Research On The Mandatory Conclusion Rules Of Labor Contracts Without Fixed Term Based On The Number Of Renewals

Under the "new normal" of slowing economic growth,with the advancement of measures such as "supply-side structural reforms",the "Labor Contract Law" was pushed to the trend of public opinion and was regarded as "restricting the freedom of employment" and " The obstacles to reducing the vitality of business development,and the "forced conclusion rules" have become the target of public criticism.The Labor Contract Law establishes the mandatory conclusion rules for non-fixed-term labor contracts based on the number of renewals.The purpose of legislation is to curb the abnormal short-term labor contracts,and to reflect the value orientation of labor legislation to guarantee professional stability and restrict employment management rights.Compulsory contracting is a statutory obligation for an employer to conclude a labor contract without a fixed term.Its legal basis is embodied in the third paragraph of Article 14(2)of the Labor Contract Law.By combing the legislative status of the mandatory conclusion rules,it is found that the theoretical and practical disputes are essentially "institutional legitimacy" and "applicable normative" issues.The 76 judgements show that the results of the trial of the mandatory conclusion rules are significantly different.It is mainly manifested in three aspects: whether the renewal of the agreement is a precondition for the application of the polarization;the determination of the laborer's submission or consent and the exclusion of the situation does not form a unified standard,which essentially implies the referee's subjective attitude towards the rule;When the number of renewals meets the conditions for compulsory contracting and there is no contract for a fixed-term labor contract,there is still a dispute as to whether the employer assumes legal liability.In addition,the mandatory conclusion rules also have the problem that the burden of proof is unclear and the burden of illegal liability is different in the specific case judgment process.Whether the mandatory conclusion rules are justified or not must be demonstrated in combination with legal value analysis.The formulation of the labor law is based on the basic facts of strength and weakness.The logical starting point is the disparity in bargaining power between employers and employees.This means that the choice of the term of the labor contract can hardly reflect the true meaning of the employee.Through the intervention of public power,moderately inclined in the system design and the allocation of rights and obligations,in line with the value choice of social law to pursue substantive justice,is also the proper meaning of the laborer's professional stability right.At the judicial application level,the interpretation of renewal consent is based on the legislative purpose of the mandatory conclusion rules,revealing the attributes of its unilateral contracting rights,that is,the appropriate restrictions on the contracting freedom of the employer;the distinction between the laborer's offer or consent and the exclusion.From the perspective of legal interpretation,based on the interpretation of the meaning of the text and the interpretation of the system,it is clarified that the laborer has the obligation to express the meaning of renewal.As long as the renewal of the fixed-term labor contract is not proposed,the labor contract with no fixed term should be concluded;Two consecutive fixed-term labor contracts shall be concluded.If the labor relationship is maintained after the expiration of the labor contract but the employer has not entered into a non-fixed-term labor contract,the employer shall distinguish between the fixed-term labor contract and the retained factual labor relationship.The meaning indicates the content and the mandatory meaning of the contract.On the basis of analyzing the applicable dilemma of the mandatory conclusion rules,the corresponding suggestions are put forward in combination with the system construction and judicial application.First of all,at the legislative level,the institutional mechanism of the mandatory conclusion rules should be clarified,the contracting obligations should be strengthened and the dismissal protection system should be improved.Secondly,at the judicial level,it should be clarified that the application of the mandatory conclusion rules is not based on the premise that the meaning of renewal is consistent.The laborer should advocate the conclusion of an irregular labor contract with the employer.At this time,the latter may not refuse the contractual request made by the former;If the actual employment of the term labor contract is still due,it shall be deemed to have established a non-fixed term labor contract relationship.