Under The Background Of The New Labor Contract Law Unilaterally Terminate The Labor Contract Law

By analyzing the legal problems existing in the system of unilateral termination of labor contract and the practical problems encountered in the process of handling cases under the background of our country’s new Labor Contract Law and also comparing and referencing free dismissal system of America, lifetime employment based on free dismissal of Japan, unilateral termination of labor relationship leading from legitimate reasons of France. There comes to the conclusion that the biggest legal issue in China’s current integrative unilateral termination system of labor contract is the unsymmetrical between causeless resignation right of employees and free dismissal right of companies. Specially, that means employees abuse the resignation right, presumed fired conditions are too simple, companies are difficult to dismiss employees, labor cost is too high and the cycle of maintaining rights is too long, etc.Analyzing from Civil Law theory, China’s system of unilateral termination of labor contract violates the following principles:Causeless resignation right violates the principle of fairness and good faith; Unsymmetrical between resignation and dismissing right violates the principle of fair and reasonable; Shall not stipulate dismissing and termination violates the principle of equality and voluntary; Analyzing from Labor Contract Law theory, China’s system of unilateral termination of labor contract violates the following principles:The system of causeless resignation right is not beneficial to maintain and develop harmonious labor relationship; The integration of unilateral termination system is not beneficial to maintain social stability and facilitate social progresses; Negotiate to change post violates the principle of company’s autonomous right; The system of one mediation、one arbitration and two instances violates the timeliness principle of dismissal protection; Analyzing from Economics theory, China’s system of unilateral termination of labor contract violates the following principles:Limited dismissal right violates the principle of maximizing economic benefits; The provision of prior employ in layoffs system violates the principle of enterprise’s self-development. In order to solve the above problems, we need to revise and improve our system of unilateral termination of labor contract from the following aspects:Limit causeless resignation right of employees properly and strict presumed fired conditions; Distinguish different kinds of dismissal conditions of open-ended labor contract and apply to the system of unilateral termination of labor contract separately according to different labor positions; Implement separation of position and recruitment to help enterprise walk out the trouble of unilateral termination; Modify the trial system of labor dispute to maintain rights effectively.