On The Application Of Damages For Breach Of Labor Contract In China

The absence of labor contract in the labor law comes to an end with the promulgation of The Labor Contract Law of the people’s Republic of China, which divided the liquidated damages into two parts:the liquidated damages of a term of service and the liquidated damages of competition restriction. Combined with relevant legislation in liquidated damages of labor contract, this essay is composed of two parts.At first, through the analysis of the liquidated damages of civil contract, I bring the liquidated damages of civil contract into the frame of default fine of labor contract, generalized the concept of the default fine of labor contract. Also, I distinguish the labor into three different types:the strong labor, the ordinary labor, and the vulnerable labor according to the standard of the labor’s income. Based on the layered labor, I try to analyze the application of the liquidated damages of labor contract. I think different types of the liquidated damages should be suit for different kind of labors. Second, this essay introduces the different legislative model of the liquidated damages’ responsibilities. I differentiated the model into three kinds:the prohibited model, the arbitrary model and the restricted model, and analyze the legislative model in our country. This essay introduces the legislative rules of labor contract liability for breach of the contract. Based on the concept of the liquidated damages of labor contract, the present situation of the layered labor, the property of the default fine of the labor contract, and the understanding of the legislative model in our country, this essay analyzes the insufficient of the rules in the liquidated damages of labor contract, such as, the narrow service period couldn’t fit the practical demand. If we didn’t set up a reasonable time limit of a term of service, it’s not available for us to protect the rights of freedom of job choices; if the competition restriction compensation is too low, it’s not good for arouse the enthusiasm of the labor to perform the non-competition obligations. The vague of competition restriction’s service period is bad for protecting the rights of the employers and the labors. The legislative indeterminate set in the provisions on the liability for breach of the employers leads to the mixed theory in the practical use of the liability for liquidated damages. If we didn’t endow the employers and the labors claim adjustments rights, it is difficult for us to protect the labors’ basic rights, and to balance the interests of both sides. At last, I propose several suggestions to solve the legislative insufficient of the liquidated damages of the labor contract.Here are the advices. We should define the provisions on the liability for breach of the employers clearly, distinguish the application of the liquidated damages of the labor contract, the application of the economic compensation funds of the labor contract, and the application of the economic compensation; and define the applicable object in the application of the labor contract liability for breach of contract according to the layered labor. We need expand the applicable scope of the service period’s penalty appropriately, and bring the special material treatment into the applicable scope of the service period’s penalty. The service period needs a reasonable definition. We’d better set up a double standard to define the object of the competition restriction The employers should have the rights to secure the period of restraint of trade. I think we should improve the limitation of the lowest compensation from 30% to 50%. The employers and the labors both have the rights to adjust the number of the liquidated damages. Personally, I think if we finished those steps, we could consummate the legislation of the liquidated damages of the labor contract.