LCL Implementation Regulations 26; LCL 38 & Breach Penalties
The following provision of the Regulations on the Implementation of the Labor Contract Law of the People's Republic of China (LCL Implementation Regulations) details how resigning under LCL 38 vitiates claims for breach penalties based repayment for training provided by the employer.
Article 26 - Effect of LCL 38 Resignation on Breach Penalty Claims
If an employer and an worker have agreed on the period of service in the labor contract, when the worker terminates the labor contract according to Article 38 of the Labor Contract Law, it is not against the stipulation of the period of service, and the employer is not entitled to ask the worker to pay a penalty for breach of contract.
The worker shall pay a penalty for breach of contract to the employer if the employer dissolves the labor contract which has stipulated the period of service under any of the following circumstances:
(1) The worker seriously violates the rules and procedures set up by the employer;
(2) The worker seriously neglects his duties or engages in malpractice for personal gains and has caused severe damages to the employer;
(3) The worker simultaneously enters an labor relationship with any other employer and thus seriously affects his completion of the tasks assigned by the employer, or the worker refuses to correct after the employer has pointed out the problem;
(4) The worker, by means of deception or coercion or by taking advantage of the employer’s difficulties, forces the employer to conclude or change the labor contract against the employer’s true will; or
(5) The worker is under investigation for criminal liabilities.
第二十六条
用人单位与劳动者约定了服务期，劳动者依照劳动合同法第三十八条的规定解除劳动合同的，不属于违反服务期的约定，用人单位不得要求劳动者支付违约金。
有下列情形之一，用人单位与劳动者解除约定服务期的劳动合同的，劳动者应当按照劳动合同的约定向用人单位支付违约金：
（一）劳动者严重违反用人单位的规章制度的；
（二）劳动者严重失职，营私舞弊，给用人单位造成重大损害的；
（三）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；
（四）劳动者以欺诈、胁迫的手段或者乘人之危，使用人单位在违背真实意思的情况下订立或者变更劳动合同的；
（五）劳动者被依法追究刑事责任的。
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
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