Research On Application Of Labor Contract Law In Universities

The"Labor Contract Law"was effective from January 1, 2008. The right and obligation of two parties are defined by the"Labor Contract Law", and labor's legal interest is protected at the same time. In order to buile and develop harmonious and stable labor relations, the"Labor Contract Law"provides a strong legal pr otection as well. The"Labor Contract Law", from the drafting, has gotten concerns of all sectors of our society including workers and employers. The debate and reflection became more furious when this law came into effect. The fallowing are the contents of the second article of the"Labor Contract Law": This Law governs the establishment of employment relationships betw een, and the conclusion, performance, amendment, termination and ending of employment contracts by, organizations such as enterprises, individual economic organizations and private non-enterprise units in the People's Republic of China ("Employers") on the one hand and Employees in the People's Republic of China on the other hand. The conclusion, performance, amendment, termination and ending of employment contracts by state authorities, institutions or social organizations on the one hand and Employees with whom they establish employment relationships on the other hand, shall be handled pursuant to this Law."Article 96, however, special emphasis the exce ptions:"Where laws or administrative statutes contain, or the State Council has formulated, separate regulations concerning the conclusion, pe rformance, amendment, termination or ending of employment contracts by and between institutions and those of their working personnel that are subject to the employment system, matters shall be handled in accordance with such regulations; in the absence of such regulations, matters shall be handled in accordance with this Law."The general nature of the above laws leads to different versions of the interpretation, making the prolonged controversy. One focus of controversy is that public institutions can apply to the "Labor Contract Law" or not. Based on this, the application of labor contracts law of university teachers is selected as study of this paper.With our country's market economy system becoming better, and to reforming the system of the public institutions, the deepening of the personnel system, especially the reformation on university's personnel system in recent years, the legal rights of university faculty getting more and more people's attention. A long with the deepening of the reform of university teacher personnel system in Chinese universities, labor dispute concerning university teachers has become increasingly common. The key problem is to clear the legal nature of the relationship between s teacher and university. China's personnel management system reform leads to the change of university teacher's status, namely Chinese teacher's status transformed from the original"government carder"under the planning econ omy to the present"teaching professional"performing the task of education and teaching in the market economy. Accordingly, the administrative subordination relationship formerly existed between university teachers and government was also changed. The nature of legal relationship between teacher and universitiy is the starting point of the research on the application of university teacher's labor contract. How to establish the law relation between teacher and university determine the related problem of one nation university education system and good resolution mechanism of legal disputes.Around the topic, the logical way of this research is developed as follows: first, theoretical analysis including university teachers, labor contract, labor contract law and its application are put forward. Next, the current situation is in-depth analysis on application of labor contract law in universities, and then determining its judgments of application. After that some forward thinking and recommendations related with hot issues are proposed in the last part of this paper.Based on this, the structure of this dissertation goes into three parts, the Introduction, the Body and the Conclusion, and the Body consists of seven chapters.Chapter 1: This chapter first analyzes the background and significance of the research, and then explain the research questions, the purpose of this dissertation, research methods and contribution of the research, also introduce the research way and basic context of study.Controversy on the"Labor Contract Law"still continues, and different views still exist for the application of labor contract law in public institutions. The research on application of labor contract law in universities is more typical. Before promulgating the"Labor Contract Law", to settle the labor relationship problems between teacher and universitiy is only on"Teacher Law"and"Labor Law". So, there is a big administrative feature. After that"Labor Contract Law"promulgated and implemented, it had created a greater direct role of legalization and standardization for the employment of universities'teachers. However, only have the"Labor Contract Law"is not sufficient completely to solve the all current problems. According to the literature review can be seen that the research in this field is still at initial stage with few academic papers and works.Chapter 2: This chapter consists of three basic theoretical analysis of the legal relationship between teacher and university, the idea of contract of the"Labor Contract Law",and the basic characteristics of elements of application of labor contract law.This chapter focuse on the legal relationship between university and teacher which can be diveded into administrative legal relationship and civil legal relationship according to the different legal status of the two. The viewpoint of former reflects the status of the overall relationship between China's teachers and universities for a long time. However, this situation is contrary to the law of high education and the reform spirit of higher education management system.Labor contract is a relationship built between worker and employer to explicitly describe the legal responsibilities and rights of both sides. In market economy system, standard general civic action litigant both sides rights and obligations, based on the litigant meaning independent principle, must penetrate the contract to subscribe decides the thousandth of a Yuan clear litigant rights and obligations relations. Not only the work contract may be clear about the litigant rights and obligations relations, whether there is will be has the labor struggle dispute to judge basis of in the future the reason. The"Labor Contract Law"near one step changes China the labor market appearance, and has a stricter standard construction regarding the labor contract legal system. However, it is an important trend in relation to labor relations that the non-standard labor relations is increasing rapidly. Labor relations turning non-standard on a large scale have a great influence, increasing flexibility of employment arrangement and so benefiting countries, enterprises and