Answer: The Employment Contract Law set a new rule stipulating that if two consecutive fixed-term contracts have been signed and fulfilled, and both parties wish to continue the employment and the employee requests a permanent contract, the employer is obligated to sign a permanent employment contract with the employee.1Item 3, Paragraph 2, Article 14 of the Employment Contract Law.This rule, however, has led to conflicting judicial decisions in practice.
There are usually four problems here.
The first problem is how to identify ¡°two consecutive times.¡± ¡°Two consecutive times¡± means that there is no interruption between two fixed-term employment contracts. But a special case is where there is a short interruption between the two fixed-term employment contracts, during which the employer pays social insurance contribution but does not pay wages and employee does not work for the employer. In this case, the two fixed employment contracts might be regarded as consecutive, 2Qingyang Company of Gansu Tobacco Company and Li Xianghong confirmed the Civil Judgment of Second Instance of Employment relationships Dispute, Qingyang Intermediate People’s Court of Gansu Province Civil Judgment (2012) Qing Zhong Min Zhong Zi No.604. In this case, the two parties did not conclude an employment contract for four months from July to November 2008, the employer did not pay wages and the employee did not leave the employer to find another job, and the employer continued to pay social insurance premiums for Li Xianghong. The court held that the above behavior was the acquiescence of the existence of employment relationship between the two parties rather than interruption, so the two employment contracts were continuous, and that they are two consecutive employment contracts. and in some places, such as Shanxi Province, if the interruption between two fixed employment contracts is less than six months, it is regarded as two consecutive fixed-term contracts.3Article 11 of the Regulations of Shaanxi Province on Employment Contracts stipulates that if an employer and a worker conclude a fixed-term employment contract again within six months from the date of termination or termination of the previous fixed-term employment contract, they shall be deemed to be two consecutive fixed-term employment contracts.
If both parties change the contract duration after signing the first fixed-term employment contract, this situation can not be regarded as two consecutive employment contracts, but should be regarded as the change of the first employment contract.4Zeng Wanxing and Chongqing Guangda Machinery Factory Co., Ltd. Labor Dispute Civil Judgment of First Instance Chongqing Jiangjin District People’s Court Civil Judgment (2016) Yu 0116 Min Chu No.5484. In the case, the two parties signed an employment contract in December 2013 for a period up to November 2016, which has not yet expired. The two parties then signed another contract in February 2014 for a period up to December 2014. The court held that the contract shall be regarded as the change of the original contract conditions by both parties, and does not constitute signing two consecutive fixed-term employment contracts.In addition, another situation is that the employer and the employee first sign a probation contract and then sign a fixed-term contract after the expiration of the probation contract. Because the legal consequence of signing a sole probation agreement is a fixed-term employment contract without probation period,5Article 19 of the Employment Contract Lawtherefore after the expiration of the subsequent fixed-term contract, the employer and the employee are deemed to have signed two consecutive fixed-term employment contracts.
The second problem is the consequence of the third fixed-term employment contract signed by both parties after the expiration of the second fixed-term contract. At present, courts in different places have different understandings. Some courts around the county, such as the Second Intermediate Court of Beijing, have found that the third fixed-term contract is invalid and should be regarded as having signed a permanent employment contract.6 Article 34 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 62020 No.26): ¡°After the expiration of the employment contract, if the employee still works in the former employer and the former employer does not raise any objection, it shall be deemed that both parties agree to continue to perform the employment contract under the original conditions. If one party proposes to terminate the employment relationship, the people’s court shall support it. According to Article 14 of the Employment Contract Law, if an employer should have signed a permanent employment contract with a worker but fails to do so, the people’s court may deem that there is a permanent employment contract relationship between the two parties, and determine the rights and obligations of the two parties based on the original employment contract.¡± Civil Judgment of Second Instance of Labor Dispute between Beijing Tuanxing Labor and Social Insurance Service Co., Ltd. and Zeng Junru Civil Judgment of Beijing Second Intermediate People’s Court (2023) Jing 02 Min Zhong No.4582.