The Study On The Exercise And Realization Of Right To Refuse To Perform Labor Obligations

Labor relations as an important part of social relations,but also one of the basic relations in market economy.With the economic and social transformation,contradictions in labor relations have entered the period of highlighting and multiple,and the awareness of workers on their own initiative has been continuously raised.The complexity and tediousness of the traditional labor supervision and labor dispute processing system have not been able to meet the needs of workers in a timely manner to seek remedies for their rights.The right to refuse to perform labor obligations as a means by which workers timely counter the illegal or irregular activities of employers has caused the attention of the academia.Along the logical sequence of the right itself,this paper analyzes the concept,the content,the exercise and the realization of the right in turn and discusses the legal issues of the right to refuse to perform labor obligations:In the first part,summarizes the theoretical knowledge of the right to refuse to perform labor obligations.Then,synthesizes different scholars' studies in order to clarify the meaning,constituent elements and legal attributes of the right.By introducing the theory of the right to defense in civil law and the "inclined protection"principle in labor law,expound the legal origin of the right to refuse to perform labor obligations.After comparing the domestic and international legislation at present,this paper reflect the incompleteness in China.Based on the above,laying a theoretical foundation for the actual exercise of the right.In the second part,explores the elements of the right and the scope of exercise of the right.First of all,this paper analyses the cases which can cause workers to refuse to perform labor obligations:the employers fail to provide labor protection or working conditions in accordance with the labor contract,the employers fail to pay the remuneration in time and in full,the labor regulations or rules infringe workers' rights and interests,the employers extend working hours in violation of laws and regulations,and other cases involving the core areas of labor relations that would infringe the basic rights of workers and have the urgent need for self-help remedy.However,workers must form the subjective "goodwill and reasonable belief",and the employer's behavior has been illegal or highly risky so that can cause workers to exercise the right.In the third part,analyzes the exercise boundary and legal effect of the right to refuse to perform labor obligations.In order to regulate the workers to properly exercise the right,they must abide by the substantive restrictive principles and procedural advance notification obligations.Once exercised,the right have the effect of suspending the labor contract,the workers suspends the performance of labor obligations,but the employers still need to fulfill other continuing obligations including the payment of labor remuneration.In the fourth part,constructs the realization path of the right based on previous studies.In the exercise process of the right,it will be hindered by labor relations,the subject of the right and labor legislative mechanism.In order to eliminate the barriers,this paper puts forward following countermeasures and suggestions:improving complementary labor legislation,exerting the effectiveness of labor security supervision system,optimizing evidence rules of labor disputes,and establishing the system of labor public interest litigation so as to promote the smooth realization of the right to refuse to perform labor obligations.