Legal Question in Employment Law in China

Is resigning a breach or break of an employment contract, if the contract permits resignation?

It's a 2-year fixed term contract, listing employee obligations and commitments, all of which have been adhered to. The notice period for resignation has been respected. The employer is now trying to claw back costs incurred by them at the commencement of the contract, based on the following wording, included in the contract:

"Breaching of Contract (as header)

Under any circumstances, if the Employee breaks their contract before completing 1 year’s service, the following will apply:", followed by the clawbacks.

So the query is, does the employee's resignation within the first year constitute a breach or break of contract?

Thanks in advance

Asked on 10/20/10, 1:23 am

1 Answer from Attorneys

lei mawei Shaanxi Hebaohu Law Firm

Resignation is a right of the employee according to the employment contract law,but the employee should give a notice to the employer in advance a month before he/she leaves.Following this procedure,the resignation does not constitute a breach or break of contract.

The employer has no right to collect penalty or damages except that :

a. there is service period clause (minimum employment period)in the contract which is violated ,or:

b. there is confidentiality clause(keep company secret) in the contract which is violated.

Only when the employer provide for the employee technical training,can the contract include the service period clause.

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Answered on 10/20/10, 7:58 am

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