专业团队

劳动合同违约赔偿　　我国现行劳动立法明确规定劳动合同可以约定违约金和赔偿金条款，但对于是否约定违约金和赔偿金数额则未约定。在司法实践中，仲裁和司法机关对于劳动合同中的违约赔偿条款一般持支持态度。　　同时，不可忽视的是，违约赔偿金额的过高或过低约定，往往不利于有效保护，劳动合同守约方的合法权益，有时，对违约方的处罚也高于实际承受能力。我们不赞成劳动合同当事人随意违约解除劳动合同，同时我们也不能忽视市场经济对劳动力资源配置的引导，及劳动者择业权的保护。为此，劳动合同违约赔偿数额标准的法定化具重要意义。应明确的是违约金的设定具有惩罚性，也即在一方当事人解除劳动合同而又未造成其他损失的情况下予以适用之。　　虽然违约金的设置是双方当事人意思自治之结果，但在很多情况下实际是用人单位一方事先设定，劳动者为争取该就业机会，而不得不接受之条款，其中亦不排除是劳动者要设定该条款的可能。但应注意，劳动者在劳动力市场中处于相对弱势的地位，因客观情况可能性无法分析以后违约情形，当一方解除合同时，将陷自己于不利地位。　　同时，若国家无统一标准的设定，那么必然产生各行业、各地域、甚至同一行业、同一用人单位内部违约金标准的不一，无形中产生不同劳动者等级的差别，甚至出现相应歧视。为此，制订统一违约金标准显然实有必要。至于赔偿条款，则应根据合理赔偿原则，视该违约造成另一方损失情况而定，对于这一点，律师赞同《违反〈劳动法〉有关劳动合同规定的赔偿办法》的规定。

The current labor legislation in China clearly stipulates that labor contracts can stipulate clauses on liquidated damages and compensation, but there is no agreement on whether to stipulate the amount of liquidated damages and compensation. In judicial practice, arbitration and judicial authorities generally hold a supportive attitude towards the compensation clause for breach of contract in labor contracts. At the same time, it cannot be ignored that the agreement on the amount of compensation for breach of contract, which is too high or too low, is often not conducive to effective protection of the legitimate rights and interests of the complying party in the labor contract. Sometimes, the punishment for the breaching party is also higher than its actual capacity to bear. We do not support the arbitrary breach and termination of labor contracts by the parties involved, and at the same time, we cannot ignore the guidance of the market economy on the allocation of labor resources and the protection of workers' right to choose employment. Therefore, the legalization of the standard for compensation for breach of labor contracts is of great significance. It should be clarified that the setting of liquidated damages is punitive, which applies when one party terminates the labor contract without causing any other losses. Although the setting of liquidated damages is the result of the autonomy of both parties, in many cases it is actually a clause set by the employer in advance, which the worker has to accept in order to fight for the employment opportunity. It is also possible that the worker needs to set this clause. However, it should be noted that workers are in a relatively disadvantaged position in the labor market, and due to objective circumstances, it is impossible to analyze future breach situations. When one party terminates the contract, they will be in a disadvantaged position. At the same time, if there is no unified standard set by the country, it will inevitably result in different industries, regions, and even within the same industry and employer, leading to differences in the level of workers and even corresponding discrimination. Therefore, it is clearly necessary to establish a unified standard for liquidated damages. As for the compensation clause, it should be based on the principle of reasonable compensation, depending on the situation where the breach caused losses to the other party. In this regard, the lawyer agrees with the provisions of the "Compensation Measures for Violations of Labor Contract Provisions".