew it.
10: The defendant knows that the plaintiff has always been a zero-employment family with no income, and the plaintiff's lover is also an employee of the defendant's company. Because of illness and other reasons at that time, the plaintiff should give priority to work according to laws and regulations, and the defendant did not abide by the express provisions of laws and regulations and used labor rights to arrange others' work without authorization. Infringe on the "legitimate rights and interests" of employees.
The above ten items are enough to prove that Liaoning Commercial Group and Liaoning Hardware & Electric Company violated the explicit provisions of laws and regulations: deliberately delaying the signing of the Labor Contract, not arranging work, and maliciously evading 13 years! Deduct the employee's salary for thirteen years without reason! Deprived of labor rights for thirteen years! The responsibility lies entirely with the defendant, who should bear civil liability for compensation.
The people's courts at the provincial and municipal levels should safeguard the dignity of the law and govern the country according to law. Everyone is equal before the law, everyone is neutral, based on facts, taking the law as the criterion, and don't abuse the rights given to you by the people. After 13 years in arrears, the defendant maliciously deducted the plaintiff's salary and deprived him of his labor rights, acting as a "protective umbrella" for illegal enterprises. He should be fair, honest and uphold justice. ,
Laid-off workers should sign a Labor Contract to clarify their rights, but the defendant didn't sign a Labor Contract with me. It was the defendant who tore up the contract and deprived him of his right to work. Article 9 of the same document "Opinions on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC)" stipulates that the former permanent employees who are approved to leave without pay and are willing to return to their original units shall sign a Labor Contract with them, and the original units may terminate their labor relations with them. Article 9 should be used in my question.
China and France passed 58 articles in this city, which violated legal procedures and regulations. It is illegal to deduct thirteen years' salary without signing a "labor contract". According to the law, economic compensation and compensation should be given. The legal provisions are as follows: During the performance of the Labor Contract, if the employer deducts the wages of the workers in advance and terminates the Labor Contract without authorization, it shall compensate or compensate the workers according to different situations and corresponding regulations. Where the employer deducts the wages of workers, in accordance with the provisions of Article 3 of the Measures for Economic Compensation for Violation and Termination of Labor Contracts (No.481of the Ministry of Labor), in addition to paying the wages of workers in full within the specified time, it shall also pay economic compensation equivalent to 25% of the wages; And according to the provisions of Article 6 of the Administrative Punishment Measures for Violating the Labor Law of People's Republic of China (PRC) (No.532 issued by the Labor Department [1994]), the labor administrative department may order the employing unit to pay compensation of one to five times the total wages and economic compensation of the workers. If the employing unit terminates the labor contract without authorization in violation of regulations or the labor contract, thus causing losses to the workers, it shall pay 25% of the compensation to the workers in accordance with the provisions of Articles 2 and 3 of the Measures for Compensation for Violation of Labor Law Provisions on Labor Contracts (No.223 of Labor Department [1995]). Why did the City Intermediate People's Court sentence the minimum wage to thirteen years? It is illegal for the defendant to conceal and maliciously default on his wages for thirteen years and not sign a labor contract. Improper application of laws and mistakes. It is an ironclad fact that Liaoning Hardware and Electric Power Company and Provincial Commercial Group deliberately delayed the conclusion and renewal of labor contracts and deducted thirteen years' wages. Is a violation of the law, in violation of legal procedures, should bear the civil liability for compensation.
(2) Article 7 of the Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System (1996, 10, 3 1, Ministry of Labor) stipulates that if an employee who "leaves his job without pay" is willing to return to his original unit, the employer shall sign a "labor contract" with him to clarify the relationship between rights and obligations.
