On The Modification Of Labor Contract

In terms of clauses of Law of the People's Republic of China on Employment of Contracts, modification of employment contracts should be carried out under the condition that an agreement has been reached between the employers and employees. In that case, written form is mandatory. Unilateral modification or modification of non-written form can not be guaranteed by the law. Such legislative measures aim at defending the interests of the laborers and preventing the employing units from abusing the power. Meanwhile, it is convenient for producing evidence after the dispute and the supervision of the administrative organs. However, there exists great limitation of such mode of modification.Under the background of market economy, employing units should possess sufficient decision-making power on laborer selection. They can make timely modifications of the payments, working time, working post and the working place of the laborers. On the other hand, the laborers should obey the orders. Labor contract is a kind of continuing contract or relational contract. The conclusion of a written form labor contract is the evocative mechanism of labor relationship. As both sides of the litigants can not be fully visionary when signing a contract, they can make some modifications and revisions, explicitly or implicitly, in performing the contract as a reaction to the external factors such as the status of the management and operation. Thus, both sides should attach great importance to the actual performance instead of the initial contract.From the perspective of comparative method, both theories and legislations believe that laborers and employing units can modify the contract unilaterally under some specific conditions. Civil law system and common law system, by different ways, also admit non-written form modifications. These legislations are conducive to the perfection of the system of labor contract modification in our country.The author believes that the Law of the People's Republic of China on Employment of Contracts should lay some regulation on the unilateral modification of the labor contract, specifying the condition under which the employing units can change the working post and place. As for the unilateral modifications of the working time, payment, and working place etc, they should resort to the existing laws, regulations or regulatory rules. Those measures can coordinate the labor contract performance system with the modification system. Meanwhile, the Law of the People's Republic of China on Employment of Contracts should abolish the limitation of written form and carry out the actual performance principle, defining the relationship between the employing units and the laborers according to the actual performance.Recently, we have not placed sufficient emphasis on the modifications of the labor contract. Monographs of scholars in the main focus on the specific issues such as the change of the working post and the place. Few carried out research on the modifications of the labor contract from a macroscopic level. This thesis will do some research on the modifications of the labor contract in terms of a comparative way. We will make some analyses on the nature of the labor contract and put forward our advice on the perfection of legislation on the basis of inspecting the performance result of the existing systems.