Empirical Study On The Calculation Of "Double Wages" Without A Written Labor Contract

In the more than ten years since the implementation of the Labor Contract Law,the "double wage" system has been controversial,but its practice has stabilized so far,and the details of the implementation of the "double salary" system should be perfected.Among them,due to the vague provisions and other reasons,the provisions in practice show a "fragmented" and regionalized status quo.In calculating double wages,local adjudicatory institutions are inexplicably aware of the limitation of arbitration applicable to the calculation base of double wages and the starting point of the arbitration limitation period,which is detrimental to the unity and authority of the judiciary.Through the statistical compilation of the "fragmented" judicial practice of the "double wage" system,the article concludes that the main dispute on the calculation base is that the actual income of workers during the calculation period of "double wages",or the wages due or standard wages and agreed wages,should be used as the calculation base.Finally,by analyzing the definition and composition of "wages" and discussing the understanding of "wages" in political economy and the relevant theories and regulations outside the domain,it is concluded that the calculation base of "double wages" should be calculated on the basis of the required wages and excluded non-wage items.After comparing the limitation of arbitration with the method of calculation and the overall calculation on the issue of "double salary",it is concluded that the starting point of the "double salary" arbitration limitation point shall be calculated on the second day or the day after the expiration of the year when the illegal state disappears,specifically if the worker enters into a written labor contract within 11 months,or then re-signs the labor contract,Presumed workers at this time should know that their rights have been violated,and began to calculate the limitation of arbitration.The limitation of arbitration is a one-year period of limitation of ordinary time limits,and the conclusion is not calculated in segments.The article is divided into three parts,in addition to the introduction and the closing remarks:The first part-"double salary" system of "fragmented" judicial practice statistics and analysis.This part is based on the perspective of empirical analysis,through the country’s major provinces on the implementation of the "double wage" system of statistics,classification analysis.Among them,in order to "double salary" calculation base issues around the different judicial practice and "double salary" arbitration statute of limitations around the different judicial practice two parts.This paper divides the former into areas based on the actual income of workers during the "double wage" calculation period,areas where the wages due during the "double wage" period are based,and areas where the standard wages and agreed wages are based during the calculation period of "double wages" are divided.The latter is calculated separately on a monthly basis,from the date of the disappearance of the illegal state(i.e.the last day on which the employer should pay twice the wage)from the beginning of the whole calculation,from the day after the disappearance of the illegal state or the next day of the expiration of the year,from the date of termination of labor relations,the date of employment from one month from the date of calculation of five calculation methods.The second part-"double salary" calculation base problem.This part is the most central part of the discussion.The most prominent problem in the "fragmented" judicial practice of the whole "double salary" system is the calculation base of "double salary".This part first discusses the definition and composition of "wages",respectively,on the political economy of "wage" awareness and the relevant theories and regulations outside the domain.Then the theoretical dispute of calculating the base is discussed,which is divided into the view point of calculating the base based on actual income,the view point of calculating the base on the salary due and the view point of calculating the base on the standard salary.Finally,through the legal nature and function of "double salary",it is concluded that the calculation base of "double salary" should be calculated on the basis of the salary due and excluded from non-wage items.The third part-"double salary" arbitration statute of limitations.In this part,the author explains that the arbitration statute of limitations calculation in the "double salary" arbitration limitation point is the most worthy of discussion,after comparing the decentralizedcalculation method and the overall calculation method,expounds the advantages of the overall calculation method and the shortcomings of the former.