Study On The System Of Continuing Fulfillment In Labor Contract Law

With the all-round development of the market economy and the in-depth implementation of the Labor Contract Law,after the worker is lifted by law,more and more cases are required to continue to perform the labor contract.Such cases directly affect the employer's labor autonomy and the labor rights of workers.It appear to have clear legal provisions,but are debatable in practice.Judicial discretion departments do not have uniform standards and rules of trial,both employers and employees fail to recognize the outcome of judicial decisions,which naturally leads to difficulties in determining the final order after the verdict,legal provisions can not achieve the real legal effects and social effects of the unity.According to the legislative intent of the Labor Contract Law,the continuous implementation of the labor contract system aims at protecting the legitimate rights and interests of laborers,when the laborers facing the employer's relatively disadvantaged party are dissolved illegally by the employer,they have the priority to continue to perform the labor contract.Therefore,from the perspective of protecting workers,this paper studies the continuation of the system of labor contract law.In the study of the above issues,this paper mainly uses the empirical research methods such as data analysis and case analysis,at the same time,it combines the comparative law,normative analysis and other methods.These methods have important practical significance for the theoretical reconstruction of the system of continuing performance and the dispute resolution of such cases.The findings of this article are:the system of continuous performance of labor contracts mainly involves the conflict between the workers' labor rights and employer's employment autonomy,and this conflict stems from the Labor Contract Law as a civil contract,has more obvious characteristics of human nature than civil and commercial contracts.;the continuous performance of the labor contract must be based on the full trust of both employers and employees.Such performance based payment is not suitable for enforcement,once it is enforced,it is prone to secondary disputes.It can neither protect the legitimate rights and interests of workers nor increase the litigation of the parties tired.This article claims the solution to the problem of the continuous performance of labor contracts can be achieved through the combination of alternative performance and continued performance of such priority choices,by distinguishing the type of illegal release,personnel,perfecting standards of non-compliance and increasing the labor union's contribution to the promotion of continued performance and other means to protect the labor rights of workers and promote further harmonious labor-capital relations.This article divides into four parts,carries on the research to the continuing performance system in the labor contract law.The first part introduces the dilemma of implementing the system through two cases and outlines the four dilemmas of implementing the system,they are the chaotic model of uniform application to continue to implement the system,the unclear legal provisions that can not be actually implemented,the inconsistency in the continued performance of labor dispatch,and the difficult implementation of the system.Through these four aspects,I elaborate on the existing problems in Article 48 of the Labor Contract Law.The second part mainly introduces the basic theoretical of the system of continuing performance,they are respectively the theoretical origin of continuing to fulfill the system,continue to fulfill the system's value function and defects,and personality characteristics of the system of continuing performance in Labor Contract LawThe third part draws lessons from the system experience of the labor contract in the United Kingdom,the United States and Japan,sort out the necessary conditions for continuing to implement the system,draw the enlightenment to the reconstruction of our country's system of continuous performance.The fourth part puts forward the reconstructing plan of Article 48 of the Labor Contract Law by means of four kinds of realistic dilemmas and by referring to the experience of western countries,such as distinguishing the employer's fault level and workers groups,strengthen the combination of alternative performance of economic compensation and the priority of continued performance,perfect the standard can not continue to fulfill the labor contract,increase the role of trade unions in promoting the continuous performance of labor contracts.