LCL 19, 20, 21, 37, 39, 40, 83; Probation

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The following provisions of the Labor Contract Law of the People’s Republic of China (LCL) detail legal stipulations on probationary periods in labor contracts.

LCL Article 19 Duration of Probationary Periods

Where the term of a labor contract is above three months but less than one year, the probation period thereof shall not be more than one month. Where the term of a labor contract is above one year but less than three years, the probation period thereof shall be less than two months. With respect to a labor contract with a fixed period of above three years or without a fixed period, the probation term thereof shall not be in excess of six months.

An employer can only stipulate one probation period with a same worker.

No probation period may be stipulated in a labor contract with a period to complete the prescribed work or a labor contract with a fixed period of less than three months.

The probation period shall be contained in the term of labor contracts. If only the probation period is stipulated in a labor contract, it shall be untenable and the said period shall be the term of the labor contract.

第十九条 

劳动合同期限三个月以上不满一年的，试用期不得超过一个月；劳动合同期限一年以上不满三年的，试用期不得超过二个月；三年以上固定期限和无固定期限的劳动合同，试用期不得超过六个月。

同一用人单位与同一劳动者只能约定一次试用期。

以完成一定工作任务为期限的劳动合同或者劳动合同期限不满三个月的，不得约定试用期。

试用期包含在劳动合同期限内。劳动合同仅约定试用期的，试用期不成立，该期限为劳动合同期限。

LCL Article 20 Probationary Period Salary

During the probation period, the salary of a worker shall not be lower than the minimum salary for the same post of the same employer or not lower than 80 percent of the wage as stipulated in the labor contract, nor may it be lower than the minimum wage of the locality where the entity is situated.

第二十条 

劳动者在试用期的工资不得低于本单位相同岗位最低档工资或者劳动合同约定工资的百分之八十，并不得低于用人单位所在地的最低工资标准。

LCL Article 21 Probationary Period Termination

During the probation period, unless the worker is under any of the circumstances as prescribed in Article 39 and Subparagraphs (1) and (2) or Article 40 of this law, the employer shall not terminate the labor contract. If any employer terminates the labor contract during the probation period, it shall make an explanation to the worker.

第二十一条 

在试用期中，除劳动者有本法第三十九条和第四十条第一项、第二项规定的情形外，用人单位不得解除劳动合同。用人单位在试用期解除劳动合同的，应当向劳动者说明理由。

LCL Article 37 Probationary Period Resignation

A worker may discharge the labor contract if he informs the employer in written form 30 days in advance. During the probation period, a worker may discharge the labor contract if he informs the employer three days in advance.

第三十七条 

劳动者提前三十日以书面形式通知用人单位，可以解除劳动合同。劳动者在试用期内提前三日通知用人单位，可以解除劳动合同。

LCL Article 39.1 Probationary Period Termination 

In the case of any of the following circumstances occurring to a worker, the employer may discharge the labor contract:

(1) It has been proved that he does not satisfy the recruitment requirements during the probation period;

(2) He is in serious violation of the bylaws of the employer;

(3) He causes any severe damage to the employer due to his grave negligence to his duties or seeking private benefits;

(4) He establishes a labor relationship with other employers at the same time and may seriously influence his completion of the works in this entity, or he refuses to make a correction even though the employer has pointed it out;

(5) The labor contract is invalidated due to the circumstance referred to in Item (1), paragraph 1, Article 26 of this Law; or

(6) He is subject to criminal liabilities according to law.

第三十九条 

劳动者有下列情形之一的，用人单位可以解除劳动合同：

（一）在试用期间被证明不符合录用条件的；

（二）严重违反用人单位的规章制度的；

（三）严重失职，营私舞弊，给用人单位造成重大损害的；

（四）劳动者同时与其他用人单位建立劳动关系，对完成本单位的工作任务造成严重影响，或者经用人单位提出，拒不改正的；

（五）因本法第二十六条第一款第一项规定的情形致使劳动合同无效的；

（六）被依法追究刑事责任的。

LCL Article 40 No Fault Contract Termination 

In the case of any of the following circumstances, the employer may discharge the labor contract after it notifies the worker himself in written form 30 days in advance or after it pay the worker an extra month's salary:

(1) The worker falls ill or is injured for a non-work-related reason, who is not able to bear the original post after the expiration of the medical treatment period as prescribed, nor can he assume any other position as arranged by the employer;

(2) The worker is incapable of doing his job and remains so upon training or upon adjustment to his post; or

(3) The objective circumstance has altered significantly, on which the conclusion of the labor contract is based, which results in that the labor contract is unable to be performed. And no agreement concerning the modification of contents of the labor contract is reached after consultations between the employer and the worker.

第四十条 

有下列情形之一的，用人单位提前三十日以书面形式通知劳动者本人或者额外支付劳动者一个月工资后，可以解除劳动合同：

（一）劳动者患病或者非因工负伤，在规定的医疗期满后不能从事原工作，也不能从事由用人单位另行安排的工作的；

（二）劳动者不能胜任工作，经过培训或者调整工作岗位，仍不能胜任工作的；

（三）劳动合同订立时所依据的客观情况发生重大变化，致使劳动合同无法履行，经用人单位与劳动者协商，未能就变更劳动合同内容达成协议的。

LCL Article 83 Remedies for Illegal Probationary Period Duration 

Where in violation of the provisions of this Law, an employing unit reaches an agreement with a worker on a probation period, the administrative department of labor shall order it to rectify. If the illegal agreement on a probation period is executed, the employing unit shall pay compensation to the worker at the rate of the worker’s monthly salary following the completion of his probation, for the period of performance by the worker in excess of the statutory probation period.

第八十三条

用人单位违反本法规定与劳动者约定试用期的，由劳动行政部门责令改正；违法约定的试用期已经履行的，由用人单位以劳动者试用期满月工资为标准，按已经履行的超过法定试用期的期间向劳动者支付赔偿金。

Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm 

中华人民共和国劳动合同法

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/fl/201605/t20160509_239643.html

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