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3 Typical Errors Made by Employers in Issuing the Notice of Termination (Part II)Confusion of Termination and ExpirationActually, termination and expiration are two completely different legal concepts according to PRC labor laws. Although, termination and expiration of the employment contract will both lead to the termination of labor relations between employers and employees. And employers will have a considerable legal risk if they use these two words indiscriminately in the formal documents, especially in the notice of termination of employment contract. Meanwhile, 'legal termination' may also become 'illegal expiration' because of using the incorrect word. Four differences between the termination and expiration:The Principles of ApplicationTermination of the employment contract is based on the autonomy of will of the parties concerned. It emphasizes the subjective factors. That means termination is to end labor relationship in advance on the basis of one or both of the subjective will of employer and employee. Termination of the employment contract can be divided into unilateral termination and termination through mutual consultations. The expiration, on the other hand, is more objective. The legal objective situation leads to the expiration of the employment contract.An employer and an employee may agree through mutual consultations and agreement to terminate their employment contract. In addition, an employer or an employee may also unilaterally terminate the employment contract under statutory circumstances. The specific provisions of statutory circumstances are recorded in Article 36 to Article 41 of 'Employment Contract Law'. Article 44 of 'Employment Contract Law' provide that six statutory circumstances under which an employment contract can expire. The statutory circumstances mainly include: where the term of employment contract has expired, where the employee who has started to enjoy basic pension insurance benefits, where employees or employers who lost the subject qualification, etc.As previously mentioned, the termination of employment contract includes many subjective factors. To prevent employers from abusing their rights to terminate employment contracts, the law stipulates that the employment contract must be terminated under strict procedures, so as to protect the employees' labor rights. The most typical procedure is to notify the trade union of the reasons for doing so when an employer seeks to terminate an employment contract unilaterally. And the expiration of the employment contract is generally caused by the legal objective situation. Relatively speaking, expiration of the employment contract needs less procedure requirements.The legal consequences of termination and expiration of employment contracts made by employers illegally are basically the same. But they are different in the case of termination and expiration legally. For instance, according to the provisions of Article 97 of the 'Employment Contract Law', the starting time for calculating severance of termination of employment contracts is different from the starting time of expiration of employment contracts. Besides, employers may pay the employee an amount equivalent to one month's salary in lieu of notice or the medical treatment allowances in accordance with Article 40 hereof of 'Employment Contract Law' during the termination process. The expiration of the employment contract does not involve these.When issuing the termination notice, the employer shall keep in mind these 4 rules: state the reasons for termination as accurately as possible; avoid unnecessary details; avoid any misstatement of reasons for termination; and avoid any omission of reasons for termination.根据中国劳动法律，解除与终止实际上是两个完全不同的法律概念，虽然劳动合同的解除和终止都会导致劳资双方劳动关系的终结。如果企业在正式文件，特别是解除劳动合同通知中，不加区分地随意使用，将会产生相当大的法律风险，一词之差，“合法解除”也可能会变成“非法终止”。解除劳动合同，需要合同当事方的意思表示，更加强调主观因素，即基于用人单位或劳动者一方或双方的主观意志而提前结束劳动关系，具体可以分为单方解除和协商解除，解除劳动合同的意思表示通知到对方时，解除生效。而劳动合同的终止，则具有客观性，即因法定的客观情形出现而导致劳动合同终结。劳动合同的解除，既可以是双方协商一致解除劳动合同，也可以是劳动者或用人单位依法单方解除劳动合同，而解除事由具体规定在《劳动合同法》的第三十六条到第四十一条；《劳动合同法》的第四十四条，则另行规定了劳动合同终止的六种事由，主要有包括劳动合同期满、劳动者开始依法享受基本养老保险待遇的、劳动者或用人单位丧失主体资格等。以用人单位单方解除为例，由于劳动合同的解除本身具有主观性，为了避免用人单位利用自身优势滥用解除权，损害劳动者的合法权益，法律规定解除劳动合同时必须经过严格的程序，最典型的即通报工会程序；而劳动合同的终止，因为一般是法定的客观情形所致，故相对而言，程序性的要求较少。用人单位违法解除或终止劳动合同的法律后果基本相同，但如果是依法解除或终止劳动合同的，则结果有所差异。比如，根据《劳动合同法》第九十七条之规定，劳动合同解除或终止时经济补偿的起算点不尽相同。另外，用人单位依照《劳动合同法》第四十条解除劳动合同的，还可能会涉及代通金、医疗补助费等问题，而终止劳动合同则不存在这个问题。
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