On The Legal Adjustment Mode Of Employment Contract In China

This paper mainly analyses the Chinese regulating system of employment contract withthe comparative method and case research method.The first part: The concept of the employment contract. By analyzing the definition ofemployment contract， this part deems that the main nature of employment controct is theexchange of labor and payment, the legislation of China on labor law defines the scale ofemployment contract indirectly by defining the scale of labor contract. After analyzing threedoctrines on relation between employment contract and labor contract，this part deems that it’sfor the reason of different analysis perspectives，namely connection of social relation andlegal relation. From the perspective of social connection, both employment contract and laborcontract has the nature of exchange of labor and payment, and it’s the regulation that makethem have different nature. Labor contracts have the nature of public law for regulated bylabor law，and being a kind of special employment contract, they are concluded in theemployment contract. Then by comparing the characteristics of them，it’s proved that both ofthem have different nature after regulated by law, but the same nature of exchange of laborand payment making they have similarities on legal characteristics, while have differences forthe differences on strength of regulation.The second part: The employment contract regulating system of China. By analysing thedoctrines on China’s employment contract regulating system, this part deems that the civil lawregulating both employment contract and labor contract system makes civil law located in theembarrassing situation of wondering being prior to the private law nature or being prior to thepublic law nature; the labor law regulating both kinds of contracts system make the employersbear too much responsibilities and break the balance of both parties’ benefit, and this systemhas the disadvantage of being unable to supervise the employment relation in which theemployer being families or persons；the regulating respectly system has advantage of avoidingcaring employees’ benefit in traditional employment contract，preventing employers to avoidusing employment contract, which will finally damages the benefit of employees; what is worth thinking is that the regulating system will not stay still, and it will change for the needof society. A case reported by the Supreme People’s Court and the regulation on employmentrelations and labor relations expose that in our country employment contract is regulated bycivil law and labor contract is regulated by labor law，by analysing the latest legislation oflabor law，it shows that the trend of employment contract regulated by labor law and civil lawoccurs in China, however in jurisdiction practice civil law are still the main regulation ofemployment contract. Because civil law lack statutory regulation on employment contract,there are obstacles while the courts deal with employment disputes and the parties useemployment contracts, and the benefit of employees do not have enough protection from law.The third part: Observation of the employment contract’s regulating system of threestatutory law countries with the comparative method. By comparing China’s employmentcontract regulating system with that of Germany and France, this part deems that China’sregulating system is similar to that of Germany, in both of the said system civil law is themain regulating law, and there are regulation on employment contract in Germany’s labor law,while there is a trend of labor law expand its regulating scale with regulating some ofemployment contracts in China, observed from lates regulation on labor insurance. Since theemployment contract regulating system of China is similar to that of Germany, the statutoryregulation of Germany can be learned by China in a certain way. Employment contracts areregulated by labor code in France, though there are special regulation on some employmentcontracts, all of them focus on the protection of employees’ benefit in general. Since theemployment relation has the characteristic of dispersal, it is not proper for China to learn fromthe regulating system of France according to China’s situation.The forth part: Improvement of China’s employment contract regulating system. Thispart gives advices on improving the employment contract regulating system of China, thatthere should be a chapter on employment contract in civil law, but the legislation onemployment contract should pay attention to the regulating scale of the related employmentcontract regulation, taking care of employees’ basic rights, and the balance of both parties’benefit of employment contract. Moreover, employers of employment contract always do not register in the related governmental departments, as a result civil law can only realize itsregulating function when the employment disputes are in the procedure of litigation. Toreduce the employment disputes, to maintain the rights of the week employees, and take fulladvantage of the employment contracts regulating function of civil law，the register system ofemployment contract is advised to established, but the establishment of this system shouldpay attention to the scale of the party who registers, the objection procedure and the mediationof the related governmental department.