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Research On Relieving The Labor Contract By Unilateral Decision

Posted on:2008-12-10Degree:MasterType:Thesis
Country:ChinaCandidate:Z H SunFull Text:PDF
GTID:2166360242959875Subject:Law
Abstract/Summary:PDF Full Text Request
As the relation link between the worker and the employer, the work contract workedout had determined the work relations, and had been clear about the bilateral right duty.Work contract relieving means the end of litigants right of both sides. The work contract relieving is not only a inmortant link in acontract law system, it is also a big issue in a labor law major, which directly involves the potency of the work contract, the contractlitigant's benefit success and failure and the right protection. So it is extremely easy to cause the dispute. The unilateral relieving of work contract cannot be changed by the opposite party, so it is easy to harm the benefit of the other side and destruct contract potency and its dignity.Our labor legislation has made a more detailed stipulation to the unilateral relieving of work contract, moreover, which sufficiently proved that it has vital significance.The full text is classified in five aspects:To research this issue, firstly,we must defined its legislation localization and the connotation ,which is also the foundation and the premise of it. The first part is separately from the meaning of the work contract, the work contract relieves, and the unilateral relieving of work contract to analysis this issue. Futher more, we can get a clear concept about important implicationand significance. The unilateral relieving of work contract is a big issue in labor legislation, which closes to the work contract potency, the litigant's legitimate rights and interests, and the peace of our society. Therefore, it should become the key point of the labor legislation attention. In this article,the author analyze the classification and presesure of the unilateral relieving of work contract from four sides: body difference, advanced notice or not, the relieving basis and mistake standard. At the same time, the author terminated its procedure and formed correct understanding to our present legeslation which set up a solid foundation to further analysis.It is good for labor force flows and also it provides legal basis on reasonable disposition of labor force and producegoods, but look from the legislation and the practice aspect,it also has many problems. The second part has two aspects.Compared with overseas Country, Hong Kong, Macao and Taiwan area, our mainland legislation shares similarities and differences on work contract termination by the labor side. Our labor legislation has stipulated the permission condition and the prohibition condition for the employers who want to terminate work contract.The third part is mainly talked about the work contract termination form the employer side. Compared with overseas Country, Hong Kong, Macao and Taiwan area, our legislation is emphasized to protected labor, so it has a stricter stipulation on exercise condition and procedure of work contract relieving power by employer's advanced notification.The labor legislation had separately stipulated the jurisdiction of employer and worker's unilateral relieving of work contract. However in practice, because of inconsistent to the legal rule understanding, it has initiated many disputes questions. The fourth part, is talking about current dispute initiated by labour's unilateral relieving of work contract, the business secret protection, the employer interior rules and regulations question, the trade union supervisory authority question. Then this artical carries on the elaboration on related question to the unilateral relieving of work contract. To consummates the work contract remedy system, we cannot completely imitate foreign procedure, and we must consider our concrete national condition to absorb useful experience from overseas in order to solve practical problem. In this article of the last part is to find out the insufficiency in the unilateral relieving of work contract and to rise up some suggestion. If give the right of relieving the work contracrt without reason to the employer , meantime, we should increase its duties, and also , the legal responsibilities of relieving the contract without renson is higher than have resons. This is done to avoid the employer misusing this right.Compared and analyzed on the right of relieving the work contract by unilateral decision in our country and overseas, the syeterm for the right of relieving the work contract by unilateral decision is incomplete ; the content about the conditions of exercising about releiving the contract is imcomplete and too wague , and not good for legislation practising.This article has some analysises and put forward some points;the laws which we used in force ,at the time of giving the right of relieving the contract without renson to the labour ,and not make it clear what duties of breaking the contract the labour should be taken . And this make the contradicts of without taking any duties for relieving the contract by the labour ; the Labour Law in our country have not determine the right of relieving the contract without renson ,and this restrict the means of adjusting the labor relation , and also influcened the production of the employer.To set up such a system of relieving the contract by unilateral decision, and to perfect the syetem of relieving the labour contract by one party, we should give the right of relieving the contract without rensonto the employer. Considered the uneaqual position between the employee and the employer, the duties about the right of relieving the contract without renson for the employer should be higher than the employee; and higher than the duties of resignation that exercised by the labor ; and also should be higher than its right of relieving the contract by forenotice,and be matched with the compensation duties of relieving the contract by fornotice.To complete the system of relieving the contract without renson ,the syestem of relieving the contract by forenotice the employer should be constituded first .To consummate our present work contract relieving system, we should enhance legislation technology, and carry out adjustment from the balance authority and responsibility relations. Only in this way could we assure each kind of exercising condition to the unilateral relieving of work contract. Meanwhile we can balance benefit of both side and make the workcontract fulfilled totally.
Keywords/Search Tags:Unilateral
PDF Full Text Request
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