Research On The Right To Terminate The Labor Contract

Since China's reform and opening up, with the change of forms of ownership, industrial structure, labor organization mode and enterprise management model, there is a tremendous transformation shifting from fixed employment system to contract system in the labor employment system due to these changes. During this market transition, the significance of the labor contract termination right becomes more and more important to the subjects of labor contract. To laborers, the entitlement of the labor contract termination right means the guarantee of the right to live, the realization of the right of development and implementation of the freedom of choosing a career; To employers, the labor contract termination right means the embodiment of the power of management autonomy, the rational allocation of human resources and the realization of maximization of enterprise profit. Although the labor contract termination right is pretty significant to both labor contract parties, as a result of a labor's subordination in person, economy and organization and therefore a great disparity in negotiation skills among the both sides, labor law has to make a unbalanced configuration to the labor contract termination right, in order to achieve the substantial balance between the interests of a laborer and a employer. Such a configuration mainly embodies in the freedom of right to resign and the restriction of right to dismissal. At the same time, with the development of market economy, it appears a degree of differentiation among labors in our country, showing different levels as a pyramid structure; employers, which were relatively large enterprise of single public ownership in the past, now develop into a large scale of diversified market main bodies with great differences in scale. Based on the above background, making a configuration in a unified law in labor contract termination right without considering the differences between the labor contract subject may fail to meet the different needs of essential justice to different sides of and cause many problems to the legislation and judicial practice of the labor contract termination right, such as the legitimacy of strong laborer and small-scale employer applying the existing labor contract termination right, the choice of fuzziness and legality of reasons of terminating a labor contract, the conflicts between the exercise of the labor contract termination right and the term of a labor contract, the rigidity of advance notice period of the labor contract termination right and the difficulties to balance the interests of the labor contract sides in judicature.Based on the understanding of the above problems, in the perspective of stratification of labor contract main body, through the integrated use of analysis methods of norms, demonstration, history, comparison, on the ground of general theory and historical evolution of labor contract termination right, this article is to analyze the problems existing in setting the labor contract termination right of our country. Through studying the advanced extraterritorial experiences of legislation and judicature, it comes up with suggestions to improve reasonable configuration to labor contract termination right from perspectives of contract subject, termination reasons, termination procedure and termination result. In the meantime, in order to improve the achievement transformation of research results of this paper, it makes an overall evaluation to judicature about this right in our country and tries to use the theory of interest measurement to solve the intense contradiction in labor contract termination disputes. Except its preface and conclusion, it consists of the following six chapters.The first chapter is about the introspection to the unbalanced configuration of the labor contract termination right. First of all, through the understanding of related concepts, it gives a definition that the labor contract termination right is a kind of right enjoyed by one party of a labor contract, which gives him right to terminate the contract with the opposite side after the conclusion and before the fulfillment of the contract. Relative to the civil contract termination right, the labor contract termination right has characteristics of subordination in subject, the legality in the reasons of termination, non-retroactivity in termination result and so on. Secondly, the foundation of right to resign is laborers' labour right, right of freedom and the right to subsistence, it should hold the principle of free exercise. however,considering of maintaining a steady labor relationship, balancing interests between both sides and promoting the development of labor market, it should be limited in due cause, labor contract period and service period. There are some problems in the stipulation of labor law in China, such as unreasonable notice term, vague scope of application, narrow provision to immediate resignation and ambiguous liability. Finally, the foundation of right to dismissal is the theory of strong employers and weak labors, due cause and last ditch. Right to dismissal is greatly restricted in the dismissal causes and procedures. The relevant provisions of restrictions appear a mixture of excess and insufficiency.The second chapter is about the historical evolution and the choice of mode of labor contract termination right. Through a specific understanding of the historical evolution of labor contract termination right, it should pay attention to the differences among the subjects of labor contract, and also lay stress on mutual combination of market regulation and macroscopic regulation. By means of understanding of three patterns of free termination, restricted termination and forbidden termination, according to the main characteristics of the current labor relations and the trend of economic development of our country, the pattern of restricted termination seems a better choice. There are three principles of reasonable configuration: equity principle, proportion principle and safety principle. Equity principle requires considering comparison between labors and employers, and helping