Research On The Consensus Issue In The Labor Contract

In modern times, a labor contract is the basis on which labor relations areestablished and expanded, and it also balances interests of both parties. Therefore, it'sessential to conduct theoretical study on the labor contract. In the legislative process ofthe Law of the People's Republic of China on Employment Contracts, scholars haddifferent opinions and intense discussions about how to construct the labor contractsystem. A study of the labor contract system from the perspective of consensus theory,initiated in the hope of improving the current system and helping establish healthylabor relations, is reported here.With the social adjustment mechanism of laborrelations, the labor contract system in China shall respect the actualperformance of the labor relations, and protect the voluntary adjustment of individuallabor relations. Based on that, state enforcement and autonomy will be complementaryfor each other.This doctoral dissertation is comprised of the following parts: introduction, mainbody and conclusions. There are six chapters in the main body. Introduction briefs the background, the present researches, relevant literaturereviews in this field, as well as methods and the framework of this paper. As for theresearch methods, the dissertation based on the traditional contract theory, focuses onconsensus and refers to both continuing contract theory and relational contract theory.Chapter1is about the jurisprudence basis of the consensus in the Labor Contract,and includes three parts:1) the approach to consensus as the essence of contracts fromthe perspective of legal principle,2) the abolishment, preservation and advancement ofconsensus theory in the labor law study, and3) the importance of consensustheory in the modern employment contract system. Section1briefly introduces theorigin, contents, development and application of the consensus theory, suggesting thistheory is in essence consistent with freedom of contract. Then it highlights thedevelopment of consensus theory in both Civil Law and Common Law system andargues that consensus is the very core of contracts. Section2thoroughly analyses theeffect of the consensus theory on the recent development of labor relations. The"abstract man" hypothesis in the consensus theory promoted development to labourclaims and brought changes from defining both parties' status to focusing on theirobligations. And on the other hand, the imbalance of power between the two partiesinspired the reflection of scholars to reverse this change in some sense.In thiscircumstance, the status-related contract theory and the subordinate theoryemerged. Based on that, the author analyses the plight of the consensus theory in themodern labor law and legal redress. The evolution of labor relations from personalrelation to absolute claims and liabilities relations to those with subordinate featuresindicates the improvement and preservation of consensus theory in labor law researchand the advantage of labor law theory over the traditional contract law. Section3explores the necessity of applying consensus theory to the theoretical study of labor contract system from three levels: the adjustment of labor law, the developmentprocess of Chinese labour law and the development prospects of the labor relations,and underscores the directive functions of the consensus theory in establishing thelabour contract system in China, which provide the theoretical support to thelegitimacy of this system from the perspective of consensus.Chapter2discusses the particularity of the consensus issue in labor contracts.Despite sharing similarities with other civil contracts, the labor contract has its owncharacteristics which make the consensus in its area distinct from that in general civilcontracts. From this point of view, the Civil Law System and the Common LawSystem have offered different interpretation. Section1applies continuous contracttheory of the Civil Law System to analyze the consensus of labor contracts, whilesection2uses relational contract theory of the Common Law System. Based on thecomparison, the author asserts that individual autonomy and state intervention shouldbe coordinated. Section3presents overall explanation about the consensus in the laborcontract, setting up the analytical framework of this thesis by classifying the consensusinto3types: the express, the Implied and the artificial one.Chapter3is about the express consensus issue in the labor contracts which canbe achieved in both oral and written forms. Section1summarizes and compares theregulation on the forms of labour contracts in over20nations, including Argentina,Australia, Austria, Belgium, Chile, Denmark, India, Italy, Japan, Russia, Germany,France, South Korea,the US, Britain, Japan, France, Germany and etc. Section2focuses on the labor law in China which stipulates that only the written labor contractis the legitimate one, and interprets the practical function of written labour contractsfrom the perspective of form contracts.Section3analyzes the oral labor contract and inparticular, and concentrates on the argument among legislators and scholars on the de facto employment relationship in China. Althought the legislation accepted the theoryof protection dealing with the legal effect of this relationship, the logical confusionappears owing to the limitation of written form of labour contracts in Labour ContractLaw. Section4reflectsChineses regulation on express consensus in the labor contract,suggesting that the legislation should consider the objective operation laws ofemployment relations and realize the function of express consensus both oral and inwriting.Chapter4analyzes the implied consensus issue in the labor contract, whichmeans the contract is agreed by non-verbal conduct, rather than by explicit words.There are specific systems on implied provision in the United Kingdom and the UnitedStates9on the foundation of implied consensus, which could be drawn and explored incontribution to the recognization on the implied consensus issue in labour.Section1provides an overview of implied terms, including its origin, types and applicability.Section2explains the implied term of mutual trust and confidence in the labour law ofBritain and points out that the scope of application of this term is unique. Section3discusses the application and function of implied consensus in the labour contract lawof China in actual performance. Judicial practice in China should borrow theprinciple from the International Labor Organization that it is the fact that determineswhether the employment is valid or not, and improve the insufficient of the expressconsensus by identifying the implied consensus.Chapter5analyzes the artificial consensus issue in the labor contract. Differentfrom the express and the implied consensus, the artificial consensus indicates the stateintervention. Two questions could be raised when discussing the artificial consensus inthe labor contract: what is the proper perspective on it and under what situation thestate intervention is reasonable. To answer these questions, the author explores the characteristics of the legal fiction, and explains how the artificial consensus in theemployment contracts generated by analyzing the actual performance of labor relations.In the labour contract law of China, the artificial consensus is mainly embodied inmandatory conclusion of open-ended labour contract. The author compares the similarsystems in Mainland China and Taiwan, as well as their different effects on theperformance of labor relations, and suggests the legislators in Mainland China shouldrespect and protect the free will of the involved parties and their voluntary adjustmentof labor relations.Chapter6extends theories used in studies of the consensus issue in labour lawcontracts of China, focusing on how to coordinate the conflicts between the litigants'autonomy and state regulation, and on how to improve the employment contract law.Section1elaborates the various academic opinions, and points out that when applyingmandatory provision to control the consensus by litigants, the judicature should notonly balance the interests and powers of the involved parties, but also respect andprotect the spontaneous operation in the job market. In this way, the involved partiescan voluntarily adjust or change their labor relations with no institutional barrier.Based on the above analysis, section2proposes that the guiding principle to regulatework relations should be the actual performance of the contract, and that it's necessaryto adjust provisions about the conclusion, execution, modification and termination oflabor contracts, along with regulations of the judicature and the legislation.Conclusions summarize the contents and views of the whole thesis.