Research On The Application Of The Theory Of Collateral Obligation In China’s Labor Judicial Practice

The essence of the theory of collateral obligation in the application of labor judicial practice is an important reason for promoting the judgment to be made and protecting the legitimate rights and interests of the parties and the referee.Applying this theory in the practice of labor judicature is an effective measure to realize the completeness of the protection of the rights and interests of both parties and a strong basis for the argumentation of judicial judgment.However,compared with the research achievements in the civil field,the study on the theory of collateral obligation in the labor field is still relatively shallow,and the application of the theory of collateral obligation in the civil field in the labor judicial practice is not optimistic,which is mainly manifested in two aspects: first,the application of the theory of collateral obligation itself;The second is the application of the specific form of the collateral obligation theory.This paper discusses the theory of collateral obligation from the perspective of labor judicial practice,explains the basic content of the theory,sorts out the applicable types and forms of the theory in labor judicial practice,reveals the existing problems in the application,clarifies the application basis and then puts forward Suggestions for improvement.The paper is divided into five parts:First,from the perspective of epistemology,the author expounds the attached obligation theory in the field of labor,including three aspects: concept,type and legal basis.There are three purposes: first,the concept is the logical starting point for legal judgment and concrete argumentation.Second,the nature of the continuing contract determines the uncertainty of the collateral obligation,and it is impossible to exhaust all of them at one time.In combination with the judicial practice,it is not only to facilitate the research,but also to return to the practice to see the problem.Third,the derivation basis of the specific content of the attached obligation theory and the legitimacy basis of its specific application.Second,based on the empirical thinking of case guidance theory,this paper summarizes the application of the theory of collateral obligation in China’s labor judicial practice from two aspects of application type and application form by combing the judgments related to China’s labor judicial practice.Specific interpretation :(a)the applicable types of the theory of collateral obligation in the practice of labor justice in China.According to the sorting of judicial judgment contents,the application types of the theory in pleading,judgment process or argumentation are summarized as "declaration application,direct certification formation application and reinforcing argumentation application" mainly from the two aspects of form expression and argumentation.(b)the main applicable forms of the theory of collateral obligation in China’s labor judicial practice.According to the situation of the judicial review,the applicable form of the theory is summarized,which is mainly reflected in the form of the collateral obligation in the stage of the disappearance(dissolution or termination)of labor relations.Third,according to the aforementioned types of application and the main forms of application,the paper reveals the application problems of the theory in the practice of labor justice in China,mainly including the following two aspects :(a)the normative problems of the application types of the attached obligation theory.This paper mainly explains the normative position and reasoning of the theory of collateral obligation in the application of labor judicial practice.(b)specific problems on the application form of the collateral obligation theory.Through the second part of this paper,the author summarizes the specific application of the main forms of the collateral obligation theory in the practice of labor justice as follows: the defects of the provisions of the statutory collateral obligation lead to differences in adjudication;There are different understanding of the conditions for not fulfilling(violating)collateral obligations to constitute the category of labor dispute;Whether the unfulfilled(violation of)collateral obligation constitutes a cause for termination of the labor contract is different;Failure to fulfill(breach)collateral obligations and liability system is not sound;The lack of rules for the determination of the collateral obligation of the push-set.Fourth,the theory of collateral obligation originates from the civil field.In order to strengthen the rationality and persuativeness of the theory of collateral obligation in the application of labor judicial practice and to solve the problem of how to apply the theory of collateral obligation in the application of labor judicial practice in a normative sense,the application basis of the theory in labor judicial practice should be solved.The application of the theory of collateral obligation already exists in the judicial practice of labor in China.Based on this,this paper analyzes the applicable value of the collateral obligation theory from three aspects: the limitation of legal rule makes up,the "refinement" of the adjustment of contractual relationship and the "booster" of substantive justice,so as to provide theoretical basis.Fifth,based on the theoretical foundation and the question review,this paper discusses the application of the attached obligation theory in the practice of labor justice in China.Specifically,(a)it clarifies the application limits of the theory of collateral obligation in the practice of labor justice in China,including the fundamental position of limited application and the adherence to the specific application limits.(b)To clarify the applicable method of the theory of collateral obligation in the practice of labor judicature in China--the typification and legalization of the applicable form based on the theory of collateral obligation.(c)In view of the application of the theory of collateral obligation in the practice of labor judicature in China,the following Suggestions are put forward: the application of legal rules is preferred,and the theoretical argumentation is auxiliary;Deepen theoretical research and promote theoretical consensus;The legal relief is fundamental and the reasonable relief is auxiliary;Include the principle of imputation,enrich the types of liability,and improve the existing liability system;To establish a set of reasonable and scientific judicial confirmation rules;Combination of general terms and special terms.