Answer: The Employment Contract Law stipulates that employees have the right to decide to resign, but they should comply with the requirement of advance notice stipulated by law. The employee must give three days advance notice during probation period and one month advance notice during formal contract period.1Article 37 of the Employment Contract Law.
The law does not stipulate the form of resignation, although employees can resign orally, but in order to make the evidence clear, it is better for employees to resign in writing, such as writing an email or submitting a resignation letter.
After the employee’s resignation letter is received by the employer, it will take legal effect unless the employee has no or limited civil capacity.[Audit Center of Anshan Iron and Steel Group Co., Ltd., Feng Jianqiu Labor Dispute Civil Judgment of Second Instance Civil Judgment (2021) Liao 03 Min Zhong No.553 of Intermediate People’s Court of Anshan City, Liaoning Province. The court held that the employee’s resignation was invalid as he was in the period of bipolar affective disorder-manic episode without civil capacity.] Because, the employee’s right to unilaterally terminate the employment contract is a type of formation right in Chinese civil law. The right holder’s unilateral expression of intention (without the consent of the party receiving the notice) produces legal effect.2Liu Zizhen v. Hubei Vocational College of Finance and Taxation Labor Dispute Civil Ruling of Hubei High Court (2016) E Min Shen No.2514.That is to say, the employment relationship between the two parties is effectively terminated at the time set on the resignation letter (for example, 30 days later).3Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Zhao Wenxuan and Guangzhou Tongyu International Hotel Co., Ltd. Civil Ruling of Guangdong Provincial People’s High Court (2020) Yue Min Shen No.271.Although in practice, many employers stipulate a company management procedure of approval, but in law this procedure does not produce effect; whether the employer’management approves or not, the employment relationship between the two parties is be terminated based on the resignation.
The employee’s resignation takes effect once it is delivered to the employer. Even if the employee goes back on their word after resignation, it does not necessarily have the effect of withdrawing their resignation. If the employer disagree with the employee’s withdrawal or make no indication, the employee’s resignation has taken effect.4Civil Judgment of the Second Instance of the Labor Dispute between Qin Qingfeng and Xuzhou Meritor Axle Co., Ltd. Civil Judgment of Xuzhou Intermediate People’s Court of Jiangsu Province (2020) Su 03 Min Zhong No.2027. The court held that the employee’s resignation letter had legal effect after it was delivered to the employer, and his withdrawal of resignation did not affect the resignation, so the employee’s claim for economic compensation was not established.Of course, if the employer agrees to withdraw, it is a consensus between the two parties that the employer will continue to employ employees and the two parties will continue to perform the current employment relationship.[5Zhang XX, Qingdao Yuantai Taihe Industrial Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Qingdao Intermediate People’s Court of Shandong Province (2021) Lu 02 Min Zhong No.4196. ¡°Zhang XX has withdrawn his resignation application submitted on August 19, 2019 with clear intention and actual behavior. And the intention and actual behavior of the withdrawal have been approved by Yuantai Taihe Company.¡±
If the employee violates the obligation to give advance notice and resigns immediately or leaves without notice, it may cause disruption or difficulty to the employer’s business operation. This is a violation of the employee’s obligation of good faith, and the employer has the right to claim compensation for any economic losses caused by the employee. In practice, the employer should provide evidence to prove the existence of the economic losses, the compensation rule for losses in the employment contract or effective company rules, and the causal relationship between the employee’s illegal resignation without advance notice and the occurrence of the economic losses. Please refer to Should an employee compensate the employer for the losses caused by their fault?
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- 1Article 37 of the Employment Contract Law.
- 2Liu Zizhen v. Hubei Vocational College of Finance and Taxation Labor Dispute Civil Ruling of Hubei High Court (2016) E Min Shen No.2514.
- 3Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Zhao Wenxuan and Guangzhou Tongyu International Hotel Co., Ltd. Civil Ruling of Guangdong Provincial People’s High Court (2020) Yue Min Shen No.271.
- 4Civil Judgment of the Second Instance of the Labor Dispute between Qin Qingfeng and Xuzhou Meritor Axle Co., Ltd. Civil Judgment of Xuzhou Intermediate People’s Court of Jiangsu Province (2020) Su 03 Min Zhong No.2027. The court held that the employee’s resignation letter had legal effect after it was delivered to the employer, and his withdrawal of resignation did not affect the resignation, so the employee’s claim for economic compensation was not established.
- 5Zhang XX, Qingdao Yuantai Taihe Industrial Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Qingdao Intermediate People’s Court of Shandong Province (2021) Lu 02 Min Zhong No.4196. ¡°Zhang XX has withdrawn his resignation application submitted on August 19, 2019 with clear intention and actual behavior. And the intention and actual behavior of the withdrawal have been approved by Yuantai Taihe Company.¡±