The Teacher’s Notice Of Resignation Limits The Legal Study

Sincethe Labor Law of the People’s Republic of China provides the premonitory demission right,there have been controversies on its restriction.The restriction theorist stresses that the legal provisions on the premonitory demission right in our country is too rigid and it is suggested to make separate provisions on the laborers,the type of the labor contract and work nature.The labor contract law is applicable to the private school teachers while the public schools should sign employment contract with their teachers.The employment contracts belong to the labor contract and thus the public school teachers have premonitory demission right.The teachers’ premonitory demission right directly affects students’ study,and thus conflicts with the students’ right to education.The two rights belong to the constitutional right and the students’ right to education is of public welfare.Based on the principle of public interest priority,the students’ right to education is prior to the teachers’ premonitory demission right.In order to safeguard the students’ right to education,the teachers’ premonitory demission right should be restricted.The restriction on the teachers’ premonitory demission right follows the principle of proportionality,limited to its necessity so as to achieve the balance of the relevant interests.The teachers’ premonitory demission right cannot be deprived or canceled by agreement,and the core of the restriction is to define its boundary with the students’ right to education and the school’s right.The teachers who are in the middle of teaching or conduct the teaching activities with strong personal property cannot exercise their premonitory demission right.The schools cannot restrict the teachers’ premonitory demission right by their own rights.The restriction on the teachers’ premonitory demission right should achiever the balance between educational and cultural tradition,social public’ recognition,students and their parents’ expectations and teachers’ personnel reform and enhance social total benefits.The restriction on the teachers’ premonitory demission right can be achieved by restriction with agreement,addition of the reasons for premonitory demission right and extension of premonitory period,in which extension of premonitory period is the most flexible means with the agreed restriction by the parties concerned as supplement.Article 37 in the Labor Contract Law can add “unless otherwise provided by law” to authorize the Education Law and the Teachers Law to make exception provisions.The Education Law and the Teachers Law can add “The teachers can terminate the employment contract if they submit written notice to the school six months in advance.The teachers in probation can terminate the employment contract if they submit written notice to the school three months in advance.If the notice period is otherwise agreed,such agreement shall govern but the longest period shall not exceed more than 12 months.” The Compulsory Education Law,Higher Education Law and Vocational Education Law can respectively make provisions on the circumstances for the premonitory period exceeding six months but no more than 12 months.