Research On Unilateral Notice Rescission Right Of Chinese Workers

With the enhancement of the consciousness of protecting the rights and interests of the laborer,the vulnerable position of the laborer has changed.Among them,the design of the system of premonitory resignation of the laborer has defects,and it is difficult for the laborer's legitimate rights and interests to be fairly protected.We should refer to relevant foreign legislation for further study and revision of China's labor legislation.Labor contract is the labor relations agreement between the laborer and the employer,which clarifies the rights and obligations of both parties.In terms of legislation,the promulgation and implementation of the labor law of the People's Republic of China(hereinafter referred to as the labor law)and the labor contract law of the People's Republic of China(hereinafter referred to as the labor contract law)have established the legal status of the labor contract system.Labor contract becomes the foundation of establishing and regulating the rights and obligations between employer and laborer.At the same time,due to the complexity of labor relations and the flow of labor resources,it is difficult to avoid disputes between employers and workers.Therefore,the termination of labor contract has become a problem that must be treated with caution by legislation.The laborer only needs to advance 30 days to fulfill the notification procedure to be able to terminate the contract,does not need the employer to agree.Thus it can be seen that unilateral notice termination of labor rights is conducive to guaranteeing labor's freedom of choosing jobs and improving the allocation efficiency of social labor resources.However,the system still has defects such as one-size-fits-all prewarning period,non-discrimination of the type of labor contract,unclear identification of liability after the termination of labor contract,and insufficient regulation of senior talents,which bring many uncertainties to the actual operation of problems.It is necessary to refer to the legislation of other countries and improve it according to the actual situation of China,such as perfecting the setting of the period of notice notice,stipulating different periods of notice according to different types of labor contract,clarifying the corresponding responsibility of the laborer to exercise the right of notice termination,and strengthening the regulation of senior talents.For the unilateral termination of labor contract,China's labor law and labor contract law stipulate that both employers and workers are entitled to relevant labor contract termination rights.Unilateral notice termination right is a special point in the labor contract termination system,which is enjoyed by the laborer unilaterally.In view of the nature and characteristics of the forecast termination right,the legislative status of the forecast termination system,the existing disadvantages and foreign legislative experience,this paper conducts an in-depth analysis and research,and proposes corresponding improvement Suggestions while exploring the existing disadvantages,in order to achieve innovation and perfection in legislation.This paper is divided into five parts.The content of the first part of this paper is an introduction,which introduces the research background and significance,research status and review,general thoughts,main contents and research methods of the paper.The second part mainly starts with the basic concept of the right of advance notice termination,probes into the legal nature and characteristics of the laborer's right of advance notice termination,and analyzes the function of it.The content of the third part is mainly combined with the national conditions,enumerating the relevant provisions of China's laws,administrative regulations,departmental regulations and local legislation,and analyzing the relevant defects of article 31 of China's labor law and article 37 of the labor contract law on the system of notice termination.The fourth part introduces and analyzes the relevant legislation regulations of other countries and regions on the notice termination right.Through the comparative study of domestic and foreign legislation,it can add more useful experience to perfect our country's notice termination system.The fifth part mainly combines the successful legislative experience of other countries and regions on the forewarning system,and puts forward Suggestions on how to improve the system according to the actual situation of China's social and economic development.The innovation of this paper firstly lies in the theoretical discussion of the attribute nature of the laborer's unilateral notice termination right.Through the demonstration of views and the analysis of the author,it can clearly present the laborer's notice termination right.Workers remove labor contract after the intention,not immediately produce legal effect,need through the forecast period can only take effect,in making intention to during this time of the forecast period expires,the contract does not really lifted,so we might as well take it as a time limit of right of formation,although the components according to the right of formation,the exercise form was not attached to any condition or time limit,but the "labor law"and "labor contract law" as a social law,with the particularity of its legislative concept and protection object,can consider the right to the special provisions of the law.After the expression of intention has been made,the legal effect expected by the right holder will be achieved naturally when the time limit expires.At the same time,because belong to the category that forms authority,laborer wants to issue only cancel to cannot cancel.In order to protect the legitimate rights and interests of the employing unit,the employing unit can exercise the termination right stipulated in article 39 of the labor law within the notice period.2.In terms of the legislative intention,"termination by 30 days' notice" is a procedural condition,and the laborer only needs to perform this legal procedure to terminate the labor contract.Here,I suggest that it should be regarded as a physical condition at the same time,so that the conditions and responsibilities under which the laborer exercises the prerogative will be clearer and more beneficial to the balance of the interests of both the employer and the employee.