On Labour Law In The Field Of Legal Regulation Of Personnel Guarantee

The word "personnel" before "Guarantees" prompts the personnel ensure that is dissimilar to General Civil and commercial guarantees. The assurance system of civil and commercial areas is introduced into labor areas, and they should be basically the same because their point of departure is to reduce the risks in large frame, on the other hand they should be differentiated because of both the compliance of the main legal relations of a different nature in the specific regulation. There have been personnel guarantee system in our country’s history, and it lasted quite a long time. After the founding of new China it was in long silence, bur in recent years, with large and extensive application again with economic activity since the reform and the establishment of labor relations, it was in dispute because of the labor contract law, and again in real is still open or implicitly applied to the unit. Different with other countries or regions, our labour legislation is not clear on the legal regulations of the personnel guarantee, and the attitude is fuzzy; in trial practice the identifying of its effectiveness is not in unity with the different criteria from time to time. For clearing the confusion and maintaining the unity of the law applicable to social development and economic construction to better play the role of the guidelines, there is a need of further justification on the basis of the predecessors.This article is to compare with commercial guarantees, dissect the contents of the personnel guarantee system, analyse personnel guarantee system on both positive and negative aspects of function, and analyse from the credit crisis of legitimacy of necessity, motivation, an irreplaceable functional advantage at this stage, the legal basis of the agreement, and further reflection on the theory and the personnel guarantee system dilemma, and so on our established personnel guarantee reasonable analysis system, and presented to the "freedom of contract in combination with State intervention in order to achieve a balance of interests of third parties" for the reconstruction of the personnel guarantee which is the system’s guiding principle, with the aim of the system of personnel guarantee that is the most functional and negative function suppression. As guideline for the main line, using comparative analysis, referring other experience, combined with national practice, from the guarantor eligibility, scope of the guarantee period, warranty, guarantee limits, ensure, three principal rights and obligations of the relationship between, the protection of the interests of the guarantor and the relief, a specific vision is made on the law-making of personnel guarantee system. The author believes that:there should be a sponsor in the qualification to compensate for the conditions rather than the conditions, as it is, in principle an employer may not refuse near relatives of workers as guarantor; guarantee period which employers know or should know their rights are infringed upon by workers is at a maximum of one year; and guarantee wide range of duties involved should be limited to high risk position, the behavior should be restricted to workers in violation of the obligation of fidelity; guarantee limit for workers from entry to compensation since the time of the accident should be one of the average wage to three times; guarantee should generally ensure that way; the employer should make prudent management obligations and notification obligations, the worker shall use good duty of care to prevent and reduce surety commitment of guarantee liability risks; at the same time, the sponsor should be given more broad scope Presuit, not only the employer claims can be denied before the workers’ responsibilities have been investigated, but also the claims may be refused if employers have additional claims which have not been exhausted,. For our predecessors did not give full attention to the responsibility of the worker, this paper considers breach of fiduciary duty of the worker to guarantor of punitive damages.