Research On The System Of Liability Of Labor Contract Conclusion Negligence

In the period of signing labor contract, there are a large amount of situations which the labor contract is unreached, revoked, valid, because of the fault of one party . The legal rights and interests of the employee, who is in a weak, often suffer damage in the process of signing labor contract. Although simply appliance of liability of contract conclusion negligence is able to solve the problem to a certainty extent, it is incapable of affording exactly protection to both contracting parties of labor contract .So the liability of labor contract conclusion negligence should be establish in the labor legislation of our country. It has all-important sense in theory and practice.This thesis is divided into three parts. The first part is about the definition of the liability of labor contract conclusion negligence and analysis of realism. First of all, the author poses that the liability of labor contract conclusion negligence is short for the liability of contract conclusion negligence in the labor law. Its definition is that in the process of concluding labor contract, one part should assume legal responsibility, if they breach first a contract obligation and the other side has loss of trust benefit. Furthermore, the liability of labor contract conclusion negligence not only is true of the status of concluding written labor contract , but also is true of the status of concluding verbal labor contract. Then, viewing the characteristic of the liability of labor contract conclusion negligence at the angle of the labor contract and the right to labor , it is not completely following the principle of honestly and credit, and the system gives more protection to employee than to employer. Moreover, they have different of liability for fault. Then, the author compares the liability of labor contract conclusion negligence and the liability for breach labor contract in order to prevent applying them confusedly. In conclusion, the author analyses the liability of labor contract conclusion negligence of realism by analyzing its available rationality, necessity and feasibility. The ideals of honest,equity and justice are embodied in the liability of labor contract conclusion negligence. These are superlative value of law. It equilibrates inequality between employee and employer in the process of concluding labor contract and endues employee the weapon of law to protect themselves. At the same time, some institutions which have a close affiliation with the establishment of the liability of labor contract conclusion negligence, have established and improved in our country. So that supplies feasibility for the foundation of the liability of labor contract conclusion negligence.The second part is about the legislative comparison of the institution of liability of labor contract conclusion negligence.Firstly, taking a wide view to the legislation about the liability of labor contract conclusion negligence in the other country, we could induce five kinds of legislative mode which repose on legislative mode of labor contract, with comparing and commenting.Secondly, about the specific content of the liability of labor contract conclusion negligence, the author comment typical provision which is selected from the comparative law, including obligation to disclose, estimation of employee's privacy, prohibitive provision of discrimination of obtaining employment, the assumption mode of duty,the liability of labor contract conclusion negligence in the process of concluding collective bargain, prejudication about amount of amends,and so on.Finally, the author brings up the meaning of use for reference to our country on the basis of comparing the liability of labor contract conclusion negligence of foreign country and linking the status of legislation in our country. Mostly referred two aspects: the sort of the liability of labor contract conclusion negligence and how to assume duty. Meanwhile, the author thinks, although our country is the continental legal system, the action of the prejudication, the legal doctrine and judicial interpretation should be given full play in establishing the liability of labor contract conclusion negligence.The third part is about the particular construction of the institution of liability of labor contract conclusion negligence, primarily including five aspects:Firstly, employee and employer who are the party of labor contract, of course, are the subjects of the liability of labor contract conclusion negligence, but not only. As the representation of labor, the labor union is a subject too.Secondly, about the applicability of the liability of labor contract conclusion negligence, we think that there is not direct relation with the effect of labor contract .As long as one contracting party breaches first a contract obligation and the other has loss of trust benefit, he must assume legal responsibility. Meantime, considering the specific circumstances, the liability of labor contract conclusion negligence is suitable for tripartite agreement.Thirdly, the author makes a conclusion that employer's the liability for fault is deductive fault liability, but the employee is fault liability in the liability of labor contract conclusion negligence. At the same time, deductive fault liability connects with the inversion of onus probandi, for the employer.Fourthly, about the extent of compensation , it is in the limit of the loss of trust benefit, including direct loss and consequential loss. We all realize distinctly that opportunity loss is outwardness to the both sides of labor contract.Fifthly, how to select the mode of assumption of duty in the liability of labor contract conclusion negligence. On the basis of considering the practice require, the author poses that compensation for damage is the primacy mode; When the employer is subject, the law should endue employee option that it is about whether keep on perform labor contract, instead of judge invalidation completely; While the employee doesn't perform necessary obligation to disclose, the employee is entitled to repudiate a task which presence the hurt of occupational disease; Administrative penalty is one of the mode of assumption ,when the employee assume liability for fault ,because of particular case, but just a little single; As remedial mode of default , declare and ban has prescribed in the foreign labor legislation. So it is true of the period of signing labor contract.In a word, it is very necessary that we build the institution of the liability of labor contract conclusion negligence in our country. We all hope that《The Draft PRC Labor Contract Law》can be promulgated as quickly as possible, and the institution of liability of labor contract conclusion negligence could service practice at an early date...