A Study On Applicable Law Of Employment Contract With Foreign Elements

In the modern society, labor law has become a departmental law which have characteristics of both public and private law. Labor law has become a key pillar of social law in many countries. With the development of economic globalization, the flow of labor force throughout the world has become increasingly fluent and how to improve specification of labor contract with foreign elements has draw public’s attention. The applicable law of labor contract involving foreign elements is the foundation and precondition in dealing with foreign labor relationship and solving labor disputes involving foreign elements because of its unique character of foreign elements. It also plays a key role in introducing international talents and speeding up the international labor communication. Our country has issued a series of laws which including Foreign Economic Contract law and Foreign-related Law of the Application, from the binding regulations applicable to all circumstances to establishing a principle that use conflict law principles to solve the foreign labor disputes shows the great improvement of our legislation level and consideration of international practice. In the meantime, we cannot ignore that there are defects in our law. First and foremost, laws applicable to foreign-related civil relationship are meanly about principle, yet it lacks of specific measures dealing with reality. Because of too much focus on objective connections, while the intention of party is neglected in the labor contract law, this kind of regulations cannot insure the accuracy of legal application. Now themandatory provisions of laws applicable to foreign-related civil relationship overlap with mandatory provisions of labor rights protection. So how to ensure the accuracy of law application become the top issue.In view of the particularity of foreign labor because it has foreign elements,this article first define foreign labor from three aspects which including subject,object and legal fact and divide foreign-related labor contract into two parts which including labor forces in and out of China. Then finding out there are some deficiencies exist through summary of existing foreign related legal regulations. This article describe and explain the status quo of existing foreign-related labor law and through comparison with foreign-related law then give advice on the perfection of foreign-related labor law. This article is composed by five parts. The first part is introduction, the second part introduce the concept and development of foreign-related labor contract law, the third part is about status quo of foreign-related labor contract law and its comments and analyses, the fourth part is about reference of foreign-related law. The fifth part summarize the advantages and disadvantages of our law and suggest methods to make our law more applicable.