Answer: The staff working in government departments are normally civil servants, and the relationship between civil servants and the government is civil servant relationship. Civil Servant Disputes refer to disputes arising from resignation, dismissal, and implementation of service contracts between government organs and civil servants, governmental institutions or social group organizations and their staff, or military and their civilian personnel.1Article 2 of the Regulations on the Settlement of Civil Servant Disputes in 2011.Compared with the massive cases of employment disputes, civil servant disputes are very rare because of the strong position of government departments, and there are few valuable reference cases.
According to the judicial interpretation of the Supreme Court on civil servant disputes in 2004, the procedure of civil servant disputes shall be handled in accordance with employment law, while substantive rights disputes shall be handled in accordance with the civil servant dispute law. If there is no provision in the civil servant dispute law, employment law shall apply. 2Reply of the Supreme People’s Court on the Application of Law in Civil Servant Dispute Cases of Public Institutions (Fa Han 2004 No.30). ¡°The substantive handling of Civil Servant Disputes in public institutions by the people’s courts shall be governed by the provisions of civil servant management laws, but if the content of employment rights of public institution staff is not stipulated in civil servant management laws, the relevant provisions of the Labor Law of the People’s Republic of China shall apply.¡± It appears that courts around the country have different approaches to whether and how to apply the Employment Contract Law of 2008 to civil servant disputes, and we have not found any cases that elaborate or stipulate clear principles within courts at all levels.
One approach appears to be that the Employment Contract Law should be applied to civil servant dispute cases in substance, and that all claims under employment law, including double-wage damages, economic compensation, and punitive damages for illegal termination of employment, etc., are actionable.3Feng Xianjie v. Dongguan University of Technology Civil Servant Dispute Civil Ruling of Guangdong Provincial People¡¯s High Court (2014) Yue Gao Fa Min Shen Zi No.1964. Liu v. Shanghai Satellite Engineering Institute Civil Servant Dispute Case Shanghai High Court Civil Judgment (2014) Hu Gao Min Yi (Min) Zai Ti Zi No.1.This reflects in the decisions of the Shanghai High Court and the Guangdong High Court.
The second approach appears to think that the substantive rights and obligations of civil servant dispute cases should be governed by the regulations of government departments, rather than by the Employment Contract Law. For example, in the case of Li Yao in 2020, the Lusong District Court of Zhuzhou City, Hunan Province, denied that Li Yao had the right to claim double-wage damages in the absence of a written employment contract.4Li Yao and Zhuzhou Lusong District Digital City Management Supervision and Command Center Civil Servant Dispute First Instance Civil Judgment Hunan Province Zhuzhou Lusong District People’s Court Civil Judgment (2020) Xiang 0203 Min Chu No.487. The court held that according to the judicial interpretation of the Supreme Court, the rule of double-wage damages in the Employment contract Law was not applicable in civil servant disputes.In some cases regarding the entitlement to a permanent contract, some courts have appeared to recognize only the rule of the 2002 Ministry Personnel’s stipulation that 25 consecutive years of service, or 10 consecutive years of service and less than 10 years from retirement, is the prerequisite for entitlement to a permanent contract, rejecting the conditions under the Employment Contract Law, which are having had two consecutive fixed-term contracts or 10 consecutive years of service. 5The Ministry of Personnel’s Opinions on the Trial Implementation of the Civil Servant Employment System in Public Institutions (No.35, 2002) stipulates that if a person has worked in the employer for 25 years or has worked continuously in the employer for 10 years and is less than 10 years from the retirement age prescribed by the State, they shall submit a contract for employment until retirement. The employer shall conclude a contract with the employee until the retirement of the employee.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com
- 1Article 2 of the Regulations on the Settlement of Civil Servant Disputes in 2011.
- 2Reply of the Supreme People’s Court on the Application of Law in Civil Servant Dispute Cases of Public Institutions (Fa Han 2004 No.30). ¡°The substantive handling of Civil Servant Disputes in public institutions by the people’s courts shall be governed by the provisions of civil servant management laws, but if the content of employment rights of public institution staff is not stipulated in civil servant management laws, the relevant provisions of the Labor Law of the People’s Republic of China shall apply.¡±
- 3Feng Xianjie v. Dongguan University of Technology Civil Servant Dispute Civil Ruling of Guangdong Provincial People¡¯s High Court (2014) Yue Gao Fa Min Shen Zi No.1964. Liu v. Shanghai Satellite Engineering Institute Civil Servant Dispute Case Shanghai High Court Civil Judgment (2014) Hu Gao Min Yi (Min) Zai Ti Zi No.1.
- 4Li Yao and Zhuzhou Lusong District Digital City Management Supervision and Command Center Civil Servant Dispute First Instance Civil Judgment Hunan Province Zhuzhou Lusong District People’s Court Civil Judgment (2020) Xiang 0203 Min Chu No.487. The court held that according to the judicial interpretation of the Supreme Court, the rule of double-wage damages in the Employment contract Law was not applicable in civil servant disputes.
- 5The Ministry of Personnel’s Opinions on the Trial Implementation of the Civil Servant Employment System in Public Institutions (No.35, 2002) stipulates that if a person has worked in the employer for 25 years or has worked continuously in the employer for 10 years and is less than 10 years from the retirement age prescribed by the State, they shall submit a contract for employment until retirement. The employer shall conclude a contract with the employee until the retirement of the employee.