Study On Labor Forced Removal Of Labor Contract

Under the background of economic downturn,economists and politicians criticize the relevant system of "Labor Contract Law" for reducing the flexibility of the labor market,pushing up the cost of enterprises,and calls for amending the law keep coming and going.As an important part of the labor contract dissolution system,item 2 of paragraph 1,article 38,of the labor contract law gives workers the right to unilaterally dissolve the labor contract,thus becoming a frequent area of labor disputes.in-depth study of the system is helpful to respond to the doubts of all circles about the labor contract law.An analysis of 100 adjudicative documents,according to Item 2 of Paragraph 1,Article 38,of the Labor Contract Law,as the employer fails to pay the labor remuneration in full and on time,shows that there is a dilemma in claiming to be forced to terminate the labor contract.The specific manifestations of this dilemma are: firstly,it is not clear whether the worker needs to perform the corresponding notification procedure to terminate the labor contract,and secondly,the scope of the " labor remuneration" on which the worker claims to be forced to terminate is not clear.The reasons for the above-mentioned item 2 of paragraph 1,article 38 of the Labor Contract Law being forced to relieve the predicament lie mainly in legislation and judicature.In terms of legislation,firstly,the current laws and regulations lack norms on whether workers are required to perform relevant dissolution procedures when they are forced to dissolve labor contracts according to the provisions of item 2 of paragraph 1,article 38 of the labor contract law,and how the scope of labor remuneration letter clearly stipulates the lack of guidelines.Secondly,although the local judicial policy has further provisions on dissolution procedures,on the one hand,it is actually a judicial opinion in nature and has no legal effect,and on the other hand,various local judicial opinions are mixed and overlapping in content.The judicial aspect is due to the fact that individual judges have different judgment standards in the following four aspects: whether there are procedural restrictions when forced to lift,the specific scope of labor remuneration,the distribution of burden of proof,and whether the subjective intent of the employer's behavior is considered.According to the second item of the first paragraph of item 2 of paragraph 1,article 38,of the labor contract law,the difficulty faced by laborers in claiming economic compensation in addition to the labor contract is traced back to the lack of relevant guidelines at the legislative level.On the premise of redefining the constituent elements of forced dissolution,the subjective malice and seriousness of the single act of the employer,as well as the causality and rationality of the employee's dissolution act are considered,so as to clarify the content of labor compensation,the employee's notification obligation and the inclined allocation of the burden of proof,thus maintaining the balance of interests between labor and capital.