(3): Notice of the Ministry of Labor and Personnel and the State Economic Commission on the issue of employees leaving their jobs without pay (1No.983, June 1 1) Article 6: I am willing to return to my original unit after the "leave without pay" expires. The original unit shall arrange appropriate work (the enterprises that have been shut down shall be arranged by the competent department of the original enterprise). According to the above-mentioned laws and regulations, the "leave without pay" labor contract is protected by national laws, and it is mandatory, legally guaranteed and has laws to follow. "Liaoning Commercial Group of Liaoning Hardware & Electric Company tore up the Labor Contract (the unpaid resignation agreement is a labor contract), and did not emphasize that the credit responsibility lies entirely with the defendant, which violated the (Labor Law) (Labor Contract Law) and other relevant laws and regulations and should bear civil legal compensation and compensation responsibilities.
Second, the Higher People's Court of Liaoning Province (2008) Liao Li Er Min's civil ruling No.00347 rejected Li Xiangdong's application for retrial and the Municipal Intermediate People's Court (2008) Shen Min Zhongzi No.35 adopted Articles 13, 17 and 18 of the Regulations on the Transformation Mechanism of Industrial Enterprises Owned by the Whole People, and so on. It is an error in the application of the law, which violates the legal provisions and legal procedures and should be corrected.
(1) opinions of the Ministry of labor on implementing the regulations on the transformation of operating mechanism of industrial enterprises owned by the whole people, VII. Regarding the implementation of the provisions on "legal liability" in the Regulations, it is pointed out that:
2 enterprises in violation of the "Regulations" and the provisions of this implementation opinion, one of the following acts, according to the provisions of the "Regulations" forty-eighth shall be investigated for administrative and legal responsibility:
(two) in violation of national laws, regulations and policies, abuse of human rights, dismissal or dismissal of employees, dissolution or termination of labor contracts with employees;
(3) Failing to sign labor contracts with laborers in accordance with state regulations and policies;
(four) abuse of distribution rights, illegal deduction or arrears of wages of employees, in violation of the minimum wage provisions of the government, infringing on the legitimate rights and interests of employees;
(5) Failing to pay social insurance premiums in full and on time in violation of the laws and policies of the state on social insurance;
(six) there are acts listed in Item (nine) of Article forty-eighth of the Regulations.
(7) Abuse of labor and employment rights, personnel management rights and distribution rights of wages and bonuses, infringing upon the legitimate rights and interests of employees.
The defendant violated Article 48 of the Regulations on the Transformation Mechanism of Industrial Enterprises Owned by the Whole People.
In violation of the provisions of these regulations, an enterprise commits one of the following acts, and (7) abuses the right to labor and employment, the right to personnel management and the right to distribute wages and bonuses, thus infringing upon the legitimate rights and interests of employees.
The government or relevant government departments shall order it to make corrections; If the circumstances are serious, the factory director, other factory-level leaders and directly responsible personnel shall be investigated for administrative responsibility and given economic punishment respectively, and the enterprise shall be given corresponding administrative punishment in accordance with relevant laws and regulations; If a crime is constituted, criminal responsibility shall be investigated by judicial organs according to law.
It is on the premise of abiding by (Constitution) (Labor Law) (Labor Contract Law) and other relevant laws that the defendant did not even sign a labor contract, which violated the legislative intent, essence and spirit of the Regulations on the Transformation Mechanism of Industrial Enterprises Owned by the Whole People. The City Intermediate People's Court took it out of context, used the communication between law and law, and played with legal skills, thus infringing on the plaintiff's legitimate rights and interests. It should be corrected to protect the legitimate rights and interests of the plaintiff.
