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Guo Yi v. Jiangsu Yifeng Pharmacy Chain Co., Ltd. (A Case about Labor Disputes)
郭懿诉江苏益丰大药房连锁有限公司劳动争议案
【法宝引证码】
  • Type of Dispute: Civil-->Labor & Employment
  • Legal document: Judgment
  • Judgment date: 04-07-2009
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 6,2010

Guo Yi v. Jiangsu Yifeng Pharmacy Chain Co., Ltd. (A Case about Labor Disputes)
(A Case about Labor Disputes)
郭懿诉江苏益丰大药房连锁有限公司劳动争议案

Guo Yi v. Jiangsu Yifeng Pharmacy Chain Co., Ltd.
(A Case about Labor Disputes)

 

郭懿诉江苏益丰大药房连锁有限公司劳动争议案

 [裁判摘要]
 即将毕业的大专院校在校学生以就业为目的与用人单位签订劳动合同,且接受用人单位管理,按合同约定付出劳动;用人单位在明知求职者系在校学生的情况下,仍与之订立劳动合同并向其发放劳动报酬的,该劳动合同合法有效,应当认定双方之间形成劳动合同关系。
BASIC FACTS 
Plaintiff: Guo Yi, male, 22, residing at Chananren Garden, Nanjing City. 原告:郭懿。
Defendant: Jiangsu Yifeng Pharmacy Chain Co., Ltd., domiciled at Hanzhong Road, Baixia District, Nanjing City. 被告:江苏益丰大药房连锁有限公司。
Legal Representative: Gao Yi, chairman of the board of directors of this company. 法定代表人:高毅,该公司董事长。
Guo Yi, the plaintiff, bought an action in the People's Court of Baixia District of Nanjing City, Jiangsu Province against Jiangsu Yifeng Pharmacy Chain Co., Ltd. (hereinafter referred to as “Yifeng Company”), the defendant, for labor disputes. 原告郭懿因与被告江苏益丰大药房连锁有限公司(以下简称益丰公司)发生劳动争议纠纷,向江苏省南京市白下区人民法院提起诉讼。
The plaintiff, Guo Yi, claimed that: he graduated in 2008 from Nanjing Mochou Vocational School. In October 2007, he made a job registration with the defendant, and upon examination by the Human Resources Department and General Manager of the defendant, he was put on probation. On October 30, 2007, the two parties entered into a labor contract for a term of three years from October 30, 2007 to December 30, 2010. In July 2008, on the ground that the existence of an employment relationship between the defendant and the plaintiff was doubtful, the defendant filed an arbitration application with the Labor Dispute Arbitration Committee of Baixia District of Nanjing City, requesting a confirmation that the labor relationship between the two parties did not exist. On August 19, 2008, the Labor Dispute Arbitration Committee of Baixia District of Nanjing City decided to terminate the arbitration procedures, because the plaintiff was a school student who did not meet the requirements for employment and was ineligible for entering into a labor relationship and the disputes between the plaintiff and the defendant were not within the scope of labor disputes to be settled. Against this decision, the plaintiff alleged that he and the defendant were in a labor relationship and the labor contract signed by them was true, legal and valid. He requested the court to confirm the validity of the labor contract between the plaintiff and the defendant. 原告郭懿诉称:原告系南京市莫愁职业高级中学2008届毕业生。2007年10月原告至被告处进行求职登记,经被告人力资源部和总经理审核,同意试用。2007年 10月30日双方签订劳动合同,为期三年,自2007年10月30日起至2010年12月 30日止。2008年7月,被告益丰公司以对原、被告间是否存在劳动关系持有异议为由,向南京市白下区劳动争议仲裁委员会提起仲裁申请,请求确认原、被告之间的劳动关系不成立。南京市白下区劳动争议仲裁委员会于2008年8月19日做出仲裁决定,以原告系在校学生,不符合就业条件,不具有建立劳动关系的主体资格,原、被告间的争议不属于劳动争议处理范围为由,决定终结了仲裁活动。原告对此不服,认为原、被告之间存在劳动关系,双方签订的劳动合同真实、合法、有效,请求法院判决确认原、被告之间的劳动合同有效。
The defendant, Yifeng Company, pleaded that: Guo Yi was a vocational school student when entering into the labor contract with the defendant. According to the Opinions on Several Issues concerning the Implementation of the Labor Law of the People's Republic of China issued by the former Ministry of Labor, students were not eligible for entering into a labor relationship, nor did the Regulation on Work-related Injury Insurance include students in insurance coverage, which fully indicated that students were not within the scope of employees. Meanwhile, the plaintiff did not satisfy the employment conditions specified in the labor contract. In the recruiting