| The provision of the article 24 of the Opinions about Implementing the Labor Law from the former Ministry of Labor is when making a labor contract, an employer may not require an employee to provide earnest money, cash deposit(definite object or thing), deposit(definite object or thing) in any shape or form. Otherwise, according to the Notice of strengthening the labor management to foreign-investment enterprise and privately-run enterprise to protect the rights of workers from the former Ministry of Labor, Ministry of Public Security and All-China Federation of Trade Unions (by the former Ministry of Labor[1994]NO.118 and General Office of the former Ministry of Labor about the reply to whether the state-owned business and group enterprise could consult and carry out the provision of [1994]NO.118 by the former Ministry of Labor) , the police and the administrative department for labor is in charge to order the employer send back what the employer collected to the employee immediately. To the employer who took unlawful practice, the consequences is just sending back what they collected, no more reprimanded provision. The article of No.9 in the law of Labor Contract which comes into force from Jan.1st in 2008, provides that When hiring an employee, an employer may not retain the employee's resident ID card or other papers, nor may it require him to provide security or collect property from him under some other guise. If an employer: (1) Fails to pay an employee his labor compensation in full and on time as stipulated in his employment contract or prescribed by the state; (2) Pays labor compensation below the local minimum wage rate; (3) Arranges overtime without paying overtime pay; or (4) Terminates or ends an employment contract without paying the employee severance pay pursuant to this Law; then the labor administration authority shall order it to pay the labor compensation, overtime pay or severance pay within a specified period of time; if the labor compensation is lower than the local minimum wage rate, the employer shall pay the shortfall. If payment is not made within the time limit, the employer shall be ordered to additionally pay damages to the Employee at a rate of not less than 50 percent and not more than 100 percent of the amount payable. By comparison, the progress is obvious. But if the distribution of the provision of law is obeyed and the action of requiring the employee to provide guarantor is prescribed in it? The draft of Regulation on the Implementation of the Employment Contract Law used to make some provisions about providing guarantee in labor contract, but at last, when the regulation came into force, the provision was canceled for one reason or another. The following consequences, on one hand, is the judicial cannot do anything about the action of the employer requiring the employee to providing guarantor, but leaving the employer freedom of recruitment, on the other hand, facing the same kind of case, different courts enter different judgments, the negative effect followed is obvious. But till now, the educational circles haven't made further research. The chaos of legislation is due to the neglect of the educational circles. Following financial storm, the more and more serious employment situation is expanding freedom of recruitment invisibly. How to protect the legitimate interest of laborer in weak tendency becomes the problem of the practice and educational circles. Therefore, the article makes sense in practice and theory by research systematically reduction to absurdity.The article is about fifty thousand words and is divided into five sections. The section one discourses the guarantee for labor contract briefly. The guarantee for labor contract is that the guarantor should assume responsibility for damages from the employee, who was to be blamed for destroying the advantages of the employer. At the same time, the article makes attributive analysis about the guarantee for labor contract and points that friendship, succession, the tendency for future and passivism are the basic attributes. The section also discourses the difference between the guarantee for labor contract and guarantee from the object of guarantee, guaranty period, the limitation of liability for guarantee.The section two discourses the development of the guarantee for labor contract in Switzerland, Japan, case-law countries, mainland China and Taiwan briefly.The section three to five discourse the reason for the denial of the guarantee for labor contract and are the main parts. The section three discourses the nonentity of the guarantee for labor contract from the location of legislation, the logos of legislation and the objective of legislation.The section four discourses the nonentity of the guarantee for labor contract from the construction of system, including the access system in special industry and special position, institution of law in force, fidelity bond and system of business management.The section five denies the guarantee for labor contract in practice, including the limitation of object, the hindering factor of preinstalled objective and the construction of corporate culture.The definition of the guarantee for labor contract is based on the comparison in practice and theory at home and abroad in section one. In section two, after the introduction of general situation of legislation in Switzerland, Japan, case-law countries, mainland China and Taiwan briefly, the article makes lognitudinal comparison by thread spool. For the reason of lack research about the guarantee for labor contract in our mainland and the limited information, the scholar who made research about the guarantee for labor contract holding a definite attitude, the writing of this paper in a new way is very difficult. This paper tries to denounce the reason of the scholar who made research about the guarantee for labor contract holding a definite attitude by reduction to absurdity. This paper discourses the reason of denial of the guarantee for labor contract in-depth from the legislation, the construction of system and the use in practice.
|
PDF Full Text Request