A Study On The Application Of Double Wages Rules

With the promotion of the "cost reduction" measures of the "supply-side structure" reform,the Labor contract Law has once again been pushed to the forefront of the storm.In the name of "increasing labor costs" and "reducing market flexibility","double wages" is one of the controversial issues.China's labor legislation stipulates that labor contracts should be in written form.Behind this clause is the choice of value under the game between the right of workers' occupational stability and the right of employing units to manage their work.The double wage rule is the legal responsibility that the employer should undertake.Its most direct manifestation in the field of labor law is Article 82 of the Labor contract Law.This paper finds that the dispute over the rule in theory and practice is essentially "the legitimacy of the system" and "applicable technology".The results of the adjudication of the first and second wage claims have different effects.There are three main aspects: most of the results of the arbitration committee tend to deal with procedure without substantive judgment;the court of first instance and the court of second instance are basically inclined to support the attitude of the laborer's right of claim,and have fewer cases to be revised.The reason for the revision is mainly the difference between the limitation of action and the amount of compensation,which is essentially a difference in the orientation of interests;the employer bears a heavier liability for compensation,which increases the cost of employment.Second,the rules of double wages have difficulties in applying the specific standards.It is mainly reflected in four levels: the different cognition of written form,the diversity standard of calculation base,the ambiguity of imputation principle,the difference of starting point of limitation of action.To question the legitimacy of the rule itself,needs to be demonstrated by the research on the value level.The logical starting point of the labor law is the collective bargaining power is not equal,which means a written contract in the labor contract,can not embody the autonomy of workers real.Therefore we need to use public power of the state,the the weak tilt in the design of the system and the distribution of interests,justice value category,but also should be the legitimacy of the right of labor occupation stability means.For technical difficulties,the written form of cognition,reveal the function of proof from the legislative purpose of two times the wage rule tool value,namely the bearing form of rights and obligations that should not only formally identified;for the calculation of the base,from the legal concept of "wages" and "labor remuneration" distinction,explain the interpretation system point of view,thesecond times The wage category is less than the labor remuneration,remuneration and not all forms of energy included in the wage category;for the imputation principle,should distinguish the employer's subjective state,the no fault liability for the employer blindly,in violation of the principle of fairness;the limitation of action,from the day knows or ought to know infringement of the right calculation of limitation is not reasonable,the worker in the state,so the existence of the labor relations during the claim without possibility of expectation,it should be regarded as the continuity of the infringement,as the overall calculation of limitation.On the basis of analyzing the dilemma of applying double wage rules,this paper puts forward corresponding suggestions from three aspects: legislation,judicature and idea.For example,the labor inspection system and the social security system.Secondly,at the judicial level,it is suggested that the principle of presumption of fault should be applied to ordinary workers,and the principle of fault should be applied to senior managers.And limit the maximum amount of payment;the arbitration statute of limitations from the date of termination of labor relations from the overall calculation.Third,the concept of reaffirming the logic of the judge's decision,including the substantive review of the written form,grasp the limits of discretion;Improve the Supreme Court of the case guidance system.