| The legal force of a labor contract is the core problem of labor contract. However, Labor Law only regulates to the force of a labor contract rather generally and incompletely, and holds a negative evaluation to blemished labor contracts. To hold a negative evaluation for the blemished labor contracts without distinguishing by the laws is not coincidence with the demands of reality. A labor contract needs to learn from the theories and legislative results of contract law and according to the features of itself re-arrange at the aspect of force. In the thesis, it is discussed the theoretic views for the force of a labor contract raised by the current academic circles, analyzed on the factors which impact on the legal force of a labor contract, raised a basic principle for identification the force of a labor contract, evaluated the force in detail, and finally discussed to the verification organization and legal results of a labor contract invalid. This thesis is divided into three chapters:In the first chapter, it is arranged and evaluated to the theoretic views for the force of a labor contract raised by the current academic circles.Currently, the theories on the force of a labor contract can be divided into two main schools among academic circles. One insists Valid And Important-Element Theory, and advocates to import traditional civil invalid system of contract into the Labor Law, in which it also can be divided into two points of view in importing methods: one considers that it should import strictly according to the invalid system of civil contract at all aspects; and the other considers that it should transform according to the features of Labor Law while importing. While the other one insists Triggering the Mechanism Theory, opposes to import invalid system of contract, and advocates it should set up a unique invalid system in Labor Law.For identifying invalid contract, though the two big theories are different in starting point, they all recognize the intervention and adjustment to personal wills by the public power, while express poles apart value orientation on dealing with the invalid results. The author considers that as Labor Law is originated from Civil Law, and learns from the invalid system of contract in traditional Civil Law, there must be theoretic origin and actual rationality. Labor Law separating from Civil Law is an important phasic symbol during the socialization of private law, which makes the Labor Law own characters of sociality. Therefore, there must have significant differences between the invalid system designing to the labor contracts in Labor Law and the invalid system of contracts in Civil Law, especially essential differences between the recognitions and dealing methods to the force of contracts.In the second chapter, it is analyzed particularly on the factors which influence the force of a labor contract, raised the basic principle to recognize, and evaluated it in detail.The factors which influence labor contract mainly include subject factor, meaning-expression factor, content factor and form factor. On the part of subject factor, the subjects of a labor contract are the employment unit and laborer, while laborer is discussed particularly in this thesis. Natural persons are the qualified subjects in the legal relationships in Labor Law, which must possess the right of labor and relative labor capacity and consider from the aspects of labor ages, intelligence and health situation. On the part of meaning-expression factor, the meaning expressing the fact is the important-element to compose the validation of contract. In a labor contract, the factors which influence the meaning-expression mainly include cheating, threatening, taking advantage of precarious position and so on. While cheating, threatening, and taking advantage of precarious position are identified particularly in the fields of labor contracts. On the part of content factor, the factors influencing the force of a labor contract mainly contain enforced regulations in the laws, social interests and obvious unfair. In this thesis, it has analyzed on how to define the ranges of them which correspond with the interests of litigant and integrate interests of society. While on the part of form factor, among the scholars there are a lot of disagreements on whether it can influence the force of a labor contract. The present executed laws make emphasis regulations on the form element, because aiming at the situations that not sign a labor contract in real life usually. A written labor contract is an important document to confirm the labor relationships and a material voucher to maintain the legal interests of employment unit and laborer respectively, which is helpful for reducing the happen of labor disputes. However, the establishing of labor relationships does not take the setting of a written labor contract as the standards and references.Upon analyzed on the factors which influence the force of a labor contract at all aspects, starting from the legislative purpose of labor and basic principles, it has raised the basic principle to identify the force of a labor contract, i.e. the principles which are helpful for the laborer, maintain the validity of a labor contract, and scan the force of a labor contract dynamically. The value orientation of identifying the force of a labor contract focuses on maintaining the force of a labor contract and stability of labor relationships as much as possible. Unless identifying a contract being valid, is disadvantaged to the legal interests of the laborer and harmful to the interests of state and social public. In another word, the judging standards of an invalid labor contract should be wide; also it is not suitable to simply deny the force of a labor contract.Exploring and discussing the force of a blemished labor contract, as well as identifying a labor contract being invalid, are not the results in the laws which we actively advocate, just the passive selection which is enforced.For identification the force of a labor contract with the unqualified subject, when set up a labor contract, a labor contract is invalid for the laborer is invalidity. However, a labor contract is a contract with continuity, when the litigants of a labor contract in both parties have disputes or checked and given punishment by the labor administration, if a laborer has already possessed the qualification of subject, there is no actual meaning to deny the force of a labor contract, harmful for protecting the interests of the laborers, and should treat as validity of a labor contract. Though, if a laborer reaches the age of 16, the force of a labor contract can be given diplomatic recognition, it not means to unbridle the illegal action that employing a child labor in the employment unit, and the labor administration could give administrative punishments to the employment unit which has mistakes when sign a labor contract in accordance with the laws. For the unqualified labor contract of the employment unit, it should be analyzed detailedly on special occasions, instead of identified being invalid for all, while if it can remedy the unqualified employment unit, the force of a labor contract should be recognized; On the contrary, it should identify that the labor contract is invalid.For the identification to the force of a labor contract with the illegal content, the labor contract with illegal content includes two situations, like contents of a contract are lack of necessary content regulated in the laws or illegal. A labor contract is lack of necessary articles, considering rigorous, it should identify that the labor contract is invalid, but it will lead that lots of labor contracts are invalid in practice. In fact, a legal and necessary article is only a sample of a regulated labor contract, with the