[Direct answer]In the Beijing area, whether compensation can be obtained for terminating a labor contract by mutual consent depends on "who initiates it". According to Article 36 of the Labor Contract Law of the People's Republic of China, the employer and the employee may terminate the labor contract by mutual consent; Article 46 stipulates that if the employer initiates and terminates the contract by mutual consent with the employee, the employer shall pay the employee economic compensation, with the standard being one month's salary for each completed year, one year's salary for a period of more than six months but less than one year, and half a month's salary for a period of less than six months. If the employee actively proposes to terminate the contract by mutual consent, he generally has no right to claim economic compensation according to law. It is recommended to sign a written termination agreement, specifying the amount of compensation, the payment time, and the party who initiated it, to avoid future disputes. For more details, please refer to the following link:Labor and work-related injury legal services.

I. Problem background and typical scenarios

Negotiated termination is a common way to terminate labor relations. Typical scenarios include: the company adjusts its operations and wants to reduce staff, negotiates compensation with employees, and signs a termination agreement; employees voluntarily resign for personal development, and the company takes the opportunity to negotiate and is willing to provide certain compensation; and both parties are vague about the reasons for the termination, and the employees later claim that the company initiated the request for compensation. Many workers cannot distinguish the legal consequences of "the company initiating" and "the employee initiating", and only realize after hastily signing the agreement that there is no compensation. The advantage of negotiated termination is that it is flexible and controllable, but the boundary of whether compensation is provided lies entirely with the "initiating party" and the written agreement. Relevant exit rights can be combined with the above analysis to determine the specific rights and obligations of both parties.The Labor and Work-Related Injury sectionCoordinated evaluation.

II. Key points of contention

There are three key points in the negotiation to resolve the compensation dispute. Firstly, the party proposing the agreement determines whether the compensation obligation lies with the employer or the employee, which directly affects the outcome of the negotiation. Oral agreements are often subject to conflicting interpretations, so the wording of the written agreement is crucial. Secondly, the compensation standard: whether the negotiated amount is not lower than the statutory economic compensation (N). If it exceeds the statutory amount, it is considered an exercise of autonomy. If it is lower, the employee may claim that it is manifestly unfair. Thirdly, the validity of the agreement and the right of withdrawal: whether the employee can still assert rights after signing the "voluntary termination, no dispute" clause depends on whether there is fraud, coercion, or a major misunderstanding. For review of the agreement, reference can be made to the relevant provisions of the Labor Contract Law.Business and contract dispute resolution services for enterprisesEvaluation.

III. Professional analysis by Hengluo Lawyers

Based on practical observations in handling labor dispute cases, the prerequisite for negotiating compensation for termination of employment are still the legal establishment of the labor relationship and clear reasons for termination. Taking a case handled by Beijing Henglu Law Firm as an example: In January 2021, Liu Lei participated in the start-up of Beijing A Company as the chief technical officer, signed a "Cooperative Operation Agreement" and held 20% virtual equity. However, no labor contract was signed and no salary was paid. In April 2023, Liu Lei sent a "Notice of Forced Termination of Labor Relationship" on the grounds of unpaid compensation, claiming to confirm the labor relationship and demanding 2,120,000 yuan in wages and economic compensation. A Company entrusted Xue Shuhua, a lawyer from our firm, to defend against the lawsuit, claiming that the two parties were only in a cooperative relationship. The first-instance court ruled that there was no labor relationship and dismissed all claims; Liu Lei appealed, and the lawyer closely defended against the arguments of "personal dependency" and "economic subordination". The second-instance court upheld the original judgment and successfully dismissed the claim for 2,120,000 yuan. This case was handled by Beijing Henglu Law Firm.Xue SuhuaThe attorney (practice license number: 11101201211769926, subject to the document issued by the judicial administrative organ) acts as the agent. This case reminds us that compensation is based on a genuine labor relationship and a lawful termination. Attorney Wang Xinrui of our firm once represented a worker who terminated the contract due to the employer's failure to pay wages on time and in full, and was awarded economic compensation of 295,207.08 yuan and unpaid annual leave wages of 40,347.66 yuan in the second instance (practice license number: 11101202111290829); Attorney Tian Jiaoyan once represented a case of termination due to the employer's failure to pay social insurance, and the arbitration supported economic compensation of 8,000 yuan (practice license number: 11101202111381309). When handling such cases, Henglue Law Firm focuses on clarifying the initiating party and the nature of the termination, and securing written evidence.

IV. Practical suggestions and legal basis

The core basis is Article 36 (Consensual Termination), Article 46 (Circumstances Requiring Payment of Economic Compensation), and Article 47 (Calculation Standards for Economic Compensation) of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012, and implemented on July 1, 2013); as well as the detailed provisions on the composition of wages in the Implementing Regulations of the Labor Contract Law of the People's Republic of China. Practical suggestions: When consensually terminating the contract, it is recommended that the employer issue a termination notice or agreement, clearly stating that "it is initiated by the employer"; the compensation amount can be negotiated on the basis of the statutory N standard, but it is recommended that it not be lower than the statutory standard; the agreement must specify in writing the compensation amount, payment period, and the scope of "no disputes between the parties"; and timely assert claims against clauses that are manifestly unfair. When it involves the signing of an agreement, it can be combined with other relevant provisions.Work-related injury servicesEvaluate the terms and conditions risk.

