Research On The System Of Flexible-term Labor Contract

Flexible-term labor contract refers to the labor contract without explicit existing term in which both parties only stipulate the valid date but no specific date of termination of the contract. Flexible-term labor contracts are not contracts for permanent employment. Where both parties in the labor relation are under statutory circumstances, both of them have the right to dissolve the labor contract. As a matter of fact flexible-term labor contract is a kind of labor contract formation that not only offers both parties a sense of safeguard but also leave them some changing space. The flexible-term labor contract has important valuable significance to the formation of harmonious stable labor relationship.The flexible-term contracts' performance effects have big difference in different countries because of the different object audience; conclude condition and the relevant dismissal protection system. In many countries especially western developed countries, the flexible-term labor contracts are designed to stabilize labor relations, diminish unemployment and realize optimum distribution of human resources. In China, we adopt fixed-term labor contracts as mainly employment method for a substantial period which is contrary to international mainstream method. The flexible-term contracts are only used to make the subjects who are unsuitable to enter into market competition exit marketplace in settlement way or limited enter into market place. This situation has close resources with the long time employment system in our country. Since the new China had established we implement employment system of "fixed job" for more than 30 years. The employers only enter other than exit which was stable and steady labor notion has influenced people's mind significantly. This kind of employment system which was created in planned economy period has been broken by the promotion of reform and opening-up. Labor contracts employment system has been gradually formed and the flexible-term labor contract has been firstly regulated in Labor Contract Law. However, The subjects who can conclude flexible-term labor contracts have been broadened to ex-servicemen who have been primary employed, the retired sportsmen, the rotation peasant workers and peasants whose land has been requisitioned, etc. this makes the flexible-term contract lose its original function and alienate into charitable and compensate contracts for part of workers but not contracts that protect all the weak employees. The flexible-term labor contracts' welfare character is conflict with the employer's profit target. Therefore the employers are inconsistent with this kind of contract formation at some extent. The signing rate of flexible-term contracts is pretty low in our nation. Fixed-term labor contracts play dominate role to employment method. And the labor contract becomes short-termism. The phenomenon of one sign for one year goes seriously.For a long term though the way of employment of taking fixed-term labor contracts as domination as well as the flexible-term labor contracts as exception is flexible, it has shown a lot of drawbacks. For example the unstable labor force cannot create a steady professional worker team, and both the employers and employees are lack of long-time corporation and faithful relations. The class power can hardly accumulated and the security and health situation of labor profession has been worried, also it makes exploit using to labor force. All of these things are helpless to develop harmonious relations between the employers and employees, and it also takes bad effect on the whole society's economic development and social steady. In accordance to the above phenomenon, Labor Contract Law has broadened the applicable qualifications of flexible-term labor contracts into four categories that beyond the only one kind of qualification in Labor Law in which to lead both parties in labor relations conclude flexible-term labor contracts. And it also stipulates that the employing unit shall make economic compensations after terminating the fixed-term labor contracts. But this stipulation has attracted widespread social attention and arguments. To review the relevant regulations of Labor Contract Law from another angle we find it isn't reasonable enough and is easy to be got round by employers. The fine legislative target probably cannot be achieved.Legislation about flexible-term labor contract overseas mainly has three kinds of typical patterns. First is free employment model in America. However, the American free employment principle is coincidence with her developed market economy but not suit for our nation's culture tradition and economy situation. The second is Japan's "lifelong employment system." The lifelong employment system only applies to the employees who have competitive ability but not to all of the workers. In our nation the labor contract short-termism doesn't focus on the competitive employees but the employees with weak competitive ability. The third one is European predominately flexible-term labor contracts model. The main countries and territories in Europe make the flexible-term labor contracts become main stream through limiting the application of fixed-term labor contracts, the longest term and renewing times. Under European model the labor legislation protect the employees at higher level. It shows its significant handling to the labor market and better legislative level and is worth china learning. However we cannot copy that but learn and borrow their experience under China's specific circumstances.China has huge labor market. Kinds of enterprises have kinds of differences. The inner-employee group has diversity and layered structure. If the flexible-term labor contracts doesn't clear these differences and apply to all of them the result will not be the most effective and fairest. Therefore, the flexible-term labor contract in China should identify the applicable subjects in accordance to reality. As far as the employees are concerned, the mid-low workers are the majority of China's labor market, and they are substitutive. Currently while the subjects of labor contracts short-termism are mainly these workers, they should be the important applicable subjects of flexible-term contracts. So far as the employers are concerned, the flexible-term labor contracts' performance should be suit for industrial character.According to the reality of China's labor relations area as well as overcoming the drawbacks and deficiency of Labor Contract Law's relevant provisions, we should learn from European model which restricts the longest term and renewing times of fixed-term labor contracts, and bring fixed-term labor contracts to shift to flexible-term labor contracts. Here is the suggestion for China's labor contracts legislation:" when a fixed labor contract terminates, it can be renewed once, the whole term cannot be more than 5 years. The fixed labor contract which is over legal renewing times and the longest term will spontaneously change into flexible-term labor contracts." Besides, considering the system of labor contacts dissolution in our country is too crude and harsh, this paper has suggested that we should strengthen the procedural regulation of the dissolution of labor contracts while make the dismissal causation summarized. Also based on preventing the employees'legal right from invasion we need to protect the flexible employment right of the employer and maintain the dynamic development of enterprises.The flexible-term labor contracts cannot make employee get a contract concluded once for all, also it won't burden the employer with expendable personnel. Confronting the new Labor Contract Law, both the employees and employers should establish correct notion and accept the opportunity and challenge brought by new law positively.