[/notes]However, most courts, including those in Guangdong Province, Jilin Province, Guizhou Province, Sichuan Province, Zhejiang Province, Changsha City of Hunan Province, Hezhou City of Guangxi Zhuang Autonomous Region, and Weihai City of Shandong Province, hold the opposite view, that is, the signing of a third fixed-term contract is the agreement of the employee to give up the right to permanent employment contract. A third fixed-term employment contract signed voluntarily is valid and binding.7Fuquan Fenglin World Hotel Co., Ltd., Xue Xiaoying Labor Dispute Civil Judgment of Second Instance Civil Judgment of the Intermediate People’s Court of Qiannan Buyi and Miao Autonomous Prefecture, Guizhou Province (2021) Qian 27 Min Zhong 3593. ¡°Xue Xiaoying signed two consecutive fixed-term employment contracts.. instead of requiring Fenglin Company to sign a permanent employment contract, she has signed a one-year fixed-term employment contract again. This should be regarded as a disposition of its own rights.¡± Cen Yong, Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Beijing Yinhe Wanjia Electronic Technology Co., Ltd. Civil Ruling of Chengdu Intermediate People’s Court of Sichuan Province (2020) Chuan 01 Min Shen No.164, Shi Mei, Guangdong Nanyou Foreign Service Co., Ltd. Civil Judgment of Second Instance of Labor Dispute of Guangzhou Intermediate People’s Court of Guangdong Province (2018) Guangdong 01 Minzhong 23176 No. Xu Cheng v. Zhenhai Refining and Chemical Company of China Petroleum & Chemical Corporation and other labor disputes Civil Ruling of Zhejiang High Court (2015) Zhe Min Shen Zi No.1078. Baimei, Zhoushan Archipelago New Area Haina Service Co., Ltd. Labor Dispute Civil Judgment of Second Instance Zhoushan Intermediate People’s Court of Zhejiang Province Civil Judgment (2022) Zhe 09 Min Zhong No.370. Hunan Tanheng Expressway Development Co., Ltd., Liu Fang Labor Dispute Second Instance Civil Judgment Hunan Changsha Intermediate People’s Court Civil Judgment (2020) Xiang 01 Min Zhong No.4763. Zhong Guoxing and Jinji Pharmaceutical Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Hezhou Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2019) Gui 11 Min Zhong No.1027. Wang Guozhong and Weihai Hemingway Group Co., Ltd. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Weihai Intermediate People’s Court of Shandong Province (2018) Lu 10 Min Zhong No.422. Article 13 of Jilin Provincial People¡¯s High Court’s Answers to Questions on the Application of Law in the Trial of Labor Dispute Cases (II) stipulates: “If two fixed-term employment contracts have been concluded, shall the employer has the right to terminate the employment contract after the expiration of the second fixed-term employment contract? If the employer claims not to conclude a permanent employment contract with the employee on the grounds of the expiration of the (second) employment contract, it shall not be supported. Unless the worker agrees to terminate or sign a fixed-term employment contract.¡±
The third problem is the nature of the employment relationship between the two parties who have not renewed the contract after the expiration of the second fixed-term contract but continue the employment. The Intermediate People’s Court of Chenzhou City in Hunan Province, Guilin City in Guangxi Province and Shenyang City in Liaoning Province have decisions holding that after the expiration of the second fixed-term contract, the contract should be signed within one month, the two parties are in de facto employment relationship, and that when the contract has not been signed for one year, the two parties are deemed to have established a permanent contract relationship. 8Wang Yonghong and Hunan Huaxin Rare Precious Science and Technology Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of the Intermediate People’s Court of Chenzhou City, Hunan Province (2019) Xiang 10 Min Zhong No.2540. The court held that there was a permanent contract relationship between the two parties from one year after the expiration of the second contract, but did not specify the nature of the contract between the two parties within one year after the expiration. Han Yonglin, Civil Judgment of Second Instance of Labor Dispute of Funeral and Funeral Administration of Xing’an County Civil Judgment of Guilin Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2020) Gui 03 Min Zhong No.1903. Shenyang University Education and Training School, Cheng Lin Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenyang Intermediate People’s Court of Liaoning Province (2022) Liao 01 Min Zhong No.1886 1.However, the Second Intermediate People’s Court of Beijing, intermediate courts of Wuhu City of Anhui Province, Xi’an City of Shaanxi Province, and Beihai City of Guangxi Province have decisions stating that if the two parties continue their employment relationship on the second day after the expiration of the second fixed-term contract, the relationship will automatically become permanent employment.9Wuhu Anhua Glass Co., Ltd. and Jin Xiaomei Labor Dispute Civil Judgment of Second Instance Wuhu Intermediate People’s Court of Anhui Province Civil Judgment (2017) Wan 02 Min Zhong No.1041. Zhou Lei, Shaanxi Qingyang Environmental Science and Technology Co., Ltd. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Xi’an Intermediate People’s Court of Shaanxi Province (2022) Shaanxi 01 Minzhong 11010 No. Beihai Haohai Real Estate Development Co., Ltd. and Liu Guangxuan Labor Dispute Civil Judgment of Second Instance Civil Judgment of Beihai Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2018) Gui 05 Min Zhong No.871. Civil Judgment of First Instance of Labor Dispute between CIC Credit Guarantee Co., Ltd. and Yi Zhonghua Civil Judgment of Beijing Second Intermediate People’s Court (2018) Jing 02 Min Chu No.282.
