Empirical Study On The Service Period Of Special Treatment

For the first time,the Labor Contract Law stipulates the labor contract service period from the legal level.The provisions of Article 22 are academically called the “funding training service period”.Does this mean that the special treatment service period is not recognized by the law,and the academic community has different understandings.However,the "Labor Contract Law" has been in operation for more than ten years since its implementation in 2008.The fact that employers and workers have agreed to provide special service periods has always existed.When there is a dispute between the employer and the employee due to the special treatment period,the opinions of the local courts are not uniform.By collecting the referee cases of the special treatment service period,the author finds that there are obvious inconsistencies in the case from the acceptance,trial to the final judgment.This phenomenon of different judgments in the same case seriously undermines the authority and stability of the law,and is not conducive to the harmony and stability of labor relations.Therefore,studying the special treatment service period has important value and significance.The full paper is divided into four parts.In the first part,the author sorts out and summarizes the collected cases,and finds that there are different opinions on the issue of special treatment service period in judicial adjudication.There are three main aspects: firstly,court has different understandings on whether the case belongs to labor disputes or not;the second is the court has branching in the nature of the agreement of the duration of service for special treatment;the third is the difference in the processing results after the laborer terminates the labor contract in advance.In the second part,the author mainly analyzes the nature of the service contract with special treatment agreement,and tries to solve two disputes in the judicial judgment.First,as to whether the case is a labor dispute,the author believes that the key to distinguishing between the two is that the labor relationship has a dependency.After the analysis,the author believes that the party receiving the special treatment has obvious personality subordination,and accordingly,it is considered that the dispute arising from the service period of the special treatment should be accepted as labor dispute.Second,on the qualitative issue of the agreement between the parties,by analyzing the specific rights and obligations of both parties,the author believes that a new relationship of price has been formed between the employer and the laborer.The relationship of the price difference is different from the welfare treatment and wages in the labor relationship,and should be an independent relationship.In the third part,the author analyzes the reasons for the court's judgment on the effectiveness of the special treatment service period,and classifies and judges the different judgments of the court.Judicial referees in our country generally recognize the special treatment service period.The reasons are mainly based on the principles of fairness,honesty and credit,and the measurement of interests.The author basically agrees with the court's point of view.As for the responsibility of the laborer to exercise the right to cancel the notice in advance,the author divides the court's viewpoint into three categories and analyzes the reasons.The author believes that under the current law,the principle of returning the judgment according to the proportion should be based on the principle.In a few cases,the employee will return and compensate according to the loss of the reliance of the employer.The fourth part proposes suggestions for legislative improvement.First,it is recommended to absorb the experience of existing referees in future legislation,recognize and standardize the service period of special treatment,and introduce the necessity and rationality review by drawing on the experience outside the domain.Second,it is clear that the special treatment service period is a restriction on the laborer's notice of the right to release.Third,the provisions of China's service period liquidated damages were revised,the full statutory liquidated damages were cancelled,the performance guarantee function of the liquidated damages was returned,and the court was authorized to adjust the liquidated damages.