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Summary

Our country’s "Labor Contract Law" stipulates that labor contracts formed by employees with forged academic qualifications, qualification certificates, etc., should generally be deemed invalid labor contracts, but the legal consequences after being determined to be invalid are relatively vague or even contradictory in current laws and regulations. From the perspective of protecting the rights and interests of workers, the validity of the invalidation of a labor contract should not be retroactive. Even if the labor contract is invalid due to the fault of the laborer, the rights enjoyed by the laborer in the process of performing the labor contract should still be protected.

In recent years, job fraud has been common in the labor market. The most common one is that workers provide fake academic qualifications and qualification certificates to apply for jobs. According to the "Yangcheng Evening News" report, in 2015, the Dongguan Academic Credentials Appraisal Center alone detected thousands of fake diplomas, including graduation certificates, degree certificates, self-examination certificates, adult college entrance examination certificates, etc., involving nearly 20 provinces, cities, and colleges across the country. Hundreds of universities in the autonomous region. The report reflects to a certain extent the proliferation of fake academic qualifications and fake certificates in the job market. In judicial practice, cases involving laborers holding forged academic qualifications and qualification certificates to form labor relations also occur from time to time. However, due to the ambiguity of the legal validity of Chinese laws, the judges are often at a loss in what to do in the trial.

1.The problem is raised: workers forge academic qualifications, Whether the labor contract formed by the qualification certificate is invalid

Our country's "Labor Law" and "Labor Contract Law" all stipulate that fraud is one of the circumstances that lead to the invalidation of labor contracts, but the "Labor Contract Law" provides more detailed regulations. Based on this, it can be seen that two conditions must be met to invalidate a labor contract due to fraud: one is the existence of fraud; the other is to make the other party’s intention untrue.

In labor relations, what is exchanged between the parties is a special commodity-laborers' labor. Labor and labor are inseparable and have obvious personal attributes. Therefore, labor cannot be measured in terms of appearance and quality like goods. Employing units often treat laborers based on their academic qualifications, work experience, and skill certificates. Perform indirect evaluation. Therefore, it is undoubtedly a fraud for workers to provide forged academic qualifications and qualification certificates when applying for employment, and it is easy to cause the employer to make a wrong expression of intent. However, in some special circumstances, for example, a recruiter of a company does not require employees’ foreign languages, but the worker provides a forged CET-6 certificate when applying for the job. In this case, is the labor contract signed by both parties? Invalidity is debatable. Some scholars believe that the employer’s failure to request is not a reason for fraud, and that active fraud is worse than passive fraud.

2. Legislative evolution: Institutional evolution of invalid labor contracts

The author did not find the concept of "invalid labor contract" when researching the labor contract system in Japan and the labor contract system and theory in Taiwan. Therefore, the invalid labor contract system created by the "Labor Law" mechanically copied the civil invalid contract system and theory is an unsuccessful design of the labor contract system. A German scholar once pointed out: "Although there is a provision on invalidity in China’s "Labor Law", this provision is not detailed enough and can only be supplemented by other provisions, especially the "General Principles of Civil Law" and "Contract Law". These have operability. The "Labor Law" and the supplementary laws are not consistent with each other, so problems often arise when handling cases."[1]

（1）The legislative model of the "Labor Law"