pamphlets and the labor contract signed with the plaintiff, the defendant required a candidate to be at or above the level of technical secondary education. However, the plaintiff did not graduate until July 2008, so he failed to meet that condition at the time of signing the labor contract. Therefore, the so-called labor contract between the defendant and the plaintiff was actually an internship contract, and what had been established between the two parties was not a labor relationship, nor a legal relationship subject to the regulation by the Labor Law of the People's Republic of China. The defendant requested the court to dismiss the plaintiff's claims. 被告益丰公司辩称:原告郭懿与被告签订劳动合同时的身份为在校学生,根据原劳动部《关于贯彻执行<中华人民共和国劳动法>若干问题的意见》的规定,在校学生不具备劳动关系的主体资格。《工伤保险条例》也没有将在校学生纳入参保范围,亦充分说明在校学生不属于劳动者的范畴。同时原告也不具备劳动合同约定的录用条件。被告在招聘简章及与原告签订的劳动合同中约定的录用条件是具备中专以上学历,而原告于2008年7月方毕业,其签约时并不具备被告要求的录用条件。因此,原、被告之间的合同名为劳动合同,实为实习合同,原、被告之间所建立的不是劳动关系,不属于劳动法离婚不离婚是人家自己的事调整的劳动法律关系。请求依法驳回原告的起诉。
PROCEDURAL POSTURE夫妻本是同林鸟 
Upon trial of the first instance, the People's Court of Baixia District of Nanjing City found that: 南京市白下区人民法院一审查明:
The plaintiff, Guo Yi, was a 2008 graduate in pharmacy major from Jiangsu Radio & TV University (branch at Nanjing Mochou Vocational School), and actually graduated in July 2008. On October 26, 2007, Guo Yi made a job registration with the defendant, Yifeng Company. In the registration form for job seekers, he presented himself as a 2008 graduate from Nanjing Mochou Vocational School, and 2007 was his internship year. On October 30, 2007, the plaintiff and the defendant signed a labor contract for a term of three years from October 30, 2007 to December 30, 2010, including a 60-day probation period from October 30, 2007 to December 30, 2007. The contract also set out the conditions of employment, one of which was that the plaintiff should have technical secondary education or above. According to the contract, he should work as a salesperson, his monthly salary after probation should not be less than 900 yuan, and his salary during the probationary period should not be less than 80% of that for workers in the same job and the same position. On July 21, 2008, Yifeng Company lodged an arbitration application with the Labor Dispute Arbitration Committee of Baixia District of Nanjing City, requesting it to confirm that the labor relationship between the plaintiff and the company did not exist. Upon examination, according to the Opinions on Several Issues concerning the Implementation of the Labor Law of the People's Republic of China issued by the former Ministry of Labor, the Labor Dispute Arbitration Committee of Baixia District of Nanjing City made an arbitral decision on August 19, 2008 that: because the plaintiff was a school student who did not meet the employment conditions and who was ineligible for establishing a labor relationship, and a work study or internship at an entity did not fall within the scope of regulation of the Labor Law of the People's Republic of China, the disputes between the plaintiff and the defendant were not within the scope of labor disputes to be resolved, and the arbitration procedures should be terminated. The Arbitral Decision was served on the parties concerned on August 27, 2008. 原告郭懿系江苏广播电视大学(南京市莫愁中等专业学校办学点)药学专业 2008届毕业生,于2008年7月毕业。2007年10月26日原告郭懿向被告益丰公司进行求职登记,并在被告益丰公司的求职人员登记表中登记其为南京市莫愁职业高级中学2008届毕业生,2007年是其实习年。 2007年10月30日原告与被告签订劳动合同书一份,期限三年,从2007年10月 30日起至2010年12月30日止;其中试用期60天,从2007年10月30日起至 2007年12月30日止。合同还约定,录用条件之一为具备中专或中专以上学历;原告从事营业员工作;试用期满后月工资收入不少于900元,试用期工资标准不低于同工种同岗位职工工资的80%等。2008年 7月21日,被告向南京市白下区劳动争议仲裁委员会提出仲裁申请,请求确认其与原告之间的劳动关系不成立。南京市白下区劳动争议仲裁委员会经审查,依据原劳动部《关于贯彻执行<中华人民共和国劳动法>若干问题的意见》,于2008年8月19日作出仲裁决定,以原告系在校学生,不符合就业条件,不具有建立劳动关系的主体资格,在校学生勤工助学或实习与用人单位之间的关系不属于《中华人民共和国劳动法》的调整范围,故被告与原告之间的争议,不属劳动争议处理范围为由,决定终结了被告诉原告的仲裁活动,并于2008年8月27日送达了仲裁决定书。
