Study On China's Holiday Law System

The advancement of technology and the progress of the society provide people with a more comfortable living environment, in which leisure and effectiveness have become the new aim for labor efficiency. As an important part holiday right, holiday system shows its advantage against the request from laborers for rest and holiday, and its increasingly rich content exerts direct positive effects toward the coordination between employers and employees, the inherit of the traditional culture, the stability of family and the meeting to social psychology. This thesis takes studying the problem and guides the practice as the starting point, making analysis on holiday system's theoretical background and real situation from the lawful angle, and pointing out the solutions to the problems in reality.The thesis is composed of four parts. The first part discusses rest right and holiday system against the law theory. The relevant knowledge is introduced at the beginning. Holiday system is part of realization of laborers'rest right, so it is necessary to get the knowledge of the concept and nature of rest right before studying the theoretical background. Labor-capital relation is partly shown by labor's action of working physically and mentally for the employer to acquire survival materials in a period of time. Conversely, the employer gains the profit by consuming the labor. Labor time, therefore, becomes the core in the game between the two parts. Obviously the laborer expects to work the least but gains the most whereas the employer has to make the aggregation of profit by accumulating the employee's working hours, thus coming up the paradox between rest and work which always exists in the course of the labor-capital combat. Scholars agree in the definition of rest right. Its focus is the right laborer can have the lawful rest with the laborer as the subject for the purpose of assuring the laborer's health, accelerating the working efficiency and improving the integrate development of human beings and society. The connotation of rest right nature lies in the labor right's basic nature. First, the rest right is the lawful right ruled and assured by the constitution and the labor law. Second, the rest right is both the survival right and the development right which offers the necessary time for the recovering of laborer's physical and mental strength and the time support for enjoying the life and realizing the dream. Third, the rest right is the rightful content of human rights system, including the need of interest, the possibility of satisfaction, the paradox between need and satisfaction and the externalized subject need from human rights origin. Based on the discussed basic theory of the rest right, this thesis puts the emphasis on the holiday system in the rest right related. This definition suggests two theoretical bases. One is that holiday system profoundly embodies the seeking for the free value with aim to assure that as the laborer produces the commercial value, he or she enjoys the free space. On the other hand, holiday system is one of the contents of human rights realization, which could provide a period of lawful rest times in order to recover from the labor consumption and fully enjoy life. Besides the two theoretical values, the times function of holiday system is the most conspicuous for on the one hand, holiday system is the means of the employer's management. Secondly, holiday system helps solve the employment problem. Thirdly, holiday system improves the economic development. These theoretical values and practical functions fully suggest the necessity of studying holiday system and the usefulness of guiding the practice, and also make the knowledge preparation for the following analysis.The second part systematically introduces the historical evolution of China's holiday system at present and gives the evaluation respectively complying with the present laws. This part is introduced in each category according to types of holiday. First, the historical evolutions a d evaluation of the lawful holidays are introduced. The holiday set by the law is the earliest compared with others. It has undergone three magnificent modification and enriching in 1949, 1999 and 2007 respectively, forming the structure including two long holidays of the National Day and the Spring Festival, and four short holidays of Labor's Day, Qing Ming Festival, Lantern'Day and Mid-Autumn Day. The present law-regulated holidays have their advantages. They exert positive effects in increasing the holiday times, inheriting the traditional culture and uniting the national intelligence. Second, the historical evolution and evaluation of holidays of visiting relatives are introduced. The present visiting relative holiday was regulated in 1981 unchanged till now which have many problems in its application. However, it still functions in keeping family relationship stable, meeting laborers'psychological need. Third, the holiday with salary's historical evolution and evaluation are introduced. The holiday with salary has been regulated in 2007 from perspectives of application conditions, the object, operation and supervision. It is certain to become the most important holiday for laborers, the effective management method in the near future and it has the practical meaning in solving many disadvantages of the golden week. Fourth, the historical evolution and evaluation of the maternity leave are introduced. The number of days and salary of maternity leave were regulated in detail according to the law-setting process. It influences positively on the protection of female laborer's basic rights, the balance of company's burden, the improvement of people's quality and the realization of women's social values in practice. Fifth, the historical evolution and evaluation of holidays for marriage and funeral are introduced. The content of the relevant holidays and social ethnic meaning are briefly introduced.The third part generally introduces the legislation of holiday system abroad for providing references for the progress of China's legislation and practice. This part still introduces the legal holidays, holidays with salary, maternity leave and other holidays abroad according to types of holidays. The legislations in these countries are comparatively mature and well- applied in practice, and they are all beneficiary experiences. Based on the separate statement, the author summarizes the general developing trend of holiday system after analysis which includes that the holiday types are inclined to multi-facets, the suitable objects have the enlarging trend, employers become more active and the system design leans to the autonomy of corporation. All the introduction and generalization of the present legislation not only offer references and preparation for perfecting China's present holiday system, but also provide the theoretical bases for the feasibility of the following solving methods.The fourth part points out the hindrances appearing in the operation of the holiday system toward the analyzed present legislation. This thesis illustrates the hindrance of system operation from macroscopic and microscopic angles. Generally speaking, the common problems of the existing sorts of holiday system are the disjunction between the present holiday system and international standards, in particular between International Laborer Conventions and social responsibility standard, and the conflict between the legal regulation of relevant holiday system and the labor-capital contact, which doesn't clearly affirm the agreed validity. Specifically speaking, all sorts of holiday systems have conspicuous operational hindrances. The problem of relative visiting system is that the application conditions cannot cover the need, and the application objects are not clear enough and the salary standard is delayed. In the holiday with salary, the legislation provision is too vague, laborers and employers are not active in its operation, the sanction means and the inspecting-checking regulations are too simple, and the labor union doesn't exert its deserved influence. As far as the maternity system is concerned, the coverage is narrow and the salary standard is low. The deficiency of personal leave is that the holiday duration is too short and sorts are less. This thesis poses the solving strategy for the above problems. Macroscopically, it is advised to modify the legal regulation to the international standard which is regulated as the lowest standard and allow making more advantageous agreements based on it. Microscopically, it is suggested to perfect the legal regulation and enhance the operation. The relative visiting system should include the request by the married laborers to visit the parents and make it clear that the objects are laborers and increase the salary standard. The holiday with salary should be regulated in detail, inspect and encourage labor-capital to operate the holiday, enhance the inspection and check, and fully exert labor union's positive effects. Maternity leave should enlarge the application scale and improve the salary standard. Personal leave should increase the salary standard and set up new regulations to meet the new need.Holiday system is related to laborers'life style and life attitude. It is the important right as well. However, discussions on this topic are seldom, so it is necessary to have a systematic research on it. Besides, this system is interrelated with many subjects like sociology and social assurance which make this study harder. This thesis takes the law as the theoretical base, and starts from the present legislation. On the basis of the generalization of the present holiday system, the existing hindrances in operation are pointed out and give the answers from the legal angle respectively in order to provide some references for the further study.