Judicial Determination Of "Fail To Pay The Labor Remuneration In Full And On Time" As The Reason For The Unilateral Termination Of The Labor Contract

Article 38 of the "Labor Contract Law of the People’s Republic of China"（hereinafter referred to as the "Labor Contract Law"）stipulates several situations in which an employee can unilaterally terminate the labor contract.These situations are also called immediate resignation or forced resignation."Fail to pay labor remuneration in full and on time" is one of its specific manifestations.Because its provisions are too general,it has led to a large number of judgment differences in judicial practice.The employee and the employer disagree on whether the facts of the case fall under Article38 of the "Labor Contract Law",and how to reasonably determine that "the labor remuneration has not been paid in full and on time" has become a difficult point in the judicial determination process.In order to solve this problem,by sorting out 111 sample cases,it is found that the problem can be divided into three aspects: the judicial determination of "not timely","inadequate amount" and "labor remuneration".Regarding the judicial determination of "not timely",the court mainly determines whether the labor remuneration is not paid in time based on three factors: the number of days not paid in time,the reasons for not paying in time,and whether there is a reissue.In terms of the number of days not paid in time,in order to maintain a stable and harmonious labor relationship,arrears of labor remuneration for only a few days are generally not considered to be unpaid labor remuneration.Most courts have held that fail to pay labor compensation before the next wage payment cycle can be considered to be untimely payment of labor remuneration.In terms of the reasons for not paying in time,only the unreasonable arrears of labor remuneration can be regarded as non-timely payment of labor remuneration,delayed payment due to objective inability and the employer’s operational and capital turnover difficulties are not considered unreasonable arrears.In terms of the reissuance,only the reissuance occurs before the termination of the labor contract and the labor remuneration is paid in full after the reissuance can prevent the determination of “fail to pay the labor remuneration in full and on time”.Regarding the judicial determination of "inadequate amount",it can be transformed into the issue of legality judgment on the deduction behavior of the employer.Legal withholdings and legal reductions based on legal provisions are not "insufficient payment of labor remuneration".Insufficient payment caused by the act of compensating for economic losses proportionally does not belong to "insufficient payment of labor remuneration".Regarding the issue of underpayment caused by economic penalties,the key point is to determine whether there are local regulations to provide for economic penalties.In areas where economic penalties are stipulated in local regulations,fines imposed by employers in accordance with local regulations and legally formulated rules and regulations are not considered "underpaid labor remuneration".In areas where local regulations do not provide for economic penalties,the fines imposed by the employer are unfounded by law,and the underpayment caused by the economic penalty is a deduction of labor remuneration,which can be identified as "underpayment of labor remuneration".Regarding the judicial determination of "labor remuneration",the labor remuneration that can cause the laborer to unilaterally terminate the labor contract refers to the labor remuneration that guarantees the basic living of the employee.Overtime pay is different from labor remuneration that guarantees the basic living of the employee.From the perspective of value judgment and the legislative intent of forced resignation,it is not enough to be recognized as labor remuneration that can cause workers to unilaterally terminate the labor contract.The labor remuneration for untaken annual leave shall be divided into two parts: the work income during the normal working period and the compensation to the laborer.The arrears of work income during the normal working period are labor remuneration that can cause the laborer to unilaterally terminate the labor contract.Regardless of the nature or amount of the high temperature allowance,it cannot seriously affect the basic life of the employee,and it does not belong to the labor remuneration that can cause the worker to unilaterally terminate the labor contract.