The Senior Executive’s Role In The Labor Law

Within the theory, whether the senior executive of enterprises is the employer orthe employee is a contentious issue. Under the existing labor law system of China, thesenior executive always is treated as the employee in the practice, and the disputebetween the senior executive and the enterprise is arbitrated or judged according to thelabor law. But the labor law protects the employee who is the weak, and showscongenital characteristic of bias protecting that is the chief value orientation of the laborlaw, while senior executive have enough power to confront the corporation, so it’s unfitto treat senior executive as employee.The introduction of this paper puts forward the question and states the backgroundand significance of this issue, and briefly describes the main view of this issue in ourcountry.Chapter2determines the conception and scope of the senior executive which is thepremise to discuss the issue. In this paper, senior executive only include generalmanager, vice manager, financial controller, other senior executive defined by articles ofincorporation and people who actually perform the aforementioned duties, and excludethe directors, supervisors, legal representative, middle management. Then, the paperanalyzes the special status of senior executive compared to ordinary employees.Chapter3states the defects of the existing labor law system on the employee ofChina, and investigates the system abroad. The author believes that senior executive’spower is equal to the corporation, so senior executive should be excluded from the employee. The paper analyzes the drawbacks in the judicial practice when seniorexecutives treated as employee. At last of this chapter, the author proposes theprincipal-agent theory and believes senior executives should be placed in the scope ofemployer.Based on the analysis and statement aforementioned, chapter4proposes there are2sides to govern the senior executive: It is principal-agent relationship between the seniorexecutive and the enterprise or the board of directors, and it should be ruled by thecorporation law, contract law; while the relationship between senior executive and theordinary employees is the labor relation and should be governed by the labor law, butthe senior executive and the enterprise take different responsibility for the ordinaryemployees. The author also proposes some suggestion for the judicial practice in ourcountry to consummate the labor law.Thus, the author finishes this paper.