Research On Judicial Application Of Rules Of Service In China

Based on the principle of payment and treatment of the contract,the employer may ask the laborer to fulfill the service period in the case of providing the consideration.The service period is the obligation of the laborer due to the agreement,the laborer does not fulfill the responsibility,so it has the function of restricting the exercise of the resignation of the laborer.The current law provides for the service period,but there are shortcomings.In the judicial practice,the relationship between the nature and connotation of the service period and how to deal with the relationship between freedom of contract and protection of workers' rights is the focus of this paper.The first part studies the status of judicial application of the rules of service.Through the statistical analysis of the 100 second instance verdict on the service dispute,the characteristics of the service period rule in the judicial application are found: the bargaining power of the laborers in the service agreement is weak,the court neglects the scope of service period,Compensation for training fees for mixed,judicial standards are not uniform.The second part analyzes the causes of the judicial application of the rules of service.First of all,China's labor laws and regulations on the scope of the service period,the validity of the service agreement is insufficient.Article 22 of the Labor Contract Law has improperly intervened in the freedom of contractual breach of contract,resulting in the cost of the employee's breach of contract is far less than the cost of performance,which is not conducive to the stability of the contract and contributes to the act of dishonesty.Second,the court of the service period of the nature and meaning of different understanding,resulting in the identification of specific problems on the emergence of a different referee results.The court in determining the liability of workers in the process of liability,rigid application of the law,resulting in substantial injustice.Moreover,in view of the natural status of the workers,social law to protect their interests in line with the principle of fairness and justice of natural law,but the contradiction between the two sides is difficult to reconcile,the law of one party to tilt the boundaries of protection is a theoretical problem.Finally,from the national level,the national labor vocational education system is not perfect,but also an important reason for the service period disputes.The third part discusses the connotation of service period.In order to make up for the substantive injustice caused by the principle of abstract equality in civil law,labor law is more concerned with the disparity in the identity of the two sides in the allocation of rights and obligations.The characteristics of the identity of the parties in the service period determine the inevitability of the restrictions on the freedom of contract for their service period.Employers to provide first investment and can not deprive workers to terminate the labor contract rights,workers in violation of the service period does not apply to continue to fulfill the responsibility.Labor contract law Article 22 of the service period of liquidated damages in the scheduled damages for liquidated damages,workers bear the liability for breach of contract and bear the burden of liability is the same.China's labor law out of the protection of workers,and strictly limit the scope of liability for workers to breach of contract,but the disadvantaged position of workers is not the reason for their exemption.Labor breach of contract can apply punitive breach of contract responsibility,but to consider the actual capacity of workers,while giving workers the right to plead.The fourth part tries to solve the problem that the service rules exist in the judicial application.Labor law not only to the employer subordinate to the disadvantaged position of the employer for prior correction,but also in the dispute after a reasonable relief.To determine the responsibility of the workers in violation of the service period,it is necessary to take into account the interests of both employers and workers to solve the enterprise human resources investment costs and the freedom of workers to choose the conflict between the establishment of scientific and reasonable workers breach of contract responsibility.This article from the perfect legislation,the establishment of effective judicial review mechanism and redefine the balance of interests in the service period three aspects to solve the service period in the judicial application of the problem.