individuals as a result on one hand, bringing negative effects especially to employment security on the other hand. How to face the changes? This is great challenges non-standard relations bring to labor law. This chapter studies concrete types of non-standard relations including two important types namely dispatched work, part-time work. The two types are provisioned by"Labor Contract Law", and the research on them is focused on shortcomings of existing law.In the field of labor law, labor relations ,as the regulated object ,is characteristic of concurrently including the equal relationship and the relationship of administrative subordination, the personal relationship and the property relationship. The labor contract is different with the common civil contract in the nature, the parties, the content and the adjustment way, so it should belong to the labor law category and protect the worker's legitimate rights and interests tipsily. It is more difficult to identify labor relations for subordinate character of non-standard labor relations decreases, and many non-standard workers can get protection by labor law. So it is urgent to reconsider the absence of labor relation and make non-standard workers included in the regulating object of labor law. Conditions for the establishment of labor relations should have three elements. On this basis, the adjustment object of"Labor Contract Law", that is, Labor contract relationship, it's establishment shoud include elements as follws: legitimacy, subordinate, desirability, uniqueness, legal and stability. This is the most important key point in this chapter.Chapter 3: After the theoretical preparation, chapter three is on analysis of application of labor contract law in universities. The main content of this part as follows: the main form of appointment of university teachers, the application status, the theoretical dispute and the practice confusion of the employment relationship between teacher and university, and the analysis of impact of this confusion.There is existing two types of teachers: teachers with public institution qualification and teachers with non public institution qualification, and the former has two forms of teachers appointment system and teachers employment system for teachers with public institution. For teachers with non public institution, there exist several forms of appointment as follows: personnel agency system, labor dispatch system, rehired system, part-time teacher, etc. It should be noted that private-owned universities'teachers will be regarded as teachers win non public institution qualification. From above, it can be seen, the appointment of university teachers is very complex. This makes the legal relationship between teacher and university and it's legal regulation shows characteristics of diversity. And this phenomenon caused a lasting confusion of theory and practice in the community.Chapter 4: This chapter is to discuss the employment relationship and its application between teacher with public institution qualification and university. The basic principle of teacher appointement system determine the basic characteristics of the work of university teacher: rigid discipline, utterly submission and administrative order style of operation. Teacher appointement system is a strict, norms and structured administrative management system. Under this system, the management to teachers refer to public official's system, including teachers'employ, prize and punishment, treatment, train, promote, transfer, leave office, retire to guarantees with the society etc.In recent years, with the deepening of deucational reform of our country, especially the deepening of the reform of the university personnel destribution system, the great change of Chinese teacher management system has taken place, namely, from the lifelong teacher appointment system in the era of planning economies to the teacher engagement in the era of market economies. Howerver, at present, the legislations of teachers employment contracts in China are stll incomplete. Article 6 in the"Guidelines for implementing the Personnel Employment System in Public Service Units"is the main regulation on university teacher's employment contract. Therefore,for many problems, there is no law to abide by. Based on a general comparison among administrative contract, employment contract and labor contract, the dissertation comes to the conclusion that university teacher's employment contract has some of the typical characteristics of common labor contracts, while at the same time with unique features of it own.Chapter 5: This chapter is to discuss the employment relationship and its application between teacher with non public institution qualification and university.Personnel agency system is a kind of new personal management method under the condition of the socialism market economy. The employees'personnel documents are managed by the government personnel section while the employers can only use the employees instead of occupying them. Personnel agent system is an innovation of reforming in China's universities. And it's an important action to change the traditional employment wany and to realize a reasonable human resource allocation in the market. As one of the effective ways to expand the employment in today's society, labor dispatch becomes a phenomenon of labor force market allocation. In labor dispatch system, dispatch agencies select and send qualified laborers according to the demands of employing units, the dispatch agencies and laborers sign a labor contract and establish a labor relation, the dispatch agencies are responsible for sending wages to workers, social insurance and other day-to-day management services. While the employing units make actual use of workers and pay service charges to dispatching agencies. This chapter comparative analysis the personnel system and labor dispatch system, and draws a conclusion that the both should be adjusted by the"Labor Contract Law".At present, in the adjustment range of the"Labor Contract Law", rehired teacher and part-time teacher are not included. The author's view is that the former should be adjusted by labor contract law and the latter by the contract law to adjust.Chapter 6: This chapter is thinking and suggestions about the hot issues related with the application of"Labor Contract Law"in universities. The dispute causes of evaluation to teacher, relation of employing ( including engagement, dismissal, engagement to continue) and the floating of professionals, it's forming reason are in many aspects. In order to ensure teacher's right to realize and way unobstructed way to relieve, this chapter put forward some thinking in solving this kind of dispute: perfect the relevant laws and regulations of management, strengthen the effective supervision of university management, perfect administration, administration of justice, school personnel representatives assembly, trade union and personal supervisory system, and so on.Chapter 7: Chapter seven first summarizes the research content of this paper, and then the disadvantages of the research and research perspective are discussed.