(II) Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (I) and (II) clearly point out that in order to correctly hear labor dispute cases, according to the Labor Law, the Civil Procedure Law and other relevant laws and regulations,
(4) Liaoning Commercial Group of Liaoning Hardware & Electric Company failed to sign labor contracts with laborers according to national laws, regulations and policies. It violates the labor law and the labor contract law and infringes on the legitimate rights and interests of the parties. Abuse of labor and employment rights, personnel management rights and distribution rights of wages and bonuses, illegal deduction or arrears of wages of employees, deprivation of labor rights of the parties concerned 13 years, illegal deduction of wages 13 years. From infringing on the legitimate rights of the parties, it evolved into injury, persecution and finally into mutilation. Make the parties unable to find employment and survive for thirteen years. Mental and physical and mental health have been greatly hurt. Survived several times, thought of suicide several times, couldn't sleep at night many times, suffered many times, had his family almost divided by war at home, and his children went out to work six times. How many days without heating shivering, how many times with high fever, no money to see a doctor and take medicine, and finally moved. I bought this house with the money of Shenhe District Government. You can imagine the mental torture of moving. It's so sad and bitter. It's really hard. All this was caused by the defendant, and several hospitalizations were saved by relatives and friends with money. By borrowing money and relying on the help of relatives, friends and children, I now owe more than 200 thousand. It's not how much trauma the defendant can compensate you. Can you bear 13 years of life and hard life and time? I want fairness and justice. According to the law, they should be investigated for legal responsibility.
(5) Article 30 of the Labor Contract Law stipulates: "Labor Remuneration" The employer shall pay the laborers' labor remuneration in full and on time in accordance with the labor contract and state regulations. Article 62 stipulates that the employer shall perform the following obligations: (1) to implement national standards and provide corresponding working conditions and labor protection; (five) the implementation of the normal wage adjustment mechanism for continuous employment.
(6) What is leave without pay? Refers to the fixed employees of the enterprise at that time, retaining their identities and posts, leaving their posts and engaging in self-employed businesses that are completely allowed by the policy. Since it is a leave without pay, it is only his job and normal employee treatment after his return. Compensation and compensation can be treated as equal pay for equal work according to law if there is any dispute with reference to the original job and post.
The agreement of "leave without pay" stipulates that the expenses during the period of "leave without pay" shall be paid by individuals and units after expiration. Housing accumulation fund is the welfare of normal employees, and the housing accumulation fund paid by the unit for employees is an integral part of their wages. It is the unit's obligation to pay the housing provident fund for employees, and it is the legal right of employees to enjoy the housing provident fund policy. Some units have not established a housing accumulation fund system for employees, which infringes on the legitimate rights that employees should enjoy. Housing accumulation fund is a title under the housing security system implemented by the state. In essence, it is a part of labor remuneration, and it is a security fund owned by employees and specially used to solve the housing problem of employees. It has the characteristics of safety, compulsion, wage and mutual assistance. The housing accumulation fund system is enforced by national laws and regulations, and both employers and employees have the obligation to pay the housing accumulation fund. The nature of housing provident fund is different from other benefits, and it cannot be used for other purposes or replaced. When employees' welfare and legitimate rights and interests are infringed, they should be protected by law. Old-age insurance and medical insurance should be filled in in full according to law and on-the-job employees.
Three: Liaoning Commercial Group Liaoning Hardware Electromechanical Co., Ltd., which constitutes a deliberate delay in signing the labor contract and will not renew the labor contract after the expiration of the contract. Deal with civil liability.
The plaintiff signed a two-year "leave without pay" agreement with the company from June 65438+July 1. 0995 to July 1. 0997. After the expiration, the plaintiff returned to the company and asked to go to work. The defendant should unconditionally arrange work for the plaintiff, re-sign or renew the labor contract, and clarify the right relationship, but the defendant refused to arrange it under various excuses. As a result, the plaintiff has been unable to go to work and has been deprived of his due right to work. The right to obtain labor remuneration according to law cannot be realized. Without signing or renewing the "labor contract", the employer forcibly gives employees a "holiday" or "suspension of work", which is undoubtedly depriving workers of their labor rights, so it can be considered as not providing working conditions, which is contrary to (Labor Law) and (Labor Contract Law). This is illegal.
