Research On China’s Open-ended Employment Contract System

An open-ended employment contract is an employment contract for which the employer and theemployee have agreed to stipulate a effective date but not to stipulate both a definite ending date andduration of labor relationships. Although the provision of open-ended employment contract has beenestablished legally since the Labor Law came out, it is not perfect because of all aspects of limitations.Since the publication of Law of the People’s Republic of China on Employment Contracts (hereinafterreferred as Employment Contacts Law), the provision of open-ended employment contract hasimproved comparatively, thus formulating the system of open-ended employment contract with Chinesecharacteristics. On one hand, Employment Contacts Law expands the scope of application ofopen-ended employment contract by stipulating the compulsory contacting obligation of employerunder certain conditions. On the other hand, owing to some defects existed in current legislation; manyemployers deliberately evade the application of open-ended employment contract, the “short-termemployment contract” situation has not been coped with properly. Under these circumstances, this thesis,on the basis of detailed study on open-ended employment contract in our country and investigating andcomparing foreign countries, analyzing the problems in open-ended employment contract of our countryso as to put forward some ideas to perfect the system of open-ended employment contract for thepurpose of providing some benefits for the construction and perfection on open-ended employmentcontract in our country.The first chapter: Firstly, this chapter introduces the historical background of emergence ofopen-ended employment contract in China, and evaluates this historical background. Secondly, itanalyzes the concept of open-ended employment contract. By comparing with the concept of nonfixed-term contract stipulated in Labor Standard Law in Taiwan, it is necessary to add the nature ofwork for the application of open-ended employment contract, thus rationalizing and completing theconcept of open-ended employment contract. Finally, this chapter discusses the value orientation ofopen-ended employment contract system, and explains its importance in protecting the rights ofemployees, achieving the mutual benefits and harmonious relationship between employers andemployees and establishing a good social order.The second chapter: Summarizing at length the conclusion, dissolution and termination rules,which are the most important and controversial part in open-ended employment contract system, andassessing briefly these rules based on analyzing each rule involved in Employment Contacts Law andRegulations for the implementation of Employment Contacts Law. In the summarization of conclusionrules, this chapter analyzes the provision that is about legally compulsory conclusion of open-endedemployment contract, which is the most distinctive improvement in Employment Contacts Law thanthat of in Labor Law. In the summarization of dissolution rules, analyzing the relevant rules aboutdissolution under consensus between employer and employee, unilateral dissolution by employee oremployer respectively. In the summarization of termination rules, this chapter focuses on the provision that the conditions of termination of contract under two parties’ agreement, which is eliminated byEmployment Contacts Law.The third chapter: This chapter mainly centers on the international relevant open-endedemployment contract system. It introduces the international convention for the United Nations and theInternational Labor Organization, European Union Law and relevant rules of France and German, andcompares these conventions and rules with open-ended employment contract system in China in orderto benefit the perfection of open-ended employment contract system in China.The forth chapter: Analyzing the principle problems existing in China’s open-ended employmentcontract system and proposing the suggestion of perfection. From the aspect of conclusion rules, theproblems mainly lie on the legal compulsory conclusion of contract, which should be further explainedand improved. From the aspect of dissolution rules, due to the integration of strict rules stipulated in thesystem of fixed-term employment contract and open-ended employment contract, it causes losses to therights and interests of the employing units and brings negative effects to the orderly and reasonablemobility of labor force. Therefore, for the sake of adjusting the development of market economy, thedissolution rules stipulated in the system of fixed-term employment contract should be reconstructed.