The fourth issue is whether the employer has the right to terminate the second fixed-term contract. Article 14 of the Employment Contract Law concerning the conclusion of two consecutive fixed-term contracts is silent about the right of the employer to terminate the contract. As for the right of termination of the employer before the expiration of the second fixed-term contract, there are two approaches in court decisions in practice.
The first practice is in the view that once the employee, before the expiration of the second fixed-term contract, notifies the employer the intention to have a permanent contact after the expiration, the employer must sign a permanent contract with the employee upon the expiration, if there is no situations provided in Article 39 and item 1 and 2 of Article 40 of the Employment Contract Law.10Beijing Tianzheng Zhongguang Real Estate Co., Ltd. and Li Zhongguang Labor Dispute Second Trial Civil Judgment (2023) Beijing Second Intermediate People’s Court Civil Judgment (Jing 02 Min Zhong No. 2299). ¡°This court is in the view that in this case, Li Zhongguang and Zhongguang Real Estate Co., Ltd. have entered into two consecutive fixed-term employment contracts. Before the expiration of the second employment contract, Li Zhongguang has submitted a written request to Zhongguang Real Estate Co., Ltd. to sign a permanent employment contract. Both parties must sign a permanent employment contract in accordance with the law.¡± Tianjin Bailitai Ceramics Co., Ltd. and Wu Shuli’s Civil Judgment on Labor Disputes in the Second Instance of Tianjin First Intermediate People’s Court (2021) Jin 01 Min Zhong No. 4510. ¡°The appellant and the respondent have entered into fixed term employment contracts twice in a row, and the employee resignation approval form provided by the appellant states that the reason for resignation is “disagree because I have not reached the retirement age”. Moreover, the appellant has not provided evidence to prove that the appellant is in the circumstances specified in Article 39 and Article 40 (1) and (2) of the Employment Contract Law of the People’s Republic of China. Therefore, the appellant should have entered into a permanent employment contract with the appellant.¡± Guo Qiang, Changchun Economic Development Group Property Service Co., Ltd. Economic Compensation Dispute Civil Second Trial Civil Judgment Letter of Jilin Province Changchun Intermediate People’s Court Civil Judgment Letter (2022) Ji 01 Min Zhong 1920. Li Yankun, Qingdao Public Transport Group Shibei Bus Co., Ltd. Labor Dispute Civil Second Trial Civil Judgment Letter of Qingdao Intermediate People’s Court in Shandong Province (2022) Lu 02 Min Zhong 16126. Jiang Wanmei and Qingyuan Huiye Property Management Service Co., Ltd. Employment contract Dispute Civil Second Trial Civil Judgment Letter Guangdong Qingyuan Intermediate People’s Court Civil Judgment Letter (2021) Yue 18 Min Zhong No. 1809. The court believes that if the employee fails to renew the contract before the expiration of the second contract, the two parties’ contract will expire and terminate. He Baolan, Shangrao New Thinking Human Resources Co., Ltd. Labor Dispute Second Trial Civil Judgment, Jiangxi Shangrao Intermediate People’s Court Civil Judgment (2020) Gan 11 Min Zhong No. 14. Sichuan Jiabao Media Co., Ltd. and Yang Wei’s Civil Ruling on Labor Dispute Retrial Review and Trial Supervision Sichuan Provincial High People’s Court Civil Ruling (2019) Chuanminshen No. 6019. The Civil Ruling of Chongqing High Court in the case of employment contract dispute between Ning Xianxian and Wute Electronics (Chongqing) Co., Ltd. (2015) Yugao Famin Shen Zi No. 00383. Xing Zhihua and Suzhou Port University Sipei Technology Vocational College Employment contract Dispute Application Case Jiangsu Provincial High People’s Court Civil Judgment (2014) Su Shen Er Min Shen Zi No. 0632. Article 13 of the “Reply to the Application of Law in the Trial of Labor Dispute Cases by the High Court of Jilin Province (II)”: Does the employer have the right to terminate the fixed term employment contract after two consecutive fixed-term employment contracts expires? If the employer claims not to enter into a permanent employment contract with the employee based on the termination of the employment contract after the second fixed term employment contract expires, it will not be supported unless the employee consents to terminate or sign a fixed term employment contract.