Personnel Guarantee The System Of Study

The contract of personnel guarantee is a contract that the guarantor and employer agree on that the guarantor will take the employer's responsibility to compensate if the employer carries on indemnity for his job behaviors. The personnel guarantee already existed in ancient times in our country, and it is also common to see personnel guarantee in nowadays. But there is no definite stimulation on personnel guarantee in the legislation system of our country. Disputes arise among theoretical works and legal practice. This paper dwells on the characteristics and contents of personnel guarantee based on the historical investigation, substantial investigation and comparative investigation of the legislation in other countries. From the prospective of the author, it is necessary for our country to build up the system of personnel guarantee. In addition, the author analyzes how to set up the system. It is significant both in the theoretical and practical field when the The Law of Labour Contract will be on the stage in the near future. The full text is divided into four parts.Part i : The history of personnel guarantee and its status quo. Firstly, the author investigates the developing stages of personnel guarantee in China; Secondly, by virtue of network questionnaire, the author concludes that personnel guarantee exists as a general phenomenon and the laborers disputes a lot to this system. Moreover, the author analyzes the controversy on personnel guarantee both in theoretical circle and practical circle.Part ii : The investigation of comparative law regarding personnel guarantee. This part carries on exhaustive investigation of the laws in Switzerland, Japan, Germany, France, Anglo-American law system and the region of Taiwan of China.Part iii: The characteristics and basic content of the personnel guarantee. This part explains the generality and characteristics of personnel guarantee at first. Secondly, the author analyzes the range of personnel guarantee, the period of guarantee acceptance and the period of guarantee, elimination of personnel guarantee, form of responsibility, the relation of the rights and obligations etc. The author holds the viewpoint that the range of personnel guarantee is limited to debt of compensation arising from a contract breaching or tort by the employee. This author also distinguishes the period of guarantee acceptance and the period of guarantee clearly, analyzing the reasons of the elimination of the guarantee which includes that the expiration of the period of guarantee acceptance and the period of guarantee, the death of the guarantor and the employee or their losing civil capacity, the elimination of the labor relationship.There are five key elements for responsibility-taking of personnel guarantee as follows: damage is arising from fulfilling the work; the employee is liable according to the law; the employer is unable to realize creditor's rights by other means; within the period of the guarantee acceptance and the period of guarantee; the employer can't realize the creditor's rights by compulsory execution after litigation or arbitration with beneficium excussionis; The guarantor needs to undertake the guarantee responsibility and at the same time he is entitled to the beneficium excussionis and the rights of termination by noticing in advance and the rights of reducing or remiting responsibility.Part iv : It is necessary to set up the system of personnel guarantee in China. This part expounds the necessity of setting up the system of personnel guarantee at first. Secondly, the author explained the routine to set up the system of personnel guarantee in China.