How to help optimize the business environment? The tax administration law needs to be changed like this
Since the implementation of the current "Tax Collection and Administration Law", in tax practice, disputes on the investigation of legal liabilities such as "whether tax evasion should have subjective intention" and "whether false invoices should have the double intention of false opening and tax evasion" have always been heard. On January 5, 2015, the "Draft Revision of Tax Collection and Administration Law ("Draft for Comment") issued by the Legislative Affairs Office of the State Council (hereinafter referred to as the "Draft for Comment") revised relevant provisions to resolve such disputes. For example, “tax evasion” is used to replace “tax evasion”, unpaid underpaid taxes caused by negligence are separated from tax evasion, and relatively light penalties are stipulated. However, the author believes that such amendments in the "Draft for Comments" are only based on "solving problems" and are still confined to "remediation" under the existing framework, and there is no complete system of legal liability for tax violations. system. This kind of thinking of law revision may lead to disputes between the two parties, "one will lose the other," and the revision will fall into the situation of "treating the symptoms but not the root cause".
In view of this, the author proposes to take the opportunity of the revision of the Tax Collection and Administration Law to reconstruct the chapter of "Legal Liability" for tax violations, and to clarify the legal responsibilities of tax violations (accountability method), the principle of liability, and the principle of accountability, etc. , To comprehensively reshape the legal responsibility system for taxation violations, avoid disputes with the system design, and achieve both guiding tax compliance and safeguarding the legitimate rights and interests of taxpayers, and assisting the continuous optimization of the taxation business environment.
1. Clearly define the legal liability for tax violations
The current "Tax Collection and Administration Law" stipulates the legal liabilities for tax violations, mainly including tax recovery, late payment fees, administrative penalties, blocking exits, collection or suspension of the sale of invoices, and tax arrears announcements. However, the aforementioned legal responsibilities are not uniformly regulated in the "Legal Liability" chapter, but scattered in the "Tax Collection" and "Legal Liability" chapters. On the one hand, tax-related parties lack a complete and unified understanding of what are tax violations and what legal responsibilities should be borne by tax violations, which is not conducive to guiding tax compliance; on the other hand, it triggers the jurisdiction of different functional departments within the tax authority to pursue legal liabilities. Disputes, such as whether the Tax Inspection Bureau can apply the provisions of the "Tax Collection" chapter to make a decision to collect or stop the sale of invoices.
Based on this, the author suggests that in the "Legal Liability" chapter of the Tax Collection and Administration Law, the legal responsibility for tax violations should be unified: On the one hand, it is clear that the legal responsibility for tax violations includes loss recovery (tax recovery) and interest increase. Penalties (additional late fees), administrative penalties (fines, confiscation of illegal income, confiscation of illegal properties), cancellation or restriction of related rights (prevention of exit, collection or suspension of invoices, suspension of export tax rebates) and reputation sanctions (announcement of tax arrears) To ensure that both parties to the collection can clearly define the legal responsibilities for tax violations. On the other hand, it stipulates who should be held accountable for tax-related parties’ tax violations, conditions and procedures, etc., to ensure that tax authorities know the boundaries of power and follow due process, so that the legitimate rights and interests of tax-related parties can be protected. The business environment is optimized.
2. Formally establish the principle of liability for tax violations
The "Administrative Punishment Law" did not clarify the principle of imputation for administrative violations, but when the "Tax Collection and Administration Law" was revised, legislators formally established the principle of imputation for violations in the tax field and there was no legal obstacle.
The author believes that legislators can make clear provisions on the principle of liability for tax violations when amending the "Legal Liability" chapter of the Tax Collection and Administration Law:
The first is to establish the principle of imputation for the presumption of fault for tax violations.
