专业团队

《劳动合同法实施条例》的颁布，不少人认为在《劳动合同法》中规定的经济补偿金与赔偿金不能同时主张，我认为这种观点不正确。主要有以下几点法律理由：

1、从法律、法规的内容上看，劳动合同法实施条例》第25条规定，用人单位违反劳动合同法的规定，解除或终止劳动合同，依照劳动合同法第87条的规定支付了赔偿金，不再支付经济补偿金。从表面上看似乎明确了二者不能并用，其实这条规定是有前提条件的，条件是“用人单位违法解除或终止劳动合同”也就是说，用人单位没有按照劳动合同法规定的合法形式解除或终止劳动合同，比如：没有提前30天书面通知劳动者等。而《最高人民法院关于审理劳动争议案件若干问题的司法解释》[2001]14号，第十五条规定，用人单位有下列情形之一，迫使劳动者提出解除劳动合同，用人单位应当支付劳动者的劳动报酬，经济补偿金并可支付赔偿金。该条说的是，只要用人单位存在法定的五种情形，导致劳动者无法再继续工作下去，那么用人单位就应该同时向劳动者支付经济补偿金和赔偿金，其中情形之一就是用人单位克扣或无故拖欠劳动者工资的，也就是说只要用人单位克扣劳动者工资，劳动者就有权利单方解除劳动合同并主张既支付工资、经济赔偿金又支付赔偿金。

2、从效力等级上看 《劳动合同法实施条例》是行政法规，而《最高人民法院关于审理劳动争议案件若干问题的司法解释》是司法解释，根据《立法》法的规定，二者不存在级别高低的问题。三、两个法律文件规定的角度不同。 《条例》是从用人单位违法解除劳动合同的角度规范，而《司法解释》是从劳动者被迫解除劳动合同的角度予以规范。四、从“二金”的性质看 经济补偿金是一种补偿性质的钱款，而赔偿金则是惩罚性质，二者并不矛盾。 综上，可看出如果劳动者被迫解除劳动合同，具备法定情形，就可同时主张经济补偿金和赔偿金。

The promulgation of the Implementation Regulations of the Labor Contract Law has led many people to believe that the economic compensation and compensation stipulated in the Labor Contract Law cannot be claimed simultaneously. I believe this viewpoint is incorrect. There are mainly the following legal reasons:

1. From the perspective of the content of laws and regulations, Article 25 of the Implementation Regulations of the Labor Contract Law stipulates that if an employer violates the provisions of the Labor Contract Law and terminates the labor contract, it shall pay compensation in accordance with Article 87 of the Labor Contract Law and no longer pay economic compensation. On the surface, it seems clear that the two cannot be used together. In fact, this provision has a prerequisite, which is that the employer illegally terminates or terminates the labor contract. In other words, the employer did not terminate or terminate the labor contract in accordance with the legal form stipulated in the Labor Contract Law, such as not giving written notice to the employee 30 days in advance. According to Article 15 of the Judicial Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Labor Dispute Cases [2001] No. 14, if an employer is forced to terminate a labor contract under any of the following circumstances, the employer shall pay the employee's labor remuneration, economic compensation, and may also pay compensation. This article states that as long as the employer has five statutory circumstances that prevent the worker from continuing to work, the employer should pay both economic compensation and compensation to the worker. One of these circumstances is that the employer deducts or unreasonably delays the worker's salary. In other words, as long as the employer deducts the worker's salary, the worker has the right to unilaterally terminate the labor contract and claim payment of both wages Economic compensation and payment of compensation.

2. From the perspective of effectiveness level, the Implementation Regulations of the Labor Contract Law are administrative regulations, while the Judicial Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Labor Dispute Cases is a judicial interpretation. According to the provisions of the Legislation Law, there is no issue of level between the two. 3、 The two legal documents provide different perspectives. The Regulations regulate the illegal termination of labor contracts by employers, while the Judicial Interpretation regulates the forced termination of labor contracts by workers. 4、 From the perspective of the nature of "two funds", economic compensation is a type of compensatory money, while compensation is a punitive nature, and the two are not contradictory. In summary, it can be seen that if the worker is forced to terminate the labor contract and meets legal circumstances, they can simultaneously claim economic compensation and compensation.