Severance Packages Calculation Benchmark Study

From the summary of relevant cases of severance packages,it can be found that in the labor cases involving severance packages,the focus of the dispute is the amount of severance packages,the two sides of the laborer and the employing unit of the severance packages of the calculation of the benchmark dispute more.According to the provisions of the labor contract law of our country,the calculation basis of severance packages is the average salary of the laborer in the 12 months before his resignation,and the income of the laborer can be divided into wages and non-wage income.There are two reasons for the dispute about the determination of wages: one is that the definition of wages in China's labor law legislation is not directly applicable to the resolution of labor disputes;the other is that in practice,the total amount of wages constitute a contract confusion,unable to agree on the composition of wages.First,the definition of wages in China's labor law comes from the provisions on the composition of total wages of the national bureau of statistics.The original definition is mainly used for statistical data and analysis.The second aspect,according to the existing provisions in our country,the enterprise can agree with the laborer on the wage structure,in practice,the wage structure of each enterprise is chaotic,labor and capital both sides agree on one word,it is very easy to cause disputes.When settling the benchmark case of severance packages calculation,the local courts focused on the technical judgment of the concept of wage,but neglected the nature and function of severance packages and its social security effect on workers.The function of severance packages is to provide certain material help to the workers who are about to lose their jobs,to help them tide over the difficulties.The determination of the calculation base of severance packages should proceed from its nature and function,proceed from two aspects,one is to define the definition of wages in labor law should have two levels: the consideration of wages and the calculation base function;Second,when the salary is used as the calculation base,the salary structure should be determined.The salary is composed of different parts,and the salary composition should be given a clear legal meaning,such as how to determine the basic salary,bonus,subsidy,overtime pay,performance pay and so on.In this way,salary can be applied to practice quickly and efficiently as the calculation benchmark,which provides a normative basis for clarifying the calculation benchmark of severance packages.The body of this paper is divided into three parts.The first part is the analysis of the function orientation of severance packages.Severance packages is a sum of compensation paid by an employer to a faultless worker when he is dismissed.In the judicial practice of our country,it is easy to ignore the nature and function of severance packages and discuss whether laborers' income is wage income from the technical level,but the nature and function of severance packages are the basis for determining the calculation benchmark,and the determination of calculation benchmark should be carried out on this premise.The second part is to sort out and summarize the relevant cases of severance packages for leaving employment in various places and summarize the dispute focus and characteristics of the cases.Found by summing up the practice of dispute mainly concentrated in the computational base of severance to pay that,because the terms of the practice on wages constitute differ in thousands ways,giving at the discretion of the judge must,at present no specific provisions for which wages are regular income makes the judge can form the nature of the judgment wage according to the case.The third part discusses the wage and wage composition,reviews the research results of the wage concept,starts from the current total wage composition and the employer's independent wage composition in China,clarifies the meaning of the wage composition by analyzing the deficiency of the existing provisions,and determines the wage income in the wage composition in combination with the practical arbitration rules.Then combined with the nature of severance packages and legislative purpose,analysis as the basis for the calculation of the benchmark wages.