A Tentative Study On Labor Legal Basic Issues Of "Employment"

After the implementation of the People’s Republic of China Labor Contract Law, thelabor relations is identified from the traditional" written contract" into" employment ",theestablishment of labor relations is no longer with a written employment contract but theoccurrence of “employment” as the substance of signs. The entire text of "Labor ContractLaw", the term "employment" appears a total of36times, which shows the term’s importancein the whole law. We can say that the concept of “employment” is to grasp the node inidentifying labor relations. However, as an important legal concept, its connotation,constitutive requirements, legal meaning, so far has not yet been given an academic explicitcognition.. How to understand the meaning of expression form of the labor contract, how tohandle the legal relations between “employment” and" written contract", and to rationalizethe existence of China’s Labor Contract Law "on the division of labor relations and laborcontract relationship,which all are required to conduct in-depth thinking.The first part makes an ontological thinking on "employment". To sort out the logicdoubts which existing in labor contract law on “employment” the legal system designsFollowed by torture "employment" connotation, think the theories about“performing " or"controlling" is discussed, which should be established in the distinction context for thinkingabout the starting point and itself of employment:as starting point of" employment, referringto as labor relations establishment sign,practicing an actual performance behavior.While asthe" employment" in labor relationship, it not only refers to the actual performance, alsorepresents a controlling state in the affiliation relationship. Next, the constitutive requirements of"employment" are summarized: the author believes that" employment " marks theestablishment of labor relations, the constitutive requirements should include: to reach anemployment agreement, that both sides using labor have the meaning representation; thebehavior body in an affiliation relationship; the two sides have the occurrence of the actualperformance behavior; labor payment in order to obtaining the price. Finally the author putsforward his own definition on “employment”:“employment” refers to the behavior or statefor professional labor supply that workers aim to realize the value of labor force, reaching anemployment agreement with the user(employer) of labor force,and then under theirmanagement and control. The second part discuss the legal relations under “employment theory” between thewritten labor contract and "employment".The author summarizes the current theoriesarranging the legal relations between the written labor contract and the legalrelations:namely" effect-additional theory"," contract performance theory" and" the writtencontract presupposition-confirmation theory". The author think:the first two both stand withmaking the labor contract (including written, oral and other)in perspective of producing"effectiveness" legal to arrange" employment" legal effect, actually did not fully understandthe specific characteristics of the labor contract, as well as the decisive role on “employment”itself for labor relations and labor agreement (contract). The author is in favor of"presupposition–confirmation theory",which lying that it strength the decision function on“employment” for the meaning representation of subjects of labor relations, and the writtencontract, a verbal contract is just playing a role of the "confirmation" and" presupposition".Then,it not only straighten out the split relationship between employment and writtencontract form, making written labor contract keeping its legal significance of independence,but also in line with the specific characteristic of labor contract itself.In the third part the author revealing the legal significance of "employment", think:"employment theory" justify the written contract ‘s ineffective nature, written contract is notthe effective factors on labor relationship, as well as the invalid requirements;“employmenttheory” straighten out the legal function relationship between written labor contract and laborrelations,in the establishment of labor relations, labor contract only play a" trigger" andconfirmation role, but on the function to clear the rights and obligations, the labor contract isobvious sand cant not be replaced;"employment theory" to clarify the connotation of thefactual labor relationship, it can only refer to labor contract is invalid and objectively formlabor relations, The legal disposal problems on while the contract period end after havingsigned a written contract, the parties to the labor relationship with acquiescent attitude, andfor the laborers but do not sign the labor contract, are also to do the thinking.In the fourth part, it summarizes basing on strengthening the leading role of employmentitself for the meaning representation, weakening the legal force of the written contract. Theauthor thinks, for future labor relations development or relief, should strengthen the two basicunderstanding: Having employment fact must establish the labor relationship; existing thelabor relationship must be protected by law. The author further makes a extended thinking onemployment fact’s legal significance for system demand of labor relations: labor relations and labor legal relations law should be properly separated: labor relations have" illegal" that not todeny the objective existence for labor relationship labor; the labor contract changes shouldadhere to the actual performance principle; labor relations and social security relationshipshould be" limited unhooking"; For various forms of labor relations (including natural laborrelations)should be applied at different levels, different standards of labor protection; shouldtake a logical sequence of”employment fact--labor relationship--workers--employing units”" to recognize the subject of labor relations.Fifth section presents some recommendations to improve the China’s labor contract inwriting the law, involving article10, section1of the Labor Contract Law ", no reason not tosign a labor contract for workers; Keeping written force, at the same time clearing theexception provisions; should be clearly stipulated in the Labor Contract Law "establish alabor relationship shall conclude a written labor contract,laws, regulations except asotherwise provided; in part-time employment should also encourage people to sign writtenlabor contract; recognizing of oral or presume form of labor contract, at the same timeclearing the employer notification obligation for signing written contract.