The Actual Performance Principle

Our countries' Labor Law provided that a labor contract shall be concluded where a labor relationship is to be established, and a labor contract shalJ be concluded in written form. In practice a lot of contradictions are derived from this system. Faced with there is no labor contract in reality or there are differences between written form contracts and actual situation, judicial practice is now paying much attention to actual performance of individual labor contract. But the academic circles haven' t given response to it or put forward theory support, and still restrict to stress the written form contract. The principle of actual performance is a theoretical conclusion to the practice. The paper tries to discuss this practice from theoretical respect, and hope others may come up with valuable opinions.The actual performance principle is a legal principle stressing the actual performance, which takes the contents of the actual performance as the rights and obligations of labor contracts. It contains three levels of meanings. First, the actual performance in labor contract law is a not a relief but a legal principle. Second, the legal principle takes labor contract as an actual contract. Third, the legal principle emphasizes not on the written form, but on the labor relation of actual performance.It is necessary to attach importance to actual performance in regulating the individual contract. Our countries' Labor Law only regulates the labor relat ions which having the wr i t ten form, causing a lot of quasi-labor relation4fields, producing some legal terms, such as termination and rescission, and leading to confusions in individual labor relation system. Such confusions will inevitably he showed in the enforcement of law. We are implementing, improving and stressing the written labor contract system in many years, but only bring abort more and more disputes yearly. The difficult position not only arose from individual labor relation, but influence collective labor relation. When the individual labor contract becomes powerful, it invades and occupies the space of the collective contract, on the other side, the decline of the collective contracts compel us to depend much on individual contracts. These contradictions urge judicial organs to pay more attention on actual performance of labor contract.In fact, there is theoretical foundation supporting the practice. The actual contract principle has already been put forward, and become a scientific theory. In sociology, the labor contract is a relational contract. It is not only a promise, but a planning of future relation of laborers and employing units. In economics, the establishment of labor relation is a substitute for the contract system under the price system. It is an effective disposition method. It doesn' t comply with the principle to stress the written form in actual performance. In the theory of law, the actual performance is also a supplement to the limitation of written form contract.Through the practical studies to the labor contracts of different nations, we found that market economy countries didn' t stress labor contract, even more not to stress written form contract. Under the background of global economy, the practical performance principle is an inevitable choice conforming to international trend.Through the historical studies to our labor contract system, we find that our written-form labor contract is an outcome of transitional admini stration of economy and society, a contract responsibility replace for the nation' s administrational responsibility, and a system choice of stage. Today, our country has preliminary established a market economy system and a socialized labor and social security system. The mission of the written form contract has completed, the future choice is pay close attention to actual performance of individual labor contract.