5 thoughts on “How to calculate the amount of liquidated damages?”
Luke
51 " The question about how to calculate the contract liquidated damages should be divided into three cases. First, it depends on whether there is an agreement on the contract for the contract. It is a specific amount, or it may be a calculation method of a liquidated damage. The second case is that if the contract does not agree on the liquidated damages, or if the agreement is not clear, the detention party is because of the other party’s How much losses have caused by the breach of contract, the amount of this loss is the default damage that the breach party should bear. The third is that if the loss of the contractor is not easy to calculate, then the breach of the contract can also be based on the breach of the contract. The benefits obtained, this interest can be calculated as a amount of liquidated damages.
The setting and payment of liquidated damages in labor contracts should be said to be the most common, most sensitive, and most complicated issues in labor disputes. Labor Lawyer Network last year, a total of more than 80 cases of labor dispute arbitration litigation, the final result of labor arbitration will inevitably lead to the termination of labor relations. The issue of liquidated damages after the termination of the labor contract has become the focus of controversy. The conditions for the payment of liquidated damages, how to apply liquidated damages and economic compensation, how to apply the liquidated damages and compensation, whether the amount of the liquidated damage is reasonable, etc., has become the greatest confusion of employers and workers.
. Conditions for the payment of liquidated damages of labor contract I due to the extensive scope involved during the performance of the labor contract. For example The legal consequences of breach of contract are to pay the liquidated damages, obviously it is not possible. Therefore, in practice, the payment conditions for liquidated damages are generally limited to the scope of "early termination of labor contracts" and "violation of conservative business secrets or restrictions on competition". It because the difference between the latter situation is not very different. Here we mainly discuss the previous situation, that is, the time limit of the labor contract is not available, or the work task stipulated in the labor contract has not yet been completed, and it has not been negotiated by both parties. There are no other statutory situations, but one party has to terminate the labor contract, whether it should pay a liquidated damage, and how to pay. The "Beijing Labor Contract Regulations", if the labor contract agreed to liquidated damages and does not violate the law, there is no fairness, and the breach party shall pay the liquidated damages in accordance with the contract of the contract. There are also the "Regulations on Labor Contracts in Shandong Province" and "Interim Measures for the Management of Liaoning Labor Contracts", which have made similar regulations on liquidated damages. , the "Shanghai Labor Contract Regulations", which was implemented on May 1, 2002, took the lead in special provisions on the liquidated damages for the labor contract. Legislators believe that there is a essential difference between labor contracts and economic contracts. For workers, labor contracts are to establish labor relations, and their fundamental purpose is to obtain a necessity of life. It is required that workers to bear the liability for breach of contract will cause the workers to increase the economic burden, and even result in the result of labor. In real life, there are indeed many employers to have a liquidated damage, which has caused the labor income of workers to pay enough to pay a liquidated damage and seriously infringe on the rights and interests of the workers. For this reason, the "Regulations" stipulate that if there is a liquidated damage in the labor contract, it is limited to two cases: violation of the service period and violation of conservative business secrets. The agreed service period is limited to workers who have contributed, trained or provide other special benefits such as investing in the employer. That is to say, if the employer stipulates that the general employee must pay a liquidated damages in advance, this agreement is invalid. The "Zhejiang Provincial Labor Contract Measures" and "Regulations on the Labor Contract of Jiangsu Province" have been made in similar regulations.
. How to apply liquidated damages and economic compensation The compensation situation of economic compensation generally includes: the economic compensation, negligence dismissal of the labor contract to lift the labor contract , Economic compensation, unit arrears and payable wages when the employment unit's economic layoffs should pay economic compensation for workers, and the termination of the employer's economic compensation for the termination of the employer without paying the employer's economic compensation. The economic compensation and liquidated damages that may also involve the termination of labor contracts caused by negligence dismissal. I think that economic compensation and liquidated damages can coexist. Or the punishment performed by individuals, and economic compensation is the compensation of unilateral employers, which is the essential difference between liquidated damages; liquidated damages are the amount paid to the other party in the contract agreed on the contract. The payment of liquidated damages is generally agreed on both parties. However, as the agreed liquidated damages have a scheduled compensation nature, if the agreed liquidated damages are too higher or lower than the losses caused by the liquidated damages, the parties may ask the court or arbitration agency to appropriately reduce or increase, and economic compensation is legal. Can't change at will. Crime claim cases of liquidated damages. The labor contract is the true and autonomous consciousness of the two parties that if the two parties have made a clear and reasonable agreement in the labor contract, the enterprise shall be implemented in accordance with the provisions of the labor contract when violations of the law or breach of contract, and pay the liquidated damages of the workers. But in actual treatment, some courts may think that the nature of economic compensation belongs to a legal liquidated damage. Since it supports legal liquidated damages, there is no need to pay a contract with the person's unit. I think this is not good for the protection of workers.
