How to sign the labor contract of the legal representative

How does the legal representative answer this question when signing a labor contract? First of all, we must clarify the relationship between the legal representative and the legal person. Article 38 of the General Principles of the Civil Law stipulates that the legal representative of a legal person refers to "the person in charge who exercises functions and powers on behalf of the legal person in accordance with the law or the articles of association of the legal person". The characteristics of legal representative First of all, the legal representative of a legal person is stipulated by law or the articles of association of the legal person. Secondly, the legal representative of a legal person is the person who exercises authority on behalf of the legal person. The legal representative has the right to directly handle the affairs of the legal person without other authorization of the legal person. Thirdly, the legal representative is the main person in charge of the legal person. When the legal representative acts on behalf of a legal person according to law, it is an integral part of the legal person, and the behavior of the legal representative is the behavior of the legal person. All legal consequences arising from the legal representative's performance of his duties shall be borne by the legal person. Then, does the legal representative of the enterprise need to sign a labor contract? The legal representative of a public institution is directly stipulated by law. Whoever holds a specific leadership position is the legal representative, such as the director of the public security bureau and the president of a university. There is a staffing relationship between them and the legal entity, and there is no problem of signing a labor contract. In practice, it seems that there are different opinions on whether the legal representative of an enterprise needs to sign a labor contract. Article 2 of the Labor Contract Law stipulates that people, enterprises, individual economic organizations, private non-enterprise units and other organizations (hereinafter referred to as employers) in China shall establish labor relations with workers and conclude, perform, modify, dissolve or terminate labor contracts. State organs, institutions, social organizations and laborers who have established labor relations with them shall conclude, perform, modify, dissolve or terminate labor contracts in accordance with this Law. If the employees of these organizations have labor relations, they shall sign a written labor contract with the employer. If a written labor contract is not signed within 1 month from the date of employment, the employer shall bear the responsibility of paying double wages; /kloc-If a written labor contract is not signed within 0/year, it shall be deemed that both parties have signed an open-ended labor contract. The first view is that the legal representative of an enterprise should sign a labor contract with the superior department in charge of the enterprise. The Notice of the former Ministry of Labor on the Full Implementation of the Labor Contract System stipulates that factory directors and managers should sign labor contracts with the employing departments; The director, manager and relevant management personnel of a company-based enterprise shall sign a labor contract with the board of directors in accordance with the management provisions of the Company Law on managers and management personnel. The former Ministry of Labor's Answers on Issues Concerning Labor Contracts in the Implementation of Labor Law further clarified the issue of "factory directors and managers signing labor contracts": "According to the regulations issued by the Labor Department of the Ministry of Labor, factory directors and managers are appointed (employed) by their superior departments and should sign labor contracts with the employment (employment) departments. The factory director, manager and relevant management personnel of a corporate enterprise shall sign a labor contract with the board of directors in accordance with the provisions of the Company Law of People's Republic of China (PRC) on managers and management personnel. " These provisions have not been abolished so far. The second view is that the legal representative of an enterprise does not need to sign a labor contract. The reason is that the legal representative of the enterprise appears as both the "legal representative" and the laborer in the labor contract and signs the contract with himself. Such a contract is untenable. This statement seems reasonable on the surface, but after a little analysis, it is not appropriate. The "he" of the legal representative is not the "he" of Party B's workers. A person's two identities are given by law, but their roles are different after all. The legal representative refers to the person in charge who exercises functions and powers on behalf of the legal person in accordance with the law or the articles of association of the legal person. Taking a limited company as an example, the legal representative can be the chairman or general manager of the company, which is stipulated in the articles of association. The formation and appointment of the legal representative shall be in accordance with the procedures prescribed by law or the articles of association. As the legal representative, it is the behavior of the company to perform its duties. As a member of the company and an employee of the company, it is naturally adjusted by the labor law. Therefore, signing a labor contract is its legal right and obligation. This kind of labor contract with one person at the same time is still a labor contract between the unit and the laborer, not a contract between the unit and itself. This statement makes sense, but it is not entirely correct. According to Article 47 of the Company