¡± Guangzhou Greenland Real Estate Development Co., Ltd. Labor Dispute Civil Second Trial Civil Judgment (2022) Yue 01 Min Zhong 24675, Guangzhou Intermediate People’s Court, Guangdong Province. Beijing Shaanxi Building Co., Ltd. Chang’an Hotel and Wang Fuping Labor Dispute Second Trial Civil Judgment (2021) Beijing Third Intermediate People’s Court Civil Judgment (Jing 03 Min Zhong No. 170). In this case, the employee did not actively request renewal before the expiration of the contract and claimed in the lawsuit that he has expressed willingness to renew the contract in communication with the employer. The employer failed to refute, so it was determined that the termination of the contract after the expiration of the contract was illegal. Guotai Daming Precision Machinery (Shenzhen) Co., Ltd. and Ouqianhua Labor Dispute Second Trial Civil Judgment Letter of Shenzhen Intermediate People’s Court in Guangdong Province (2020) Yue 03 Min Zhong 17549. ¡°This clause should be understood as: when the second fixed-term employment contract expires, the employer has no right to terminate the employment contract. Unless the employee decides not to renew the employment contract or proposes to enter into a fixed-term employment contract, the employer and the employee should enter into a permanent employment contract.¡±
That is, employers have no right of termination upon expiration of the second fixed-term contract unless the employee is at serious faults or health-incompetent or ability-incompetent. This is the view of most courts, including Guangdong Provincial High Court, the Sichuan Provincial High Court, the Jilin Provincial High court, the Chongqing Municipal High court, the Jiangsu Provincial High Court, the Beijing Second and Third Intermediate Courts, the Shenzhen, Guangzhou and Qingyuan Intermediate Courts of Guangdong Province, the Qingdao Intermediate Court of Shandong Province, the Tianjin First Intermediate Court, and the Changchun Intermediate Court of Jilin Province.
The second approach is that a few courts, including Shanghai High Court, Henan High Court, and Dalian Intermediate Court of Liaoning Province, hold that the employer has a veto power before the expiration of the second fixed-term contract, and that the renewal of the permanent contract by both parties must be based on the premise that both parties reach an agreement on the continuation of employment relationship. 11Geng Xiaojun and Henan Branch of Huajin Securities Co., Ltd. applied for retrial of labor disputes. Civil Ruling of Henan High Court (2022) Yu Min Shen No.2561. ¡°According to the above-mentioned statutory provisions, the situation in which a permanent employment contract must be concluded refers to the situation in which the employer has concluded two consecutive fixed-term employment contracts with the employee, is renewing the employee¡¯s employment contract for the third time, and the employee proposes to sign a permanent employment contract. Therefore, the precondition for the application of this clause is that both parties reach an mutual agreement on the third renewal of the employment contract. In this case, before the expiration of the employment contract between the two parties, Huajin Securities Co., Ltd. made it clear that it would not renew the employment contract with Geng Xiaojun after the expiration, and issued a Notice of Termination of Employment contract to Geng Xiaojun on October 8, 2021. It also does not conform to the situation that “the employer and the worker may conclude a permanent employment contract through negotiation”. Civil Ruling on Trial and Supervision of Employment contract Dispute between Zhao Liying and Aramark Service Industry (China) Co., Ltd. Shanghai Branch Civil Ruling of Shanghai High Court (2019) Hu Min Shen No.1423. Gao Xuelong v. Mavro Parts (Dalian) Co., Ltd. Civil Judgment of Dalian Intermediate People’s Court of Liaoning Province (2015) D.M.W.Z.Z. No.5. The judicial interpretation of labor disputes of the Supreme Courtin 2021 also seems to imply that the employer has the right to unilaterally terminate the second fixed-term contract after its expiration.12Article 34 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 122020 No.26) states that after the expiration of the employment contract, if the employee still works at the former employer and the former employer does not express any objection, it shall be deemed that both parties agree to continue to perform the employment contract under the original conditions. If one party proposes to terminate the employment relationship, the people’s court shall support it.[/notes]
This article is a part of our new book“Employment Law in China: A Practical Guide. A book about “What should I do” with case laws.”Stay tuned, and the book will soon be published as an electronic books!
Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com
- 1Item 3, Paragraph 2, Article 14 of the Employment Contract Law.
- 2Qingyang Company of Gansu Tobacco Company and Li Xianghong confirmed the Civil Judgment of Second Instance of Employment relationships Dispute, Qingyang Intermediate People’s Court of Gansu Province Civil Judgment (2012) Qing Zhong Min Zhong Zi No.604. In this case, the two parties did not conclude an employment contract for four months from July to November 2008, the employer did not pay wages and the employee did not leave the employer to find another job, and the employer continued to pay social insurance premiums for Li Xianghong. The court held that the above behavior was the acquiescence of the existence of employment relationship between the two parties rather than interruption, so the two employment contracts were continuous, and that they are two consecutive employment contracts.
- 3Article 11 of the Regulations of Shaanxi Province on Employment Contracts stipulates that if an employer and a worker conclude a fixed-term employment contract again within six months from the date of termination or termination of the previous fixed-term employment contract, they shall be deemed to be two consecutive fixed-term employment contracts.
- 4Zeng Wanxing and Chongqing Guangda Machinery Factory Co., Ltd. Labor Dispute Civil Judgment of First Instance Chongqing Jiangjin District People’s Court Civil Judgment (2016) Yu 0116 Min Chu No.5484. In the case, the two parties signed an employment contract in December 2013 for a period up to November 2016, which has not yet expired. The two parties then signed another contract in February 2014 for a period up to December 2014. The court held that the contract shall be regarded as the change of the original contract conditions by both parties, and does not constitute signing two consecutive fixed-term employment contracts.
- 5Article 19 of the Employment Contract Law
- 6Article 34 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 62020
- 7Fuquan Fenglin World Hotel Co., Ltd., Xue Xiaoying Labor Dispute Civil Judgment of Second Instance Civil Judgment of the Intermediate People’s Court of Qiannan Buyi and Miao Autonomous Prefecture, Guizhou Province (2021) Qian 27 Min Zhong 3593. ¡°Xue Xiaoying signed two consecutive fixed-term employment contracts.. instead of requiring Fenglin Company to sign a permanent employment contract, she has signed a one-year fixed-term employment contract again. This should be regarded as a disposition of its own rights.¡± Cen Yong, Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Beijing Yinhe Wanjia Electronic Technology Co., Ltd. Civil Ruling of Chengdu Intermediate People’s Court of Sichuan Province (2020) Chuan 01 Min Shen No.164, Shi Mei, Guangdong Nanyou Foreign Service Co., Ltd. Civil Judgment of Second Instance of Labor Dispute of Guangzhou Intermediate People’s Court of Guangdong Province (2018) Guangdong 01 Minzhong 23176 No. Xu Cheng v. Zhenhai Refining and Chemical Company of China Petroleum & Chemical Corporation and other labor disputes Civil Ruling of Zhejiang High Court (2015) Zhe Min Shen Zi No.1078. Baimei, Zhoushan Archipelago New Area Haina Service Co., Ltd. Labor Dispute Civil Judgment of Second Instance Zhoushan Intermediate People’s Court of Zhejiang Province Civil Judgment (2022) Zhe 09 Min Zhong No.370. Hunan Tanheng Expressway Development Co., Ltd., Liu Fang Labor Dispute Second Instance Civil Judgment Hunan Changsha Intermediate People’s Court Civil Judgment (2020) Xiang 01 Min Zhong No.4763. Zhong Guoxing and Jinji Pharmaceutical Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Hezhou Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2019) Gui 11 Min Zhong No.1027. Wang Guozhong and Weihai Hemingway Group Co., Ltd. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Weihai Intermediate People’s Court of Shandong Province (2018) Lu 10 Min Zhong No.422. Article 13 of Jilin Provincial People¡¯s High Court’s Answers to Questions on the Application of Law in the Trial of Labor Dispute Cases (II) stipulates: “If two fixed-term employment contracts have been concluded, shall the employer has the right to terminate the employment contract after the expiration of the second fixed-term employment contract? If the employer claims not to conclude a permanent employment contract with the employee on the grounds of the expiration of the (second) employment contract, it shall not be supported. Unless the worker agrees to terminate or sign a fixed-term employment contract.¡±
