Study On The Liquidated Damages Of China’s Labor Contract

We can divide into two phases to research on the liquidated damages of China’slabor contract. The first phase is liquidated damages before the China’s laborcontract implemented; the second phase is liquidated damages after the China’s laborcontract implemented. Before the China’s labor contract implemented, there is alegislative blank in our nation’s labor contract. Due to lack of specific provision ofliquidated damages, it becomes a way for employers to strain worker’s freemovement. Though employers negotiate liquidated damages with employees canstabilize the labor relationship and achieve expected economic profit., stable laborrelationship does not bring active influence as expect, because the labor’s free choiceof employment is seriously derived, the emotion of slack and idleness is growing dayby day, finally it will hurt the stability of the Market Economy. Liquidated damagesgradually become a troublesome issue. Due to lack of national legislative standard,the local governments make the law of liquidated damages of labor contract;however, legislative attitude is different. There are three main legislative attitudes:forbidden liquidated damages theory, free liquidated damages theory and constraintliquidated damages theory. As a result of lacking uniform standard, it does notachieve the expected affect. The Labor Contract Law plays an important role in theprocess of liquidate damages. It unifies the local government’s legislative attitude ofliquidated damages and adapts constrain liquidates damages theory. It has its ownadvantages, but there are still some issues. The rules about liquidated damages arequite principle and vague, causing misunderstanding between the employees andemployers. It brings some new questions. In this thesis paper, the author tries toanalyze the liquidated damages in the theory area. Utilizing comparing analysismethod and value analysis method, based on theory and legislative procedures oflabor contact liquidated damages in China in order to explain some questions.There are three parts in this thesis paper. First of all, I mainly introduce three theories about the liquidated damages. It includes forbidden liquidated damagestheory, free liquidated damages theory and constraint liquidated damages theory.Some scholars support forbidden liquidated damages theory, they believe laborcontract is a part of social law, it tends to protect employees. The employees’survival rights and interests is more important than the economic profit of employers.So it is necessary to forbid any behavior that can harm employees’ freedom. Somescholars support free liquidated damages theory, they think the law can’t alwaysprotect employees, it also emphasis on protecting the profit of employers. Somescholars support constraint liquidated damages theory. On one hand, they believeconstraint liquidated damages theory can reflect labor contract law which emphasison employees’ weak position, on the other hand, it can protect the profits ofemployers. Above all, I will demonstrate my own point of view. In my point of viewwe should adapt constraint liquidated damages theory as legislative attitude. Becausethe Labor Law as a social law, it should realize true equality. Constrain liquidateddamages gives up the other theories view which emphasize on the formal equality. Itbases on the theory of labor’s difference, limits the liquidated damage’s utilization inthe Labor Law. The theory reflects the Labor Law specially protect the employeeswho are in the weaker position, at the same time, it demonstrates the Labor Lawprotect the employer’s financial profits. The employers are encouraged to investmore capital on the human resource.Then I will divide the development of the liquidated damages in the laborcontract into two phases. The first phase is the condition before the Labor Lawimplemented. The second phase is the condition after the Labor Law implemented.The purpose of division is introducing the history of liquidated damages in the laborcontract. In the first phase, there is no governmental legislation in the area ofliquidated damages in the Labor Law, scholars have a hot discussion about thedefinition and the characteristics of the liquidated damages.They also havedifference explanations to the Law. In the area of labor contract, liquidated damagesbecomes a terrible problem, it always occurs. The condition accelerates manyemancipates and provinces to make a law about the liquidated damages. Due todifferent places bases on the different attitudes to make the law, so the different places have a different result in the same case. The Labor Law implementeddemonstrates that our legislative institution make a right decision. It insists on thetheory of constrain liquidated damages in the Labor Law.The law also formulate themaximal amount and the calculate standard about the liquidated damages when theemployers break the deal which the labor contract includes. The Labor Contract Lawmake a direction to the development of liquidated damages in the labor contract.At last, I am mainly talk about the advantages of actual labor contract liquidateddamages in our country, and then I will analyze the factual application of theliquidated damages in the labor contract. The analysis of advantages is bases on thetheory that demonstrates the labor law’s destination-realization of true equality. I willadopt two views to analyze. One view is protecting employers’ survival right, theother view is protecting employees’ financial interests. Then I will discuss sevenissues to explain the application of the liquidated damages. There are applicabletarget in the service liquidated damages, the calculated standard of service liquidateddamages, applicable scope of constrained competition, the definition of businesssecrets, the calculated standard of liquidated damages in the area of constrainedcompetition, whether the employers continue to undertake the duty of constraineddamages after they undertake the liquidated damages or not, the relation ofliquidated damages and compensation in the labor contract. On the basic of thedetailed explanation, I will make appropriate suggestions in order to deal with theproblem that occurs in the process of utilizing liquidated damages and put forward tocompleting the liquidated damages in the labor contract.