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Can you search it? Qingdao Li San? Civil Judgment. Just look at the court's decision to see what's actually going on. Although Qingdao Li San can take advantage of legal loopholes, a liar is a liar. Rogues are literate, as long as they know more about rogue companies and stay away from them.
Civil Judgment of the Second Instance of the Labor Dispute between Xu Pengfei and Qingdao Lisan Group Co., Ltd.
Qingdao Intermediate People’s Court of Shandong Province
Civil Judgment
(2018) Lu 02 Minzhong No. 7764
Appellant (plaintiff in the original trial): Xu Pengfei, female, born in 1992, Han nationality, living in Muping District, Yantai City.
Agent: Sui Xiaoyan, lawyer at Shandong Juncheng Renhe (Qingdao) Law Firm.
Agent: Liu Yanhong, intern lawyer at Shandong Junchengrenhe (Qingdao) Law Firm.
Appellant (defendant in the original trial): Qingdao Lisan Group Co., Ltd.
Legal representative: Zhang Qinghua, Chairman.
Litigation agent: Gao, female, employee of Qingdao Group Co., Ltd.
Appellee (defendant in the original trial): Qingdao Li San Morris Hotel Co., Ltd.
Legal representative: Wang Yuzhen, Chairman.
Litigation agent: Gao, female, employee of Qingdao Group Co., Ltd.
Appellee (defendant in the original trial): Qingdao Li Sanzhong Demei Water Equipment Co., Ltd., domiciled in Chengyang, Qingdao City No. 2, Jihongtan Street, North of Ye Highway, District.
Legal representative: Cui Jihong, Chairman.
Litigation agent: Gao, female, employee of Qingdao Group Co., Ltd.
The appellant and appellant Qingdao Group Co., Ltd. (hereinafter referred to as the Group) were involved in a dispute with the appellee Qingdao Li Sanmo A labor dispute occurred between Lis Hotel Co., Ltd. (hereinafter referred to as Morris Hotel) and Qingdao Li San Zhong De Mei Water Equipment Co., Ltd. (hereinafter referred to as Zhong De Mei Company), and they were not satisfied with the Qingdao Chengyang District People's Court (2017) Lu 0214 Minchu 65438 Judgment No. After our court filed the case, a collegial panel was formed to hear the case in accordance with the law. Sui Xiaoyan, the appellant's entrusted litigation agent, and the legal representative of the appellee Zhongdemei Company, and Gao Gao, the entrusted litigation agent of the appellant group, the appellee Morris Hotel, and Zhongdemei Company, attended the court. The case is now closed.
Xu Pengfei appealed: the first-instance judgment was revoked and the judgment was changed in accordance with the law to support all Xu Pengfei’s claims in the first-instance trial; the first- and second-instance costs were borne by Lisan Group. Facts and Reasons: 1. The court of first instance erroneously determined the fact that Xu Pengfei’s average salary was 12 months before his resignation. The key point in determining Xu Pengfei's average salary of 65,438 02 months before his resignation was pre-dividends. The court of first instance elaborated on the authenticity, nature and whether the advance bonus was paid, and finally determined that the advance bonus was not part of the total salary and did not meet the conditions for payment specified in the advance bonus certificate. This was wrong and seriously inconsistent with the facts. Doesn’t match. Xu Pengfei believes that employees have the right to receive wages and bonuses, and bonuses are an integral part of employees' wages. In the process of setting the employee salary structure, Li San Group took advantage of its advantageous position to deliberately set up "overlord clauses" and proposed monthly bonuses in the form of advance bonuses, deliberately deducting workers' bonuses and violating their legal rights. rights and interests. However, the court of first instance did not ascertain the facts of the case. It was wrong to conclude that the pre-award payment was not labor wages based solely on the employees signing a pre-award certificate. In the first instance, Xu Pengfei claimed that Li San Group failed to pay a salary of 65,438 09,389 yuan from 2065,438 03 to 2065,438 06. This should be the so-called advance bonus and part of the salary, and Li San Group should pay it in full To Xu Pengfei. However, the court of first instance only ruled that Li San Group paid a bonus of 6,786.15 yuan to Xu Pengfei, which was not in compliance with legal regulations.
