On Invalid Labor Contract

Labor contracts shall be concluded legally and illegal labor contracts shall be void. This conception is generally accepted in our labor law society. It derives from civil theory of void contract and fundamentally, it is a void contract rule from the perspective of civil law. This theory is the duplicate of civil doctrine of void contract, but it cannot solve the legal dilemma occurred in the event a labor contract is declared void and creates a substantial negative effect in the employee protection mechanism. Civil rule of void contract derives from civil legal relationship. Its formation, progress and evolvement follow its own rules and it is the reflection of progress and development of civil law. Therefore, my thinking is that the duplicate of civil rule in labor law will not promote the progress of labor law but rather it is a degeneration of labor law.Civil law advocates the will autonomy doctrine of private law which was derived into freedom of contract principle under the contract law. According to the freedom ofcontract principle, an agreement between parties shall be determined by the parties absolutely. The agreement shall be the law binding the parties and the state shall not interfere in such activity. The freedom of contract doctrine derived from Rome law and was adopted and brought to its fullest play by French Civil Code. But soon, the freedom of contract was transformed into an freedom of bullying. Thus, this doctrine was modified under the good faith doctrine and other doctrines including void contract rule introduced and adopted by German Civil Code. The void contract doctrine reflected a restraint of public ideas on individual ideas, a result of the initial process of transformation of private law into public law. Its formation was in line with the actual development of social and economic life under the regulation of civil law and was of positive significance mainly to the regulation of property exchange-based relationship, but of no significance to personal exchange-based relationship.Labor law falls into the category of social law and is the result of transformation of private law into public law. As a matter of fact, regulating labor relationship by adopting civil doctrine of void contract is incorporating labor relationship into civil relationship, which is a degeneration of law development history. Civil doctrine of void contract helps little in handling labor relationship because labor relationship possesses a combination of personal and property natures. From the perspective of social law, labor relationship is focused on actual performance. Labor contract is one but not sole triggering mechanism for performance of labor relationship. Besides, the failure of labor contract as a triggering mechanism shall not deny the actual performance of labor relationship. The reference of foreign labor legislations shows that such legislations do not stress the void nature of labor contract and that the scope of void labor contract is defined quite narrowly and that most of actually performed but void labor contract was taken as the subject to the regulation of basic labor law. These legislations may be used for reference by our country in establishing a better organized void contract system. On the other side, the void contract system is of both positive and negative effect to improvement of freedom of contract doctrine. Therefore, I does not agree to the creation of a separate void labor contract system from the viewpoint of legislation economy, but a void labor contract systemcharacteristic of social law and which can effectively avoid negative effects shall be established. The base for such system shall be actual performance of labor relationship. My thinking is that, firstly, the scope of void labor contract shall be defined on the ground of illegal purpose of contract; secondly, an actually performed but void labor contract shall fall into the scope of regulation of basic labor law; and finally, sanction mechanism shall be created and imposed on defaulting party especially the employer. Therefore, contract system, remedy procedure, obligations, sanctions, etc. shall be regulated in legislation from the macro and micro perspectives.