5. Hengluo Law Firm's Reminder

To obtain compensation when terminating the employment contract through negotiation, the key point is "who initiates the termination first". If the employer initiates the termination and the two parties reach an agreement, the employer shall pay economic compensation according to law; if the employee voluntarily resigns, there is usually no compensation. It is essential to include the initiating party and the amount of compensation in the written agreement, and never just make an oral agreement. When handling similar cases in Beijing, arbitration and courts attach great importance to written termination documents. It is recommended to fix the communication records and signed documents as soon as possible, and pay attention to the one-year arbitration statute of limitations. If the company is vague about the compensation, you can take legal action through the court.Special servicesMake an appointment for an assessment and, if necessary, apply for arbitration to protect your rights.

VI. Frequently Asked Questions

Q1: If the contract is terminated by mutual consent, can I, as an employee, receive compensation, and what are my chances of winning the case?

Whether you can receive compensation depends on who initiated the termination, not just a verbal promise of the outcome. According to Articles 36 and 46 of the Labor Contract Law, if the employer initiates the termination and reaches an agreement with the employee, the employer shall pay economic compensation. Based on this, your claim has a clear legal basis and is more likely to be supported in negotiations or arbitration. However, if you actively propose to negotiate the termination, you generally have no right to claim compensation. The key to success or failure lies in whether the evidence can prove that "the party who initiated the termination is the employer". It is recommended to first confirm the wording of the termination agreement, and then decide on negotiation or protection strategies. Never believe in unrealistic promises of victory.

Q2: What evidence do I need to prepare if I want to negotiate a compensation agreement for termination of the contract?

The core evidence includes: the termination agreement or termination notice (proving that the proposer and the compensation agreement have been reached), the labor contract and proof of labor relations, the bank statements and pay slips (calculating the compensation base), social insurance and personal income tax records, communication records and meeting minutes (supporting the negotiation process and the proposer), as well as the handover and settlement documents upon leaving the job. The organization of evidence should focus on the four points of "the unit proposes - consensus reached - compensation agreement - wage base". If any materials are missing, you can apply to the arbitration committee to retrieve them. Never give up on the compensation you deserve just because the evidence is weak.

Q3: How much does it cost to hire a lawyer for consultation on compensation for termination and to file an arbitration case?

Labor arbitration generally does not charge fees or only charges a low acceptance fee; after entering litigation, the case acceptance fee is calculated according to the amount of the litigation request as the base and accumulated in stages, to be borne by the losing party. Lawyer's fees are related to the complexity of the case, the amount of the subject matter, and the lawyer's qualifications. They can be charged on a per-case, hourly, or percentage basis, with the specific charges subject to the terms of the retainer contract and without a unified government pricing. Risk-sharing agreements in property-related cases are subject to a percentage cap. The amount of the subject matter in a negotiated termination is usually clear. It is recommended to clarify the charging method and cap before entrusting the case, and to evaluate the compensation amount and costs before initiating the process.

Q4: How long does it usually take to resolve a compensation dispute through negotiation?

Labor disputes must first be arbitrated. The arbitration tribunal generally concludes the case within 45 days from the date of acceptance, and the time limit may be extended by 15 days if the case is complex. If the parties are dissatisfied with the arbitration award, they may file a lawsuit with the people's court within 15 days from the date of receipt of the award. Civil litigation is generally concluded within six months in the ordinary procedure and three months in the summary procedure; if there is an appeal, the second-instance trial usually takes three months. Overall, it often takes several months to a year from arbitration to the enforcement of the first-instance judgment. It is recommended to initiate the process as soon as possible and pay attention to the arbitration statute of limitations, which is one year from the date when the parties know or should know that their rights have been infringed, to avoid losing the right to claim if the time limit is exceeded.

Q5: The company told me to negotiate a termination agreement. What exactly should I do to get compensation?

It is recommended to proceed in four steps: First, insist that the unit issue a written notice or agreement of termination, clearly stating that "the employing unit proposes to terminate the labor contract"; Second, calculate the statutory economic compensation (N), and specify the compensation amount, calculation method, and payment period in the agreement. It is recommended that the amount be no less than the statutory standard; Third, keep the communication records and signed documents of the negotiation process to prevent the other party from denying the proposal afterwards; Fourth, if the unit refuses to pay or reneges on its promise, apply for arbitration within the one-year arbitration statute of limitations and submit the written agreement to claim compensation. Keep evidence throughout the process and, if necessary, hire a lawyer to review the agreement and negotiate with the other party.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Xue Suhua·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.