With the goal of regulating taxation order and optimizing the business environment, taking into account the efficiency of tax administration management, the "Legal Liability" chapter of the Tax Collection and Administration Law should identify the principle of liability for administrative violations, the principle of presumption of fault, as tax violations. The basic principle of imputation. That is to say, when the tax authority proves that there is a causal relationship between the tax violation and the fact of damage (not paying underpaid taxes, disrupting the order of tax collection and management, etc.), if the tax-related party cannot prove that the damage occurred without fault, the The fact of damage itself presumes that it is at fault, and its legal responsibility is pursued. Under the principle of presumption of fault, the imputation of tax violations is not subject to subjective status, which is not only conducive to the formation of risk awareness of tax-related parties and the formation of tax compliance, but also minimizes levy disputes, regulates taxation order, and is fair. To lay the foundation for the creation of a tax environment.
The second is to clarify the exceptions for the presumption of fault in tax violations.
On the one hand, under the principle of ignoring the subjective intentional fault presumption, for certain tax violations that do need to consider the subjective status for imputation, the subjective status shall be explicitly stated as a constituent element of the violation in the corresponding legal liability clauses. Implied expression. On the other hand, in the presumption of fault principle, exception clauses are reserved for other tax laws and regulations (such as the "Invoice Management Measures", etc.) to coordinate with other tax laws and regulations.
The third is to establish the principle of exemption from liability for tax violations.
The presumption of fault principle is the principle that allows the parties to defend themselves. If the tax-related parties can prove that they have no fault (intentional and negligence) for the damage, they should not be held accountable. The current "Tax Administration Law" only exempts tax-related parties for non-payment and underpayment of tax due to the responsibility of the tax authority (exemption from additional late fees and no fines). Such a strict exemption is not in line with fault The requirements of the presumption principle. The author suggests that it is clear in the "Tax Administration Law" that tax-related parties can prove that there is no fault in the occurrence of the damage, or can prove that the damage occurred due to the responsibility of the tax authority or other units with management authority, and the tax-related parties should be exempted from the law Responsibility to reflect the substantial protection of taxpayers’ rights and interests.
3. Reshaping the principle of accountability for tax violations in an all-round way
Excessive accountability for tax violations and excessive discretionary powers on administrative penalties granted to tax authorities are important reasons why the current "Tax Collection and Administration Law" has been criticized.
In the context of optimizing the business environment, in order to actively respond to calls from all walks of life to reduce the burden on taxpayers and safeguard the legal rights and interests of taxpayers, the author suggests that the Tax Administration Law should start with the following four aspects to comprehensively adjust and reshape tax violations. Behavior accountability principle:
One is to reduce imperative norms and increase authoritative norms.
Most of the legal liability clauses related to unpaid and underpaid taxes in the current "Tax Collection and Administration Law" are imperative, which leads to tax authorities to impose penalties on tax-related parties once they violate the law, and the legal liability is heavier. The author suggests that for tax violations that are not subjectively malignant, such as non-payment and underpayment of taxes caused by negligence, the legal liability clauses should be changed from "should be punished" imperative regulations to "can be punished" authorization clauses. The taxation authority will make discretionary decisions on whether to impose penalties based on the situation of the individual case, so as to reduce the burden on taxpayers and reduce the conflicts and confrontations between the taxpayers and the taxpayers.
The second is to establish a system for active correction and exemption from accountability.
If a tax-related party violates the provisions of the tax law, if the tax authority voluntarily corrects its illegal conduct before the tax inspection is carried out on it, except for very special circumstances, such as the circumstances are particularly serious, the amount of money is particularly large, and the social impact is particularly bad, it should be in principle Exemption from administrative penalties and other serious legal liabilities. Through exemption from accountability, taxpayers are guided to actively carry out self-examination and self-correction, take the initiative to correct illegal acts, prevent tax risks, and form tax compliance.
The third is to clarify the circumstances under which the punishment can be lightened or mitigated.
The lighter and mitigating penalties stipulated in Article 27 of the Administrative Penalty Law are applicable to tax administrative penalties, but because most of the legal liability clauses related to unpaid and underpaid taxes in the current Tax Collection and Administration Law stipulate fines As a result, the tax authorities have long refused to apply lighter punishments to tax-related parties on the grounds that the special law is superior to the general law, damaging their legitimate rights and interests. The author suggests that when amending the "Tax Collection and Administration Law", it is clearly stipulated that tax violations that meet the prescribed circumstances should be lighter and mitigated.