. How to apply liquidated damages and compensation The labor contract liquidated damages and compensation are the differences between the responsibility that the labor contract should bear: 1. Whether to write to the contract. When a liquidated damage is a partner that causes losses to the other party violates the contract, as long as the contract is written in the contract, the party must pay the liquidated damages in accordance with the agreement on the clause in the contract. The payment of compensation is based on the actual extent, regardless of whether there are corresponding terms in the contract. 2. Whether it causes actual losses. Because the condition for paying a liquidated damage is the fact that the breach of contract is breach of contract, and whether there is a loss of the other party, the penalty is punished in terms of function. The prerequisite for paying compensation is not only the fact that workers have breach of the contract. The more important judgment basis is that there must be actual losses, and compensation usually has the nature of compensation. 3, the relationship between amount and actual loss is different. Because the liquidated damages are agreed in the labor contract in advance, the actual loss may be inconsistent with the agreed amount, and the compensation is determined based on the actual loss. 4. Whether the principle of equal division is applicable. The liquidated damages are not related to the actual loss, as long as it meets the general social standards and the ability to withstand the workers. The compensation is consistent with the actual loss, especially when the employer is given special benefits and agreed to the service period, the actual loss of the employer decreases with the service life of the workers, so it should decrease year by year. based on the above analysis, liquidated damages and compensation are not the same concept. While a breach of contract pays the contract in accordance with the contract, if it causes losses to the other party, it shall also bear the liability for compensation. , the Shanghai Municipal Bureau of Labor and Social Security's "Notice on the Implementation of the Regulations on the Implementation of the Shanghai Labor Contract" stipulates that "the amount of liquidated damages agreed in the parties on both parties is higher than that of the employer caused actual losses to the employer caused the employer to the employer. For workers, the workers shall bear the liquidated damages in accordance with the agreement between the two parties; the agreed amount of liquidated damages is lower than the actual loss. If the employer requests compensation, the worker shall be compensated according to the actual loss. "In fact The principle of "one of the two".
. How to determine the amount of contract liquidated damages? The setting of the amount of liquidated damages must be followed by the principle of fairness, and reasonably determined according to factors such as labor remuneration. If according to the "Beijing Labor Contract Regulations": "The liquidated damages paid by the employer to the employer must not exceed the total salary of the 12 months before the labor contract." The Regulations only make in principle: "If the agreed liquidated amount of damages is high, the parties may ask for appropriate reduction. If the parties are controversial due to the liquidated damages, they can deal with the procedure of the labor dispute." Counting "high", how to "reasonably determine" the labor remuneration, sorry, there is no following. The regulations of Zhejiang, Jiangsu and other places are roughly the same. It seems that you have to rely on "free mind syndrome". I think the standardization and rationality of the liquidated damages is very important to find a certain balance between the workers and the employer. , Resulting in the labor relationship randomly, but there are no effective measures to restrict the measures; Beijing, Tianjin and other places have not restricted conditions for the agreed liquidated damages. It is unreasonable. The law shall establish a prerequisite for the agreed liquidated damages, that is, the local average salary level, the wage income of the workers, the term of the labor contract, and the nature of the job should be reasonably determined.
