Double Wage Compensation In The Context Of

Chapter1 introduces the basis of institution double salary compensation.article 82:"if an employer concludes a written employment contract with a worker more than one mouth but less than one year before the date on which it started using him,it shall each month pay to the worker double wage".Because nowadays the rate of signing written labor contract is very low,the legislator want to increase the rate through punitive damage. Punitive damage is a special institute in labor contract law.Compared with compensation,its amount of salary is double.Compared with fine,the money belongs to employee,so it can motivate employee to protect his right.Chapter2 and chapter 3 analysis two reasons why legislature chooses this institution. Even if the rate has increased,the function of written labor contract is limited.It only can prove the existence of labor relationship.In fact,another material such as payroll also can prove it.Otherwise,even if the employee don't have labor contract,it doesn't mean that the employee's right is sure to be damaged.Because employer can pay the salary according to actual performance of employee in the factory.So,for an employee,lacking contract is just a possibility of damage,not a real damage.Chapter4 is important to point out the error of institution.In the law,the possibility of damage is charged with a punitive damage,I think it violate the rule of"no harm,no compensation"principle in the law.In chapter5, this problematic article has creat a rent-seeking action.When employ want to sign the labor contract with an employee,the employee intents to refuse to sign,because he can get double salary if there is no contract within one month.But it really damage the relationship.To employer,it will increase the cost of judicial action,to other employee,it is unjust that the man gets double salary without double labor.Facing the practical problems,the legislature and court take some actions.< The Regulation on the Implementation of the Employment Contract Law>is promulgated in 2008,article 6:"Where an employee refuses to conclude a written employment contract with his employer, the employer shall terminate the employment relationship, notify the employee in writing, and make economic compensations to the employee according to Article 47 of the Employment Contract Law.".and court in Guangdong ,Shanghai also promulgate judicial interpretations to regulate this kind of action.In the last part ,I analyse these regulation and get several conclusions.