This court also found that the defendant, formerly known as Jiangsu Yifeng Pharmacy Co., Ltd., was renamed to Jiangsu Yifeng Pharmacy Chain Co., Ltd. on July 21, 2008 with the approval of the Baixia Branch of Nanjing Municipal Administration for Industry and Commerce. 另查明,被告益丰公司原名江苏益丰大药房有限公司,2008年7月21日经南京市工商行政管理局白下分局核准更名为江苏益丰大药房连锁有限公司。
The above facts were sufficiently proved by such evidence as the two parties' statements, the registration form for job seekers, the labor contract, the arbitration application, the arbitral decision, the recruiting pamphlets, the certificate produced by Nanjing Mochou Vocational School, the diploma of Jiangsu Radio and TV University and the Notice on Approval of Company Modification Registration. 以上事实有双方当事人陈述、求职人员登记表、劳动合同书、仲裁申诉书、仲裁决定书、招聘简章、南京市莫愁中等专业学校证明、江苏广播电视大学毕业证书、公司准予变更登记通知书等证据予以证实,足以认定。
DISPUTED ISSUES 
The focal dispute in this case was: whether the labor contract signed by the plaintiff, Guo Yi, and the defendant, Yifeng Company, was valid. 本案一审的争议焦点是:原告郭懿与被告益丰公司签订的劳动合同是否有效。
Upon trial of the first instance, the People's Court of Baixia District of Nanjing City held that: 南京市白下区人民法院一审认为:
First, to determine the validity of the labor contract between the plaintiff and the defendant, the court needed to consider whether the plaintiff, Guo Yi, was eligible as a party to a labor relationship. Guo Yi had attained the age of 19 when he entered into the labor contract with Yifeng Company. Since he had reached the statutory age for employment in the Labor Law of the People's Republic of China, he possessed both the capacity to establish and the capacity to take responsibility for establishing the labor relationship with an employer. Article 4北大法宝 of the Opinions on Several Issues concerning the Implementation of the Labor Law of the People's Republic of China issued by the former Ministry of Labor (hereinafter referred to as “the Opinions”) only provided that “the Labor Law shall not apply to civil servants; the staff members of a public institution or social organization which applies mutatis mutandis the civil service system; rural laborers; servicemen in active service; or family nannies.” This provision did not exclude students from the application of the Labor Law. Being a student did not necessarily restrain Guo Yi from joining the labor force as an ordinary worker. Article 12 of the Opinions provided that “Where a student attends any work-study program in his spare time, he shall not be deemed an employee or in any labor relationship within the meaning of this Law, and he may work without signing a labor contract.” As this clause only applied to work-study students, it was improper to thereby deny the right of a student to work and presume that students were ineligible as a party to a labor relationship. To sum up, because the law did not expressly deny a student's eligibility as party to a labor relationship, the plaintiff could become a party to a labor relationship. 首先,判断原告郭懿与被告益丰公司签订的劳动合同是否有效,要看原告郭懿是否具备劳动关系的主体资格。原告与被告益丰公司签订劳动合同时已年满19周岁,符合《中华人民共和国劳动法》规定的就业年龄,具备与用工单位建立劳动关系的行为能力和责任能力。原劳动部《关于贯彻执行<中华人民共和国劳动法>若干问题的意见》(以下简称意见)第法小宝四条仅规定了公务员和比照实行公务员制度的事业组织和社会团体的工作人员,以及农村劳动者、现役军人和家庭保姆不适用劳动法,并未将在校学生排除在外,学生身份并不当然限制郭懿作为普通劳动者加入劳动力群体。意见第十二条规定:“在校生利用业余时间勤工助学,不视为就业,未建立劳动关系,可以不签订劳动合同。”该条规定仅适用于在校生勤工助学的行为,并不能由此否定在校生的劳动权利,推定出在校生不具备劳动关系的主体资格。综上,法律并无明文规定在校生不具备劳动关系的主体资格,故原告能够成为劳动关系的主体。
