Research On The Legal Application Of Unfixed Term Labor Contract

In theory,open-term labor contracts have been a hot issue since the promulgation of the "Labor Contract Law".Numerous scholars have devoted themselves to the study of this issue;from a practical point of view,with the development of the economy,open-ended labor contracts There are more and more applications in reality.However,the author found that in the application of law,some issues concerning the application of law concerning open-term labor contracts are controversial in theoretical circles and judicial practice,which may lead to the phenomenon of "different judgments in the same case" in judicial trials,which damages Judicial identity.Since the open-term labor contract is related to the vital interests of both parties in the labor relationship,different judgment ideas also affect the judicial authority.For the purpose of studying the application of law on the open-term labor contract,it is helpful to better guide the practice.This will be analyzed from the perspective of hermeneutics.The interpretation of "continuity" in an open-term labor contract is controversial.Some scholars and courts understand from the perspective of literal interpretation that continuity is equivalent to uninterrupted;there is another view from the perspective of factual labor relations.Identify continuous connotations.Regarding whether the statutory conditions for the establishment of an open-term labor contract can be applied to labor dispatch,one view is that scholars and some court judgments support the applicable view from the perspective of system interpretation and purpose interpretation;the other view is based on the principle of application of law The angle shows that other scholars and courts agree with the idea of not applicable.Regarding the issue of whether the employer has the right to renew the option after the consecutive conclusion of the second labor contract,some scholars and courts believe that the employer does not have the right to choose from the perspective of purpose interpretation and literal interpretation.In practice,the region that holds this view is Beijing.Main;some scholars and courts analyzed the basic principles of the labor contract law and the principle of contract freedom,and believed that employers have the right to choose.In practice,Shanghai is the representative region that holds this view.Regarding the legal consequences of the employer’s failure to sign the labor contract,it can be divided into two minor issues: whether the employer can be forced to sign a labor contract without a fixed term,and the provisions of Article 82 of the Labor Contract Law To the legal provisions of double wages.In the first question,scholars and courts’ opinions supporting the compulsory employer’s signing of labor contracts with no fixed term are often from the perspective of compulsory contracting.However,scholars believe that the existence of labor contracts with no fixed term should be confirmed from the legal point of view.The theory of change is explained from a more reasonable perspective.In the second question,we will separately discuss whether the double wage clause can be applied under the circumstances of "deemed as a conclusion",the calculation standard of the double wage clause,and the upper limit of the double wage payment.Whether the double wage clause can be applied in the case of "deemed to be concluded",academic circles and the court hold different views: applicable and not applicable;from the perspectives of legal liability for illegal acts and the legal principle of "no more punishment for one thing",etc.Be explained.Regarding the payment standard of double wages,academic circles and courts mainly dispute due wages and take-home wages.Supporting take-home wages is often based on the calculation standards of wages that have been specified in legislation.Supporting due wages is based on Interpretation from the perspective of balancing the protection of laborers and the punishment of employers.On the issue of the upper limit of the payment of double wages,the focus of the dispute is whether the payment of double wages is set at 11 months as the upper limit.The reason for not supporting the upper limit is continuous from the state of illegal behavior,while the reason for supporting the upper limit is analyzed from the difficulty of implementation in reality and the rationality of the upper limit.