The first view: fines belong to public power, and the exercise of public power must have a legal basis; According to China's current legal system, only state organs can impose a fine on the administrative counterpart within the statutory authority, which embodies the basic principle of "unless authorized". The Regulations on Rewards and Punishment of Enterprise Employees (Guo Fa [1982] No.59) gave the employer the right to punish the workers, but the regulations were abolished on June 5, 2008+10/October 5. There are many factors to abolish the Regulations on Reward and Punishment of Enterprise Employees, including recruitment restrictions during the planned economy period, complaint handling procedures for employees' violations of discipline, and administrative compulsion for enterprises to adjust their posts. With the implementation of "Labor Law" and "Labor Contract Law", the right to employ employees has been handed over to enterprises. As the main body of market equality, employees and enterprises have changed from regular workers to contract workers, so the "Regulations" have to withdraw from the historical stage. In addition, from the analysis of the scope of application of the regulations, Article 3 of the regulations clearly stipulates that the regulations are applicable to all employees of enterprises owned by the whole people and urban collective enterprises. Therefore, even if the Regulations are not abolished, they are not applicable to most existing enterprises. That is to say, after June 5438+1October 15, 2008, the employer can no longer punish the workers according to the regulations; In other words, there is no legal basis for employers to punish workers, and the punishment is not justified. Some local laws and regulations have confirmed this problem. For example, Article 51 of the Regulations on Labor Security Supervision in Guangdong Province, which came into effect in May of 13, clearly stipulates that the rules and regulations of the employing unit stipulate the contents of fines, ..., and the administrative department of human resources and social security shall order it to make corrections and give it a warning.
Opponents believe that this view is interpreted from the perspective of administrative regulations, not from the perspective of labor contract relations. In the final analysis, the relationship between enterprises and employees is a contractual relationship, which belongs to the category of civil legal mediation. The relationship between enterprises and employees is not the relationship between administrative departments and administrative objects, and it does not belong to the mediation of administrative regulations. The fundamental basis of the contractual relationship between two equal civil subjects comes from equal and voluntary private rights. The Contract Law stipulates that the observant party has the right to demand the defaulting party to pay liquidated damages and compensation, and the essence of liquidated damages is liquidated damages.
The second view: Labor laws and regulations such as the Labor Law and the Labor Contract Law do not prohibit employers from imposing fines on workers. According to the principle of "everything can be done without prohibition", the employer can deal with the workers according to the laws and regulations formulated through democratic procedures as long as it does not exceed 20% of the monthly salary in the Interim Provisions on Wage Payment and the Regulations on Wage Payment in various provinces.
Opponents believe that freedom of contract is an important rule in modern society and one of the most important basic principles in civil law. Logically speaking, a labor contract is also a contract. Naturally, the principle of freedom of contract should be applied mutatis mutandis. As the saying goes, "one is willing to fight and the other is willing to suffer", which is a matter between employees and the company, so it seems natural for the company to impose fines on employees according to the rules and regulations. However, this seemingly fair contract is actually a huge injustice. Compared with companies in a strong economic position, workers are undoubtedly in a weak position. The actual unequal status of both parties is obviously inconsistent with the equal subject required by the "contract theory", which is also the reason why labor relations cannot be operated solely by "contract norms". Social laws such as labor law have the function of adjusting and balancing labor relations. Otherwise, the company is likely to abuse its dominant position and punish workers at will, which will greatly damage the rights and interests of workers, cause social instability, and then affect the development of the whole society. Article 4 of the Labor Contract Law gives the company the right and obligation to formulate rules and regulations, and the rules and regulations formulated by the company in accordance with legal procedures should be legal and binding on both employers and workers. However, it must be noted that under the actual unequal status of workers and companies, the court must apply stricter standards when conducting judicial review of company rules and regulations. For example, the employer cannot stipulate in the rules and regulations that there is no limit to overtime work or no overtime pay through corresponding procedures. Similarly, the employer can't set up penalty clauses and behaviors that are not aimed at compensating actual losses and have a strong administrative color without legal authorization.