The Study On Service Period Of The Labor Contract

The "Labor Contract Law" is implemented in January1,2008. When making law,Legislators summed up many years’ practical experience of our country and combinedwith the actual situation of our country. This law is reviewed four times before it isadopted. Implementation of the "Labor Contract Law" is of great significance for thepromotion of China’s social and economic development, harmonious labor relations. Itis the first time to formulate the service period system, which has existed for a longtime in our country’s employment system, in legal form. The standardization of theservice period system has a positive significance in arousing the workers’ enthusiasm,raising economic benefits of employing units and maintaining the stability of the laborrelationship.In the process of making the service period system, legislators both take accountthe employer’s cost of human resources, and insist on the concept of protectingworkers’. Through three successively amendments, the provisions as now areeventually formed. However, there are also problems in the legal regulationscorresponding with the service period system. On the one hand, the regulations aboutthe service period system are too simple and have some loopholes, such as failure todefinite the professional and technical training clearly; on the other hand the termslack of flexibility, such as the prerequisites of agreeing service period are limited toonarrow. These defects lead to the departure from legislators’ original intention in theperiod of actual application. How to improve the terms of the service period systemon the basis of fully coordination between employers and employees legitimate rightsand interests plays a critical role in giving full play of service period system.The first part of this paper briefly introduces a specific case, and then analyzesfrom the perspective of the “Labor Contract Law", and points out that there areomissions in the relevant provisions of the Labor Contract Law ", and thus leads to theissues discussed in this paper. The second part firstly defines the concept of serviceperiod. Then introduces three views of the legal nature of service period system and expounds and evaluates these three viewpoints. Finally analyzes the service periodsystems positive role in reality. The third part introduces the regulations of serviceperiod system in our country’s legislation, and points out its inadequacies according tothe real life problems. These inadequacies mainly include that the using of the term istoo vague, the scope of service period item is too narrow, the application object of theservice period system is too general, the standard of service period’s length is notrefined, the liquidated damages of service period is set is too inclined to laborers, thelegal responsibility’s distribution is unreasonable. The fourth part puts forward to myown rationalization proposals to improve the service period system on the basis of theforward parts’ analysis. These proposals mainly include that clear definition ofprofessional and technical training, the establishment of special treatment’s legalstatus, service period provision applies only to special workers, the reasonable lengthof service period, appropriate increase of the amount of liquidated damages, theincrease in the employer’s liability for breach of contract.