The Legal Countermeasures On Preventing Employers Circumventing Non-fixed Term Labor Contract

With the Labor Law of the People’s Republic of China(hereinafter referred to as "labor law"), Labor Contract Law of the People’s Republic of China(hereinafter referred to as " labor contract law ") and other laws have been implemented and continue to improve, the labor contract system is in the great development of our country, the employing units and laborers are also set up the consciousness of the labor contract. At present our country is in such situation: labor oversupply, strong alternative, short-term labor contracts is serious. Establish and improve the labor contract system is an urgent demand to maintain a harmonious labor relations and social stability. In this context, the "Labor Contract Law" came into being, to further refine the non-fixed term labor contract provisions. But the law has caused a great disturbance in the announcement of the society, triggering widespread public concern and heated debate, the employer circumvention is endless.Why can produce this kind of phenomenon? Investigate its reason, first lies in the dislocation of legislation value idea. Make fixed term labor contract law embodied in two different civil and social philosophies, carry the non-fixed term labor contract shall bear the protection function, fixed term labor contract is mainly responsible for the freedom and productivity features. The existing welfare characteristic of non-fixed term labor contract is still too heavy. Coupled with the labor contract legislation unity and rigidity, and to some extent, adds the non-fixed term labor contract applicable difficulty.Second, because of the phenomenon of short-term labor contracts restricted by specific employment system and market economy, trying to achieve long-term labor relations through non-fixed term labor contract will be a long and arduous task.Besides the introduction and conclusion, the article is divided into three parts:The first part narrates and comments three typical cases, explains to circumvent the universality of the phenomenon of non-fixed term labor contract. First, starting from the cases summarized employers to circumvent the law in several ways. There are mainly include employers take the induced force means require employees to sign non-fixed term labor contract, deliberately interrupt seniority, the employer intentionally alter, reverse dispatch and other means. Then, from the point to the surface, initiate, noting that the universality of circumvent phenomenon. From empirical research reports, news websites, the Court of research and other data, we can see that there are a lot of circumvention behaviors in practice. Finally, briefly describes the adverse effects caused by.The second part is to analyze the reason for the employer to circumvent the nonfixed term labor contract. This part from several aspects carry on the analysis, the legislation, the law enforcement supervision, the status quo in the labor market, the employers and the workers, etc. The main reasons as follows: non-fixed term labor contract values improper design, resulting in a conflict of interest of labor, impedes law enforcement; System design bias, compulsory contracting, stringent conditions to lift welfare characteristics, and the general governance of legislation has increased the difficulty of its application; Related disciplinary mechanisms are inadequate, lack of security system; employers and workers own reasons, and restricted by the development of market economy of our country, etc.The third part is the main countermeasure of governance the employing units to circumvent the non-fixed term labor contract by law. Based on the phenomenon reveals and the analysis of the causes, combined with legislation and labor market situation and learn from some of the provisions of foreign countries, target to propose improvements: First, from the adjustment of legislative values, the specific design of the system, reforms to the welfare of non-fixed term labor contract and other suggestions for legislation; Second, from the sides of employers and employees, improve their own quality of workers, "active" personnel management right of the employer, standardize and improve the employing mechanism; Again, the government should strengthen supervision and play a leading role in the government’s propaganda. In line with the concept of fair and equitable, labor interest balance, build the nonfixed term labor contract system, in order to fully play its due role.