Because the court of first instance mistakenly determined Xu Pengfei’s total salary, it also led to the error of requiring Li San Group to pay economic compensation for illegal termination of the labor contract. The economic compensation Xu Pengfei claimed was 23,597 yuan [3,371 yuan × 7 months], but the court of first instance only recognized 19,833.31 yuan [2,833.33 yuan × 7 months]. 2. The court of first instance determined that Xu Pengfei’s employees were entitled to paid annual leave and applied the law incorrectly. According to Article 4 (6) and Article 10 (1) of the "Regulations on the Composition of Total Wages" and Article 2 and 5 (3) of the "Regulations on Employees' Paid Annual Leave", employees of an enterprise must work continuously Those who have worked for more than 1 year will enjoy paid annual leave. During annual leave, employees enjoy the same wages as during normal working hours. For the number of days of annual leave that an employee should take, the employer shall pay annual leave wages based on 300 of the employee's daily wages. From 2009 to 2016, Xu Pengfei should have taken vacation, but Li San Group did not arrange any vacation, and requested to pay 300 of Xu Pengfei's daily salary for annual leave, which was to protect employees' right to rest and vacation. According to national administrative regulations, annual leave pay is a kind of salary paid by the employer to fulfill national or social obligations under special circumstances, and forms an integral part of the total salary of the employee. Xu Pengfei's request should be supported. However, the court of first instance held that the paid annual leave salary was only a welfare benefit enjoyed in accordance with the law and should be subject to the arbitration statute of limitations, which was an error in the application of law. In the first instance, Xu Pengfei claimed that the paid annual leave salary was 10,849 yuan [3,371 yuan ÷ 21.75 × 7 (2009 to 2016) × 5 days × 200], but the first instance court only ordered Li San Group to pay Xu Pengfei 5,265,438 yuan. 3. The court of first instance was wrong in holding that Li San Group’s advance payment for dining with Xu Pengfei did not constitute a labor dispute. The fact is that Li San Group promised free food, clothing, housing and transportation when recruiting. Morris Hotel and Li San Group are related companies. Xu Pengfei was arranged to dine at Morris Hotel by Li San Group. This was not Xu Pengfei's independent choice, but one of the working conditions promised by Li San Group. Therefore, the relationship between Xu Pengfei and Morris Hotel does not belong to a catering service contract, and the court of first instance was wrong in its determination of the dispute between the two parties. Therefore, the agreement between Morris Hotel and Xu Pengfei that the meal expenses of employees who leave midway should be borne by individuals is not binding on Xu Pengfei, and Xu Pengfei should not bear the obligation to pay meal expenses. Xu Pengfei asked Morris Hotel to return the meal prepayment, which was in compliance with the law. The court of first instance refused to handle the case on the grounds that it did not belong to a labor dispute, which was an error in application of law. 4. The court of first instance was wrong in determining that the charity funds paid by Xu Pengfei did not fall within the scope of labor dispute settlement. The fact is that Li San Group took advantage of its advantageous position to directly deduct Xu Pengfei's salary in the name of paying charity funds. Regardless of whether Xu Pengfei agreed or not, Xu Pengfei did not pay voluntarily. Moreover, after the charity fund was distributed, Li San Group did not disclose the management and use of the fund to Xu Pengfei, and Xu Pengfei did not know where the so-called "charity fund" was misappropriated. Therefore, the "charitable fund" paid by Xu Pengfei was a deduction from Xu Pengfei's salary by Li San Group, which was a labor dispute. We should support Xu Pengfei’s request for Li San Group to pay 14,280 yuan in charity funds from 2015 to 2016. To sum up, the first-instance judgment was wrong and we requested to change the judgment in accordance with the law.
