| 《Labor Law》regulates that both the worker and employer can ex parte annulment of a labor contract legally. But in practice, due to different understanding of law, lay side emphasis on policy and the delay of labor legislation, it happens frequently that some workers or employers abuse their right to cancel a contract, which not only damages the sovereignty of the labor contract and the interest of parties to the contract, but also produces some unstable elements. Therefore, it has become more and more urgent to train both workers and employers to adopt a better understanding, to regulate the ex parte annulment of a labor contract and deepen the theoretical discussion to speed up the progress of legislation of 《Law of Labor Contract》.Although the labor contract is different from business contract or common civil agreement, it shares some characters with them, for instance: the equality of the contract, the principles of free will, reach agreement through consultation and carrying out. The most obvious difference between them is that labor contract has the personal property, i.e.: being a citizen, according to the constitution, a worker has the right to enjoy equality of job hunting, taking holiday and social security. So, the ex parte annulment of a labor contract is different from those of common ones, which certainly produces different legal results.(I) Matters of worker's right of resignationAccording to Article Thirty-one of 《Labor Law》: "If a worker want to cancel a labor contract, he has to notify the employer in written form thirty days in advance." This is the basic regulation of canceling a labor contract. From the point of view of legislation, the purpose to bestow the workers this kind of right is probably to protect them in view of their weak status in the labor contractual relations, to maintain their decision-making power.From the view of protecting workers, we think it necessary to give right of resignation to them. Right of resignation means the labor contract canceling right that worker enjoys without obliging liabilities for breach of contract, which in fact has been given to workers in Article Thirty-two according to 《Labor Law》. So Article Thirty-one is indeed the workers' exemption right of resignation. But it remains a discussion in practice, which tends to be liability free from the point of legislation. Article A Hundred and Two of 《Labor Law》regulates that workers have to compensate for the damage to employer if they disobey this law in canceling the labor contract and cause damage to employer. But Article Thirty-one of 《Labor Law》only regulates that it has to be notify thirty days in advance and nothing else. So once worker carry out this right (in fact for his own interest), it would objectively damage the interest of the other party of the contract, i.e. the employer. At present, in the surplus labor market, most of the workers act exemption right of resignation are not ordinary staff but minority senior managerial personnel and technicians. The carry out of exemption right of resignation make it possible for them to change jobs from one company to another at will, which often bring serious loss of interest to employers. This is obviously contrary to the content of Article Seventeen, Section Two of 《Labor Law》: Labor contract has legal restraint power once it is set up, parties of the contract must carry out accordingly. From the view of law, the contract is effective once it is legally put into effect, by which parties of the contract must abide, with no delay and ex parte annulment. Only when something subjective or objective happens, seriously affect and make it unnecessary or impossible to carry out the contract, and the continuous fulfillment would cause damage to one party, the labor contract is expected to be canceled, this is also the reasonable conditions in setting up the system of labor contract cancel. So I think Article Thirty-one of 《Labor Law》has a legislative flaw which should be amended, it should regulates clearly that the ex parte annul...
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