Public institution staff members are subject to criminal punishment for crimes, and whether the punishment given by the unit is limited by the time limit

Where a public institution staff member receives a criminal punishment for a crime, whether the punishment given by the unit is limited by the time limit

On December 28, 1985, Kang entered the S Municipal Management Center to engage in highway maintenance, road administration and other work, and the two sides signed an employment contract for public institutions. On August 26, 2011, Kang was released on bail by the H County Public Security Bureau on suspicion of committing credit card fraud. On July 4, 2012, Kang was sentenced to six months in prison, suspended for one year, and fined 20,000 yuan by the H County People's Court for committing credit card fraud, and the judgment took legal effect on July 15, 2012, during which Kang was still working in the management center, and the management center paid Kang salaries, bonuses, etc. according to normal standards. On March 1, 2014, the management center and Kang renewed the Employment Contract of Public Institutions. On March 1, 2017, the management center renewed the Employment Contract for Public Institutions with Kang again, and the contract period was from March 1, 2017 to February 29, 2020. On January 24, 2019, the General Branch Committee of the Highway and Transportation Management Center of H County of the Communist Party of China issued a "Report on Retaining kang's Notice of Labor Relations" to the Party Committee of the H County Traffic Bureau Bureau, which stated that the management center only learned in October 2018 that Kang was sentenced by the court in 2012 for committing credit card fraud, and proposed to make Kang "retain the labor relationship and deduct back 2011, The 2012 assessment bonus and the full salary except for the basic living expenses from September 2011 to August 2012, a total of 111235 yuan" and other handling decisions, and request approval. On June 25, 2019, the management center issued a "Certificate of Termination of Employment Contract" to terminate the employment contract with Kang. At the same time, in addition to retaining the living expenses of 9285 yuan, the management center deducted 111325 yuan of Kang's salary, bonuses and other 111325 yuan from September 2011 to August 2012. In addition, from September 2011 to August 2012, Kang's post salary was 615 yuan / month, the salary scale salary in 2011 was 386 yuan / month, and the salary scale salary in 2012 was 432 yuan / month. After Kang applied for arbitration, he requested: 1. Revoke the decision made by the management center to terminate the employment contract made by Kang, and the management center continued to perform the obligations stipulated in the "Employment Contract of Public Institutions"; 2. The management center returned the amount 111235 yuan that Kang had been deducted. On April 15, 2020, the H County Labor and Personnel Dispute Arbitration Commission rendered an award: the management center refunded 111235 yuan that Kang had been deducted; rejected Kang's other arbitration claims. After that, both parties were not satisfied with the ruling and separately sued the court.

