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The Legislative Appraisal And Perfection Of The System That The Worker Unilaterally Dissolves The Contract In Labor Contract

Posted on:2010-04-14Degree:MasterType:Thesis
Country:ChinaCandidate:Y C NiuFull Text:PDF
GTID:2166360275996067Subject:Law
Abstract/Summary:PDF Full Text Request
The system that the worker unilaterally dissolves the contract, is occupying the pivotal status in the labor legislation, this can be peep a spot slightly from its law proportion in the third chapter of labor law("the labor contract and the collective bargain") and its law position sequence in the fourth chapter of the labor law of contract("dissolving and terminating labor contract"); simultaneously this system also is a hot spot of theorists dispute, takes a broad view at the writings (thesis and works) in the labor law domain, all takes it as the key point discussion; furthermore this system also is the most prominent question in practices, every year the case caused by workers who have exercised the power of dissolving labor contract unilaterally are too numerous to cite. In this paper by utilizing many kinds of research techniques and selecting some main aspects to make a profound understanding on question which existed to this system, in order to provide a spot meager reference for the theory domain and the practical realm.The full text is divided in four chapters.The first chapter elaborated the elementary theory of the system that the worker unilaterally dissolves the contract. Firstly, introduced briefly about unilaterally dissolving contract by the worker, including the meaning, the classification and the characteristic, through the multiple angles and the multi-level analysis, unfolded its unique connotation that is different with the dissolution in the civil contract. Secondly, behind any legal regime, rich legal science theory was contained. From the individual freedom principle to "the social benefit said", the evolution of philosophy ideological trend have provided should possibility for the birth of system that the worker unilaterally dissolves the contract; is different with the traditional civil law, the "inclined protection" idea received by labor law, also allocated the reality for the construction of this system to be feasible.The second chapter discussed the evidence for the theory of the system that the worker unilaterally dissolves the contract. The work relations have compound characteristics including the equivalent and the subordination, the property and person. By this system, the reflection to characteristic of equal and subordination is: by the system of unilaterally dissolution of contract in advance to realize the substantive equality; by the system of unilaterally dissolution of contract immediately to counter-balance the negative effect which the subordination brings. At the same time, by stipulating the property duty and responsibility and worker's person right, in work relations the characteristic of property and the person has been manifested fully by this system. In work relations the unification of stability and the fluid is one of goals being pursued by labor legislation. By providing the power of unilaterally dissolving contract for the worker and by defining the procedure and condition in exercising the right, this system would realize the goal that to give consideration to the both sides.As key point of this article, the third chapter comprehensively analyzed the flaw and the insufficiency relating to the existing system that the worker unilaterally dissolves the contract with the greatest length. The question existed in system that unilaterally dissolution of contract in advance is most prominent, not only includes remain question in the original labor law, but also has the new question which the work law of contract grows, the main performance is that the benefit between the powerful worker and employer became more unbalanced, the law lacks the ability to regulate and confine what it would like to. The system that the worker unilaterally dissolves contract immediately, although the dispute theoretically is few, but also has some problems not allow neglecting. Mainly manifestation is too extensive in the protection to the worker and the restriction to employer, failing to achieve the mutually integration and supplement between tolerant and severe, simultaneously in the procedure of exercising dissolution power existed ambiguity. As an organic part of the system that the worker unilaterally dissolves the contract, to pay close attention to the responsibility system is naturally to follow a logical train of thought. Because of congenitally deficient in labor legislation and vacant in academic circle studies, the boundary between the illegal responsibility and the responsibility for the breach of contract involving the worker has not been explicit; moreover, to the responsibility for the breach of contract, responsibility principle and the constitution part are vacant, then influence the investigation on the worker responsibility.In the fourth chapter, the legislative proposal and the countermeasure analysis were put forward to the system. Summarizes, in the system that the worker unilaterally dissolves the contract in advance , must insist the principle of worker layering, all along regard the benefit between the worker and employer to be balanced well as the correspond point; for the system that the worker unilaterally dissolves contract immediately, must base our country national condition, on the one hand must maintain well the worker's related rights and interests, on the other hand must use judgment to consider employer's actual situation; in the worker's responsibility investigation, must differentiate illegal responsibility and the responsibility for the breach of contract, insisting the policy that the compensation primarily and the punitive auxiliary, to achieve the goal that in legal liability, morality and justice and the utilitarian are organic unified.
Keywords/Search Tags:Labor contract, Unilaterally dissolution of contract in advance, Unilaterally dissolution of contract immediately, The responsibility for the breach of contract
PDF Full Text Request
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