A Research On The Construction Of Employment Contract Suspension System In China

Suspension of employment contract refers to the legal system in which one or both parties temporarily suspend the performance of employment contract due to legal or agreed causes during the performance of employment contract,and continue to perform,modify,terminate or dissolve the employment contract according to the specific situation after the expiration of the suspension period.At present,the current national level laws and regulations of our country involve in the provisions of employment contract suspension,which are scattered,narrow coverage,unreasonable design of rights and obligations of legal suspension and lack of agreed suspension.For solve these problems,some local employment legislation and national draft legislation have tried to improve the employment contract suspension system by supplementing the suspension provisions,but this desire has not been realized.In recent years,the dilemmas faced by local judicial authorities include that the determination of the suspension of the employment contract can not be relied on,and the judgment criteria of the suspension cases are different,resulting in a certain degree of judicial confusion.The main reason is that China's labor contract suspension system is not perfect,so it is urgent to build a employment contract suspension system in the Employment Contract Law.According to whether the suspension of performance of employment contract is directly regulated by law,it can be divided into legal suspension and agreed suspension.The legal suspension of employment contract refers to the temporary suspension of performance of employment contract due to the occurrence of legal causes.The causes for the legal suspension include the employees perform military service according to law,the social activities,the legal holidays,restriction of personal freedom,the force majeure,the strike,the whereabouts unknown,and the non-performance of obligations over a long period of time by both parties to the employment contract.The legal consequence of legal suspension is also an important part of system construction.First,the period of legal suspension shall be determined by when the cause of suspension disappears,but the non-performance of obligations over a long period of time by both parties shall not exceed five years.Secondly,the employer is exempt from the obligation to pay wages and social insurance premiums during the period of legal suspension,except for the employees who participate in social activities or take legal holidays;although the employees temporarily stop performing the obligation to provide services,they still need to perform the loyalty obligation of inaction.Thirdly,the employees can give up the interests of legal suspension afterwards,and the behavior of giving up beforehand will not have legal effect.Fourthly,the period of legal suspension will not normally count as a period of service for the purpose of entitlements,except for the employees who participate in social activities or take legal holidays.In addition,the term of the employment contract in the case of legal suspension shall be consistent with the period of service,but the term of the first fixed-term employment contract with a term of no more than one year could continue to be calculated during the period of suspension.Finally,after the end of the legal suspension,if the employment contract of both parties is possible to resume performance,it shall resume performance;if it is not possible to resume performance,it shall modify,terminate or dissolve the employment contract.The agreed suspension of employment contract refers to the temporary suspension of performance of employment contract due to the occurrence of agreed causes.There are three typical causes: personal leave,secondment,and released from regular work for study.In addition,on the basis of not violating the mandatory norms of laws and regulations,both parties can agree to suspend the performance of employment contract according to their actual needs.As for the legal consequences of agreed suspension,first of all,the period of agreed suspension shall be decided by both parties through consultation;if there is no agreement or the agreement is not clear,both parties can reach a supplementary agreement;if no supplementary agreement can be reached,the period of agreed suspension shall be determined according to the reasonable consensus.Secondly,the agreed suspension of employment contract is caused by the reason of employee,the employer can exempt from the obligation to pay wages and social insurance premiums,and the employee needs to abide by the loyalty obligation of omission;the agreed suspension of employment contract is caused by the reason of employer,the employer still has the obligation to pay wages and social insurance premiums according to certain standards,and the employee can establish dual employment relations.Finally,the agreed suspension of employment contract is caused by the reason of employee,unless otherwise stipulated the period of suspension will not count as a period of service for the purpose of entitlements,except for the period of deducting legal leave;the agreed suspension of employment contract is caused by the reason of employer,and the period of suspension must count as a period of service for the purpose of entitlements.In addition,the term of the employment contract in the case of agreed suspension shall be consistent with the period of service unless otherwise stipulated.