The fourth is to introduce competition and cooperation rules to solve the problem of multiple accountability.
As mentioned above, the current "Tax Collection and Administration Law" has established legal liabilities for tax violations including five categories and more than ten items. However, except for "fines" which are regulated by the "Administrative Penalty Law" of "no two penalties", certain procedures are avoided. Except for the problem of excessive accountability, other legal liabilities are not regulated by competition rules when they are being investigated. As a result, certain tax-related violations of tax-related parties may be held accountable for multiple violations of several tax laws. The author proposes that the "Tax Collection and Administration Law" establish a system of legal liability investigations, and apply "heavy responsibility, absorb lighter responsibility" to other legal responsibilities other than the liability for loss recovery (tax recovery) and additional penalty (additional late payment fees). The principle of “competitive responsibility” solves the problem of excessive liability caused by the number of responsibilities and the pursuit of accountability.
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"Everything is Good" ends, have you figured out the legal issues in the play?
Recently, the most popular TV series "All Very Good", the plot touched the nerves of the public and aroused the resonance of many people. This TV series is so hot it can be described as "a mess."
With the popularity of the drama series, "native family", "patriarchal family", and "nibbles the old", similar topics have caused a lot of discussion. At the same time, family affection, jurisprudence, support and inheritance, and similar legal issues have also attracted much attention.
What legal issues need to be clarified in "Everything is Good"? On March 27, a reporter from Shanxi Evening News conducted an interview.
Question one
Does the agreement to sever the parent-child relationship have legal effect?
Plot description: Mingyu has been treated unfairly at home since he was a child. After going to college, I would find various reasons not to go home every time I was on vacation. Occasionally, when his father Su Daqiang was bringing her living expenses, he wanted Mingyu to go home, saying that his mother knew that she had done something wrong and missed Mingyu very much, and hoped she could go home and have a look. Mingyu was happy in her heart. After returning home, she discovered that it was her second brother Mingcheng who was going to get married. The Su family was going to meet with the other's parents, and Mingyu needed to come back to support the scene. Her mother's attitude towards her was the same as before. Mingyu was discouraged and had a big fight with his parents. After so many years of grievances were told, and an agreement was signed with his parents, Mingyu and the Su family broke off their relationship and paid off their 18-year parenting fees. No longer need to be responsible to each other, Mingyu no longer needs Su's living expenses, and his parents do not need Mingyu to provide for the elderly.
Question: In reality, does this agreement to sever the parent-child relationship have legal effect? Do children still need to bear the obligation of support? Can children inherit property?
Lawyer's statement: Attorney Zhang Jianhua of Shanxi Dingxinze Law Firm stated that this kind of agreement has no legal effect. In literature and film and television works, we often hear similar expressions such as "I want to sever father-son relationship with you". But contradiction is contradiction, and parent-child relationship based on blood relationship cannot be separated. The law of our country does not provide for the act of severing the parent-child relationship, so the parent-child relationship cannot be terminated with a single statement.
Therefore, the inheritance of property is obviously irrelevant to the declaration of severance of parent-child relationship. There are two ways for children to inherit the inheritance of their deceased parents, namely legal inheritance and testamentary inheritance. Article 5 of my country's Inheritance Law stipulates that after inheritance begins, it shall be handled in accordance with statutory inheritance; if there is a will, it shall be handled in accordance with testamentary inheritance. According to Article 7 of the Inheritance Law, only one of the following acts by the heir will lead to the loss of inheritance rights: (1) intentionally killing the decedent; (2) killing other heirs for the purpose of fighting for the inheritance; (3) abandoning the deceased The circumstances of the heir, or the abuse of the deceased is serious; (4) The forgery, alteration or destruction of the will, the circumstances are serious.
Therefore, for children who declare that they "have severed the relationship between father and son", as long as they have not done the above actions, they have the right to inherit their parents' inheritance. Of course, adult children still have the obligation to support, assist and protect their parents.
Question two
Can parents only raise their children until they are 18 years old?
