On The Protection Of Interests Of The Parties Of The Fact That Labor Relations

It has been 10 years since the Labor Law was declared. And the conception of labor contract and the sense of right protection have been widely accepted by the people. But the labor relation of fact and other problems have appeared. It shows that the system of our country's labor law is in the course of the growth, and its system and structure has many defects. At present, the parties rights and interests of the labor relation of fact is difficult to protect effectively, and it endangers the stability of the labor relation, affects the quality and the process of the reformation of enterprise. Accordingly, we should absorb the legislative experience of the international society to perfect the labor legislation, and explicit the rights of the parties and responsibilities of the faulty party in order to enlarge the protection of the parties, and the party without fault. At last, the system of labor law in China will keep pace with the international society, and shows the essence of the human-centered thinking.This article uses several methods, such as historical analysis, contrast analysis and analysis of positivism. And the article applies three principles of the civil law to analyze the fundamental meaning of the labor relation of fact, and explores the structure and the protection mechanism of the parties of the labor relation of fact. This article includes three parts: First, common theory of the labor relation of fact : analysis of the fundamental concept, the theory grounds of the protection to the parties, legislative experience in Anglo-American Law and Continent Law; Secondly, the parties structure of the rights and interests and the bearing of the responsibility in the labor relation of fact; Thirdly, the protection mechanism of the labor relation of fact.The labor relation of fact is the labor rights and duty between the worker and the unit. But it has no the formal prerequisites of the legal labor contract. It has three features: It is a kind of labor relation, and has general features of the laborrelation; at the same time, it lacks the written form of the legal labor contract. Its prerequisites include: the subject accords the requirements; the worker has carried out the labor action; the subordinate relation has formed between the parties; the two parties have the sense of the tacitly approval, but lacks the formal prerequisites.The protection of the parties rights and interests in the labor relation of fact shows that the basic idea of the human rights protection, and it accords the fundamental aim of the Labor Law and international labor agreement. And it conforms to the demands of the effective disposal of the human resources, and receives the hold of the contract theory. The countries and the districts in Anglo-American Law and Continent Law universally acknowledge the oral labor contract and the factual contract. If we put the labor relation which is not in the written form into the labor relation, the range of the labor relation of fact will become small. This offers useful legislative experiences for Chinese labor legislation.In practice, the faults and the main faults of the unit take mainly percentage. So we should put the principle of faulty responsibility into the labor relation of the fact. Meanwhile, the principle of no fault responsibility and the principle of the fair responsibility also embody in the disposal of the labor relation of fact. When we perform the right of the identity, we should implement the principle of faulty responsibility in the removal and the retaining of the labor relation. And we should implement the principle of the fair responsibility and the principle of no fault responsibility in the wage, society insurance, welfare and other rights of the property.If we want to protect the parties' legal rights and interests in the labor contract of fact, we should do as follows. First, we should admit the effect of the oral contract legislatively, and put the present factual relation formed in the contract which is not in the written form into the legal labor relation...