Research On The Probation Period System Of Labor Contracts

The probationary period,an important part in the labor contract,refers to the prescribed time for workers to work in the labor contract,only for the initial employment.Labor Contract Law stipulates the agreed conditions and the length of probationary period,the wage level and the termination of labor contract during the probationary period.However,there are still some shortcomings in the existing regulations.In judicial practice,employing units,regardless of the size,the position and the work nature,apply the probationary period uniformly to agree with the workers for a longer probationary period,so as to save the business cost.Moreover,due to the imperfect conditions for workers to discharge the labor contract during the probationary period,the excessive protection of the interests of workers will lead to the difficulty of the termination of the labor contact during the probationary period and seriously.That damages the legitimate rights and interests of employing units.Therefore,it is necessary to make a study on the existing probation regulations in the labor contract to bond the probation system with the times and contribute to the construction and development of harmonious and stable labor relations.The research methods used in the paper mainly include the method of example analysis and the method of comparative analysis.The method of example analysis refers to collate and analyze the existing literature to summarize the academic viewpoints and typical cases about the probationary period of labor contracts,according to the theoretical basis of the probationary period,to find out the legislative defects in the existing labor contract law.The method of comparative analysis refers to compare the relevant laws and legislative ideas in China with those abroad in the probationary period of labor contracts.This paper studies the meaning,the legal nature and the principle and the value of the probationary period of labor contracts.Then it puts forward the shortcomings of the probationary period,such as the term of probationary period,the extension of probationary period,the termination of labor contract and the legal liability to terminate the labor contract during the probationary period.Moreover,it analyzes the legislation of the probationary period of foreign labor contract,and summarizes the distinguishing features of the probationary period of labor contract in China.Finally,with a view of the shortcomings of the current legislation in the probationary period of the labor contract,some specific legislative proposals would be put forward.This paper considers that the term of probationary period should be typed with the much more flexible employment forms.And in the probationary period,the condition for employing units to terminate the labor contract is too strict,whether substantive conditions or procedural conditions,and to bear the burden of proof is too heavy.The paper suggests to soften employing units’ term of the termination of labor contacts in the probationary period so as to reduce the burden of proof of employing units.