The Balance Of Interests Of Labor Contracts In Legal Practice

This thesis is divided into three chapters, the first chapter introduces the legislative background, legislative purposes and the pursuit of value of Labor Contract Law.This thesis says that under the background of legislation, the core factor is the imbalance between the employers and employees, which is as follows:first of all, the rate of conclusion of labor contract is low, the labor contract is signed in short term, and not standardized; secondly, due to the short term labor contracts, the labor relationship is unpredictable; thirdly, the freedom of right to select the jobs of employees are limited; lastly, the observable strong position of the employers, the imbalance of rights and obligations between employers and employees. The said actual situation of labor relationship is the practical basis of legislation.With regard to the purpose of legislation, this thesis says that we shall strive to realize the balance between party autonomy and intervention of public rights of Labor Contract Law. On the one hand, the labor contract shall conform to the form of a contract, on the other hand, it's necessary and legitimate for public rights to intervene the labor contracts because the labor contracts do not reflect the civil contract of trade relationship, the labor is the process which aggregates the rights of person and property. In consequence, the intervention of public rights of Labor Contract Law mainly reflects in two mains aspects:first, it definitely strengthens the responsibilities of government labor administrative department; second, it highlights the contents of labor standard; the third, it definitely stipulates prohibitive bargaining items between both parties.As for the value pursuit, this thesis based on the theory of justice of John Rawls, we believe that to realize the social justice by means of providing protection to the employees as a vulnerable group, which is the value pursuit and target of Labor Contract Law, and we also believe that the most contribution of Labor Contract Law is to reduce the losses of social interest including the economic interest and notional interest which caused by the inconsequence and imparity between employers and employees, to realize the institutional compensation for vulnerable group, and to convey the returning signal of the theory of social justice.Chapter II hereof discusses the point of imbalance of the game of balanced interests of Labor Contract Law, and proceeds the analysis of key problems in the process of its supporting organization governance such as the conclusion, performance, rescission, rights relief of the contract.Regarding the imbalance of interests in the process of contract conclusion, we believe that according to the Labor Contract Law, it's necessary to conclude a contract in written form. Otherwise, it shall be punished with civil compensation liability (double wages punitive provision). But the legislator neglects an important problem whether or not the double wages punitive provision based on the subjective fault of the employer as primary consideration. There are all kinds of reasons for not concluding labor contract in writting, which at least including seven kinds of situations as follows:in the first and second cases, the employer does not conclude the labor contract in writing intentionally or by negligence; in the second, the employee concerns to be restraint and would not sign the written labor contract; in the fourth, the employer may not conclude the written labor contract due to misunderstanding their legal relationship, in the sixth, both parties cannot well negotiate the relevant items within grace period in one month which lead to the conclusion in delay after expiration of the original contract; in the seventh, the contract could not be concluded due to force majeure. This thesis believes that if we indiscriminately and uniformly use the same punitive liability, which violates the fundamental principle such as the degree of punishment shall be commensurate with the legal responsibility.When discussing the issue of imbalance of interest in the process of performance of the Labor Contract Law, this thesis primary studies the issue like after executing the two fixed-term labor contracts consecutively, we shall conclude a non-fixed-term labor contract. As for the aforesaid stipulation, it's disputable if an employee unilaterally possesses the right of compulsory contracting. But in practice, the mainstream perspective supports the employee possess the right of compulsory contracting, but its malpractice is quite obvious, first of all, it violates the fundamental principle of the corresponding of rights and obligations, which caused the enterprise to lose the right of freedom of contracting and the right to select the employees of self-management and self-renewal; second, it influences the overall activity of market economy, and may make bad influence to the long-term interest to the employees and employers; the third, it reflects a grave problem that the enterprises circumvent the law.Concerning the issue of imbalance of the interest while rescinding the labor contact, this thesis combined with relevant foreign labor legislations, primarily analyzes the deliquescing right of the employee and the employer. On the one hand, Labor Contract Law vests the employee to rescind the contract at any time and without any cause, but in practice the employee could