Pay content for time limit to check for freenAnswer Hello, Baidu platform cooperation lawyers serve you. I am understanding, please wait.nHello, Baidu platform cooperation lawyers serve you. I am understanding, please wait.nAsk, we are the cafeteria owner of the school cafeteria. The qualifications of other people's company to bid this cafeteria. Now the boss is making trouble with the company. We have suffered. It has been operated, and the turnover from June to September this year is not given.nAnswer suggests that you directly sue to safeguard your legitimate rights and interestsnmy country's current "Civil Code" adopts the principle of full compensation for losses in default, that is, the defaulted party shall bear all the liability for all the losses of the victims for the victim's breach of contract. The legislative purpose of fully compensation principle is to maximize the state that the victim of the defaulting of the breach of contract can be reached normally.nQuestion I signed a contract with the company with a contract with a contract of 150,000 margins.nCan I sue me directly?nNow they have been dragging my salary, how should I get the salary at the fastest?nThe answer is okay, the default directly prosecution is very highn1. Occupy salary for no reason, employees can make offer and ask for paying compensation, and they can also complain to the local labor department. 2. In line with the law and regulations, the company's arrears of wages. This situation is not illegal. Employees can only choose to accept or have to leave, but there is no compensation.nThe question has not allowed us to operate, and we have evacuated, and the school has arranged other companies to do it. But the company just has never given the business fundsnDoes the answer to the labor department report the situation?nThe question has not yet, I am afraid that the business funds will be dragged for too long after the reaction of the Labor Bureau.nAnswer, if you want the other party to make business funds as soon as possible, the most direct and effective way is to sue the other party.nHello, if you are satisfied with my reply to me, I hope to give me a praise after adopting. Your encouragement is the motivation for my reply ~~nMore 13nBleak
00:00 / 01: 4170% shortcut keys to describe space: Play / pause ESC: Exit full screen ↑: increase volume 10% ↓: decreases by 10% →: Single fast forward 5 seconds ←: Press a single fast retreat for 5 seconds, hold down and hold it down. Here you can drag no longer appear in the player settings to reopen the small window shortcut key description
I think the liquidated damages should be stipulated by the labor department, not by each company. I my classmates paid a monthly salary of 1,000, and the regulations should be paid 5,000 yuan. Who knows how to talk about it? Watch people dishes
51 "
The question about how to calculate the contract liquidated damages should be divided into three cases. First, it depends on whether there is an agreement on the contract for the contract. It is a specific amount, or it may be a calculation method of a liquidated damage. The second case is that if the contract does not agree on the liquidated damages, or if the agreement is not clear, the detention party is because of the other party’s How much losses have caused by the breach of contract, the amount of this loss is the default damage that the breach party should bear. The third is that if the loss of the contractor is not easy to calculate, then the breach of the contract can also be based on the breach of the contract. The benefits obtained, this interest can be calculated as a amount of liquidated damages.
The setting and payment of liquidated damages in labor contracts should be said to be the most common, most sensitive, and most complicated issues in labor disputes. Labor Lawyer Network last year, a total of more than 80 cases of labor dispute arbitration litigation, the final result of labor arbitration will inevitably lead to the termination of labor relations. The issue of liquidated damages after the termination of the labor contract has become the focus of controversy. The conditions for the payment of liquidated damages, how to apply liquidated damages and economic compensation, how to apply the liquidated damages and compensation, whether the amount of the liquidated damage is reasonable, etc., has become the greatest confusion of employers and workers.
. Conditions for the payment of liquidated damages of labor contract
I due to the extensive scope involved during the performance of the labor contract. For example The legal consequences of breach of contract are to pay the liquidated damages, obviously it is not possible. Therefore, in practice, the payment conditions for liquidated damages are generally limited to the scope of "early termination of labor contracts" and "violation of conservative business secrets or restrictions on competition".
It because the difference between the latter situation is not very different. Here we mainly discuss the previous situation, that is, the time limit of the labor contract is not available, or the work task stipulated in the labor contract has not yet been completed, and it has not been negotiated by both parties. There are no other statutory situations, but one party has to terminate the labor contract, whether it should pay a liquidated damage, and how to pay.
The "Beijing Labor Contract Regulations", if the labor contract agreed to liquidated damages and does not violate the law, there is no fairness, and the breach party shall pay the liquidated damages in accordance with the contract of the contract. There are also the "Regulations on Labor Contracts in Shandong Province" and "Interim Measures for the Management of Liaoning Labor Contracts", which have made similar regulations on liquidated damages.
