The Termination Of Labor Contract In The Condition Of Enterprise Migration

The enterprise migration has become a major method which Chinese enterprises use to follow the changes of economic environment. In recent years, due to the economic crisis, the cost of raw materials and labor in southeast areas is rising steadily. Many enterprises have to migrate to the areas where the cost of labor is lower to reduce their economic cost. The enterprise migration affects the interests of labor and causes a lot of group labor disputes. In juridical practice, the number of labor disputes caused by enterprise migration shows an upward trend. The disputes of the legality of enterprise’s termination of labor contract in the case of enterprise migration accounts for a large proportion, as well as the disputes of the right of labor to terminate the labor contract. However, there is no systematic solution to such disputes, which leads to serious confusions. This article aims at solving the disputes of termination of labor contract in the condition of enterprise migration based on Article 40 of the Labor Contract Law.According to the introduction, a typical case is provided to summarize the problem which will be analyzed in this article. This part also combs the academic achievement, and introduces the necessity of this article. The first part describes the impact of enterprise migration on labor relationship. It contains two sections:the first section introduces different types of enterprise migration, and the second section stresses the impact on the performance of labor contract. The second part focuses on Article 40 of Labor Contract Law which is used by the enterprise or labor to terminate the labor contract in the condition of enterprise migration as the legal basis. In judicial practice, there are many interpretations of Article 40. But all the interpretations are defective and cannot solve the termination problems mentioned above. So the third part focuses on the proper interpretation of Article 40. Article 40 is a reflection to the principle of changed circumstance in labor law system. When interpreting Article 40 of Labor Contract Law, the theoretical basis of the principle of changed circumstance should be taken into consideration. Meanwhile, the characteristic of Article 40 should also be considered. Under the system of labor law, three conditions should be satisfied when applying the principle of changed circumstance. They are "objective circumstance", "the purpose of labor contract is not reached" and "the changed circumstance is unforeseen". But when applying Article 40, a precondition should be satisfied as well. When referring to the subject that who can terminate the labor contract in this condition, the article has a defect, which need to be made up. At the same time, it is obvious that Article 40 of Labor Contract Law cannot solve all the termination problems caused by enterprise migration. In order to improve the system of termination of labor contract in the condition of enterprise migration, other methods should be used. Firstly, the rules of violation of labor contract resulted from enterprise migration should be clearly defined.In such case, the enterprise has subjective fault, and break the rules of labor contract. So systemic standards should be established. When establishing the standards, the theoretical basis of enterprise migration from Taiwan of China could be drawn, which means the agreement between enterprise and labor and the rationality of migration should be taken into account. The legal consequence in such condition also needs to be cleared. Secondly, the construction of trade union should be improved, so it can supervise the process of termination of labor contract. Lastly, group consultation system should be perfected, so that labor can express their demands during the termination, and their interests could be well protected in the case of enterprise migration.