Italian And Chinese Labour Contract Systems: A Comparative Study

The study of labour contract system is a topic of great actuality in Italy and China, because during these recent years Italian legislator has completely changed the national system of labour contract, establishing a new and flexible system; at the same time, China's government is drawing up a ?Labour Contract Law of the People's Republic of China?. A comparative study of the Italian and Chinese Labour contract systems has a great practical value: it may discover pros and cons of the labour contract legislation of the two Countries and it can suggest some ways of reform. This research focuses on the legislative aspect, analysing and comparing Italian and Chinese Labour Contract Laws. It is divided into four chapters.The first chapter analyses and compares the classification of labour contracts in the two countries. From the point of view of security of occupation, unspecified-term labour contracts grant the worker better treatment, especially because they prevent the employer from replacing an older employee with a young one. Italian and Chinese legislations prioritise unspecified-term labour contracts, rather than fixed-term contracts, but with a different stress: China emphasize the unanimous accord of the interested parties in order to ensure the liberty of both the employer and the employee to a reasonable extent. This is a basic principle of the labour market, absolutely necessary for flexibility in market economy. On the other hand, Italy gives more importance to unspecified-term labour contracts by means of detailed rules and restrictions to the conclusion of fixed-term contracts, but this situation also gives rise to evil effects, such as reducing the competitiveness of the Italian economy on the international market, or the incredible use of illegal employment by Italian companies. Recently, the Italian government has set up a new system of atypical labour contracts, in order to increase legal employment and improve working conditions. The legislator must grant liberty to employers and employees to privately settle terms of contract, but at the same time it has to set up a good system of minimum protections.The second chapter analyses and compares the systems of conclusion of labour contract in the two countries. The two analysed systems don't present big differences, because they are governed by theoretical standards of civil law, such as the principle of legality, the principle of equal will and the principle of free agreement. According to the determination of the parties of the contract, China emphasise the procedures, while Italy only draw up general procedures, preferring to formulate a detailed system of priority for the employment of special kinds of workers, such as disabled people, long-time unemployed people etc. In regards to the determination of the contents of the contract, Italian and Chinese legislators don't show much difference. It strikes the fact that Italy allows oral labour contracts, but just because oral contracts are considered as unfixed-term contracts with the best conditions obtained by collective bargaining. Contract conclusion and contract effectiveness are strictly linked: a contract can become effective only if his conclusion fulfil law's requirements, in other case it will result in nullity or it can be annulled. In this respect, Chinese law seems to have a contradiction, because it mixes the two different concepts of nullity and annulment. Instead, Italian law clearly distinguishes the two aspects: nullity refers to the illegal content of the contract, while annulment involves the incapacity of the parties or defect of will. Procedures for nullity can be raised by anyone who is concerned in the effects of the contract, procedures for annulment can only be raised by the offended party within 5 years.The third chapter analyses and compares the two systems of fulfilment and modification of labour contracts. The fulfilment of the labour contracts in Italy and China shows agreement between the two countries with respect to the same principles, namely the principles of comprehensive fulfilment, personal fulfilment and cooperative fulfilment. The modification of labour contracts in the two countries also follows the same theoretical principles. The only difference lies in a restriction in Italian legislation: Italy only allows the modification"in melius"of the contract, that is, it only allows the improvement of contract from the point of view of the worker. Chinese legislation allows any modification of the contract if it is in free agreement by the parties involved. The legislator has the duty to find the right equilibrium between free agreement and protection of the weak party (the workers). The systems of suspension of the contract in the countries show big differences: even the concept of suspension is not identical: in China it concerns the reciprocal interruption of the contract by the parties, in Italy, the employee's decision to interrupt the service is sufficient in some cases, as determined by law.The fourth chapter analyses and compares the two systems of extinction of labour contracts. Legislators has duty to clearly define the procedures, the conditions and the restrictions of the extinction of the labour contract, at the same time they have to set up a system of special protection for the workers, because of their relative weakness. The problem of extinction of the contract is quite complicated, it involves theoretical problems, moral matters, practical needs, social costs and economical questions. It must fulfil the principles of civil law and contract law and it must satisfy employer's choices and employee's needs of survive. With regards to the procedures of extinction of labour contracts, China and Italy don't show big differences, they both prevent arbitrariness and ensure workers'legal rights. As to conditions and restrictions, the situation of the two countries is similar, but China stresses the extinction of contracts as formulated by the law, while Italy grants significantly more freedom in the collective bargaining process, trade unions define the conditions of extinction of contract by mean of collective labour contracts. Legislators have also defined another instrument to coordinate the different problems involved in the extinction of the labour contract, namely the system of compensations, indemnity and penalties. Chinese legislation still need to improve on this point, especially for fixed-term contracts; Italian laws, on the other hand, show great detail for every kind of contract, especially in the case of reduction of staff: consequences for Italian companies can be very serious in case of unlawful dismissal.