Li San Group argued that, first, the judgment of the court of first instance went beyond the litigation claims, violated the principle of non-suit, non-discrimination, and was an error in the application of law. 1. Xu Pengfei did not require Li San Group to pay early dividends in the lawsuit. Xu Pengfei requested that "the defendant pay 19,389 yuan in unpaid wages from 2013 to 2016," but the first judgment of the first instance "ordered the defendant to pay an advance bonus of 6,786.15 yuan." 2. The court of first instance did not comprehensively examine the nature of the “pre-reward”, the objects of the reward, and the conditions for payment of results during the trial. According to the statement on the back of the pre-grant certificate, pre-grant is a credit guarantee incentive measure that reflects the company's independent management rights and should be protected by law. While working at Li San Group, Xu Pengfei seriously violated the factory rules and regulations of Li San Group and was absent from work without any handover, so the award is invalid. On the one hand, the court of first instance determined that pre-rewards were not wages, and on the other hand, it was wrong to apply the fault principle to grant certain pre-rewards to employees who left midway.
2. Li San Group has arranged for Xu Pengfei to take paid annual leave and should not pay Xu Pengfei paid annual leave wages. 3. Prepayment for meals does not fall within the scope of labor dispute cases and should not be handled in this case. 1. Xu Pengfei signed the "Notice on the Internal Management System of Qingdao Lisan Group" when he was in office. The notice clearly stipulates that the company does not provide free meals to employees because the law does not require employers to provide free meals to employees. However, the company can bear the cost of meals at the Morris Hotel for employees who have fully fulfilled their labor contract period as compensation. Reward for faithful performance of the labor contract. If the employee fails to perform the labor contract period for any reason, he will not be responsible for the meal expenses at Morris Hotel during the work period, nor will he be held responsible for any meal disputes with Morris Hotel. 2. Xu Pengfei signed a "dining contract" when he joined the company, and personally wrote a "dining priority application" and paid 20,000 yuan in advance to Morris Hotel. All expenses incurred will be settled by Xu Pengfei Morris Hotel and have nothing to do with Li San Group. Moreover, Article 2 of the catering contract clearly stipulates that when the contract is terminated, the settlement shall be based on the facts and no overpayment shall be made. 4. Li San Group has never forced Xu Pengfei to pay charity funds, nor has it been deducted from his salary. It does not fall within the scope of accepting labor dispute cases and should not be handled in this case. 5. The reason for Xu Pengfei's resignation was not that Li San Group failed to pay social insurance, but because he was absent from work. Li San Group should not pay Xu Pengfei economic compensation. Xu Pengfei was absent from work without any explanation. Li San Group repeatedly urged him to come back to work or hand over his work, but Xu Pengfei ignored him. Because he seriously violated the factory rules and regulations, he was dealt with according to the system. The labor contract with Xu Pengfei was terminated in accordance with the law and a notice was posted. Li San Group should not pay Xu Pengfei financial compensation. In summary, the first-instance judgment found the facts unclear and applied the law incorrectly. We request support for Li San Group’s litigation claims.
The defense opinions of Morris Hotel and Sino-German American Company are the same as those of Li San Group.
