Research On Labor Contract Clause

Labor contract is a basic system of the legal relationship of labor, and the labor contract clauses are an important composition of labor contract. However, the stipulation of labor contract clauses is incomplete in our country's "labor law"and relevant rules and regulations. The labor contract clauses is a theory awaited to study further, and the realistic value of it is enormous. From the concept of labor contract clauses, the thesis has described the settlement principles, types and typical special clauses of labor contract separately. The thesis is divided into four major parts. The first part is about the doctrinal definition of labor contract clause. The author analyzes the concept of labor contract clause from the personae of labor contract and the rights and duties of both parties to contract, and determines labor contract clauses as the specific stipulation of the rights and duties of both parties to contract in labor contract. At the same time, from the angle of the connections of labor contract and labor relationship and labor contract and labor contract clauses, the author analyzes the features of labor contract clause and expounds the theoretical and practical significances of the research on labor contract clauses. The second part discusses the settlement principles of labor contract clause. First is the principle of equality and voluntary and reaching unanimity through consultation. The principle of equality requires the personae of labor contract to enjoy rights and assume duties equally, either party who defaults the stipulations of labor contract clauses should bear legal liability. Voluntary principle is being to one's tastes of the indication of the intention of laborers and the employing units on the basis of equal principle. The principle of reaching unanimity through consultation on the equal and voluntary foundation is the course that both parties to labor contract to express unanimously. Labor contract must be signed on the basis of implementing the principle of reaching unanimity through consultation, the law then can ask both parties perform contractual liabilities conscientiously, and uphold both parties'legal rights and interests. Second is the principle of fairness. The fairness of this thesis is the relative fairness. It regards the whole interest of society as the starting point, and seek the balance of the group interest of social member. Third is legal principle requiring the personae, contents and procedure of the settlement of labor contract clauses legalizing. Forth is the principle of unforced labor payment. It is relatively free to labor, and labor is the substance and content of the relationship of labor. Therefore, the labor contract clauses which establish labor relation will inevitably ask laborer pay personal service relatively freely. Fifth is the principle of risks on the employing unit. In addition, establishing labor contract clauses also should pay attention to the completeness of clauses and the clearing of phraseology, in order to make labor contract become more and more complete. The third part analyzes the types of labor contract clauses. According to the basis and its nature of the produce of labor contract clauses, labor contract clauses can be divided into the statutory and necessary clause and agreed clause. Statutory and necessary clause is the content that must be considered while laborer and the employing unit are signing a labor contract. These clauses have the enforceability of law for determining the relationship of rightsand duties between both parties. It is the content that can not be lacked in labor contract, and only for these clauses, a labor contract then could be tenable and come into force. The statutory and necessary clause of labor contract mainly includes: personae of labor contract's name and address, limitation of labor contract, working content, labor protection and conditions of labor, remuneration of labor, labor discipline, conditions of the alternation, dissolution and suspension of labor contract, and liability for breach of labor contract. In this part, the author expounds especially the contents of labor contract clause and its legal effect. Firstly, the author analyzes the legal effect of probationary period clause from the limitation of probationary period, the join of probationary period and the limitation of labor contract, and the dissolution of labor contract in probationary period. Secondly, defining the range of trade secret in labor relation is the prerequisite of stipulating security clause. Trade secret is different from laborer's general knowledge, experience and technical ability, oppositely, laborer's general knowledge, experience and technical ability grasped during the period of labor contract has already become a part of laborer personality but not trade secret. The security clause has dual characters: positive respect is advantageous to protect the interest of the employing unit; negative respect is unfavorable to improve the production capacity and discourage the enthusiasm for working. Again, the phenomenon of "buying technology is not so good as investing material, investing material is not so good as digging talents"exists in a large amount, so stipulating prohibition of business strife clause in labor contract is the relatively effective legal means to prevent the phenomenon. When stipulating prohibition of business strife clause, both parties should consider the range, limitation andthe system of risk finance etc.. Finally, when concluding labor contract, both parties also can consult the question of collective or individual special fringe benefits, and determines them with express clause. The forth part is about the special clauses of labor contract. After 1980's, human society enter the era of knowledge economy, there were more and more labor force who were engaged in knowledge production and spread depending on intelligence and ability, and this caused a series of new problems in the field of labor market and labor relation. Face to these new problems, laborer and the employing unit, aiming at the special desire of self, establish the special clauses through unanimous consultation. The special clauses of labor contract can be divided into two kinds: one is the labor contract clause based on the desire of laborer; another is the labor contract clause based on the desire of employing unit. Concretely including: 1. Second job clause. From the point of right, when the first job can not satisfy one's labor supply behavior, the right to have the second job is a composition of laborer employment right. And the second job the laborer engaged in can't influence the first job, and abides legal norm. 2. Discriminatory clause. From the legislation of various countries and the analysis of the employment discrimination, the legal relationship of labor should adheres not only the general principles, such as the freedom of labor, labor coordination and labor protection, but also the principle of equal treatment. The purpose of establishing the principle of equal treatment is to prevent or prohibit the phenomenon of discrimination or differential treatment on laborer by various reasons in labor relation. The clause to go against the principle of equal treatment is consented as violating public order and good custom and not taking effect. 3. Penal sum clause. In order to stipulate penal...