Whether must responsibility of breach of contract pay penalty due to breach of c
From;    Author:Stand originally

  • [] of details of a case:
    Some company move is engaged in a product developing the work with Mr Li, both sides signed 2 years period labor contract. As a result of the importance of working property, the company agrees in labor contract with Mr Li: If Mr Li is inside contract period,put forward to resign the requirement removes of labor contract, must pay company penalty due to breach of contract 5000 yuan.
    Both sides fulfils labor contract after a few months, mr Li introduces because of the friend and by another unit appearance in, this unit force closes to Mr Li goes this unit works, and pay of Xu Yigao forehead and pay, then, mr Li puts forward to resign the requirement removes to location firm namely labor contract. The company agrees the abdication requirement of Mr Li, but according to requirement of labor contract agreement Mr Li pays penalty due to breach of contract 5000 yuan, mr Li does not agree, both sides produces controversy from this.
    [Bilateral argument] :
    Mr Li thinks, oneself put forward to remove according to the regulation of labor law labor contract, circumstance of nonexistent break a contact; The labor that both sides signs does not have the agreement of service period in the contract, nonexistent the obligation that must serve; The contract is fulfilled in the company also had not undertaken grooming waiting for investment to oneself, the main content of nonexistent compensation. Accordingly, the company asks its pay penalty due to breach of contract to do not have a truth.
    The company thinks, both sides agreed in signed labor contract Mr Li is adding up to the provision that abdication raises to must pay penalty due to breach of contract inside the corresponding period, this clause content did not collide with labor law photograph; Press labor law to set, once labor contract is signed have legal sanction to bilateral party namely, mr Li ought to be assumed by contract agreement pay penalty due to breach of contract duty.
    [Judge analyse] :
    The controversy focus of this case is Mr Li is closing abdication puts forward to whether ought to press an agreement to pay penalty due to breach of contract inside the corresponding period.
    "Labor law " regulation: "Laborer removes labor contract, ought to shift to an earlier date 30 days to inform choose and employ persons of the unit with written form " , according to this regulation, laborer puts forward to remove the condition of the contract is " shift to an earlier date 30 days to inform with written form " , if accord with formulary condition, remove the contract is legal action. " rules of Shanghai labor contract " regulation: "Labor contract is right of the penalty due to breach of contract of set of behavior of break a contact of laborer, be confined to following scenario: (one) disobey service period to agree; (2) disobey conservative trade secret to agree. " set according to above, the agreement of penalty due to breach of contract is limit range, inform ahead of schedule remove the conventional range that the contract does not belong to penalty due to breach of contract. Accordingly, if Mr Li shifts to an earlier date 30 days to inform with written form the company removes contract, do not belong to behavior of break a contact, need not undertake responsibility of breach of contract; The company asks Mr Li pays penalty due to breach of contract devoid law basis.
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