Li San Group’s appeal request: the first-instance judgment should be revoked and all Xu Pengfei’s claims should be dismissed; the first- and second-instance fees should be borne by Xu Pengfei. Facts and reasons: First, the first-instance judgment exceeded Xu Pengfei’s claims, violated the principle of non-suit, and was an error in the application of law. 1. Xu Pengfei did not require Li San Group to pay an advance bonus. Xu Pengfei requested that "the defendant pay the plaintiff's unpaid wages of 2013 and 2019, 389 yuan." However, a trial order "the defendant paid the plaintiff an advance bonus of 6,786.15 yuan" was exceeded. Li San Group did not owe Xu Pengfei wages, and the court of first instance also determined that the advance bonus was not wages, but conditional additional bonuses in addition to wages. Therefore, the court of first instance exceeded Xu Pengfei's claims and should be cancelled. 2. The court of first instance did not comprehensively examine the nature of the “pre-bonus”, the objects of the bonus and the conditions for payment of results. The statement on the back of the pre-dividend voucher clearly states that pre-dividend is an additional reward for qualified employees. Article 2) of the statement stated that this bonus is an additional bonus issued by the company to encourage employees to abide by contracts, agreements and commitments, and to value employees' wages, monthly salary and reputation. This award is only valid for employees in good standing. Article 6 stipulates: Regardless of the circumstances and reasons (failure to sign a labor contract or failure to pay pension insurance, etc.), rewards will be invalid. ) as long as the person being rewarded leaves midway. Article 5) stipulates: If the recipient violates national laws and regulations and is punished according to law, or violates factory rules and regulations and is dismissed, suspended, expelled or removed from the company, this award will be invalid. And it is clearly stipulated in the "Effectiveness Conditions of Pre-Award" on the front: "Pre-award is only valid when the recipient meets the following conditions, otherwise it is invalid: 1) Those who sign a labor contract of 20 years or more and work continuously for more than 20 years, The pre-award is valid if the pre-award expires after 20 years and the employee has worked continuously for more than 20 years. If the pre-award is less than 20 years but has reached the legal retirement age (if the two parties have agreed on the retirement age, the time agreed upon by both parties will be used). (accurate), the pre-reward is still valid. 2) If a labor contract has not been signed or the labor contract period is less than 20 years, and no substantial and effective credit commitment or credit guarantee commitment has been made to the company, the pre-reward will only be granted if the employee reaches the legal retirement age and is in the company. It is only valid if you have worked continuously for the company for more than 25 years, and will be invalid if you leave midway. 3) If the pre-award is less than 20 years after the expiration of the labor contract, the pre-award will be invalid.
4) If the pre-award has been for 20 years and the labor contract has not expired, the pre-award will be invalid. "It can be seen that the nature of pre-bonus is a credit guarantee incentive measure. It is an original business incentive mechanism for enterprises to attract and bundle talents based on the confidentiality of their own high-tech patented products. It is in line with the independent operation of enterprises and the formulation of their own operating systems. The legal framework requirements are not prohibited by Chinese laws and regulations, and are worthy of social advocacy and national legal protection. During his work at Li San Group, Xu Pengfei seriously violated the factory rules and regulations of Li San Group and was absent from work without any handover. Therefore, this award was awarded. Invalid. On the one hand, the court of first instance ruled that pre-reward payments are not wages. On the other hand, the application of the fault principle to grant certain pre-reward payments to employees who leave midway also interferes with the application of legal errors. The legal management system for independent operation and self-development of enterprises has affected the development of enterprises. Second, the reason why Xu Pengfei resigned was not that Li San Group failed to pay him social insurance, but that he was absent from work without reason, so Xu Pengfei should not be paid economic compensation. . 1. The court of first instance found that the reason for Xu Pengfei’s resignation was that the company did not pay him social insurance, which was inconsistent with the facts. After Xu Pengfei joined the company, the company repeatedly asked him to pay social insurance, and leaders at all levels talked to Xu Pengfei many times to persuade him to pay social insurance. , His supervisor and multiple witnesses can confirm that Xu Pengfei delayed the application for various reasons so that the unpaid portion of social insurance could be paid in cash. Xu Pengfei repeatedly urged him to absent himself from work without any handover. He returned to work or handed over the job, but Xu Pengfei ignored him. Because he seriously violated the factory rules and regulations, Li San Group should not pay Xu Pengfei financial compensation. 2. The "Resultation/Termination of Labor Contract Report" submitted by Xu Pengfei to the court of first instance was forged. (The official seal on the report does not match the official seal of Li San Group), which is illegal and should not be accepted. Li San Group failed to issue a "Result/Termination of Labor Contract Report" for Xu Pengfei. 3. Li San Group has arranged for Xu Pengfei to take a leave of absence. In summary, the first-instance judgment found that the facts were unclear and the law was wrongly applied. We requested that the judgment be changed to support Li San Group’s appeal request.
