Research On Service Period Of Labor Contract Law

As a win-win mode to maintain personnel, service period is in the interests of both the employers and employees. By concluding the service period contract, the employees can receive special treatment which differs from that of the ordinary workers, and the employers are able to maintain a stable talent team, left with no worries about human capital investment. Labor Contract Law 2007 is the first legal document to recognize service period in China. On one hand, the legislative recognition has advanced the rapid development of service period. On the other hand, the stable labor relations have been adversely influenced, the worker’s rights and interests have been hurt, and the long-term development of service period has been impeded, due to the defects of service period legislation and the increasing irrational factors during the rapid development period.Based on the convention that employers have occupied a dominant position over employees, Labor Contract Law 2007 sticks to the legislative philosophy of protecting employees. Furthermore, this philosophy is positively epitomized in the practice of its legislative design. However, it is worth noting that the service-period system is particularly designed to protect employers’ investment in human capital. Therefore, both the philosophy of employee protection and the purpose of human capital investment protection manifest themselves in the legislative design of service period. The contradictions between the philosophy and the purpose give rise to many judicial practice issues. Hence the key to improve and reconstruct the service-period system is to strike a balance between the interests of the employers and employees.This thesis is divided into four major parts together with the Introduction and the Conclusion.Part one provides an overview of service period, mainly including the concepts, characteristics, sorts, features and the comparisons with relevant legal concepts.Part two introduces service-period-related legislations. First, relevant local laws and regulations and departmental regulations enacted before Labor Contract Law 2007 are introduced. Then, relevant provisions in Labor Contract Law 2007 are presented.Meanwhile, summarizes the defects of service period legislation. Grounded on the case study of pilot resignation, the legislation defects are revealed in five aspects : the application scope of the service period, the meaning of the professional technical training, the regulation of service-period length, the types of labor contracts, and the stipulation of contract violation liability.Part three comes up with the way to improve service-period clauses in Labor Contract Law 2007. Three recommendations are offered by the author: to normalize the application scope, to standardize the formal requirement, and to rectify the stipulation content of the service-period clauses.