LCL 47, 87; LCL ImpRegs 25; Severance Calculations

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The following provisions of the Labor Contract Law of the People’s Republic of China (LCL) and the Regulations on the Implementation of the Labor Contract Law of the People's Republic of China detail how economic compensation (severance) and economic damages (double severance) are calculated and that one cannot receive both economic compensation and economic damages for the same matter.

(1) 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

Article 47 - Severance Calculation 

The economic compensation shall be paid to workers according to the number of years he has worked for the employer by the rate of one month's salary for each full year he worked. Any period of above six months but less than one year shall be deemed as one year. The economic compensations that are paid to a worker for any period of less than six months shall be one-half of his monthly salary.

If the monthly salary of a worker is three times higher than the average monthly salary of workers as announced last year by the people's government at the municipal level directly under the central government or at the level of districted city where the entity is situated, the rate for the economic compensations paid to him shall be three times the average monthly salary of workers and may not exceed 12 years of work.

Monthly salary as mentioned in this Article means the average monthly salary of the worker for the 12 months before the discharge or termination of the labor contract thereof.

第四十七条

经济补偿按劳动者在本单位工作的年限，每满一年支付一个月工资的标准向劳动者支付。六个月以上不满一年的，按一年计算；不满六个月的，向劳动者支付半个月工资的经济补偿。

劳动者月工资高于用人单位所在直辖市、设区的市级人民政府公布的本地区上年度职工月平均工资三倍的，向其支付经济补偿的标准按职工月平均工资三倍的数额支付，向其支付经济补偿的年限最高不超过十二年。

Article 87 - Double Severance Calculation 

Where any employer is in violation of this Law because of discharge or termination of the labor contract, a compensation shall be paid to the worker at the rate of twice of the economic compensations as prescribed in Article 47 of this Law.

第八十七条　

用人单位违反本法规定解除或者终止劳动合同的，应当依照本法第四十七条规定的经济补偿标准的二倍向劳动者支付赔偿金。

(2) Regulations on the Implementation of the Labor Contract Law of the People's Republic of China

中华人民共和国劳动合同法实施条例

http://www.gov.cn/zwgk/2008-09/19/content_1099470.htm 

Article 25 - Payment of Double Severance Vitiates Need to Pay Severance  

Where any employer dissolves or terminates the labor contract with an employee against the Employment Contract Law, if it has paid a compensation according to Article 87 of the Labor Contract Law, it is not required to pay severance. The working time based on which the aforesaid compensation is calculated shall be calculated from the day when the employee was hired.

第二十五条　

用人单位违反劳动合同法的规定解除或者终止劳动合同，依照劳动合同法第八十七条的规定支付了赔偿金的，不再支付经济补偿。赔偿金的计算年限自用工之日起计算。

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