Xu Pengfei replied, The legal provisions of First and Third Profit Group on the amount of pre-bonus are in violation of the national compulsory labor law, are invalid, and have no binding force on Xu Pengfei. The pre-payment bonus is an integral part of the total salary, and employees have the right to receive salary bonuses. , Bonuses are an integral part of employees’ salaries. In the process of setting employee salary structure, Li San Group took advantage of its advantageous position and deliberately set up “overlord clauses” to provide monthly bonuses in the form of advance bonuses. The employee's bonus was withheld and his legitimate rights and interests were violated. Second, Xu Pengfei submitted the labor contract termination report provided by Li San Group during the first instance, which proved that the real reason for the termination of the contract between the two parties was "working overtime for low wages and not paying insurance." The resignation of Group Three was caused by the company's failure to pay social insurance premiums. Xu Pengfei was not at fault for terminating the labor contract between the two parties. Xu Pengfei submitted the first-instance report on the termination of the labor contract. Li San Group stated that it would be implemented after the trial. No implementation comments were submitted. The first instance found that the evidence was true, legal, relevant and correctly adopted. Li San Group should bear the legal responsibility and consequences of failure to provide evidence. Third, the "Labor Contract Termination Report" provided by Li San Group proves that the real reason for the termination of the contract is "working overtime for low wages and not paying insurance". There is no evidence that Xu Pengfei has been given paid annual leave. From 2009 to 2016, Xu Pengfei was supposed to take vacation, but Li San Group did not arrange any vacation. It requested to pay Xu Pengfei 300 of his daily salary for annual vacation, which complied with the law and should be supported.
The statements of Morris Hotel and Sino-German American Company are consistent with the Li San Group.
Xu Pengfei sued to the court of first instance: 1. It ordered Li San Group, Morris Hotel, and Sino-German American Company to pay Xu Pengfei 19,389 yuan in unpaid wages from 2013 to 2016 and 16 yuan in charity funds from 2015 to 2016. 2. The litigation costs of this case will be borne by Li San Group, Morris Hotel and Sino-German American Company.
The first-instance court determined the facts:
The evidence submitted by the parties, the parties’ cross-examination opinions, and the first-instance court’s acceptance of the evidence:
1. Xu Pengfei submitted the receipt and explanation to prove that Xu Pengfei paid a meal advance payment of 20,000 yuan to Morris Hotel on February 23, 2009, and requested Morris Hotel to return it. Since Li San Group is the company that manages the Morris Hotel, Li San Group should be jointly and severally liable for the return of the above debt. This request has nothing to do with Sino-German American Company. Morris Hotel cross-examined and had no objection to the authenticity of the receipt. However, the receipt belonged to the catering service contract between Xu Pengfei and our company. It was not a labor dispute and should not be dealt with in this case. If Xu Pengfei thinks he has not eaten, he should file a claim with our company according to law. The authenticity of the explanation needs to be confirmed after court. Even if the evidence is true, it does not reflect the relationship between Li San Group and our company and cannot prove its certification. Li San Group cross-examined and the authenticity of the receipt could not be confirmed, but it has nothing to do with our company. Our company does not directly collect relevant funds, and Li San Group and Morris Hotel are economically independent. The cross-examination opinion stated was the same as for Morris Hotel. The Sino-German-American Quality Certificate has nothing to do with our company.
The court of first instance held that the receipts in this set of evidence were authentic, legal, and relevant and could be used as a basis for determining the facts of the case. The truthfulness of the explanation and the validity of the demonstration need to be determined in conjunction with other evidence. The dates recorded on the receipt are February 65438 and March 2009, showing that the payee is Xu Pengfei and the amount is 20,000 yuan. The reason for the receipt is "catering advance payment" and is stamped with "Qingdao Li San Hotel Co., Ltd.'s special financial seal". The description reads: "Qingdao Li San Zhong Demei Water Equipment Co., Ltd. is a holding subsidiary of Qingdao Li San Group Co., Ltd., specializing in the production and operation of water supply equipment. Li San Group has administrative functions for it." It is stamped with Li San Seals of the group and Sino-German and American companies.