the poor and restraining the powerful, in the legislation of the labor contract termination right. Proportion principle demands that the exercise of the right be necessary and also accommodative with the purpose, and pay attention to the proportion of profit and loss in that process. Security principle asks for the maintenance of stability of labor relations and the healthy development of labor market, and predictions based on the trend of overall development of labor relations, in the legislation of the labor contract termination right.The third chapter is about the classification regulation to subjects of the labor contract termination right. Based on the theory of social stratification theory, it presents an important premise of this paper: the hierarchical theory of laborers and employers. There are nearly 800 million laborers, nearly 70 million employers our country. In this context, any single model lacks adequate representation. The hierarchical theory brings challenges to the traditional legislative assumption of “weak laborers and strong employers”, and the application of resignation right and dismissal right without distinguishing subjects. The terms “a specific person” in labor law does not refer to “individual” as the unit, but “community” as the unit. According to the professional category of labors, referring to laborers remuneration levels and the identity of labors, and considering the present situation of the labor market in China, it should divide laborers into strong labors, ordinary labors and weak labors, and protect them distinctively. Because of facing different management market and labor market, there comes to a massive employment relationship models with specialty. In accordance with the scale of enterprises, employers can be divided into large-scale employers, middle-sized employers; laws can set up except systems for small-sized employers under a certain size in protecting hiring and dismissal.The fourth chapter is about the due cause and reasonable restriction to the labor contract termination right. Due cause must be fulfilled in exercising the right in the following three categories: fixed term labor contract laborers, strong laborers and laborers' passive resignation. Employers shall have due cause to exercise the labor contract termination right. In order to ensure flexibility of management and employment of the small-sized and medium-sized enterprises; it is supposed to establish compensatory non-cause dismissal system under certain conditions. Whatever the right to resign or the right to dismissal, it shall be limited to a certain level. Limitations manifest in labor contract period, service period, and liquidated damages. Employers and labors should comply with the agreement of labor contract period, and take responsibility of breach of their contract. Meanwhile, allowing labors to excise termination right after a certain performance of the contract, helps to reconcile the conflicts between the system of the labor contract period and the right to resign. The length of service period depends on position, level of expertise skill training and training cost therefore and so on. Breaching the agreement of service period should bear liquidated damages.The fifth chapter is about the procedure and consequence of excising the labor contract termination right. The procedures consist of advance notice period, the excising process, and the protection period. Deciding advance notice period should take a comprehensive considering of working ages, types of labor contract, consensus between two parties and so on. Also, it is supposed pay attention to explicitness to the labor contract termination right, offer opportunity to labors in excising right to dismissal, and confirm the necessity of labor union interference to depending on the scale of the employer. As a kind of right of formation, it needs scheduled period. The labor contract termination right has two main consequences: economic compensation and reinstatement. On the ground of the theory of labor contribution compensation, the theory of statutory penalty, the theory of social security and the theory of employer help obligation, this paper brings forward the system of limited help obligation in economic compensation, regulating the relevant subjects, scope and degree in a certain way. Economic compensation standard should have the bottom line and the limit line, and different standards should be applied due to different levels of laborers and employers. Economic compensation and damages have different applicable conditions. Damages should be applied in the case of the illegal dismissal while economic compensation shall be applied in the case of legal labor contract termination. As a relief to improper dismissal, reinstatement has a system value of safeguarding employment security and preventing the abuse of dismissal right. But due to the sustainability and trust of labor relations, the reinstatement system always encountered perform difficult dilemma in practice. To solve this dilemma, law can give a laborer freedom to choose economic compensation as a replacement of enforcement mechanism.The sixth chapter is about judicial practice of the labor contract termination right. In this transition period, China is undergoing a test of high incidence of labor disputes. Since the implementation of Labor Law, cases concerning the labor contract termination right present four characteristics: fast growth, low conciliation rate, subjects focus, and ambiguity of disputes differentiation. The main reasons lie in the shortage of rule of law and complexity that the interests of the labor contract termination right shows. Based on an adequate understanding of characteristics and causes of the labor contract termination right, the application of interest measurement method has a realistic significance. At present, China's judicial organs suffer a lot from restrictions of the legislation and the judicial system when applying interest measurement method, and therefore there is a lack of analysis of parties' status in specific conditions and also the ambiguity of the standard of the measurement, further study and improvement should be carried out.