Law, the board of directors is responsible to the shareholders' meeting, and decides to appoint or dismiss the manager of the company and their remuneration. According to the nomination of the manager, the board of directors decides to appoint or dismiss the deputy manager and financial officer of the company and their remuneration. Article 50 stipulates that the manager is responsible to the board of directors and proposes to appoint or dismiss the company's deputy manager and financial officer; To decide on the appointment or dismissal of management personnel other than those who should be appointed or dismissed by the board of directors. In practice, the usual practice is that the labor contract of the manager (general manager) is signed with the chairman (on behalf of the company); Senior managers below the manager (general manager), such as deputy general manager, chief financial officer and chief personnel officer, should sign with the manager (general manager, representing the company). Other personnel can sign with the manager (general manager) or personnel to see the different situation of each company. However, the company law does not stipulate the appointment of the chairman, which is a relatively important position. Article 45 of the Company Law stipulates that the board of directors shall have a chairman and may have a vice-chairman; The method for the formation of the chairman and vice chairman shall be stipulated in the articles of association. It should be noted that this clause stipulates that the chairman is "produced" rather than "appointed". Because generally speaking, the chairman is the boss, and the boss can only hire others, of course, and there is no problem of "hiring" himself. Whether the legal representative should sign a labor contract cannot be generalized. The legal representative of an enterprise appointed by shareholders, such as the chairman appointed by SASAC and the chairman of an independent subsidiary appointed by a group company, should, in principle, sign a labor contract with the appointee, such as SASAC and the group company, instead of signing a labor contract with the company, and there is no labor relationship with the company. For other enterprises, it mainly depends on whether they are shareholders, especially whether they are major shareholders. If it is a major shareholder, it belongs to the "boss" and belongs to the employer rather than the employees (laborers), and should not have labor relations with the company. In theory, it is neither necessary nor reasonable to have labor relations with the company (let the company bear the responsibility, that is, let itself bear the responsibility). A sole proprietorship enterprise can fully illustrate this point. According to Article 19 of the Law on Solely Owned Enterprises, investors of a sole proprietorship enterprise can manage enterprise affairs by themselves, or entrust or hire other persons with civil capacity to manage enterprise affairs. Where an investor entrusts or employs others to manage the affairs of a sole proprietorship enterprise, it shall sign a written contract with the trustee or employee, specifying the specific contents of the entrustment and the scope of the rights granted. Article 22 stipulates that when a sole proprietorship enterprise recruits employees, it shall sign labor contracts with employees according to law, ensure the labor safety of employees, and pay their wages in full and on time. Article 23 stipulates that a sole proprietorship enterprise shall participate in social insurance and pay social insurance premiums for its employees in accordance with state regulations. It can be seen that investors of sole proprietorship enterprises should not "sign" contracts (including labor contracts) with themselves, and do not have to pay social security fees for themselves; The investor of a sole proprietorship enterprise shall sign a contract with the manager (which may or may not be a labor contract); Investors of a sole proprietorship enterprise must sign labor contracts with employees and pay various social insurance premiums for employees. It is concluded that the relationship between the legal representative and the enterprise is not a labor relationship, which is not subject to the adjustment of labor law and does not need to sign a labor contract. Of course, if the legal representative receives wages from the company and there is also a labor relationship, he can also sign a labor contract. If the legal representative is not a shareholder, but a boss in name, but actually a worker, he should sign a written labor contract with the enterprise.

Legal objectivity:

Article 16 of People's Republic of China (PRC) Labor Contract Law * * * A labor contract shall come into effect after the employer and the employee reach an agreement through consultation and sign or seal the text of the labor contract. The text of the labor contract is held by the employer and the employee respectively. Article 61 of the Civil Code of People's Republic of China (PRC) According to the provisions of the law or the articles of association of a legal person, the person in charge of civil activities on behalf of a legal person is the legal representative of the legal person. The legal consequences of the legal representative's civil activities in the name of a legal person shall be borne by the legal person. The restriction of the legal representative's representation by the articles of association or the functions and powers of the legal person shall not be against the bona fide counterpart. Article 161 of the Civil Code of People's Republic of China (PRC) * * * A civil subject may carry out civil juristic acts through an agent. In accordance with the provisions of the law, the agreement of the parties or the nature of civil legal acts, civil legal acts that should be implemented by themselves shall not be represented.