, the "Shanghai Labor Contract Regulations", which was implemented on May 1, 2002, took the lead in special provisions on the liquidated damages for the labor contract. Legislators believe that there is a essential difference between labor contracts and economic contracts. For workers, labor contracts are to establish labor relations, and their fundamental purpose is to obtain a necessity of life. It is required that workers to bear the liability for breach of contract will cause the workers to increase the economic burden, and even result in the result of labor. In real life, there are indeed many employers to have a liquidated damage, which has caused the labor income of workers to pay enough to pay a liquidated damage and seriously infringe on the rights and interests of the workers.
For this reason, the "Regulations" stipulate that if there is a liquidated damage in the labor contract, it is limited to two cases: violation of the service period and violation of conservative business secrets. The agreed service period is limited to workers who have contributed, trained or provide other special benefits such as investing in the employer. That is to say, if the employer stipulates that the general employee must pay a liquidated damages in advance, this agreement is invalid. The "Zhejiang Provincial Labor Contract Measures" and "Regulations on the Labor Contract of Jiangsu Province" have been made in similar regulations.
. How to apply liquidated damages and economic compensation
The compensation situation of economic compensation generally includes: the economic compensation, negligence dismissal of the labor contract to lift the labor contract , Economic compensation, unit arrears and payable wages when the employment unit's economic layoffs should pay economic compensation for workers, and the termination of the employer's economic compensation for the termination of the employer without paying the employer's economic compensation.
The economic compensation and liquidated damages that may also involve the termination of labor contracts caused by negligence dismissal. I think that economic compensation and liquidated damages can coexist. Or the punishment performed by individuals, and economic compensation is the compensation of unilateral employers, which is the essential difference between liquidated damages; liquidated damages are the amount paid to the other party in the contract agreed on the contract. The payment of liquidated damages is generally agreed on both parties. However, as the agreed liquidated damages have a scheduled compensation nature, if the agreed liquidated damages are too higher or lower than the losses caused by the liquidated damages, the parties may ask the court or arbitration agency to appropriately reduce or increase, and economic compensation is legal. Can't change at will. Crime claim cases of liquidated damages. The labor contract is the true and autonomous consciousness of the two parties that if the two parties have made a clear and reasonable agreement in the labor contract, the enterprise shall be implemented in accordance with the provisions of the labor contract when violations of the law or breach of contract, and pay the liquidated damages of the workers.
But in actual treatment, some courts may think that the nature of economic compensation belongs to a legal liquidated damage. Since it supports legal liquidated damages, there is no need to pay a contract with the person's unit. I think this is not good for the protection of workers.
. How to apply liquidated damages and compensation
The labor contract liquidated damages and compensation are the differences between the responsibility that the labor contract should bear:
1. Whether to write to the contract. When a liquidated damage is a partner that causes losses to the other party violates the contract, as long as the contract is written in the contract, the party must pay the liquidated damages in accordance with the agreement on the clause in the contract. The payment of compensation is based on the actual extent, regardless of whether there are corresponding terms in the contract.
2. Whether it causes actual losses. Because the condition for paying a liquidated damage is the fact that the breach of contract is breach of contract, and whether there is a loss of the other party, the penalty is punished in terms of function. The prerequisite for paying compensation is not only the fact that workers have breach of the contract. The more important judgment basis is that there must be actual losses, and compensation usually has the nature of compensation.
3, the relationship between amount and actual loss is different. Because the liquidated damages are agreed in the labor contract in advance, the actual loss may be inconsistent with the agreed amount, and the compensation is determined based on the actual loss.
4. Whether the principle of equal division is applicable. The liquidated damages are not related to the actual loss, as long as it meets the general social standards and the ability to withstand the workers. The compensation is consistent with the actual loss, especially when the employer is given special benefits and agreed to the service period, the actual loss of the employer decreases with the service life of the workers, so it should decrease year by year.
based on the above analysis, liquidated damages and compensation are not the same concept. While a breach of contract pays the contract in accordance with the contract, if it causes losses to the other party, it shall also bear the liability for compensation.