Plot description: Because of her mother's preference for sons, Mingyu has been treated very differently from her two brothers since she was a child. When Mingyu felt unfair and questioned her mother, she got this answer: "Su Mingyu, you are a girl, how can you compare with your two brothers? You will be married in the future, and we are only responsible for raising you until you are 18. When we get old, we don’t need you to support it."
Question: Can parents only raise their children until they are 18 years old?
Lawyer's statement: Lawyer Zhang Jianhua said that, generally speaking, after their children have grown up and live independently, their parents no longer have the material and life support obligations. However, for adult children under the following circumstances, when the parents are able to afford it, the parents have the obligation to educate and support: 1. Lost or part of the ability to work, and their income is not enough to sustain their lives; 2. They are still in school; 3. Those who do not have the ability and conditions to live independently.
Question three
Can old people’s pensions cover alimony?
Plot description: Su Daqiang in the play becomes the same existence as Xie Guangkun. Netizens ridiculed: Xie Guangkun in the north and Su Daqiang in the south. Kun is so big that it can't be put down in the northeast. Strong work, shivering south of the Yangtze River.
In the play, Su Daqiang clearly has a retirement pension of 5,000 yuan per month, but he has been holding it in his hands without spending it, but instead "scraping" from his children in various ways.
Question: Usually, when I give money to my children, I change my face immediately. Su Daqiang's behavior of "no food or drink as long as money" not only intensified the conflicts between children, but also put his support problem in his later years into an embarrassing situation. Some netizens said that someone like Su Daqiang who is extremely selfish and doesn't care about his children at all, let him take his pension to live by himself. Can old people’s pensions cover alimony?
Lawyer's statement: Attorney Zhang Jianhua said that providing for the elderly is a basic citizen's obligation under the law, and the standard of support should be limited to the actual needs of the elderly, taking into account factors such as family, children's income, and burden. Generally speaking, if the elderly have income such as pensions and rent from house rentals, the income can be used to offset the maintenance expenses, that is, the children's maintenance expenses are appropriately exempted within the corresponding scope. However, this does not mean that children are exempted from their maintenance obligations, but that the burden on children should be appropriately reduced when reality permits.
For those with stable pension income like Su Daqiang, the court will generally no longer impose mandatory requirements on their children to the extent that he can afford them alone. However, if his income is not enough to cover the pension expenses, the insufficient part should be in principle. It is shared by the three children of Mingzhe, Mingcheng, and Mingyu.
You must know that support is not only financial satisfaction, but material conditions are only part of it. What the elderly need more is companionship. According to my country's Law on the Protection of the Rights and Interests of the Elderly, the maintenance obligations mainly include "economic support, life care and spiritual comfort", and children should take the initiative to perform legal obligations such as life care and spiritual comfort.
Question four
Can parents ask them to return the cost of buying a car and house for their children?
Plot description: After his wife died, Su Daqiang asked the elder Su Mingzhe to take him to the United States. Due to formalities and other matters, Su Daqiang lived in the second child Su Ming and got married. Ming Cheng had borrowed nearly 200,000 yuan from Su Daqiang and his wife for work, buying a house, getting married and other things as an adult, but they have never paid it back. So the brothers and sisters have discussed with them and decided that Su Daqiang's living expenses will basically be provided by the second family.
Su Daqiang has a set of accounts, which records every amount of funds Su's mother provided for her three children during her lifetime. Among them, Su Mingcheng remembered the most, including buying a house for him, changing cars and other expenses, and Su Daqiang asked the second child to pay back the account accordingly.
Question: In reality, can parents ask their children to return the expenses they have spent on buying cars and houses for their children?
Lawyer's statement: Lawyer Zhang Jianhua said that it is very common for parents to invest in buying houses and cars for their children. In principle, the identification of parental financial contributions should be based on the explicit expression of the parents as the standard. Once the parents express their intention to donate at the time or after the capital contribution, it is generally difficult to get support for claiming the loan relationship in the future. In real life, due to the close personal and property relationship between parents, there is often no IOU for parental loans, and parental gifts are often not clearly expressed. If the parent's proof of the loan is not sufficient, it should generally be deemed that the capital contribution is a gift, and the child cannot be required to return it.
