Research On Non-performance Of Labor Contract And Its Legal Effect

The subject of this article is non-performance of labor contract and its legal effect. The which was carried out from the year 2008 has further rules on contract making, the confirmation of rights and obligations of contracting parties, and duties of contracting parties, and that is favor of norming clearly of the relationship of the labor contract. But we cannot deny that there isn't enough attention to non-normal performance of the contract during legislating the ,and a number of important systems were even missing. And that is reflected in the following aspects: Firstly, the law doesn't classify the non-normal performances of the contract, and the relative rules are scattered in the law. Secondly, the law doesn't define principles of responsibility after non-performing the contract. Thirdly, the law doesn't make the relief measures of non-normal performance of the labor contract which is the way of assuming duties systematic. Making rules of non-normal performance of the labor contract are the premise of effectivly settling labor disputes, and that should be a major issue to perfect < Labor Contract Law > by labor law scholars. This article proposes the concept of non-performance of the contract, classifies non-performances of the contract, defines the duty principles of non-performance of the contract, and make the remedies of non-performance of the contract systematic, trying to establish the basic content of the system of non-performance of labor contract. System of non-performance of labor contract has great practical significance to eliminate status of non-normal performance of the labor contract.To define the legal effects of non-performance of labor contract, first of all, we should face a basic and theoretical premise which is the issue of application of labor contract law. This article explores the legal property of labor contract and defines the principle of application of labor contract law, which is, legal rules of relative labor contract laws should be firstly applicable to the relationship of labor contract. When there aren't specific rules, we should not use < General Principles Of Civil Law >or directly, we should consider if there are special principles which are applicable to the relationship of labor contract, if there are, we should use these special principles firstly, if there aren't, we can refer to relative rules of contract principles and fundamental systems in < General Principles Of Civil Law >and .To construct system of non-performance of labor contract, the core concept is"non-performance of labor contract". This article draws the reasonable factors of non-performance of contract of creditors' rights, and propose the concept of non-performance of labor contract. Non-performance of labor contract is corresponding to performance of labor contract, which means the acts caused by failure payments which against the aim of contract and aren't able to realize the rights and interests of contract parties. The aim of contract is the content the two parties have when establishing the labor contract. And the establishment of this aim is upon the two parties'free will, which aren't arbitrary. As everyone knows, the free will of parties of labor contract is limited by legal rules, so the aim of labor contract has border. The border is to comply with laws, which can be stated more accurately as"the border should have legitimacy".This article also compares acts of non-performance of labor contract with acts of treaty violation, and defines legal characters of non-performance of labor contract. The characters are as followings, firstly, non-performance of labor contract is corresponding to performance of labor contract, non-performance of labor contract includes all status of non-normal performance of the labor contract. Secondly, non-performance of labor contract are acts which isn't carried out upon the aim of labor contract. Thirdly, non-performance of labor contract are acts which can't realize the rights and interests of contract parties.To construct system of non-performance of labor contract, the status of non-performance is basic framework. This article stresses on the requirements of non-performance status by particularity of labor contract. The complexity of labor contract disputes requires refinements of status of non-performance of labor contract, we should not roughly define the elements of non-performance of labor contract as"violation of obligations". And that have following reasons: Firstly, unified elements of non-performance essentially contains a trend of unifying status of violation of contracts, but unifying status of violation of contracts isn't according with the requirement of labor contract law. Secondly, labor contracts are not detailed as contracts of creditors' rights when ruling the performance content, and disputes in performing labor contracts are always complex, so it is not feasible to settle disputes only using agreements in labor contract, and the demands to rule acts by detailed legal norms are urgent. Thirdly, to choose unified elements of non-performance means strict liability should be applicable to non-performance of labor contract unified as a fundamental principle in determining liability, which will bring much risk and economic pressure to laborer, so it is unacceptable. In labor contracts, it is the trend to make receipt by employers as an obligation, so it is meaningful to research on delayed receipt as a status of non-performance. Thus, status of non-performance of labor contract in this article includes impossibility of performance, delay of performance, repudiation, positive breach of contract, and default of employer.To construct system of non-performance of labor contract, principle in determining liability of non-performance is the key factor. If principle in determining liability of non-performance of labor contract isn't defined, it is impossible to make specific person bear duty and relieve non-performance of labor contract. Compared to contract of creditors' rights, it is more complex to define principle in determining liability of non-performance of labor contract. From the respect of protecting laborers, laborers'non-performance and employers'non-performance should use different principles in determining liability. And one character of modern labor law is to strict the liability of employers.To construct system of non-performance of labor contract, the way to relieve is the final aim. Only defining duties to somebody can't realize the aim of eliminating non-performances of labor contract, it is necessary to define how to assume the responsibility. Compared the way to relieve in non-performance of labor contract with in contracts of creditors' rights, the way to relieve in non-performance of labor contract has peculiarities. Firstly, it is different in the basic way to relieve. When non-performance of labor contract occurs, the basic way to relieve is relatively complex. When laborers don't perform, damages are the basic way to relieve; When employers don't perform, it is determined by laborers to choose damages or continue to perform contracts. So, the system of non-performance of labor contract in our country isn't constructed on contract freedom principle or strict contract principle, it pays attention to interests balance between laborers and employers on premise of protecting laborers and by defining responsibilities of non-performance of labor contract. Under the guidance of this spirit, it is not focus to terminate the contract or continue to perform, to protect legal rights of laborers becomes the basic point. Secondly, it is different in the specific way to relieve. From the respect of protection of laborers'human rights, employers shouldn't force laborers to continue performing obligations of labor payment. In labor contract, damages for breach of contract are strictly limited. Laborers'damages hold principle of share by employers and laborers. Rights to terminate contract by employers are strictly limited. In order to protect laborers economically, if employers don't perform the obligation to pay, laborers have rights to ask for special damages.From the process of constructing the system of non-performance of labor contract in this article, the author wants to propagate the following concept : In order to realize justice and solve labor disputes effectively, enough attention should be paid to construct the legal system of non-performance of labor contract.