A Study On The Legal Problems Of Double Wage Payment Caused By Unsigned Labor Contractby

The legal system(hereinafter referred to as "double wage system"),in which the employer pays the laborer double wages due to the failure to sign a written labor contract,appears in the chapter of legal liability on "Labor contract Law".Since this system appeared for the first time in the legislation of our country,there is no similar system in foreign legislation.Therefore,the double wage system is not mature enough in some aspects,so there are still some disputes about its application standard in judicial practice.The employment time of double wage system is divided into three stages:one month from the date of employment,one month to one year,and after one year of employment.The same characteristic of these three periods is that both employers and employees have not actually signed a labor contract,but whether the employer needs to pay double wages at different stages is not the same.The dispute about the double wage system mainly revolves around whether its nature belongs to the theory of labor reward or punitive damages,whether the limitation of arbitration is applicable to the standard of ordinary arbitration prescription or the standard of special arbitration prescription,whether the calculation base is based on the real or due wages,narrow or broad-sense wages as the standard,Whether the maximum period of payment is limited or indefinite,whether the starting point of double wages is calculated month by month or as a whole;whether subjective fault affects double wage payment etc.The different views held by theorists are listed and analyzed.Comparison has been made through the trial results of the relevant cases recorded in the Chinese adjudicative documents network,the guiding opinions issued by different regions on controversial issues concerning the double wage system,relevant explanations given in the minutes of the meeting and summary of the ways in which the dispute issues are dealt with.In order to show that there may still be differences in some standards of double salary in judicial practice,which is urgent to perfect and unify and reduce the difficulty of judicial trial.Because of the dispute about the double wage system,these unclear and the not unified applicable standard is the defect of the double wage system.Since the defects need to be addressed,then the last part is the improvement and perfect opinion on the double wage system.Which mainly clarified the calculation base and the specific time period for double wage payment,listed the subjective fault as the constituent element of the double wage system,clarified the "starting point" of the right to claim double salary and added the punishment measures for the laborers of malicious litigation.