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9 Housing Enterprises Open Letter Calls for Cautious Handling of Hardcover Back-offs Litigation, Jiangsu Higher Peoples Court: Take legal channels
"We noticed this letter circulating on the Internet last week. However, after preliminary verification, our hospital has not received a written letter at present. "
Recently, in response to the online report that 9 well-known real estate developers, including COFCO Real Estate, China State Construction Real Estate, Xincheng Holdings, Agile, etc., jointly reported their feelings to Xia Daohu, President of the Jiangsu Higher People’s Court, on March 25th, the Jiangsu Provincial High Court reportedly The Paper (www.thepaper.cn) replied.
Zhang Zhiping, director of the Information Office of the Jiangsu Higher People's Court, told The Paper that it is “undesirable” to recommend that they (developers) protect their rights in accordance with the law and disseminate open letters online. If they are dissatisfied with certain court judgments, they can follow the legal channels. For example, they can file a complaint or appeal to the procuratorial organ for protest.
9 developers jointly named "Supplier" Dean of Jiangsu Provincial Higher People's Court
Recently, a web post has been spread through social media and has attracted widespread attention. The online post stated that nine development companies, including COFCO Property, China State Construction Property, Xincheng Holdings, and Agile, which have real estate development projects in Nanjing, have jointly “submitted a letter” to Xia Daohu, President of the Jiangsu High Court, requesting “maintain the stability of hardcover housing transactions”. , "Avoid mass incidents caused by malicious litigation."
On the afternoon of March 25, relevant persons in charge of many real estate companies such as China State Construction Real Estate, Yincheng Real Estate, and Xincheng Holdings confirmed to The Paper that they had indeed joined the "collective letter" operation.
This "Emergency Report on Maintaining the Stability of Hardcover Housing Transactions in accordance with the Law to Avoid Mass Incidents Caused by Malicious Lawsuits", at the beginning, stated clearly to "Chen Qing" to Xia Daohu, President of the Jiangsu Higher People's Court. The full text consists of two pieces of paper, densely covered with the red seal of the development enterprise.
These companies are: COFCO Real Estate Nanjing Co., Ltd., Nanjing China Construction Fukang Real Estate Co., Ltd., Yincheng Real Estate Group Co., Ltd., Nanjing Xincheng Wanlong Real Estate Co., Ltd., Nanjing Agile Real Estate Development Co., Ltd., Shenye East China Real Estate Development Co., Ltd. , Nanjing Bozhou Real Estate Development Co., Ltd., Nanjing Shanjieyi Real Estate Development Co., Ltd., Yum Kylin (Nanjing) Construction Development Co., Ltd.
Among the developers of the "Booking", there are not only central state-owned enterprises giants, listed company real estate enterprises, but also local powerful developers in Nanjing.
In the "Emergency Report", the reason why the above-mentioned 9 developers used a huge lineup to express their sentiments was because they were worried that a case of retrial and judgment made by the Nanjing Intermediate Court would trigger a chain reaction and emulation effect-Nanjing R & F Properties and dozens of people The buyer was in a hardcover housing lawsuit, and the Nanjing Intermediate Court ruled that the developer lost the lawsuit.
According to the report, since 2018, owners of many finely-decorated properties in Nanjing have followed R&F's petitions by refusing to accept the house, requesting the renovation to check the price and refund the difference, "there is a growing trend." In addition, the number of such litigation cases accepted by Nanjing's district courts has also shown a surge.
The report also mentioned that, according to incomplete statistics, the companies involved in the lawsuit include Vanke, COFCO, Yincheng, Shenye, China Construction, Agile, Xincheng, Yuzhou and other development companies.
The above-mentioned development companies urge the court to "carefully consider" the purchaser's request for verification of decoration prices and refunds (prices) in such cases. If the court supports the appraisal of the construction cost of the decoration of the hardcover house and awards compensation to the developer on this basis, "it is bound to cause a chain reaction, and a large number of house buyers will file a lawsuit for this."