- 8Wang Yonghong and Hunan Huaxin Rare Precious Science and Technology Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of the Intermediate People’s Court of Chenzhou City, Hunan Province (2019) Xiang 10 Min Zhong No.2540. The court held that there was a permanent contract relationship between the two parties from one year after the expiration of the second contract, but did not specify the nature of the contract between the two parties within one year after the expiration. Han Yonglin, Civil Judgment of Second Instance of Labor Dispute of Funeral and Funeral Administration of Xing’an County Civil Judgment of Guilin Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2020) Gui 03 Min Zhong No.1903. Shenyang University Education and Training School, Cheng Lin Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenyang Intermediate People’s Court of Liaoning Province (2022) Liao 01 Min Zhong No.1886 1.
- 9Wuhu Anhua Glass Co., Ltd. and Jin Xiaomei Labor Dispute Civil Judgment of Second Instance Wuhu Intermediate People’s Court of Anhui Province Civil Judgment (2017) Wan 02 Min Zhong No.1041. Zhou Lei, Shaanxi Qingyang Environmental Science and Technology Co., Ltd. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Xi’an Intermediate People’s Court of Shaanxi Province (2022) Shaanxi 01 Minzhong 11010 No. Beihai Haohai Real Estate Development Co., Ltd. and Liu Guangxuan Labor Dispute Civil Judgment of Second Instance Civil Judgment of Beihai Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2018) Gui 05 Min Zhong No.871. Civil Judgment of First Instance of Labor Dispute between CIC Credit Guarantee Co., Ltd. and Yi Zhonghua Civil Judgment of Beijing Second Intermediate People’s Court (2018) Jing 02 Min Chu No.282.
- 10Beijing Tianzheng Zhongguang Real Estate Co., Ltd. and Li Zhongguang Labor Dispute Second Trial Civil Judgment (2023) Beijing Second Intermediate People’s Court Civil Judgment (Jing 02 Min Zhong No. 2299). ¡°This court is in the view that in this case, Li Zhongguang and Zhongguang Real Estate Co., Ltd. have entered into two consecutive fixed-term employment contracts. Before the expiration of the second employment contract, Li Zhongguang has submitted a written request to Zhongguang Real Estate Co., Ltd. to sign a permanent employment contract. Both parties must sign a permanent employment contract in accordance with the law.¡± Tianjin Bailitai Ceramics Co., Ltd. and Wu Shuli’s Civil Judgment on Labor Disputes in the Second Instance of Tianjin First Intermediate People’s Court (2021) Jin 01 Min Zhong No. 4510. ¡°The appellant and the respondent have entered into fixed term employment contracts twice in a row, and the employee resignation approval form provided by the appellant states that the reason for resignation is “disagree because I have not reached the retirement age”. Moreover, the appellant has not provided evidence to prove that the appellant is in the circumstances specified in Article 39 and Article 40 (1) and (2) of the Employment Contract Law of the People’s Republic of China. Therefore, the appellant should have entered into a permanent employment contract with the appellant.¡± Guo Qiang, Changchun Economic Development Group Property Service Co., Ltd. Economic Compensation Dispute Civil Second Trial Civil Judgment Letter of Jilin Province Changchun Intermediate People’s Court Civil Judgment Letter (2022) Ji 01 Min Zhong 1920. Li Yankun, Qingdao Public Transport Group Shibei Bus Co., Ltd. Labor Dispute Civil Second Trial Civil Judgment Letter of Qingdao Intermediate People’s Court in Shandong Province (2022) Lu 02 Min Zhong 16126. Jiang Wanmei and Qingyuan Huiye Property Management Service Co., Ltd. Employment contract Dispute Civil Second Trial Civil Judgment Letter Guangdong Qingyuan Intermediate People’s Court Civil Judgment Letter (2021) Yue 18 Min Zhong No. 1809. The court believes that if the employee fails to renew the contract before the expiration of the second contract, the two parties’ contract will expire and terminate. He