Article 18 of the 1994 "Labor Law" is the precedent of my country's invalid labor contract system. This provision inherits the provisions of Article 58 of the "General Principles of Civil Law", and is in the same line as the spirit of the legislation. If the parties conclude the contract against the principles of equality, voluntariness and consensus, the contract will of course be invalid. At that time, many scholars believed that the "Labor Law" had too simple provisions on the validity of labor contracts, and did not consider the validity of defective labor contracts, so they advocated "expansion of the validity of labor contracts." For example, some scholars believe that the "Labor Law" was enacted in 1994, and the planned economy was dominant at that time. Therefore, the two invalid labor contract confirmation standards stipulated in Article 18 of the "Labor Law" are not without administrative overtones. To meet the needs of the development of the market economy; some scholars believe that all labor contracts with flawed intentions are considered invalid contracts, which does not meet the legislative purpose of protecting laborers. This so-called "expansion of effectiveness" is based on criticism of the "Labor Law" and praise of the "Contract Law". The basic idea is: we should have what civil law has. Some scholars have explained this change theoretically: With the gradual improvement of the socialist market economy system, the concept of the rule of law of private law autonomy began to prevail, and the existence of state-based ideas under the conditions of market economy has become increasingly narrow. Based on the thinking at the time, the "Labor Contract Law" should continue this trend. However, in the actual drafting process, the proliferation of labor conflict theory and the prevalence of state control ideas, no one really insisted on the legal design of this concept of contract freedom. At last ,nothing was adopted by the drafter.

(2) The legislative model of the "Labor Contract Law"

The "Labor Contract Law" further refined the provisions of invalid labor contracts, expanded the relevant systems, and deleted the provisions of the "Labor Law" that invalid labor contracts are invalid from the beginning. However, Article 28 of the "Labor Contract Law" and the provisions on the remuneration of laborers seem to echo Article 18 of the Labor Law. The implicit logical premise of this provision is that the labor remuneration stipulated in the original labor contract is invalid because of the invalidity of the labor contract. What is even more puzzling are the provisions of Article 38 of the Labor Contract Law on presumption of dismissal and Article 39 of negligent dismissal. According to these two provisions, in the case of an invalid labor contract, the innocent party can terminate the labor contract. Legislators regard the invalidation of the labor contract as a legal reason for one party to claim the termination of the labor contract, which not only creates the theoretical contradiction between the invalidity of the contract and the termination of the contract, but also increases the uncertainty of the legal consequences of the invalid labor contract. In the "Interpretation of the Labor Contract Law of the People's Republic of China" edited by the Legal Work Committee of the National People's Congress, the editors have inconsistent understandings of the legal effects of invalid labor contracts when interpreting different clauses. [2] The deficiencies of the legislation lead to obstacles to the application of law in how to deal with invalid labor contracts in practice.

3. Path selection: Clarifying the revocable labor contract and the legal consequences of invalid labor contracts

How to deal with invalid labor contracts is actually a supplement to defective labor relations. Generally speaking, the recognition of existing labor relations should be taken as the starting point for handling. Judging from the specific regulations in various countries, the main features are as follows: First, for defective labor contracts, the focus is on labor relations, not the paper contract. In some countries, there is no need for this paper contract. The second is to maintain the labor relationship as much as possible if it can be maintained. Normally, maintaining the labor relationship is most beneficial to the injured party, especially the worker; the unmaintainable application is cancelled, rather than invalidated from the beginning. The author believes that: the validity of different types of labor contracts should be distinguished, and the relevant provisions of the "Labor Law" should still be applied to the performed part of the defective labor contract.

(1) Introduction of the revocable system

In the process of drafting the "Labor Contract Law," a revocability system was initially provided. But the final draft also rejected the revocability system. Some scholars have explored the reason for the denial because the legislators have problems in understanding the characteristics and value orientation of invalid contracts. The "Labor Law" has strict regulations on valid labor contracts, emphasizing the seriousness of labor contracts, and strengthening both laborers and employers’concept of labor law... If the labor contract is allowed to be revoked, the labor relationship may be in an unstable state, which is not conducive to the protection of workers. [3] The author believes that the application of the revocable system is a contract concluded by both the worker and the employer because the intention of the employer is not true. It starts from protecting the interests of the worker and maintaining the stability of the labor relationship, as long as it does not harm the interests of third parties and does not harm the interests of third parties. In the national or social public interest, the right to cancel the option should be given to the victim. The establishment of the revocable system not only respects the consent of the parties, but also gives the injured party the right of revocation, which can not only correct the injustice but also maintain the stable existence of numerous labor contract relationships.