Second, the plaintiff's work at Yifeng Company did not fall under the circumstance prescribed in Article 12 of the Opinions. This Article applied to a student who, giving priority to study at school, worked for an entity in his spare time in order to gain some social experience and make some money for tuitions and living expenses, not for the sole purpose of employment. In a work-study or internship program, as a student did not enter a labor relationship with the recruiting entity, a labor contract may be unnecessary to clarify his position, payment, fringe benefit, etc. In this case, however, Guo Yi was obviously not in a work-study or internship program. At the time of registration for employment, Guo Yi had completed all his courses. Having fully expressed his desire for a job at Yifeng Company, he entered into a labor contract with this company. After the signing of the contract, Guo Yi worked for Yifeng Company in accordance with the provisions thereof, and this company paid him for his labor and managed him under the contract. All these were entirely consistent with the essential characteristics of a labor relationship. Therefore, the grounds for the company's claim that the two parties were in an internship relation could not stand.Third, though the plaintiff did not fully satisfy the employment conditions of Yifeng Company at the time of signing the labor contract, when filling out the registration form for job seekers of the company, he clearly informed the company that he would be a 2008 graduate and 2007 was an internship year stipulated by his school during which he could work regularly despite being an undergraduate. Yifeng Company was fully aware of this situation, based on which the two parties agreed on the recruitment and signed the labor contract. Therefore, the signing of the labor contract was the expression of the true will of both sides, and there was no fraud, concealment of facts, duress, etc. in the signing of the labor contract, and the labor contract did not violate any law or administrative regulation. Additionally, Guo Yi acquired his diploma in July 2008, so the ground for this company's claim that he failed to meet the employment conditions could not stand either. 其次,原告郭懿于被告益丰公司处劳动的行为不属于意见第十二条规定的情形。该条规定针对的是学生仍以在校学习为主,不以就业为目的,利用业余时间在单位进行社会实践打工补贴学费、生活费的情形。勤工助学和实习时,学生与单位未建立劳动关系,可以不签订劳动合同,不需要明确岗位、报酬、福利待遇等。本案中,郭懿的情形显然不属于勤工助学或实习。郭懿在登记求职时,已完成了全部学习任务,明确向益丰公司表达了求职就业愿望,双方签订了劳动合同书。郭懿在与益丰公司签订劳动合同后,亦按照规定内容为益丰公司付出劳动,益丰公司向郭懿支付劳动报酬,并对其进行管理,这完全符合劳动关系的本质特征。故益丰公司辩称双方系实习关系的理由不能成立。
In conclusion, a labor relationship did exist between the plaintiff and the defendant. The labor contract between the two parties was legal, valid and binding on both sides. Hence, in accordance with Articles 17 and 18 of the Labor Law of the People's Republic of China, the People's Court of Baixia District of Nanjing City rendered the following judgment on November 18, 2008: 第三,原告郭懿签约时虽不具备被告益丰公司要求的录用条件,但郭懿在填写益丰公司求职人员登记表时,明确告知了益丰公司其系2008届毕业生,2007年是学校规定的实习年,自己可以正常上班,但尚未毕业。益丰公司对此情形完全知晓,双方在此基础上就应聘、录用达成一致意见,签订劳动合同。因此,劳动合同的签订是双方真实意思的表示,不存在欺诈、隐瞒事实或胁迫等情形,并没有违反法律、行政法规的规定,且郭懿已于2008年7月取得毕业证书,益丰公司辩称郭懿不符合录用条件的理由亦不能成立。
The labor contract signed on October 30, 2007 by the plaintiff, Guo Yi, and the defendant, Yifeng Company, should be valid. 综上,原告郭懿与被告益丰公司存在劳动关系,双方签订的劳动合同合法、有效,对双方均具有法律约束力。据此,南京市白下区人民法院依照《中华人民共和国劳动法》第十七条、第十八条之规定,于 2008年11月18日判决如下:
Yifeng Company appealed the judgment of first instance to the Intermediate People's Court of Nanjing City on the following grounds: (1) Because the appellee was a vocational school student, he was not eligible for a worker's social insurance during his internship, nor was the relationship between the company and him within the scope of regulation by the Labor Law of the People's Republic of China. So, the appellee was ineligible as a party to a labor relationship. (2) The judgment of first instance was obviously unfair by confirming the existence of a labor relationship between the two parties. Because the appellee was a fulltime student, the department of labor and social security would not handle the social insurance for him, which may cause the appellant to bear the relevant legal liability and great risk. 原告郭懿与被告益丰公司于2007年 10月30日签订的劳动合同有效。