Baolan, Shangrao New Thinking Human Resources Co., Ltd. Labor Dispute Second Trial Civil Judgment, Jiangxi Shangrao Intermediate People’s Court Civil Judgment (2020) Gan 11 Min Zhong No. 14. Sichuan Jiabao Media Co., Ltd. and Yang Wei’s Civil Ruling on Labor Dispute Retrial Review and Trial Supervision Sichuan Provincial High People’s Court Civil Ruling (2019) Chuanminshen No. 6019. The Civil Ruling of Chongqing High Court in the case of employment contract dispute between Ning Xianxian and Wute Electronics (Chongqing) Co., Ltd. (2015) Yugao Famin Shen Zi No. 00383. Xing Zhihua and Suzhou Port University Sipei Technology Vocational College Employment contract Dispute Application Case Jiangsu Provincial High People’s Court Civil Judgment (2014) Su Shen Er Min Shen Zi No. 0632. Article 13 of the “Reply to the Application of Law in the Trial of Labor Dispute Cases by the High Court of Jilin Province (II)”: Does the employer have the right to terminate the fixed term employment contract after two consecutive fixed-term employment contracts expires? If the employer claims not to enter into a permanent employment contract with the employee based on the termination of the employment contract after the second fixed term employment contract expires, it will not be supported unless the employee consents to terminate or sign a fixed term employment contract.¡± Guangzhou Greenland Real Estate Development Co., Ltd. Labor Dispute Civil Second Trial Civil Judgment (2022) Yue 01 Min Zhong 24675, Guangzhou Intermediate People’s Court, Guangdong Province. Beijing Shaanxi Building Co., Ltd. Chang’an Hotel and Wang Fuping Labor Dispute Second Trial Civil Judgment (2021) Beijing Third Intermediate People’s Court Civil Judgment (Jing 03 Min Zhong No. 170). In this case, the employee did not actively request renewal before the expiration of the contract and claimed in the lawsuit that he has expressed willingness to renew the contract in communication with the employer. The employer failed to refute, so it was determined that the termination of the contract after the expiration of the contract was illegal. Guotai Daming Precision Machinery (Shenzhen) Co., Ltd. and Ouqianhua Labor Dispute Second Trial Civil Judgment Letter of Shenzhen Intermediate People’s Court in Guangdong Province (2020) Yue 03 Min Zhong 17549. ¡°This clause should be understood as: when the second fixed-term employment contract expires, the employer has no right to terminate the employment contract. Unless the employee decides not to renew the employment contract or proposes to enter into a fixed-term employment contract, the employer and the employee should enter into a permanent employment contract.¡±
- 11Geng Xiaojun and Henan Branch of Huajin Securities Co., Ltd. applied for retrial of labor disputes. Civil Ruling of Henan High Court (2022) Yu Min Shen No.2561. ¡°According to the above-mentioned statutory provisions, the situation in which a permanent employment contract must be concluded refers to the situation in which the employer has concluded two consecutive fixed-term employment contracts with the employee, is renewing the employee¡¯s employment contract for the third time, and the employee proposes to sign a permanent employment contract. Therefore, the precondition for the application of this clause is that both parties reach an mutual agreement on the third renewal of the employment contract. In this case, before the expiration of the employment contract between the two parties, Huajin Securities Co., Ltd. made it clear that it would not renew the employment contract with Geng Xiaojun after the expiration, and issued a Notice of Termination of Employment contract to Geng Xiaojun on October 8, 2021. It also does not conform to the situation that “the employer and the worker may conclude a permanent employment contract through negotiation”. Civil Ruling on Trial and Supervision of Employment contract Dispute between Zhao Liying and Aramark Service Industry (China) Co., Ltd. Shanghai Branch Civil Ruling of Shanghai High Court (2019) Hu Min Shen No.1423. Gao Xuelong v. Mavro Parts (Dalian) Co., Ltd. Civil Judgment of Dalian Intermediate People’s Court of Liaoning Province (2015) D.M.W.Z.Z. No.5.
- 12Article 34 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 122020