Research On Judicial Judgment In The Service Period Of Labor Contract

Service period is an important agreed clause in the labor contract law,the "Labor Law"implemented in 1995 in China did not stipulate the service period.With the advancement of the socialist market economic system and the reform of labor employment system in enterprises,the issue of the service period of labor contracts is highlighted in practice.The"Labor Contract Law" which passed in June 2007 included the issue of service period into the scope of regulation.The service period system stipulated in the current legislation clearly defines the preconditions for the conclusion of the service period agreement between the employer and the employee.Namely,the employer must provide the worker with professional technical training.If the worker violates the agreement,he must bear the liability for breach of contract,and liquidated damage is the way of bear the liability of breaching the contract.In order to prevent employers from using unequal status of liquidated damages in a strong position,legislation imposes limits on the amount of liquidated damages,and must not exceed the professional training fees paid by employers and be reduced in accordance with the laborer's performance period.The original intention of the system was to protect the legitimate rights and interests of employers,but it also prevented the abuse of the employer's possible rights and better balanced the legitimate rights and interests of both parties.With the implementation of the "Labor Contract Law," the provisions of the current legislative service period are difficult to meet the needs of practical development,especially the inability to meet the needs of personnel competition arising from industrial upgrading and technological changes in enterprises.In the economically developed regions,talent competition has become fierce.In order to attract talents,many units provide far more favorable conditions than special training such as housing,automobiles,account settlement,spouse work,and children's enrollment,to agree on the service period with with the laborer.However,in the event of a dispute between the two parties,the contents of the current legislative provisions are rough,the agreement requirements are single,and the liability for breach of contract is incomplete.As a result,the judicial practice is overstretched,and the phenomenon of"different results of similar cases" appears.This article is based on the current jurisprudence case judging and focuses on issues in judicial decisions such as contractual terms of service during service contracts,duration of service periods,and liability for breach of contract during judicial services,and explores the root causes of the formation of judicial dilemmas,and tries to propose targeted solutions.In addition to the introduction and conclusion part,this article includes the following five parts:The first part is the theoretical basis of the labor contract service period.Taking the implementation of the "Labor Contract Law" in 2008 as a node,it elaborates the legislative evolution and legislative background of the labor contract service period,defines the legislative purpose and value orientation of the labor service period system,and clarifies the nature and legal significance of the labor contract service period.At the same time,it interprets the term provisions of the "Labor Contract Law" and provides a theoretical basis for the following types of case consolidation and countermeasure research.The second part is the review of the cases of the judicial referee during the service contract period of our country.Cases are searched through "Pkulaw" database.The"service period" is used as a key to search for cases of labor contract disputes,personnel disputes,and judicial decisions.Filtering out the rulings based on procedures,relevant cases of this article are extracted from the retrieved relevant judicial ruling documents.Through reading and sorting out,summarize three outstanding problems in the judicial practice of the service period system:contractual requirements,term of service period and liability for breach of contract.By typing the cases,we examined how these issues were solved by local courts.Sections 3 to 5 provide a deeper analysis of the three categories of judicial decisions that are summarized in the second section.Starting from the judicial dilemma of the three specific issues of service contractual terms,term of service term and breach of contract liability,we will explore the causes of judicial dilemmas from the perspective of the current legislation and practice,from legislation to judicial practice,and then reflect on legislation from the perspective of judicial practice.The proposal to amend and adjust the existing legislation is proposed in order to unify the position of the referee and the application of the law,and it is beneficial to the implementation and improvement of the service period system in China.