Research On The Express Obligations Of Labor Contracting

After the promulgation of China Labor Contract Law, it is the first time toestablish the express obligations as one of the labor contracting collateral obligationsin the legislation. This is a breakthrough on the labor legislation and marks the laborlegislation in China is gradually maturating. Its coverage is no longer only on theexecution, modification, and termination of contract, but also on conclusion of contract.But in the meanwhile, the content and requirements of this obligation is stillincomplete, and the liability on breach of the obligation is not well defined. It’s still farfrom the completion of express obligation in the labor contracting system. With theperspective of interpretative theory, this thesis studies and criticises on the currentlegislation. Focusing on perfecting the legislation and guiding legal practice, this thesiselaborates the content of the obligation, and the form and consequences of breachingthe obligation in order that the completing framework of express obligations of laborcontracting. The thesis is organized as the following five chapters:The first chapter is the introduction. Starting from the background of the topic, itdeclares the research direction of this thesis, highlights the awareness of problems, andindicates its significance and importance of this research on interpretative theory andlegislation theory. Secondly, it elaborates the current situation of labor contractingexpress obligation in practical legislation and theoretical research, and gives acomprehensive review and hence, forms the overview of topic and theoretical base ofthis thesis. At last, it limits the scope of this research, which is, employer’s obligationto inform and employee’s obligation to explain during the process of conclusion oflabor contract. Following the "body-content-liability" system design in academicresearch, the thesis attempts to achieve the systematic comprehension in the obligation.In the research, historical analysis, comparative analysis, value analysis and other legal research methods are being used.The second chapter justified legitimacy basis of express obligation in laborcontracting based on good faith doctrine. Firstly it elaborates the basic meaning andacademic argument of good faith doctrine as the base of express obligation in laborcontracting. Secondly it discusses the hereditary relationship between labor law andcivil law, and the breakthrough and transcendence of labor law to civil law. From therelationship between labor law and civil law, it is illustrated that why good faithdoctrine is applicable to labor law. Lastly, it is concludes that good faith doctrine is thetheoretical basis of express obligation in labor contracting. This chapter provides thetheoretical support to justify express obligation in labor contracting and is thefoundation and starting point of the thesis.The third chapter mainly focuses on constructing the content of express obligationin labor contracting. The legal nature of express obligation in labor contracting iselaborated at the beginning of the chapter. After that, based on the explanation andcomment on the current legal regulatory, the content of the obligation is constructed.By differentiating employer and employee as two parties, the content, format, andprocess of obligation to inform and explain are clarified, hence legal regulatory isrefined by its aim. The structure of the obligation content reflects both the equality infulfilling the obligation and the differences in the requirements to employer andemployee. Starting with current legislation, by means of theoretical explanation, theobjective of the proper obligation application in practice is to be achieved.The forth chapter touches on the violation patterns of the obligation. Firstly, thepatterns of obligation violation by employer are categorized as incomplete informationand recruitment fraud. The author explores the incomplete information from twoperspectives, the violation patterns on initiative to inform and passive responding ofthe obligation, and the violation patterns on whether the obligation to inform is relatedto business secret. As for recruitment fraud, this chapter focuses on its types, causesand conduct constitutes as to regulate such behaviours in practice. The second part ofthe chapter discusses the violation patterns of employee’s obligation, focuses on application fraud, including elaborates on constitutes of active fraud and passive fraud,and proposes the exclusion situation of the obligation from the personality rightsprotection perspective.The fifth chapter studies the legal consequences of violation on express obligationof labor contracting. The consequences are mainly reflected in validity of contract andlegal liability. This chapter discusses the legal liability, and constructs institutionalframework of fault liability during the process of conclusion of labor contract with fourelements which are liability parties, imputation principle, constituent elements andliability manner.In this thesis, the research on express obligation in labor contracting starts withinstitutional basis, elaborates its content and liability structure, strives to construct itsinstitutional system comprehensively and systematically.