Research On Judicial Application Of Article 4(3) Of Labour Contract Law

While socialism with Chinese characteristics has entered a new era,the employment relationship and the labor market are more flexible,and the sharing economy promotes the employment relationship far more diversified.The article 40(3)of Labour Contract Law of the People's Republic of China is a significant research field to build up harmonious industrial relationship.According to the analysis of 99 judicial cases,there is inequality between the employer and the worker.Based on the analysis of the causality from legislative and judicial aspects,some useful suggestions to the inconsistency of the standards of judicial judgment are presented.There is naturally inequality between the employer and the employee.Labor legislation in China carries out the principle of protecting the labour to achieve the equality between the employer and the employee through the allocation of rights and obligations.The article 40(3)of Labour Contract Law of the People's Republic of China also reflect this principle,but there is inequality between the employer and the worker during the judicial application of this provision.Firstly,in terms of the influence of major changes in the objective situation,the employer has more influence for which the conclusion of the labour contract is based upon than the labour.Secondly,the employer gains more initiative to control the starting of the negotiation,the scope of negotiation and the sufficiency of negotiation by its dominant position.Thirdly,the employer has more choices to avoid their responsibility,while the worker has little effective remedy approach.There are two main reasons for the aforementioned problems.On the one hand,there are legislative defects,including the vagueness of key lexica like “objective circumstances” and“significant changes”,the rigidify of negotiation rules,and the absence of relevant supporting systems.On the other hand,there is inconsistency of the standards of judicial judgment,mainly including different points to “objective circumstances”,“significant changes”,negotiation rules,remedy approaches and so on.Suggestions to settle the inequality between the employer and the worker will be discussed form the following four aspects.First,standards of judicial adjudication should be unified.We should attach importance to the principle of protecting the labour,bolster the laborer's negotiating position.Second,the standards of “significant changes in the objectivecircumstances” should be clearer,including essential standards and reference standards.Third,the negotiation system should be improved.We should substantially examine the reasonableness of employers' reassignment and the negotiation should comply with procedural requirements.Fourth,relevant supporting systems should be improved,including the economic dismissal mechanism and the labor contract period system.The aforementioned suggestions just partly solve the inequality between the employer and the employee during judicial practices of the article 40(3)of Labour Contract Law of the People's Republic of China.As we know,absolute equality between the employer and the employee is not realistic.To resolve the inequality between the employer and the worker,comprehensive measures should be adopted.We could reform the social insurance system,pay attention to and give full play to trade unions ' role,and so on.