(2) Two issues worthy of discussion

After the labor contract is flawed and deemed invalid or revocable, there are two more issues worthy of discussion. The first question is: After the labor contract is confirmed to be invalid or revoked, is the adjustment of labor laws and regulations applicable to the performed part? The author believes that although the worker entered the job with forged academic qualifications and qualification certificates, and the worker is obviously at fault, out of the protection of the disadvantaged position of the worker, the employer should still pay the worker and participate in work-related injuries, medical treatment, etc. The result of this treatment is in line with the above-mentioned purpose of protecting workers. However, in addition to the above rights and interests, my country's "Labor Law" also stipulates that workers have other rights, such as double wages for unsigned labor contracts, compensation for illegal termination of labor contracts, etc. The above rights are punitive to the employers’ measures. Is it fair to continue to impose punitive damages on the employer when the employee is already at fault and flawed? This can be analyzed from two aspects: First, since the labor contract is invalid or revocation is not retroactive, the labor contract that both parties have performed should have the legal effect of the contract, and the adjustment of labor laws and regulations should also be applied. Therefore, whether it is labor remuneration, the right to participate in social security, or the right to double wages or compensation due to the employer’s violation of the law, it is the legal right of the worker. Without authorization by law, selective protection of the rights of workers lacks legitimacy. The second is that double wages and compensation for illegal termination of the labor contract are all responsibilities that the employer should bear in the event of an illegal situation. This has two legal relationships with the employee’s fault for invalidation of the labor contract, and there is no relationship between the two. There is no cause and effect. If property losses are caused to the employer due to the fault of the worker, the worker should naturally compensate. However, in the case where the employer and the worker are liable to compensate each other, both parties may offset the debt. However, the fault of the laborer must not be a reason for the employer's illegal termination, let alone a reason for the employer not to bear legal responsibility.

Concluding remarks

The labor contract formed by the employee with the employer with forged academic qualifications, qualification certificates, etc., from the perspective of the flaws in the labor relationship, should be a revocable labor contract and should not be deemed invalid. In addition to illegal employment and invalid labor contracts, revocable labor contracts account for a considerable proportion. Therefore, a revocable labor contract system should be introduced and a diversified labor contract effect should be established with revocable labor contracts as the main part and invalid labor contracts as a supplement system. Strictly limit the scope of illegal and invalid labor contracts, expand the application of revocable contracts, and add corresponding clauses to regulate new conditions and new problems in the market economy, so as to further improve our country's labor contract effectiveness system.

Quote:

1.Article 38, Paragraph 1, Item 5 of the "Labor Contract Law": "If the employer has one of the following circumstances, the employee may terminate the labor contract: (5) Due to Article 26, Paragraph 1 of this law The stipulated circumstances render the labor contract invalid"; Article 39, Item 5 of the "Labor Contract Law": "If the employee has one of the following circumstances, the employer may terminate the labor contract. (5) Due to the 26th of this law Circumstances stipulated in the first paragraph of Article 1 render the labor contract invalid".

2.The labor contract is unique and cannot simply copy the invalidation and cancellation system In the civil contract; however, when analyzing Article 38, it is argued that an invalid labor contract has no legal binding force from the time it is concluded.

References:

[1] [Germany] Immanuel Gebhardt, Rotert Dubbers. Invalidation of labor contracts in China and Germany [A]. Sino-German labor and social security law: comparative essays [C]. Beijing: CITIC Publishing House, 2003.

[2] Zhang Yuan. Research on the Invalidation System of Labor Contract [J]. Law Science, 2003(2). [3] Feng Tao. Labor Contract Research [M]. Beijing: China Procuratorate Press, 2008.

Statement:

This article was originally created by the lawyers of JAVY Law Firm. It only represents the author's own views and should not be regarded as a formal legal opinion or suggestion issued by JAVY Law Firm or its lawyers. If you need to reprint or quote any content in this article, please indicate the source.