The appellee, Guo Yi, pleaded that: the judgment of first instance was clear in the fact finding and proper in the application of law, and should be upheld. 益丰公司不服一审判决,向南京市中级人民法院提起上诉,理由是:1.被上诉人郭懿身份为在校学生,其在实习期不能办理社会保险,该关系也不属于《中华人民共和国劳动法》的调整范围,因此,被上诉人不具备劳动关系的主体资格。2.一审判决确认双方存在劳动关系显失公平。因被上诉人为在校学生,劳动保障部门不予办理社会保险,上诉人将承担相关法律责任和巨大风险。
Upon trial of second instance, the Intermediate People's Court of Nanjing City confirmed the facts found in the trial of first instance. 被上诉人郭懿辩称:一审判决认定事实清楚,适用法律正确,应予维持。
This court was of the opinion that: 南京市中级人民法院经二审,确认了一审查明的事实。
Internship was the social practice of a student at the relevant entity for learning without pay. Under no circumstance would an intern and an entity reach a labor contract to clarify his position, pay, fringe benefit, etc. In this case, though the appellee did not graduate until July 2008, he explicitly presented his desire for employment with the appellant and made job registration with it on October 26, 2007. In the registration form for job seekers, he stated that he would be a 2008 graduate and 2007 was his internship year. On October 30, 2007, Guo Yi and Yifeng Company voluntarily signed a labor contract. Fully knowing Guo Yi's situation, Yifeng Company agreed with him on the recruitment, and entered into a labor contract to clarify his position and pay. This relationship should not be deemed an internship. Guo Yi had reached the age of 19 when he signed the labor contract with Yifeng Company. Since he had reached the statutory age for employment as set out in the Labor Law of the People's Republic of China, he possessed both the capacity to establish and the capability to take responsibility for establishing a labor relationship with an employer. Article 12 of the Opinions did not imply that a student was ineligible as a party to a labor relationship. Therefore, the above appeal grounds of the appellant were untenable. 南京市中级人民法院二审认为:
Regarding Yifeng Company's appeal ground that it was obviously unfair to confirm a valid labor relationship between both parties, in the view of this court, since this company and Guo Yi signed the labor contract of their own accord and there was no significant imbalance of interests of both sides, the judgment should not be deemed obviously unfair. 实习是以学习为目的,到相关单位参加社会实践,没有工资,不存在由实习生与单位签订劳动合同、明确岗位、报酬、福利待遇等情形。本案中,被上诉人郭懿虽于 2008年7月毕业,但其在2007年10月26日明确向上诉人益丰公司表达了求职就业愿望,并进行了求职登记,求职人员登记表中登记其为2008届毕业生,2007年是其实习年。2007年10月30日郭懿与益丰公司自愿签订了劳动合同。益丰公司对郭懿的情况完全知情,双方在此基础上就应聘、录用达成一致意见,签订了劳动合同,而且明确了岗位、报酬。该情形不应视为实习。郭懿与益丰公司签订劳动合同时已年满 19周岁,符合《中华人民共和国劳动法》规定的就业年龄,具备与用工单位建立劳动关系的行为能力和责任能力。意见第十二条不能推定出在校生不具备劳动关系的主体资格。故上诉人的上述理由不能成立。
In conclusion, the labor contract signed between the appellant, Yifeng Company, and the appellee, Guo Yi, was the expression of true will of both sides without violation of any prohibitive provision of law or administrative regulation. Therefore, the labor contract was legal, valid and binding on both parties. 关于上诉人益丰公司认为确认双方劳动关系有效显失公平的上诉理由,法院认为,益丰公司与郭懿签订劳动合同,是双方真实意思的表示,双方利益也不存在重大失衡,不应视为显失公平。
JUDGMENT 综上,上诉人益丰公司与被上诉人郭懿双方签订的劳动合同是双方真实意思表示,且不违反法律、行政法规的禁止性规定,该劳动合同合法、有效,对双方均具有法律约束力,
The facts found were clear, the application of law was correct and legal procedures were followed in the trial of first instance, so the judgment of first instance should be sustained. Hence, in accordance with Article 153.1(1) of the Civil Procedure Law of the People's Republic of China, the Intermediate People's Court of Nanjing City rendered the following judgment on April 7, 2009: 
“To dismiss the appeal and maintain the original judgment. 一审判决认定事实清楚,适用法律正确,审判程序合法,应予维持。据此,南京市中级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(一)项之规定,于2009年4月7日判决如下:
This judgment shall be final.”

 驳回上诉,维持原判。
 本判决为终审判决。
 

     
     
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