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Study On The Liability For Breach Of Labor Contract

Posted on:2014-01-23Degree:DoctorType:Dissertation
Country:ChinaCandidate:T DingFull Text:PDF
GTID:1226330398455058Subject:Civil and Commercial Law
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The system of liability for breach of contract is one of the core contents in labor contracts system to specify the civil liabilities of the parties which violate the obligations agreed upon the labor contract, which plays an important role in binding the behaviors of the parties, ensuring the successful performance of the contract, offering a timely legal remedy and making up for the loss of the injured party. The contradictions and disputes evoked from the changes of current international and national macro-economy gradually have reflected on the judiciary, especially in the field of labor disputes. A large portion of labor cases involves breach of labor contract disputes, but due to the legislative blank of the system of liability for breach of contract, which appear to be non-rigorous terms in scattered provisions and then make it more difficult to deal with and hardly regulate the behaviors of both parties. The research on the liability for breach of labor contract has not presented the characteristic of systematization, but only rests on bits and pieces concerning about the definition, constitutive elements and bearing methods of it, which fails to establish a systematic and complete system of liability for breach of labor contract in the sector of labor contract.Setting about analyzing the necessary connection and essential difference between labor contract and general civil contract, such as a contract of service, and drawing lessons from existing mature system of civil liability for breach of contract as well as a combination of the distinctiveness of labor contract and general civil contract, the thesis, which through a comprehensive analysis in terms of the liability subject, the principle of liability fixation, constitutive elements, the forms of breach, methods of bearing, and a combination of juridical practice, tries to establish a system of liability for breach of labor contract, and figures out the imperfection of existing labor legislation, and proposes suggestions on legislation and basic ways to solve labor disputes, and ultimately constructs a real harmonious and stable labor relationship.The thesis consisted of four chapters:The preface briefly introduces the motivation of the thesis, the achievements of the study on liability for breach of labor contract both domestic and abroad, and research methods.Chapter one shows the theory of liability of breach labor contract. This chapter starts from analyzing the development of labor relationship and the feature of labor relationship. The significant difference between labor relationship and service relationship is the subordination of employee, which makes it distinctive from general civil contract. And then I suggest that the specificities of labor contract lies on the inequality of contractual parties, insufficient expression of the employee and restrictions by law and collective contract. The specificities mentioned above also indicate that there is a difference between the liability for breach of labor contract and general civil contract. Combing and analyzing of the definitions defined by the legal scholarship, I define the liability for breach of labor contract as any civil liability that any party which violates the labor contractual duties or mandatory provisions, and figure out that the distinctiveness of it lies on the different position of the parties and governmental intervening. In addition, chapter one also compares the liability of breach labor contract to the contracting fault liability of pre-contract obligation, and post-contract liability. Finally, I point out that the value of liability of breach labor contract is to protect human rights and realize social justice. The jurisprudential basis of liability of breach labor contract is to correct the principle of Contractual Freedom and Inclining to Protecting the Employees.Chapter two shows the constitutive elements of the liability for breach of labor contract. This part elaborates the principles of liability fixation profoundly. In the beginning, I sketch out the doctrine of liability fixation. As a measure of assuring creditor’s rights and performing debts, it should incline to protect employee’s Right to Work, Right to Life, Right to Stable Employment, Right to Choose Jobs and Right to Development for the purpose of social justice that embodies the due value of labor law. Consequently employee’s liability is imputed for reasons of fault principle; meanwhile employer takes responsibility according to the principle of strict liability. On account of that, different subjects are imputed for different principles of liability fixation, Employ’s liability for breach of labor contract consists fault and non-performance, while employee’s consists just non-performance. This chapter classifies the forms of breach of labor contract as anticipatory breach, express repudiation, disabling himself from performing, failure to perform by the due time, inappropriate performance, a delay of acceptance. The last but not least, I explain the function of lawful excuses for non-performance, such as A Force Majeure, Material Adverse Change, and Exemption Clause.Chapter three is the main part of this thesis, paying particularly attention to the remedies for breach of labor contract. Taking advantages of years of experience of hearing labor cases and judicial practice, I analyze the legislative gap of remedies for breach of labor contract. At first, I suggest that the remedy of continuing performance is very unique in the system of labor contract, which has various problems through judicial practicing. Combining with foreign legislation, I believe that the remedy of continuing performance is over-emphasis on protecting employee’s Right to Stable Employment, but ignores a fact that the labor relationship is based on mutual trust, which conversely can hardly solve the disputes. Second, I analyze liquidated damages as a remedy for breach of labor contract. Although the scope of application of liquidated damages is regulated explicitly by labor law, there is still a large legislative blank that leads to a lot of issues. Regarding to the legislative gap of the liquidated damages of a term of service, competition restriction and confidentiality, I propose relatedly legislative suggestions. Next, this part makes a comparison of severance pay and damages. Severance pays that is hard to categorize is typical in the field of labor law. Some scholars defined the severance pays as a special fee when the contract is terminated or ended. The nature of damages in labor law is not only compensative but also punitive.Chapter four is a review and perfection of the system of liability for breach of labor contract. This part is a result of thoughts through my long-term working experience. Every judge in the Shenzhen Intermediate People’s Court where I work handles300to400cases every year, which is tenfold of the national average number. I always think about the reason why Shenzhen Judges have dedicated most of their energy and time to handling labor cases, but the rate of complain and petition for retrial is much higher than other civil cases. In this chapter I review the existing legal system of the liability for breach of labor contract and summarize three imperfections. Firstly, there are too many legislative authorities, adding to more difficulties of application. Secondly, the normative documents which have lower effectiveness appear to be confused and non-rigorous. Thirdly, there is a lack of systematic legislation of the liability for breach of labor contract, liability fixation and remedies. The legislative blank of the liability of breach of labor contract has created a continuing rise of labor disputes and exiting provisions cannot meet the new requirements for the judicial authority to solve internal contradictions among people. I analyze the significance to establish the system of liability for breach of labor contract and propose legislative suggestions. Firstly, the principle of good faith should be followed during performing the labor contract. Secondly, clear and systematize the general provisions of the contractual duties of both parties. Thirdly, clear the principles of fixation and remedies. Exploiting a long-time working experience of hearing labor cases, I find out that it is not enough to just perfect the legislation and judiciary and we need to explore external causes. Only the establishment of social credit system and perfection of social security system is the fundamental solution.Setting about analyzing the subordination of labor contract, and reviewing the system of liability for breach of labor contract, and exploring the distinctiveness of labor contract and civil contract, this thesis tries to establish a system of liability for breach of labor contract through a comprehensive study in terms of,liability fixation, constitutive element, the forms of breach, and the remedies for breach, and aims to propose legislative suggestions to solve labor disputes, and ultimately constructs a real harmonious and stable labor relationship.
Keywords/Search Tags:Labor contract, Liability fixation, Remedies for breach of contract, System of liability for breach of contract
PDF Full Text Request
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