Non-fixed Term Labor Contract System, The Legal Analysis

Labor contract is a product of the commodity economic and large-scale social production. Labor contract without a fixed term, as an important type of labor contract, is significant in promoting economic development, safeguarding the legitimate rights and interests of employees, mobilizing the enthusiasm of employees and improving the economic benefits of employers. Facing the current labor and employment situation, has improved the institution of labor contract without a fixed term, made efforts to protect employees, reflects the Purpose of "protecting the legitimate rights and interests of employees", but there are still some uncertainties, which result in many disputes in practice and making labor contract without a fixed term is still not fully use in China. It is inconsistent with the practice of the most countries in the world. Fixed-term labor contract, which is restricted abroad, become the major form of labor contract in our country. A large number of fixed-term labor contracts are signed, which leading to the pattern of "short-term labor contract, long-term labor relationship" in China's labor market. It is not good for the protection of the legitimate rights and interests of employees. In consideration of this, the paper focuses on labor contract without a fixed term.The paper is divided into four parts. Part one set forth the elementary theory of labor contract without a fixed term. By analyzing the legal nature and legal sources of labor contract without a fixed term, author carefully defined the characteristics and functions of labor contract without a fixed term. The second part focuses on the formation of labor contract without a fixed term. Through analyzing the formation terms and comparing with the foreign legislations, the author reveals that the defects of labor contract without a fixed term lies in the lack of compulsory provisions about the choice of type of labor contract between employers and employees in the , which makes the provisions of labor contract without a fixed term exists in name only. Because of the lack of the compulsory provisions, employees are often under the harsh conditions, which restrain the application of labor contract without a fixed term and the purpose of protect the legitimate rights and interests of employees. According to the actual situation of China, the author suggests that we shall enlarge the application of labor contract without a fixed term, restrain the application of fixed-term labor contract to make the labor contract without a fixed term as the major form of labor contract and the leading position in the labor contract system. The third part focuses on the modification of labor contract without a fixed term. The relevant provisions of the modification of labor contract are relatively simple and not flexible enough. The author proposes to amend the rules of modification, on the basis of the modification by negotiations, add the modification by statutes, which divide into substantive modifications and non-substantive modifications. The employers can make non-substantive modifications without damage to the expected interests of employees' in accordance with the original contract. So the modification of labor contract without a fixed term can work better. The fourth part focuses on dissolution and termination of labor contract without a fixed term. First, in order to clear the misunderstanding, the author points the meaning of the dissolution of labor contract without a fixed term. Then, after learning foreign legislations and analyzing the unilateral dissolution rights of employees' and employers' respectively, the author suggests that we shall adopt "the merger" legislations which give employers and employees the equal status and capacity to dissolve the labor contract; we shall improve the conditions and procedures of the dissolution of the labor contract, for example, make differences between the conditions of dissolution of labor contract without a fixed term and fixed-term labor contract; different notice period to the dissolution of labor contract in accordance with different situations; clearly list and outline the situations of dissolution of labor contract without a fixed term; restrict specifically and severely the employers' procedure of dissolution of contract without a fixed term; at the same time improve financial compensation to the employees during the dissolution and the termination of the labor, which help to reduce the phenomenon of short-term labor contracts and protect the legitimate rights and interests of employees better. With the improvement of labor contract without a fixed term in the near future, we firmly believe we are able to establish and develop a harmonious and stable employment relationship.