, the Shanghai Municipal Bureau of Labor and Social Security's "Notice on the Implementation of the Regulations on the Implementation of the Shanghai Labor Contract" stipulates that "the amount of liquidated damages agreed in the parties on both parties is higher than that of the employer caused actual losses to the employer caused the employer to the employer. For workers, the workers shall bear the liquidated damages in accordance with the agreement between the two parties; the agreed amount of liquidated damages is lower than the actual loss. If the employer requests compensation, the worker shall be compensated according to the actual loss. "In fact The principle of "one of the two".
. How to determine the amount of contract liquidated damages?
The setting of the amount of liquidated damages must be followed by the principle of fairness, and reasonably determined according to factors such as labor remuneration.
If according to the "Beijing Labor Contract Regulations": "The liquidated damages paid by the employer to the employer must not exceed the total salary of the 12 months before the labor contract."
The Regulations only make in principle: "If the agreed liquidated amount of damages is high, the parties may ask for appropriate reduction. If the parties are controversial due to the liquidated damages, they can deal with the procedure of the labor dispute." Counting "high", how to "reasonably determine" the labor remuneration, sorry, there is no following. The regulations of Zhejiang, Jiangsu and other places are roughly the same. It seems that you have to rely on "free mind syndrome".
I think the standardization and rationality of the liquidated damages is very important to find a certain balance between the workers and the employer. , Resulting in the labor relationship randomly, but there are no effective measures to restrict the measures; Beijing, Tianjin and other places have not restricted conditions for the agreed liquidated damages. It is unreasonable. The law shall establish a prerequisite for the agreed liquidated damages, that is, the local average salary level, the wage income of the workers, the term of the labor contract, and the nature of the job should be reasonably determined.
Pay content for time limit to check for freenAnswer Hello, Baidu platform cooperation lawyers serve you. I am understanding, please wait.nHello, Baidu platform cooperation lawyers serve you. I am understanding, please wait.nAsk, we are the cafeteria owner of the school cafeteria. The qualifications of other people's company to bid this cafeteria. Now the boss is making trouble with the company. We have suffered. It has been operated, and the turnover from June to September this year is not given.nAnswer suggests that you directly sue to safeguard your legitimate rights and interestsnmy country's current "Civil Code" adopts the principle of full compensation for losses in default, that is, the defaulted party shall bear all the liability for all the losses of the victims for the victim's breach of contract. The legislative purpose of fully compensation principle is to maximize the state that the victim of the defaulting of the breach of contract can be reached normally.nQuestion I signed a contract with the company with a contract with a contract of 150,000 margins.nCan I sue me directly?nNow they have been dragging my salary, how should I get the salary at the fastest?nThe answer is okay, the default directly prosecution is very highn1. Occupy salary for no reason, employees can make offer and ask for paying compensation, and they can also complain to the local labor department. 2. In line with the law and regulations, the company's arrears of wages. This situation is not illegal. Employees can only choose to accept or have to leave, but there is no compensation.nThe question has not allowed us to operate, and we have evacuated, and the school has arranged other companies to do it. But the company just has never given the business fundsnDoes the answer to the labor department report the situation?nThe question has not yet, I am afraid that the business funds will be dragged for too long after the reaction of the Labor Bureau.nAnswer, if you want the other party to make business funds as soon as possible, the most direct and effective way is to sue the other party.nHello, if you are satisfied with my reply to me, I hope to give me a praise after adopting. Your encouragement is the motivation for my reply ~~nMore 13nBleak
00:00 / 01: 4170% shortcut keys to describe space: Play / pause ESC: Exit full screen ↑: increase volume 10% ↓: decreases by 10% →: Single fast forward 5 seconds ←: Press a single fast retreat for 5 seconds, hold down and hold it down. Here you can drag no longer appear in the player settings to reopen the small window shortcut key description
I think the liquidated damages should be stipulated by the labor department, not by each company.
I my classmates paid a monthly salary of 1,000, and the regulations should be paid 5,000 yuan. Who knows how to talk about it? Watch people dishes