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Default of Employment Contract
You may have come to know that if an employer fails to enter into a written employment contract within the first month from establishment of labor relationship, the employer will have to pay two times the salaries received by the employee during the period of default of such written contract (other than the first month) till the default period reaches one year.

You may have come to know that if an employer fails to enter into a written employment contract within the first month from establishment of labor relationship, the employer will have to pay two times the salaries received by the employee during the period of default of such written contract (other than the first month) till the default period reaches one year. According to Opinions on Several Issues regarding Application of the Labor Contract Law issued by Shanghai High People’s Court on March 31, 2009 upon deciding whether an employer needs to pay two times the already received salaries, courts should “take into consideration whether the employer has consulted with the employee in a bona fide manner and whether the employee has refused to enter into the employment contract and other circumstances; in case that the employer has faithfully and honestly consulted with the employee and the employment contract was not concluded because of Force Majeure, un-anticipated circumstances or refusal to sign by the employee, the employee shall not be entitled to double salaries during the default period. Refusal to sign the contract shall be deemed that the employee unilaterally terminates the labor relationship.

法律之间冲突时的效力原则


正式的法的渊源的效力有时也被称为法律效力等级,或法律效力位阶。宪法(或根本法)属于第一层次,而民法、刑法、行政法、诉讼等基本法律属于第二层次,基本法律之下还可能有第三和第四层次的法律等等。不同位阶的法的渊源之间的冲突原则包括宪法至上原则、法律高于法规原则、法规高于规章原则、行政法规高于地方性法规原则等。


同一位阶的法的渊源之间的冲突原则,主要包括:(1)全国性法律优先原则。(2)特别法优先原则。(3)后法优先或新法优先原则。(4)实体法优先原则。(5)国际法优先原则。(6)省、自治区的人民政府制定的规章的效力高于本行政区域内的较大的市的人民政府制定的规章。


位阶出现交叉时的法的渊源之间的冲突原则,我国《立法法》主要规定:(1)自治条例和单行条例依法对法律、行政法规、地方性法规作变通规定的,在本自治地方适用自治条例和单行条例的规定。(2)经济特区法规根据授权对法律、行政法规、地方性法规作变通规定的,在本经济特区适用经济特区法规的规定。(3)地方性法规、规章之间不一致时,由有关机关依照各自的权限作出裁决。



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