effect of leading the employment unit and the laborer to set up a labor contract, for the labor contract which is lack of necessary articles regulated in the laws, after discovered by the labor administration, it can be ordered to remedy by negotiations between the employment unit and the laborer, if the negotiation is failed, it can infer and define according to the regulations of the standard labor law and collective contract, and it is unsuitable for identifying a labor contract being invalid and the content of a labor contract being against the enforced regulations in the laws simply. Among which: the labor contract which is against the forbidden regulations should be identified to be invalid, while the one that is against the ordered regulations should be identified the force combined the legislative purpose and basic principle respectively in Labor Law. If a labor contract is against the ordered regulations but not against the legislative purpose and basic principle of the Labor Law, it should be identified valid; On the contrary, it should be identified invalid. A special article of a labor contract oppose with the regulations of collective contract, it should be identified invalid, however, the article being invalid generally will not impact on the entire force of a labor contract, it only performs the contents regulated in collective contract replacing the invalid article of a labor contract. If setting or executing a labor contract will damage the interests of state or social public seriously, it should be identified invalid; yet it only make a slight damage to the interest of society, and no harm to the laborer, starting from protecting the individual interest of the laborer, this kind of labor contract is unsuitable for identifying invalid.For the identification to the force of a labor contract without the important element in form, no matter on the view of legal regulations, or the practice of Labor Law, the written labor contract is nothing but an effective evidence to prove the existence of labor relationships, and valid and invalid of a labor contract are not all the same with the existence of labor relationships. A labor contract being invalid does not absolutely identify the labor relationship being inexistence. For the unwritten labor contracts, it can be treated differently according to different situation. First, if it can verify that the labor contract exists, it can be recognized as proved contents of a labor contract, and supervised to set up a written labor contract between the employment unit and the laborer by the labor administration. Second, if it only can verify that the labor contract exists, but not the contents of a labor contract, the contents can be confirmed with the purpose of good for the laborer according to national standard labor law and collective contract. Third, if it can not verify indeed the contents of a labor contract, it can be treated according to the actual labor relationships.For the identification to the force of a labor contract with the setting methods of cheat and threaten, etc. one part sets up the labor contract with the methods of cheat and threaten which is harm to the interest of state, this kind of labor contract is invalid as it is against with the enforced regulation of self-regulating meaning which should not damage the interests of state; the labor contract setting with the methods of cheat and threaten, which is not harm to the interests of state, we should not identify invalid for all. The person himself is the best judge of his interests whether win or loss and the laws can not. Moreover, the interests of both parties in a labor contract are also a static judgment, but a process of continuous changing. When setting up a contract, the litigant of one party who has been cheated and threatened, his interests might be damaged, but in the course of performing the contract, the aggrieved party might convert into the beneficiary. In the construction of the domestic labor contract system, it must establish a multiple mechanism to evaluate the force of a labor contract, and definitely regulate the labor contract setting by cheated and threatened, expect the labor contract is harm to the interests of state, which can be concealed and changed, and the party who has been cheated can apply to conceal or change the contract to the disputes treating organ for labor within 1 year after the set of the labor contract.In the third chapter, it is expounded the results of invalid labor contract in the laws.In true life, even the labor contract set up by the workers and management is invalid, if the party of laborer provides producing force resource, and the employment unit has accepted the labor offered by the laborers, the social relations exist between them are still according to the essential feature of labor relationships, and it can not deny the existing labor relationships as the setting labor contract being invalid. From this point, after performing the invalid labor contract, workers and management considers that it has established actual labor relationships, while the actual labor relationships have the features of irreversibility, the offered producing force by the laborer is can not given back, and the actual labor relationships also can not recover to the status before the setting up of the contract. Therefore, when actual labor relationships can not be protected effectively through a labor contract, it only can depend on the definite regulation to protect the actual labor relationships ordered by the Labor Law. In detail, the special legal results of invalid labor contract should include terminating performance, paying for the reward, returning the property, compensating the loss and capture the illegal profits.The unredeemed labor contract should not perform and for the part which has performed, it only can be treated according to actual labor relationships. Although the labor contract is invalid, starting from protecting the interests of the laborer, whether the laborer is wrong, the labor is offered by laborer, it should be paid by the employment unit with relative reward. After verified the labor contract being invalid, then workers and management will lost legal or contract reference to gain the property of the other side, one side has the right to ask for returning the gained properties when setting the contract or during performing the contract from the other party. After verified the labor contract being invalid, it caused actually loss of litigant of one party by the invalid labor contract, and is compensated by the litigant of fault party, mainly compensated the laborer by the employment unit, while only the laborer makes significant economic loss by his mistake for the employment unit, there has the possible that the laborer compensates to the employment unit. If the litigants collaborate maliciously, which has damaged the interests of state, after the labor contract is verified being invalid, the gained properties from this, will be captured to the state.Above all, when evaluate to the force of a labor contract, we should insist the principles that being helpful for the laborer, namely make deduction which is helpful for the laborer under some conditions; insist the principles which make the labor contracts being valid as much as possible to maintain harmonious and steady labor relationships; persist to respect the litigant of a labor contract fully and entitling the right of selection to certain extent. In the whole thesis, it stresses the freedom of a contract, but also embodies the enforced intervention by public power of state, and with the fundamental aim of promoting a generous balance between litigants of a labor contract, to set up harmonious and stable labor relationships.
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