A Research On Collateral Duty In Labor Contract

The labor legal relationship includes two levels of interest,one is between the employer and the employee,the other is between the two parties of labor contract and the society.Therefore,it is especially important to balance the interests of all parties in the labor legal relationship.This is related to the survival interests of employees and the pursuit of better life,as well as social stability and development.Labor contracts have also evolved from pursuing formal balance to substantial balance,while at the same time focusing on social interests.With the rapid development of China's economy,the demand for labors in enterprises has expanded dramatically.At the same time,the labors' turnover has also increased significantly.Science and technology are changing day by day.Many new modes of employment have been developed under the traditional employment model,and the sources of obligations have become more diversified.This has not only led to an increase in the number of labor disputes,but also the types of cases are not limited to common labor disputes such as dismissal,occupational injury,and validity of labor contract,but have expanded to a wider range of non-disclosure duty,non-competition contracts,and so on.Some of the disputes occur because the party to the labor contract violates the collateral duty.Under the principle of honesty and credit,both parties must fulfill their duty of good care,collateral duty is playing an increasingly important role in the labor legal relationship.Secondly,the collateral duty has not yet legalized because of its uncertainty.Given complicated labor dispute cases,China has issued the Labor Law of the PRC and the Labor Contract Law of the PRC.The two laws still fail to fundamentally solve the practical problems of the collateral duty.At present,the development of the theoretical system of collateral duty in China is still very immature,and judicial practice is also very difficult.Therefore,it is quite urgent to study the collateral duty in the labor contract systematically and comprehensively for both theory and practice side.The formation of collateral duty originated from the German judicial precedent,since then other countries have also provided for the collateral duty.The collateral duty is an obligation arising from the principle of good faith in the development of the contract in order to fulfill the obligation of payment or to protect the personal and property interests of the party.Labor relations have both formal equality and actual subordination.Laborers and employers have the right to decide whether to sign labor contracts or not,and laborers exchange labor for remuneration.At the same time,the actual gap between employers and workers has decided that under each independent labor relationship,the laborer is subordinate to the employer,including the subordination of the person and economy,the laborer works for the profit of employer,and the laborer must perform personally and completely.The collateral duty derived from the principle of good faith,and the characteristics of labor relations also determine the types and degree of collateral duty that both parties should bear.This paper mainly studies the type of collateral duty in labor contract from employer and employee.First,the employer's collateral duty can be divided into the duty of care,promotion obligations,duty to inform,assistance obligations.The duty of care,which is primary and most important one to employer,and other collateral duties are gradually developed.The duty of care mainly includes selecting competent staff,ensuring a safe working environment,safe devices and equipment,and protecting laborers',property.Nowadays,laborers are also full of strong desires to satisfaction and achievement in their work.Therefore,employers have the obligation to provide work and the vocational training.The information asymmetry exists between two parties in labor relations,and employers have the obligation to truthfully inform the laborers when they sign,carry out,compete the labor contract.The obligation to assist is to provide employees with a more favorable opportunity to enter the market in the future after the end of the employment relationship.The loyalty obligation is the core of the employee's collateral duty.Other obligations are derived from it and achieve an independent status.The loyalty obligation means that the employee acts for the best interests of the employer.In other words,Avoiding damage to the interests of employers and maintaining mutual trust between employers and workers.Secondly,the employee's duty of good faith can be further divided into the duty of action and the duty of negative action,and the duty of good faith of action are divided into the obligation to inform,the obligation to obey and the duty of care.The duty of good faith of negative action are divided into non-disclosure obligation,non-competition obligation.and improper speech restriction obligation.As a civil law country,statutory law is the main basis for judges to judge cases.Because of the lack of legislation and imperfections of the collateral duty,it leads to different judgments in practice for the similar kinds of cases.Studying type of the collateral duty in labor contract has a good reference for the construction of the collateral duty.China should establish the legislative model of"general rules;" and"specific regulations",and detailed the labor contract collateral duty.The controversial issues will be explored and improved,and a complete system will be constructed to promote the perfection of theory and practice.