Study On Applicable Law To China's Labor Contract With Foreign Elements

The deepening of international labor cooperation inevitably brought about more international labor disputes.When dealing with international labor disputes,each court of a nation has to be confronted with the issue of conflict of laws.How to correctly choose the laws that should be applied to labor contract disputes with foreign element is of great significance to fair and equitable settlement of labor disputes,protection of the legitimate rights and interests of laborers and promotion of national exchanges and cooperation.This article discusses the applicable law to China's foreign-related labor contract,mainly from the view of the legislative provisions,judicial practice,and theoretical aspect.Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships(Hereinafter referred to as "the applicable law"),as China's first statute international private law,which is specialized used to regulate international civil and commercial legal relationships,is really a major step forward in our legislation.Before the enactment of the Applicable Law,The rules of applicable laws of foreign-related contract in China are mainly reflected in "General Principles of Civil Law of the People's Republic of China","Contract Law of the People's Republic of China",Supreme Court "regulations on the trial of foreign civil or commercial contract disputes in the application issues".In accordance with the provisions mentioned above,unless otherwise provided by law,the parties to the foreign contract may choose the law applicable to the contract dispute.However,there is controversy between scholars on whether the foreign-related labor contract can apply the rules of applicable law to general foreign contract.In this article,the author found that the academic controversy is mainly reflected in the following aspects:First,the dispute on both Article 2 of “Labor Law” and “Labor Contract Law” determine,whether or to what extent,domestic labor laws can be used to adjust the applicable laws to foreign-related labor contract.Second,whether the "exclusion clause" in the “Applicable Law” applies to domestic labor laws,which affects the relationship between both.Third,whether domestic laws belongs to mandatory provisions in“Applicable Law”,which stipulates “related to protection of worker's right and interest”.Forth,if the parties should be allowed to choose the law applicable to a labor contract.The “Applicable Law”,to a certain extent,points a way out in judicial practice,though,it is not perfect.Based on the analysis of current legislations,this paper analyzes the relationship between domestic labor laws and “Applicable Law”,and the author put forward her own doubts and personal views.In the meanwhile,the author discusses the judicial practices on the issue mentioned by making cases analysis,and find out the problems.In addition,the author studies different provisions of different nations' international private laws,summing up characteristics of specific conflict rules,in order to find out possible and feasible approaches that can be learned.Finally,the paper puts forward opinions and suggestions based on the existing problems in both legislations and judicial practices,to improve the application issues of foreign-related labor contract in China.This article is divided into the following sections:First part:This part gives an overview of the Application of Law in Foreign Labor Contract and the Present Situation of Legislation in China.In this part,the author makes a brief exposition on the background which includes the conflict law,the definition issue and “foreign elements”.Then in the second section,the author elaborates the current situations of our nation's current legislations and controversies.Then make an analysis in section three.The first part is fundamental to the study.Second part:This part introduces the actual judicial practices on the application issues of labor contract.The author summarizes special rules embodied in the “Applicable Law” and point out the dilemma that the court might be confronted in coping with such disputes.Third part:Based on the current situation of legislations and judicial practice in China,the author studies and analyzes the private international law of different countries from the perspective of comparative law.The author summarizes four conflict law principles and researches each principle's characteristics in different countries,China included.Those principles are the principle of autonomy of the parties,the principle of the most-favored connections,the principle of the protection of the interests of the weak,the direct application of the "mandatory rules".The author tends to figure out reasonable and feasible approaches that we can draw into our nation's own conflict rules.Fourth part: Part four is a final conclusion to the first three sections.Based on the former part's discussion,in this part,the author puts forward several proposals and suggestions that can be applied to our judicial practice in the applicable law issue of labor contract.Those judicial recommendations can be presented as,correctly identify foreign labor contracts,and distinguish between labor contracts and employment contracts;correctly clarify the relationship between Domestic Labor Laws and Applicable Law;perfecting the Conflict Rules of Foreign Labor Contract in China's Law Application Law.The author hopes the advice can better guide our judicial practice,at the same time instruct the court to use the correct and reasonable choice of law rules in the foreign labor contract disputes,and finally helps to achieve the value and objectives of legislations.