hardly use the said right canonically; on the other hand. Labor Contract Law does not vest the employer the deliquescing right without cause, and the employer can hardly implement the reasonable deliquescing right due to the inflexible causes stipulated by law. We combine six statutory dissolution reasons the employers possessed stipulated at Article 39 of the Labor Contract Law, separately analyze the dilemmas it faces in practice and in theory of each reason.According to Labor Contract Law, the imbalance in process of right relief mainly reflects in the problem of operability of relevant provisions of labor administrative supervision department. Labor Contract Law vests the labor administrative department the right of supervision and management and the inspection power for the enforcement of the labor contract, especially for the problems of payment arrears and no payment for overtime wages that the employees upmost concern about, Article 25 of Labor Contract Law stipulates the corresponding legal liabilities, but the practical obstacles existing as follows:firstly, the amount of payment ordered by law is hardly affirmed, the employee's rights are difficult to be implemented; secondly, the letter of instruction given by labor supervision department makes it difficult for compulsory execution.The imbalance during supporting organization governance of Labor Contract Law is manifested mainly in two aspects:first of all, the power of Labor Union is scanty. Labor Contract Law highlights three essential rights which the Labor Unions represent of the employees, but the functions of Labor Unions cannot be completely realized due to its current situation of scant. Second, the labor public facilities are deficient. The executive departments, supervision departments, coordination departments or other institutions are not complete for the performance of labor laws and regulations, and the relevant departments or institutions manage unstandardized, unsystematically, unscientifically, and unprofessionally.Chapter III herein responds to Chapter II, which puts forward relevant corrective measures on the issue of unbalance while enforcing Labor Contract Law.In respect of the issue in the circumstance that an employer fails to conclude a written labor contract with the employee, the employer shall pay double time to the employee each month, this thesis says that we should distinct the different situations in terms of the legislation and judicial adjudication. If an employee does not conclude a written contract with employer due to ex parte reason, we shall not apply to the punitive law of double time in this situation; if a contract is not concluded and not due to the reason of a employee, neither the subjective fault of the employer, or the contract is not concluded in a statutory period, we shall eliminate the obstacles to sign the contract in a timely manner, and exclude the application of the principle of double pay.With regard to the issue in the following situation:where a laborer signed the fixed-term contract for two consecutive terms, the laborer now possess the right to request to renew the contract with a non-fixed term, we believe that it's only in this situation that both parties agree to renew the labor contract, they may enter into a non-fixed term contract; in the meanwhile, if the employer avoids the liability for signing the non-fixed term contract, we shall introduce the good faith principle to the judicial adjudication.Regarding the issue of deliquescing right during the rescission of the labor contract, we believe that we shall distinct fixed-term labor contract and non-fixed term labor contract to specify different conditions of rescission, as for the fixed-term labor contract, it shall be stipulated that no party shall unilaterally rescind the contract, as for the non-fixed term labor contract, the statutory non-fixed term labor contract shall comply to the legal basis for rescission, otherwise, the recession of non-fixed-term labor contract based on consensus shall comply to the condition of due cause. In addition, the employer shall be vested the right of rescission without cause if conditions permit.With respect to the issue of obstacles of the way of remedy of administrative power in the process of right relief of labor contract, we shall introduce the system of labor administrative adjudication to repair relevant deficiencies, in meanwhile, we shall concretely specify the handling procedures of labor administrative adjunction in legislation, primarily focusing on the investigation of the procedure of hearing, procedure of ross examination, procedure of burden of proof, and adversary procedure, etc., so as to insure the legality of administrative adjunction.Concerning the issue of imbalanced interests in the process of the organizational governance of Labor Contract Law, this thesis says that we shall first of all to take measures to strengthen the construction of the Labor Union, which including:to give the legitimate right of strike for employees; to allow the employees to establish various kinds of Labor Unions. Secondly, we shall complete the division and installation of present departments, improve the arbitration agency, establish basic-level people's mediation organization, clean up operational rules, straighten out the relationship between labor arbitration and administrative adjudication, and the relationship between administrative law enforcement and administrative mediation.