The Application Of Law Of The PEOPLE'S REPUBLIC OF CHINA On Employment Contracts For Legitimate Foreign Employers In China

With the deepening of the strategy of reinvigorating China through human resource development,and the guidance of strategy 'bring In' and 'go global',we China have achieved remarkable results on introducing overseas talents;China is in an on-going process of role-transition—from labor exporting country to a inputting one.However,those substantive legal norms,which are considered to protect domestic incoming foreign labors' right from being damaged,are rigid and not well-organized,which is the main the cause for misunderstanding on the legal provisions from judge to judge.It not only strikes the balance of right and obligation between incoming foreign labors and domestic employers,also greatly strengthens the unpredictability of recruitment for employers,weakens foreign labors' confidence in China's career development.The legal dilemma within incoming foreign labors' dispute settlements are caused by foreign-related factors,which are the logic of selecting proper law;to what extent those domestic labor mandatory rules could be applied when the application of China's law is confirmed.The former dilemma is excluded,for the subject of the thesis has limited the working place within China.The key point is the latter one.The essential characteristic of the dispute is the balance between 'the nature of contract' and 'the nature of public interest'.First of all,there is no sound and clear provisions and principles to reference when disputes are countered during the process of making,fulfilling,eliminating(including dissolution,terminating)and bearing its liability for breaking labor contracts between foreign labors and domestic employers.It is the realistic urgency for this research.Secondly,'the nature of contract' within labor contract relations has spared enough room for research.Last but not least,the existence of 'directly applicable law' within Law of Application of Law has elaborated that 'Autonomy of Will' could be applied within a certain extent in adjusting disputes between incoming foreign labors and domestic employers.Combing the development of regulations and logic practice to foreigners working in China,flaws are found in the existing provisions.Then,searching cases,online by key words 'foreigners';cause of action: labor/human resource dispute,analyzing the results,with following factors: year,quantity,observing and classifying the distribution of cause of action;next,introducing international organizations and other countries 'experiences on dispute settlements'.In conclusion,based on China's labor market and basic conditions,with absorbing domestic judicial opinions and overseas advanced experience,three suggestions are proposed as follows,i,precisely classifying the qualification for foreigners' occupation;ii,'Autonomy of Will' could be flexibly combined with our existing legal system;iii,taking the situation of China's labor market and predictable influence for employees into consideration when applying 'dismiss protection' intelligently.