On The Principle Of Changed Circumstances In The Field Of Labor Contract Use

2007 is an unusual year for the legislation of labor law and it is the beginning of a new period of the legislation of labor law after following the reform and opening-up policy for 30 years. Law of the People's Republic of China on Labor Contract which was reflective of general attitude was adopted on June 29, 2007 and effective from January 1, 2008 makes great influence on the employment condition in China. Law on Labor Contract should have its specific legal principles as it is a legal system of adjusting the relationship between labors and employing units. The principle of variation could be such a principle because this principle is consistent with the principle of highlighting the protection of laborers which is one of the principles of the labor law, has connection with the principle of good and faith which is required by the freedom of contract and instruct to conclude, perform and terminate the labor contract.This article has four chapters and more than 30,000 words.Charterâ… introduces the definition, range and qualification of the principle of variation, the theory basis of its existence, the evolvement of variation of the two Laws, its necessary to exist and applicable efficacy. Because of the rapid development of economy and the unpredictable social changes, the basic principle of "the contract must be followed strictly" was broken, and gradually, the principle of variation was formed. When the contract is hardly to follow because of the objective situation's changing , correspondingly, the contract should be modified, abolished or ended so as to protect the party's rights and benefits. Thus, justice should be achieved.Charterâ…¡introduces the necessity and possibility of the principle of variation in the labor areas. As a law principle, the principle of variation is a result of law development driven by social-economic progress for it can guide and coordinate the relationships of the whole society or of a special field in society. Labor law is a civil law department separated from civil law, the principles of the civil law also can work in labor law. Especially in the environment of globalization, the nature of long-term, dependence, win-win result, persistence of labor contract, the complication and globalization of labor relationship all make it necessary to follow the principle of variation in the field of labor contract areas.Chapterâ…¢demonstrates the principle of variation in the application of labor relations on the basis of reality. The first section of this chapter, given to the objective situation of labors, employing units and legal changes of law rules, the principle of variation is necessary. If neither of the employee or employer should be responsible and the labor contract is hard to follow, which causes a serious unbalance, the principle of variation can be used to address such problems fairly. At the same time, the first section of this chapter, through the way the labor contracts relief, legal consequences after the relief on the labor contract areas and the procedural requirements of the relief, demonstrates that the relief on the labor contract law has a combination with civil law, and it has a better proof that the principle of variation has reality-based of application. Of course, based on the principle of protection of workers, the application of the principle of variation should have some exceptions, especially for weak staff.Chapterâ…£analyzes the "Law on Labor Contract" on the embodiment of the principle of variation. Paragraph 3 of article 40 and the provisions of article 41 of the "Law on Labor Contract", to give the employing units the rights to discharge the contracts when the objective circumstances the labor contracts based on changed. And chapter IV also carries out a test of judicial practice, which is about the actual situation of the application of variation when labor contracts are being performed, and analyzes cases result from relevant changed situations. It has a better proof of the necessity to introduce the principle of variation into labor contract areas, which also is in the interests of protecting workers' legitimate rights. Further more, chapter IV gives a outlook of the introduction of the principle of variation in labor contracts, it specifies that the principle of variation is one of basic principles of labor contracts, and it gives workers and employing units rights to discharge and change when faced with changes in objective circumstances. At the same time, it gives the introduction of mechanism that trade unions can participate in the exercise of discharge or the rights of discharge, so as to protect the legitimate rights and interests of workers and the final realization of fairness and justice.According to this article, we can learn the fact that, though the principle of variation has not been recognized in legal in our country, however, it still exists in its special way both in practice and legislation. The analysis and quotation of the cases in this article better explains the necessity and possibility of the principle of variation applying in the labor contract. Exercising the principle of variation properly will play an positive role in protecting and enhancing a harmonious labor relationship.