In particular, the defendant used deception (plaintiff 1 July 19971day to resume work) to "say that this schedule is not good for you". You came at the beginning of the new year, and you paid 600 yuan to make up for the cost of leaving your job without pay in the second half of the year. At the beginning of the year, we arranged your work without any formalities. I stayed at home for another six months, and they cheated on me. The legal provisions are invalid and should be corrected. In 1998, the leadership transition failed again, and no one was in charge! 1In the second half of 1998, both men and women over 45 years old in our unit retired from the government. I also met this deadline and didn't hand it over to the personnel department. I am a regular employee of the company, and I have repeatedly violated the legitimate rights and interests of a normal employee due to factual labor relations. I want to explain why I have been suffering for thirteen years and have been dying in the hospital several times. My relatives and friends all took the money and almost broke up my family. In order to ensure the justice of the law, everyone should make an equal and fair judgment in the face of facts and evidence law. Based on the above legal provisions and facts, the judgment of Shen Min Zhongzi No.35 of the Municipal Intermediate People's Court (2008) was wrongly applied, which violated the legal provisions and procedures and infringed on the legitimate rights and interests of the parties, and should be corrected and revised.
Four. Legal basis for compensation and compensation:
In violation of the Labor Law (Labor Department Order No.233 {1995}), the first item of Article 3 of the labor contract compensation method "wage income loss caused by the employee's own reasons" refers to the wage income loss caused by the employer's dissolution of the labor contract in violation of national laws and regulations or the labor contract.
Article 98 of "Labor Law" stipulates: the legal liability for illegally dissolving or deliberately not concluding a labor contract. If the employing unit terminates the labor contract in violation of these regulations or deliberately fails to conclude the labor contract, the labor administrative department shall order it to make corrections: if it causes damage to the workers, it shall be liable for compensation.
The Supreme People's Court Proclamation {200 1} 14 "Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Labor Dispute Cases"
Article 15 stipulates that in any of the following circumstances, if the employer forces the employee to terminate the labor contract, the employer shall pay the employee labor remuneration and economic compensation, and may also pay compensation:
Paragraph 2 stipulates: Failing to pay remuneration or provide working conditions as agreed in the labor contract:
The third paragraph stipulates: those who deduct wages from employees or default on their wages without reason.
Request from the General Office of the Ministry of Labor for instructions on implementing the relevant provisions of DocumentNo. [2004] 102 issued by the Ministry of Labor. [1994] 48 1 and document No.223 of the Ministry of Labor [1995] stipulate that in addition to fully paying the wages of workers within the specified time, economic compensation equivalent to 25% of the wages should be added; And according to the provisions of Article 6 of the Administrative Punishment Measures for Violating the Labor Law of People's Republic of China (PRC) (No.532 issued by the Labor Department [1994]), the labor administrative department may order the employing unit to pay compensation of one to five times the total wages and economic compensation of the workers. If the employing unit terminates the labor contract without authorization in violation of regulations or the labor contract, thus causing losses to the workers, it shall pay 25% of the compensation to the workers in accordance with the provisions of Articles 2 and 3 of the Measures for Compensation for Violation of Labor Law Provisions on Labor Contracts (No.223 of Labor Department [1995]).
Violation of the compensation measures specified in the> related labor contract:
(1May 1995 10 Ministry of Labor)
Article 2 If any of the following circumstances causes damage to laborers, the employing unit shall compensate the labor losses:
(a) the employer deliberately delays the conclusion of a labor contract, that is, after the recruitment, it deliberately fails to conclude a labor contract according to the regulations, and after the expiration of the labor contract, it deliberately fails to renew the labor contract in time.
(two) due to the employer's reason to conclude an invalid contract, or conclude a partial invalid labor contract:
(four) the employer violates the rules and regulations or the labor contract to terminate the labor contract;
Article 3. The compensation stipulated in Article 2 of these Measures shall be implemented in accordance with the following provisions.
(1) If the wage income of the laborer is lost, it shall be paid to the laborer according to the wage income due to the laborer plus the compensation fee of 25% of the wage income due:
(two) resulting in the loss of labor protection benefits of employees, employees should be supplemented with labor protection allowances and supplies according to state regulations:
(3) In case of work-related injuries or medical losses to employees, in addition to medical treatment for work-related injuries in accordance with state regulations, compensation equivalent to 25% of medical expenses shall be paid to employees:
Presenter: Li Xiangdong