The verdict a year ago left developers on pins and needles
So, what happened to the "R&F case" mentioned in this "emergency report"? Why are many real estate development companies "stuck on pins and needles" because of this case?
According to "Modern Express" report, in November 2014, the garden house project R&F No.10 Community developed by R&F Properties in Nanjing was officially delivered. According to the commercial housing pre-sale plan announced by R&F Properties at that time, the community is a finished housing, and the price standard for fine decoration is 4500 yuan/㎡. However, during the delivery period, the owner found that the house had many quality problems, including the large gap between the actual decoration and the model house.
In December 2014, more than 40 owners of R&F No. 10 filed a suit against the developer, Nanjing R&F Properties, in court. They believed that the fine decoration standard of 4,500 yuan per square meter advertised by the developer did not meet the actual delivery. It is required to compensate for the difference in price.
The first instance and the second instance of some cases rejected the buyers' claims. These buyers refused to accept it and applied to the Nanjing Intermediate People's Court for a retrial.
The paper reporters inquired about China Judgment Document Network and found
On December 28, 2017, the Nanjing Intermediate People's Court made a retrial and revised judgments in some cases, supporting the claims of the buyers. The court judged Nanjing R&F Properties to compensate each buyer for the difference in the decoration price of about 200,000 yuan
.
Since then, many owners who lost the first instance also received the court's decision support during the second instance.
The Nanjing Intermediate People’s Court re-examined that the "Commercial Housing Pre-sale Plan" is a necessary material for the development enterprise to declare the pre-sale permit of commercial housing to the real estate management department, and the "Commercial Housing Pre-sale Plan" contains information on the unit price of 4500 yuan per square meter for decoration. Publicize to the whole society. According to the supplementary agreement, the decoration unit price information specified in the "Commercial Housing Pre-sale Plan" shall be the content of the rights and obligations of the contract between both parties. Therefore, the court determined that the decoration unit price information contained in the "Commercial Housing Pre-sale Plan" is legally binding on real estate developers.
The Nanjing Intermediate People's Court also believes that R&F will use model houses at the sales site to advertise the well-decorated houses to buyers. The purchaser has the right to request R&F to provide a refined decoration room consistent with the model house. In view of the fact that the current model house no longer exists and lack of reference, the applicant requires the refined decoration of 4500 yuan/square meter specified in the "Commercial Housing Pre-sale Plan" The unit price, compensation for decoration losses, conforms to the provisions of administrative regulations.
Jiangsu Higher People's Court: Did not receive a written letter, suggesting due process
Regarding the authenticity of the "emergency reports" of the nine developers mentioned above, The Paper asked many of the development companies to verify the authenticity, and they all told The Paper that there was indeed something wrong.
Wang Zheng, vice president of Yincheng Real Estate Group, said that the legal department is dealing with the above matters, and he will arrange for relevant departments to reply to reporters on specific circumstances. However, as of press time, the reporter has not received a detailed reply from Yincheng Real Estate.
The person in charge of the Nanjing brand of Xincheng Holdings also stated that there are indeed nine companies including Xincheng Holdings who have jointly sent letters to the Jiangsu Provincial Higher People's Court, but it is inconvenient for them to make specific comments on this matter.
On the afternoon of the 25th, Zhang Kai, the head of marketing of China State Construction Real Estate Nanjing, told The Paper that he knew that his company had participated in the "submission" to Jiangsu Higher People's Court.
Regarding the reasons for drafting this "emergency report", Zhang Kai explained that more and more owners of hardcover houses have filed lawsuits with the courts, applying for a second evaluation of hardcover houses, and the hardcover appraisal report submitted by development companies to the Price Bureau for approval. Make a comparison, "If there is a price difference, ask for a refund."
Zhang Kai used an analogy. Buying a hardcover room is like buying an Apple mobile phone. If you take the mobile phone apart and evaluate how much each part costs, if it adds up to 2,000 yuan, then, "Is it possible to sue the court and ask Apple to return it? 8000 yuan", "this is impossible."
