Interpretation on Several Issues Concerning the Application of the Law in the Trial of Employment Disputes (2)

(2) in a dispute over the termination or ending of an employment relationship, if the employer is unable to substantiate the date on which the employee received the written notice of the termination or ending of his/her employment relationship, the date on which the employee asserted his/her rights shall be the date on which the labour dispute arose; or

(3) in a dispute over the payment of wages, severance pay, benefits, etc. after the termination or ending of an employment relationship, if the employee is able to substantiate that the date on which the employer undertook to make payment is a specific date after the termination or ending of his/her employment relationship, the date on which the employer undertook to make payment shall be the date on which the labour dispute arose; if the employee is unable to substantiate such date, the date on which the employment relationship was terminated or ended shall be the date on which the labour dispute arose.

Article 2: In a dispute over the delayed payment of wages, if at the time the employee applies for arbitration the employment relationship still exists and the employer asserts that it will not make payment on the grounds that more than 60 days had elapsed at the time the employee applied for arbitration, the people's court shall reject such assertion, unless the employer is able to substantiate that the employee had received a written notice of its refusal to pay his/her wages.

Article 3: If an employee directly institutes a legal action in a people's court using an acknowledgement of wages owing from the employer as evidence, and his/her claims do not involve other disputes over his/her employment relationship, the dispute shall be deemed a dispute over outstanding labour remuneration and shall be accepted as an ordinary civil dispute.

Article 4: If a dispute arises between an employer and an employee over whether their employment relationship has terminated or ended and whether severance pay is required to be paid in connection with such termination or ending, and a party institutes a legal action in accordance with the law after the arbitration by the labour arbitration commission, the people's court shall accept such case.

Article 5: If, after the arbitration by the labour arbitration commission of a dispute in which, following the termination or ending of the employment relationship with the employer the employee requests that the employer return the deposit, security deposit or collateral charged or collected by the employer in connection with the employment contract, or requests that the employer carry out the procedures for the transfer of his/her personal file, his/her social insurance relationship, etc., a party institutes a legal action in accordance with the law, the people's court shall accept such case.

Article 6: In a dispute where an employee requests that the employer undertake in accordance with the law to givehim/her insurance benefits for a work-related injury as he/she has suffered a work-related injury or contracted an occupational disease, if a party institutes a legal action in accordance with the law after the arbitration by the labour arbitration commission, the people's court shall accept such case.

Article 7: The following disputes do not fall in the category of labour disputes:

(1) a dispute in which an employee requests that the social insurance handling institution pay his/her social insurance benefits;

(2) a dispute arising between the employee and employer over the transfer of publicly owned housing as a result of the reform of the housing system;

(3) a dispute arising over an employee's objection to the conclusion rendered by the labour capacity evaluation committee concerning his/her degree of disability or that of the occupational disease assessment committee on its assessment of his/her occupational disease;

(4) a dispute between a family or an individual with a domestic helper;

(5) a dispute between a self-employed craftsman and his/her helper or apprentice; and

(6) a dispute between a rural contractor and an employee.

Article 8: If a party is dissatisfied with an award rendered by the labour dispute arbitration commission requiring advance payment of part of the employee's wages or medical expenses and institutes a legal action in a people's court, the people's court shall not accept such case.

If the employer fails to perform the payment obligation in the aforementioned award and the employee applies to the people's court in accordance with the law for enforcement, the people's court shall accept such application.

Article 9: In a legal action over a labour dispute between an employee and a family proprietor bearing a trade name, the people's court shall treat the trade name recorded on the business licence as a party but shall additionally note the natural person details of the owner of such trade name.

Article 10: If a labour dispute arises over the performance of a labour placement contract and the employee institutes a legal action, the placement agency shall be named as the defendant. If the dispute involves the work unit that accepted the employee, the placement agency and the accepting work unit shall be named co-defendants.

Article 11: If both a person condemned to reform through labour and his/her employer are dissatisfied with the award of the labour dispute arbitration commission and institute a legal action in the same people's court, the people's court shall consolidate the cases, with each party named as both plaintiff and defendant. If either party withdraws his/her/its suit in the course of the legal action, the people's court shall continue to try the case on the basis of the claims of the other party.

Article 12: If a party is able to substantiate that he/she/it was unable to apply for arbitration during the arbitration application period due to force majeure or other objective reason, the people's court shall hold the arbitration application period to have been tolled, with such period continuing to count from the date following the elimination of the reason for the toll.

Article 13: If a party is able to substantiate that he/she/it is characterized by any of the following circumstances during the arbitration application period, the people's court shall toll the arbitration application period:

(1) he/she/it has asserted rights against the other party;

(2) he/she/it has claimed remedies from the relevant department; or

(3) the other party has agreed to perform his/her/its obligations.

If the arbitration application period is tolled, it shall recommence counting from the time the other party expressly refuses to perform its/his/her obligations or the relevant department renders its handling decision or expressly states that it will not deal with the matter.

Article 14: If an employee applies to the people's court for property preservation measures during the course of a legal action and the people's court determines upon review that the applicant is indeed in financial straits, or there is evidence that the employer could abscond while owing wages, the people's court shall reduce or exempt the employee from the obligation to provide security and promptly take the preservation measures.

Article 15: The people's court shall, in its property preservation ruling, inform the parties that an application for enforcement may be made within three months after the entry into effect of the award rendered by the labour dispute arbitration commission or the judicial document issued by the people's court. If no application is made by such time, the people's court shall rule to lift the preservation measures.

Article 16: If there is a discrepancy between the internal rules and regulations formulated by the employer and the collective contract or an employee's employment contract and such employee petitions to have his/her contract govern on a priority basis, the people's court shall uphold such petition.

Article 17: The settlement agreement containing provisions on employment rights and obligations reached between the parties through the good offices of the labour dispute mediation commission shall have the binding force of an employment contract and may serve as the basis for the judgement or ruling by the people's court.

If, through the good offices of the labour dispute mediation commission, the parties reach a settlement agreement only on the dispute over labour remuneration and the employer fails to perform its payment obligation specified in the settlement agreement, and the employee directly institutes a legal action in the people's court, the people's court may accept such case as an ordinary civil dispute.

Article 18: The Interpretation shall be effective as of October 1 2006. In the event of a discrepancy between the Interpretation and judicial interpretation issued by this Court prior to the implementation hereof, this Interpretation shall prevail.

Once implemented, the Interpretation shall apply in trials at first instance and second instance pending in people's courts. Retrials of cases concluded prior to the implementation hereof may not be conducted on the basis hereof.