Legal Application And Legislative Perfection Of Chinese Foreign Labor Contract

The development of the international trading market facilitates the transnational circulation of labor force,which at the same time has an influence on the growing number of the related foreign-related contracts.To follow the trend,more and more countries have made the employment contracts with foreign elements adjusted by the private international law.In our country,due to the relatively detailed regulation about the application of the laws in foreign-related issues,the enactment of the Law of the Application of Laws(2011)alleviates the difficulties of applying laws in the field of private international law,and makes it easy for judges to apply laws.However,it should be noted that the relevant regulation on the employment contracts with foreign elements is not completed.First of all is the lack of party autonomy.It is theoretically conflicted that whether party autonomy should be applied in employment contracts with foreign elements.Both the Contract Law and the General Rules of Civil Law allow party autonomy but with exceptions,providing that "unless the law has special provisions".Therefore,whether the proviso includes the Labor Law and the Law of the Employment Contracts is equivocal.If included,the party autonomy is excluded;if not include,the principle of party autonomy is to some extent applicable.In judicial practice,the courts generally abandon the application of party autonomy in cases of foreign-related employment contracts.Second problem is the abuse of mandatory rules.In fact,a lot of legislative documents directly allow applying mandatory rules.Generally,it is internationally common to directly apply the lex fori and exclude foreign laws,because the mandatory rules tend to refer to the political,economic,cultural and other important interests of a country.However,the author holds the thought that the application of mandatory rules is not without limitations.If the reason why some disputes connect with a country is only because of the choice of law,judges are ought to consider whether such kind of choice of law is studiously avoiding the mandatory normative behaviors that was supposed to apply.If exists,the domestic mandatory rules should be ruled out,and give priority to apply the otherwise applicable foreign mandatory rules,such as Article 3 of the Rome Convention(1980)and the relevant provisions of Rome I.In the academic field of private international law,the discussion of "mandatory rules" never ends.The strict application of the mandatory rules of the forum has drawn a few of criticisms,arguing that doing so embodies national and local protectionism,which obstructs international communications.The last problem is the conflict between the doctrine of the most significant relationship and the protection of the rights of the laborers.The aim of the doctrine of the most significant relationship is not to protect the employees' rights.Therefore,the applicable law decided under the doctrine of the most significant relationship may not reach the goal of protecting the employees' interests,which can be concluded as the dilemma between “conflicts justice” and “material justice”.Conflicts justice provides the possibility of equally applying the laws of different countries,whereas material justice pursues fair and reasonable results.In the conflict of laws,"material justice" should be the ultimate goal that a court should achieve in a case,whereas "conflicts justice" only plays a foreshadowing role.Therefore,through the way of comparison research,this article integrates the advanced foreign legislation modes and probes ways to improve the legislation in our country.The way is to introduce the principle of party autonomy to the field of employment contracts with foreign elements.Of course,in order to comply with the developing trend of private international law,we should put restrictions in the several aspects,such as the way of choosing laws,the time of choosing,the contents of choosing,etc.,and then present the institution to improve mandatory rules;gradually acknowledge foreign mandatory rules,and clarify the scope of mandatory rules.For the conflict between the doctrine of the most significant relationship and the protection of the laborers' rights,this author suggests to reconstruct the connecting factor of the most significant relationship,treating the protection of the rights of the laborers as a factor.