The court of first instance held that if a public institution concludes, performs, modifies, rescinds or terminates a labor contract with a staff member under the employment system, and otherwise provided by laws, administrative regulations or the State Council, such provisions shall prevail; According to Article 14 of the Interpretation of Issues Related to the Trial Employment System of Public Institutions (Guo Measures [2003] No. 61), "where a person is sentenced by a people's court to short-term detention or a suspended sentence of fixed-term imprisonment, the unit may terminate the employment contract". Article 29 of the Trial Rules for the Employment System of Public Institutions in Province A stipulates: "In any of the following circumstances, the employing unit may terminate the contract at any time and notify the hired personnel in writing: ... (6) Those sentenced by a people's court to a sentence of short-term detention or fixed-term imprisonment with a suspended sentence or above." As an organization that undertakes functions such as public administration and public service, compliance with discipline and law is one of the basic conditions for its staff to be hired and perform their duties normally. In this case, Kang was a staff member employed by a public institution, and he should have committed credit card fraud and was sentenced to a suspended sentence of fixed-term imprisonment by the people's court in accordance with the law, and the facts were clear, and the management center made a "Certificate of Termination of Employment Contract" based on this, which terminated the employment contract relationship with Kang, which was in line with the provisions of the personnel system. Kang claimed that the management center should have known about his involvement at the time of the case, but failed to provide sufficient evidence, and the court of first instance did not accept it. With regard to the issue of the limitation period and processing period for the management center to issue the Certificate of Termination of employment contract, the right to rescind the contract is a right of formation, not a right of claim, so it does not apply to the limitation system, while Article 6 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Interim Provisions on the Punishment of Public Institution Staff, "The decision on the punishment of the staff of the public institution who has been sentenced to criminal punishment shall be made within one month after the judgment takes effect" is an administrative provision, and the period is not the exclusion period prescribed by law. The consequence of violating this provision is that the competent department orders the relevant unit to make a punishment decision, etc., which cannot constitute the reason for Kang's exemption from liability. Therefore, Kang's opinion that the management center had made the limitation period and the period of termination of the employment contract had expired was not adopted by the court of first instance. On the issue of whether the management center duplicates the processing, the "Report on Retaining Kang's Notice of Labor Relations" made by the General Branch Committee of the Cpc Management Center on January 24, 2019, suggests that "retaining the labor relationship" is not a final decision, but only a report to the superior organization for instructions, so the "Certificate of Termination of Employment Contract" made by the management center on June 25, 2019 is not a duplicate decision on Kang to make the opposite intention. In summary, Kang's request to revoke the decision of the management center to terminate the employment contract and continue to perform the obligations stipulated in the Employment Contract of public institutions has no legal basis and is not supported. Regarding the withholding of wages, bonuses, and other issues, according to the "Circular of the Organization Department of the Provincial Party Committee and the Department of Personnel on the Handling of Wages after State Organs and Public Institution Staff Receive Administrative Criminal Punishments", if a public institution staff member is released on guarantee pending further investigation, the salary (including various subsidies and bonuses) shall be suspended during this period and paid as living expenses in accordance with a fixed part of the composition of his or her original salary; Subsistence expenses are calculated on the basis of 85 per cent of the fixed portion of the person's pre-sentence salary. In this case, the management center claimed that the withholding of Kang's wages, bonuses, etc. except for retained living expenses between September 2011 and August 2012 complied with the provisions of the personnel system, but the amount withheld was incorrectly calculated, and the court of first instance corrected it. Between September 1, 2011 and July 14, 2012, during the release on guarantee pending further investigation, the management center affected him to issue living expenses of 10,762 yuan ((615 yuan + 386 yuan) ×4 months + (615 yuan + 432 yuan) × (6 months + 10/22)]; between July 15, 2012 and August 31 of the same year, during the probationary execution stage, the management center affected his payment of living expenses of 1618 yuan ((615 yuan + 432 yuan) × (1 month + 12/22) × 85%], so the management center should issue 12380 yuan (10762 yuan + 1618 yuan) to Kang during the above period, and now the management center only retains 9285 yuan for Kang,000 yuan, so Kang asked the management center to return the deducted money of 3095 yuan (12380 yuan -9285 yuan), the court of first instance supported it, and the excess part was not supported.

The court of second instance held that the focus of the dispute between the parties in the second instance was whether the management center's punishment of Kang exceeded the statute of limitations and whether it was repeatedly handled.

First of all, kang, as an employee of a public institution, was sentenced to a suspended sentence by the people's court for a criminal offense, and the management center could terminate the employment contract with him according to law. Secondly, Kang's claim that the management center at the time of the crime was aware of the circumstances involved in the case and that the statute of limitations had exceeded the statute of limitations at the time of handling did not provide sufficient and effective evidence to prove it, which was not accepted enough. Third, article 6 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Interim Provisions on the Punishment of Public Institution Staff, which stipulates that "the punishment decision of a public institution staff sentenced to a criminal punishment shall be made within one month after the judgment takes effect", in connection with the context, it should be considered that the purpose of the provision is to urge the employer to handle the termination formalities in a timely manner, etc., and does not restrict the right of rescission. Finally, the "Retention of Labor Relationship" in the "Report on retaining Kang's Notice of Labor Relations" is a handling recommendation rather than a final decision, but only a report to the superior organization for instructions, so the "Certificate of Termination of Employment Contract" made by the management center on June 25, 2019 is not a duplicate handling decision with the opposite intention. Therefore, the decision made by the management center to terminate the employment contract was legal, and Kang's request to revoke the termination decision and continue to perform the employment contract had no legal basis, and the court of first instance did not support it and was not improper.

Regarding the issues of wages and bonuses, the management center advocates the withholding of Kang's wages, bonuses, etc. in addition to retaining living expenses between September 2011 and August 2012, which is in line with the relevant personnel system provisions such as the Notice of the Organization Department of the Provincial Party Committee and the Department of Personnel on the Handling of Wages after Administrative Criminal Penalties for Staff of State Organs and Public Institutions. The court of first instance has also corrected the amount that was miscalculated. With regard to the issue of the statute of limitations in that part, it is the same as the statute of limitations for the decision to be lifted and will not be repeated. And Kang said that part of the money was handed over to the management center, which should be regarded as having voluntarily fulfilled the relevant obligations, then Kang then requested return on the grounds that the statute of limitations had exceeded, and the reason could not be established.