（武汉大学 法学院，湖北 武汉 430072）
The Nature and Scope of Employee’s Remuneration during the Period of Illegal Dismissal
— On the Construction of the Relevant System of the Civil Code
YU Shu-hong, CHENG Ling,
( School of Law，Wuhan University，Wuhan 430072 China)
Abstract: For the issue of employee’s remuneration during the period of illegal dismissal，there are inconsistent treatment ways in legislation and judicial practice. In the cases where the dismissal is illegal and the employment contract continues to be performed, the legal theoretical basis for employee to enjoy remuneration during the period of illegal dismissal includes theories on non-performance of obligation and the burden of gegenleistungsgefahr. Based on theoretical legitimacy of the protection path and legal effect of protecting employee, it should apply theory on the burden of gegenleistungsgefahr in the determination of the employee’s remuneration during the period of illegal dismissal. Therefore, the nature of the remuneration is wage. For the calculation of the wage, firstly, wage base should be determined according to security, consideration and payment-regularity. And then the intermediate income should be deducted. For the systematical construction of the wage security system for employees during the period of illegal dismissal, relevant rules for the burden of gegenleistungsgefahr should be established in the general and specific provisions of Civil Code’s Contract Chapter and Employment Contract Law to guide judicial practice.
Key words: illegal dismissal; wage; default in acceptance; the burden of gegenleistungsgefahr