Specific to the purchase and sale of hardcover houses, it is also a commodity transaction. The development company has the right to set prices independently. It has been explained before the owner buys the house. These agreements include the fine decoration list and the contents of the fine decoration in the contract. If the delivered house is not Compliance with the standards involves the dishonesty and cutting corners of the development enterprise. Buyers of the house should sue the development enterprise to protect their rights and interests.
"If (the development company) does not change the decoration standards, and the buyer signs a contract with the development company, then this contract is valid and cannot be overturned at will. (The hardcover standard) includes labor costs, corporate taxes, R&D costs, Reasonable profit, etc., cannot be evaluated. If you question the value of hardcover, you can choose to refuse before buying a house." Zhang Kai said.
In Zhang Kai’s view, the nine development companies chose to send letters to the Jiangsu Higher People’s Court because the court did not “understand the situation of the industry” and each company must clarify the facts of each company. This is “a fair and honest matter. There is no question of'kidnapping the court'". And if the court makes a judgment of "refunding the price difference in hardcover", such problems will occur in tens of thousands of houses in Nanjing.
Regarding the joint letter of multiple developers, Zhang Zhiping, director of the Information Office of the Jiangsu Higher People's Court, responded to The Paper that the court had paid attention to relevant online posts last week, but had not yet received a written letter.
Zhang Zhiping told The Paper that if developers are dissatisfied with the court’s decision, they can follow legal channels, and can file a complaint or appeal to the procuratorial organ for protest. "This (joint letter) method is not advisable."
A senior judge who requested anonymity also commented to The Paper that if the lawsuit triggered by the refined decoration of the house is the first breach of contract by the developer, it should be compensated. If the developer fulfills the contract, the court will not support the owner’s claim. “There is no need to take this form to put pressure on the court, which is equivalent to ‘forcing the palace’ on the high court”.
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Want to quit? Then you need to understand the following four legal contents
Resignation is a headache for many people. They are either afraid of the company’s disagreement or the company’s deduction of wages. Today, I’m here to talk to you all, hoping to provide you with some help.
According to the current "Labor Contract Law", restrictions on employee resignation have been reduced, making it easier for employees to resign.
1. You can notify in advance how to terminate the labor contract
According to the "Labor Contract Law", the labor contract can be terminated if the employee informs the employer in writing 30 days in advance. The laborer can terminate the labor contract by notifying the employer 3 days in advance during the probation period. The law clearly gives workers the right to resign, and this right is absolute. The worker unilaterally terminates the labor contract without any substantive conditions, and only needs to perform the obligation of advance notice. It should be noted that the cancellation during the non-probation period should be notified in writing, while the cancellation during the probation period has no formal requirements, and both oral and written forms are acceptable.
In practice, many companies believe that employees must write resignation applications for resignation, and must be approved by the unit, otherwise they cannot resign. This is actually a typical misunderstanding. According to the "Labor Contract Law", employees resign as long as they notify the unit in writing 30 days in advance, without the unit's approval or consent. If the labor relationship between the two parties is terminated by the employee's unilateral resignation, the employer shall promptly go through the resignation and resignation procedures for the employee, otherwise, it will bear unfavorable legal consequences. If the employee fails to handle the work handover or has other outstanding disputes with the unit when the employee resigns, the employer can claim its rights through legal channels such as arbitration or litigation, but cannot restrict the employee from resigning on this ground. The two are independent Legal relations should not be confused.
2. Circumstances in which you can terminate the labor contract at any time
The immediate termination of the labor contract by the employee means that in the event that the employer is at fault, the employee can unilaterally terminate the labor contract while notifying the employer without prior notice.
According to the "Labor Contract Law" and its "Implementation Regulations", if an enterprise has one of the following circumstances, the employee can immediately terminate the labor contract without notifying the employer in advance:
(1) The employer fails to provide labor protection or labor conditions in accordance with the labor contract;
(2) The employer fails to pay labor remuneration in full and on time;
(3) The employer fails to pay social insurance premiums for workers in accordance with the law;
(4) The rules and regulations of the employer violate the provisions of laws and regulations and damage the rights and interests of employees;
(5) The employer uses fraud, coercion or taking advantage of the danger to cause the employee to conclude or modify the labor contract in violation of the true intentions, rendering the labor contract invalid;
(6) The employer exempts its legal responsibility and excludes the rights of workers in the labor contract;
(7) The employer violates the mandatory provisions of laws and administrative regulations;
(8) The employer forces the worker to work by means of violence, threats or illegal restriction of personal freedom;
(9) The employing unit violates the regulations to command or force risky operations to endanger the personal safety of the workers;
(10) Other circumstances under which laws and administrative regulations stipulate that workers can terminate the labor contract.
