Research On Legal Issues On Employment Penalty Of University Graduates In Our Country

At present, Employers hire university graduates generally in two forms in our country: one is adopting employment agreement certified by administration Department of national education ministry; the other is directly signing labor contract. A special law on labor contract has been enacted, namely"Law of Labor Contract". The related stipulations in the Law are absolutely applicable to the issue of penalty due to violation of labor contracts. The difficulty is how to apply current laws to the treatment of penalty agreed in employment agreements since we haven't any special laws on it. What's worse, the academic field holds different views on legality of such agreement. Therefore, the Legal Issues on Employment Penalty has become the difficult problem in practice. The knowledge of its legality will undoubtedly affect the validity of the enforcement of penalty. Adopting research methodologies like comparative analysis, value analysis, the thesis elaborates university graduates'penalty in both labor contract and employment agreement. After comparing the two legal documents and their different natures of legality. In the last ,giving some suggestions toward employment agreement.The thesis is composed of four parts. The first part analyzes the nature of employment agreement through comparing the similarities and differences with labor contract. Their similarities lie in goal, legal relationship, function and status of subject.. The differences exist in subject, period of the employment relation establishment, the applicable scope and content. The legal nature of employment agreement belongs to civil and commercial law while labor contract is a branch of social labor law. The second part analyzes the validity of employment agreement and labor contract. Since employment agreement is civil contract, the penalty provision agreed between university graduates and the employer should be under the related penalty stipulations of civil law, like item 112 of"the General Provisions of the Civil Law"and item 114 of"Contract Law". If there is any penalty agreed by both sides, the delinquent side probably undertake legal duty of penalty payment. The penalty agreed by university graduates and the employer in labor contract then must conform to the related stipulations of item 22, 23 and 25 of"Law of Labor Contract". Except those caused by violation of service period and restrictions on competitive industry, other sorts of penalty is invalid. The third part analyzes the issue of legal conflicts existing in standardization of current national laws on employment penalty of university graduates. Firstly, the conflict between"contract Law"and "Law of Labor contract"; Secondly, conflict between principle of autonomy will and inclined protection principle; Thirdly, the conflicts existing in imbalance of the applying subjects of penalty. In view of the above legal conflicts, the fourth part puts forward proposals on employment agreement and the labor contract. On one hand, with irreplaceability in the current stage the employment agreement cannot be abolished temporarily. On the other hand, it needs improvement, Firstly,the subjects of employment agreement should be assured again, the university should withdraw from the status as the third party in the employment agreement; Secondly,the content of employment agreement should be modified too, the agreement about penalty between the employers and the university graduates should be limited. The university graduates should be entrusted with the right of indicating contract- break ahead of time.