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Chapter 514
"According to Article 20 of No. [-] of the Labor Law of the People's Republic of China: the labor contract can be terminated upon consensus of the parties to the labor contract.

Article 30 of the "Labor Contract Law of the People's Republic of China" stipulates that: The employer and the laborer can terminate the labor contract through consensus through consultation.

The court of second instance held that: the above provisions give the employer and the employee the right to terminate the labor relationship through negotiation, and my country’s labor legislation does not explicitly prohibit the parties from agreeing on the termination of the labor relationship in the labor contract.Therefore, in this case, the agreement between the two parties in the labor contract that 'either party may terminate this contract' did not violate the law and should be valid.Harbor Restaurant proposed to terminate the labor contract based on this, which was in line with the agreement reached by both parties in the contract.

The applicant for retrial believes that the above-mentioned facts and application of law determined by the court of second instance are wrong.

First, the labor contract is a standard text provided by the respondent. Although the retrial claimant holds a management position, it does not have the status of equal negotiation with the respondent.

No. 18 of the "Labor Contract" signed by both parties regarding the termination clause of the labor contract: 'Either party may terminate this contract, but must notify the other party in writing one month in advance, or compensate the other party for one month's salary. 'This agreement is not the result of mutual agreement between the two parties, but a clause established by the respondent at the beginning of signing the labor contract in order to evade its own obligations and limit the rights of the retrial applicant.

Relevant laws and regulations do not restrict the two parties to agree to terminate the labor relationship in the labor contract, but they stipulate that if the employer complies with the provisions of No. 40 and No. 40 of the Labor Contract Law, it does not violate the law No. .40 Under the circumstances stipulated in Article 40, the labor contract can be terminated with the laborer, and Article [-] of the Law No. [-] also stipulates the circumstances of the termination of the labor contract.

Article No. 19 of the "Regulations for the Implementation of the Labor Contract Law of the People's Republic of China" further stipulates the circumstances of the employer's termination of the labor contract.

It can be seen from this that the employer cannot terminate or terminate the labor contract with the laborer in the absence of laws and administrative regulations, nor can it agree with the laborer in other circumstances not stipulated in laws and administrative regulations. Under this circumstance, the employer may rescind or terminate the labor contract..."

After Wang Chuan stated the retrial request, facts and reasons, he put the retrial application on the table and looked at the three judges sitting on it.

The three male judges sitting above were reading the application for retrial while listening to Wang Chuan's statement without interrupting him.

"Respondent, proceed to the retrial defense!" After Wang Chuan finished speaking, a male judge wearing glasses sitting in the middle said.

"After the retrial applicant joined the Seaport Restaurant, both parties reached a consensus and the labor contract clearly stipulated that 'either party may terminate this contract, but must notify the other party in writing one month in advance, or compensate the other party for one month's salary'. The result of the consensus reached by the parties is the true expression of both parties' intentions, and the respondent believes that the agreement does not violate the prohibitive provisions of laws and regulations.

Moreover, Article No. 30 of the "Labor Contract Law of the People's Republic of China" also gives the parties the right to negotiate and agree to terminate the contract.Therefore, the respondent paid the retrial applicant one month's wages in accordance with the termination clause in the labor contract signed by the two parties, and the termination of the labor relationship between the two parties was legally justified. The respondent requested the court to reject the retrial request of the retrial applicant and uphold the original judgment of the second instance.

The defense is over! "The other party's agent, a middle-aged male lawyer wearing gold-rimmed glasses, said very elegantly.

"Do both parties have new evidence to submit?" asked the male judge wearing glasses.

"no!"

"no!"

Both sides said at the same time.

"Applicant for the retrial, you are concerned about the time of entry, the position of the employee, the status of signing a written labor contract, the foreigner's employment certificate, the agreed wage standard, the arbitration request, the arbitration result, and the lawsuit as determined by the court of first instance and second instance in this case. , the time of termination of the labor contract, the working years of the laborer, the average monthly salary of the twelve months before the termination of the labor relationship, the reasons for the termination of the labor contract, the compensation for the termination of the labor contract, etc. Are there any objections?" The male judge wearing glasses asked.

"The retrial applicant has objections to the reasons for the termination of the labor contract and the compensation for the termination of the labor contract, but has no objection to other matters." After hearing the judge's inquiry, Wang Chuan checked what he said one by one.

In fact, Wang Chuan had already read the verdicts of the first and second instance no less than ten times before the trial, and he had already sorted out the focus of the dispute in the case.The reason why he checked the relevant information again was because he was cautious, and second, he was a little nervous. After all, he didn't do many cases that were retried by the High Court, so he wanted to be more careful.

"Respondent, do you have any objection to the above-mentioned matters that I just mentioned that the court of first instance and second instance found out?" The male judge wearing glasses looked at the respondent and asked.

"We have objections to the reasons for the termination of the labor contract and the compensation for the termination of the labor contract. We have no objection to other matters." A moment later, the middle-aged male lawyer said.

"Since the two of you only have objections to the reasons for the termination of the labor contract and the compensation for the termination of the labor contract in this case, and have no objection to other matters, we will conduct a court investigation on the disputed matters."

After finishing speaking, the male judge wearing glasses continued, "Respondent, what is your reason for terminating the labor relationship with the retrial applicant?"

"The labor contract signed by the retrial applicant and the respondent clearly stipulates that 'either party may terminate this contract, but must notify the other party in writing one month in advance, or compensate the other party for one month's salary'.

The retrial applicant is different from ordinary employees. He has the advantage of employment and can negotiate and sign labor contracts with the respondent on an equal basis.The above clauses in the labor contract are the result of negotiation between the two parties.The respondent has the right to terminate the labor relationship based on the consensus reached by both parties.

Moreover, the respondent has already paid the compensation according to the labor contract, and should not pay any more compensation. " said the middle-aged male lawyer.

"Does the retrial applicant agree with the respondent's statement?" asked the male judge wearing glasses.

"Not recognized! Although the retrial applicant has professional skills and certain employment advantages, it is still in a weak position compared with the employer.

In addition, the termination of the labor relationship in the labor contract clearly intended to evade the respondent's statutory obligations, and this clause was obviously unfavorable to the retrial applicant.The termination clause in the labor contract is not the result of consensus between the two parties, but the result of the retrial applicant's repeated concessions in hopes of getting the job.

Therefore, the retrial applicant believed that the termination clause in the labor contract violated the provisions of the Labor Contract Law and the Labor Law on the termination of labor relations, and should be deemed invalid.The respondent's reasons for terminating the labor relationship were not established.It constitutes illegal termination of employment relationship. "Wang Chuan argued.

(End of this chapter)