For the above cases (8) and (9), the worker can terminate the labor contract immediately without prior notice
Employer. In addition, in other situations, workers who are forced to resign generally need to inform the employer in advance, but there is no time requirement and restriction.
3. What are the consequences even if you terminate the labor contract in violation of the law?
According to Article 90 of the "Labor Contract Law", "If an employee violates the provisions of this law to terminate the labor contract and cause losses to the employer, he shall be liable for compensation." In practice, the employer needs to bear the "loss".
Bear the burden of proof. According to Article 4 of the "Compensation Measures for Violation of the Labor Law", the losses mainly include:
(1) Expenses directly paid by the employer for the hired laborers;
(2) Training fees paid by employers for workers;
(3) Direct economic losses caused to production, operation and work;
(4) Other compensation expenses stipulated in the labor contract.
4. If you resign without giving notice in advance, or the notice is less than 30 days, can the unit require employees to pay liquidated damages?
The answer is obviously no. Although it is a statutory obligation of workers to issue a notice of resignation 30 days in advance, the law does not provide workers with corresponding legal responsibilities or penalties for violations of this clause. At the same time, according to the "Labor Contract Law", the unit cannot unilaterally agree that employees should pay liquidated damages except for two statutory situations that violate the service period agreement and violate the obligation of restricting competition. Therefore, under normal circumstances, if the employee does not notify in advance, or the notification is less than 30 days, the unit cannot require the employee to pay liquidated damages.
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"The Labor Contract Law of the People's Republic of China" Article 37 The laborer may terminate the labor contract by giving a written notice to the employer 30 days in advance. The laborer can terminate the labor contract by notifying the employer three days in advance during the trial period. Article 38 The employee may terminate the labor contract in any of the following circumstances: (omitted) Article 90 The employee violates the provisions of this law to terminate the labor contract, or violates the confidentiality obligation or competition in the labor contract If the restriction causes losses to the employer, it shall be liable for compensation. Article 18 of the "Regulations for the Implementation of the Labor Contract Law of the People's Republic of China" has one of the following circumstances, in accordance with the conditions and procedures stipulated in the Labor Contract Law, the employee may terminate the fixed-term labor contract, the non-fixed-term labor contract with the employer, or A labor contract with a time limit for completing certain tasks: (1) The worker and the employer have reached an agreement through negotiation; (2) The worker has notified the employer in writing 30 days in advance; (3) The worker has 3 days in advance during the probation period Notifying the employer; (4) The employer fails to provide labor protection or working conditions in accordance with the labor contract; (5) The employer fails to pay labor remuneration in full and on time; (6) The employer fails to pay social insurance for the employee in accordance with the law (7) The employer’s rules and regulations violate the provisions of laws and regulations and damage the rights and interests of employees; (8) The employer uses fraud, coercion or taking advantage of the danger to make the employee enter into or violate the true intentions. Changes in the labor contract; (9) The employer exempts its statutory responsibilities and excludes the rights of workers in the labor contract; (10) The employer violates the mandatory provisions of laws and administrative regulations; (11) The employer uses violence, Threatening or illegally restricting personal freedom to force workers to work; (12) Employers illegally command or force risky operations to endanger the personal safety of workers; (13) Laws and administrative regulations stipulate that workers can terminate the labor contract Other situations.
Therefore, if you want to terminate the labor relationship, you only need to notify the employer in writing 30 days in advance, and notify the employer 3 days in advance during the probation period to legally terminate the labor contract. In addition, all the deductions and disapproval of wages by the employer are contradictory to the law. Whenever you encounter it, you can find a professional lawyer to solve the problem.
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