| The "Labor Contract Law" was enforced officially on January1,2008, which is regarded as a milestone in Chinese labor law. It not only clarifies the rights and obligations of the employers and employees, but grants more powerful legal protection to the employees, who are in an inferior position in the labor relations. The "Labor Contract Law", upon its implementation, has caused extensive mixed discussions. Many of the problems caused by it are worth thinking about. Whether the "Labor Contract Law" applies to the institution is one of the controversial focuses. Article2of the "Labor Contract Law" stipulates:"The law applies to enterprises, individual economic organizations, private non-enterprise units and other organizations(employer in short hereinafter) established within the territory of the People’s Republic of China when they establish labor relations and conclude, perform, change, remove or terminate the labor contract with the employees. When state organs, institutions and social groups conclude, perform, change, remove or terminate the labor contract with their employees, this law shall apply." However, Article96stipulates:"The conclusion, performance, change, removal or termination of the labor contract between institution and its personnel within employment system should be in accordance with the relevant provisions of the law unless otherwise stipulated by other laws, administrative regulations or the state council." Different point of views exist among the law field and the theory and practice of the law. In view of the above, the application of the labor contract law to the personnel system of higher education is selected as the research object.Along with the deepening reform of institutions and personnel system, the reform of the personnel system in the university is also constantly making progress. In recent years, owing to the rights-defending awareness of the faculty and staff, disputes between faculty and their university have arisen, drawing the attention of the whole society. To rightfully defend the faculty’s lawful rights and interests, the key is to clarify the legal status of university teachers, namely, define the nature of the legal relationship between the faculty and the university. In1999, the Ministry of Education issued "On the Reform of Personnel System in Higher Education". It points out that the implementation of employment system in universities is not only a huge reform in Chinese higher education labor system, but marks the change of the faculty’s status:from"national cadres" to "professionals" specialized in teaching.This also testifies that the relationship between the university and the faculty is transformed from the original administrative subordination relations into labor relations, which is with more equality. To study the application of the labor contract law to the personnel system of higher education, the nature of the legal relationship between university and its faculty should be clarified first. The legal status of the faculty is concerned with many problems of the legal system in higher education, so the clarification of their status can contribute to the solution of other legal issues resulting from it.This thesis is divided into three chapters: The first chapter is the basic theory on the application of the Labor Contract Law to the faculty, involving the explanation of faculty, labor contract, labor contract law, the law’s application and the research objective.The second chapter, one of the main chapters, is an analysis of the law’s current application problem to the personnel system in higher education. This section mainly includes the four following aspects:classification of the personnel system currently existing in universities; law application to the "in-staff" personnel employment method in higher education (This part also illustrates the definition of appointment and employment system, the nature of the employment system and the problems which have arisen from its application); law application to the "out-staff" personnel employment method (This part demonstrates the basic conception of several "out-staff" personnel employment methods, including personnel agency, labor dispatching, employment from outside and rehiring, and detailed analyses of their theoretical and applicable law issues.) The last part summarizes the law application to the personnel system in higher education and the current situation of the faculty.The third chapter, also one of the main chapters, explores the application of the "Labor Contract Law" and the legalization of personnel system in higher education. Based on the previous analyses and in accordance with the application problem of "Labor Contract Law" to the faculty, this chapter makes some suggestions on the maintenance and relief of the faculty rights:1. Set up the market mechanism of the faculty resources:by confirming the legal status of the university teachers as workers and providing a steady flow of the faculty resources among different universities, great importance can be attached to the university teachers and their inferiority to the university can be changed;2. According to the status quo of the relief and analyses of the cause, suggestions on the maintenance the faculty right are made.The last chapter is the conclusion part of this essay. |
