Study On The Applicability Of Contracting Negligence Liability In Labor Contract

Whether it is the practical circle or the theoretical circle,the question of whether the labor contract can be applied to the liability of contracting fault has been a great controversy all along.The dispute leads to the fragmentation of courts at all levels in judicial practice,which seriously detracts from the certainty of law,so it is necessary to establish the theory as soon as possible,which is related to whether the principle of contract law can be applied and regulated in the Law of labor contract.At present,the academic circles are entangled in the independence and particularity of labor contract law,clinging to the orientation of labor contract,forming different theories.However,the author believes that no matter how the labor contract law is located,the labor contract can apply the liability system of contracting fault in civil law within a certain limit.However,in order to realize the proper application of the liability of contracting Fault in civil law in the labor contract law,we should start from the concept clarification,the concept that can not be crossed between the Department law and the departmental law no longer meets the actual needs of our country,after the analysis can find that it is more in line with the actual situation of our country than other models.Therefore,to establish the authorization analogy to ensure the reference application,the construction of labor law guidance cases to guide judges to refer to the application.The writing structure of this paper is divided into three parts,the first part is the introduction,the second part is the text,the third part is the conclusion.the first part mainly introduces the current situation of labor contracting fault in practice,including some sticking points,in addition,it also expounds the research value and practical significance of this paper.The main body consists of four parts.In the first part,through the consideration of the source and nature of the contracting fault system,this paper probes into the liability based on the principle of good faith,and recognizes the necessity of its application in the labor contract.The second part is to explore the existing problems in the application of this responsibility in labor contracts.First,in the academic world,the question of whether the responsibility can be applied in the labor contract and what model should be applied has not yet formed a theory,and there are four theories that are positive,restrictive and applicable,and are not conducive to the construction of a unified labor contract law.Second,in the judicial practice,different courts and different judges also have different views on the applicable mode of this responsibility in the labor contract,which leads to the differentiation of the selection of cases,the proceedings,the outcome of the judgment and so on,which is detrimental to the authority of the law.The third part is to analyze the cause of academic viewpoint and judicial status quo,and find that its application path is not uniform and inconsistent,and its main reason lies in the different way of application.In theory field,it is divided into four views,that is,directly-applicable theory(certain theory),negative-applicable theory,reference to application theory,restriction of application theory.In judicial practice,between laborers,between laborers and the Arbitration Commission and the Court,there is no agreement between the Arbitration Commission and the Court,or even between the courts,on the manner in which the fault of the Labour Party chooses to solve the problem.The forth part is the way of perfection to apply the fault liability of labor contracting.After analyzing the problems above,the author finds that the lack of a circular mechanism makes the academic and judicial circles not form a unified opinion on the solution of the problem,so it is necessary to establish as soon as possible the reference application,the authorization analogy to protect its reference application,the construction of labor law guidance case to guide judges to apply reference;this research finds those are the solution of the problem.Finally,the conclusion re-emphasizes the value of this responsibility in the labor contract,in order to solve the problem of dispute resolution in practice under the condition that the labor contract is not established.Especially in the determination of responsibility,not to allow vulnerable workers can not be able to seek.