| Nowadays,the competition of social employers is competition for capable people.How employers can attract and retain outstanding capable people for improving their competitive edge in the keen social competition has become the key to the competition of capable people.One of its important methods is to stipulate the penalty clause for service period.Article 22 of Labor Contract Law and related supporting regulations clarify the service period default fine system,but due to its relatively superficial regulations,many problems have been exposed in practice and cannot be effectively resolved,which limits the function of the system.This article analyzes the default fine system of labor contract service period in order to further improve the application of this system.The article is divided into the following four parts:The first part of this article makes a preliminary understanding of the connotation of the service period default fine system in the labor contract.First of all,it expounds the connotation of default fine during the service period,and on this basis explains the basic theory of default fine during the service period,and clarifies the value of the system.In addition,the different theories of the legislative model of the default fine system during the service period are introduced and analyzed.The second part of this article expounds the provisions of my country’s legislation on default fine for service period and other countries or regions related legislation and judicial reference.First of all,it explains the history and present situation of our country’s legislation and focuses on the interpretation of the conditions of our country’s applicable service period default fine clause.At the same time,it introduces the relevant systems outside the territory and the enlightenment to us.The third part of this article expounds the shortcomings in the establishment of the default fine system for the service period in our country,and analyzes the typical cases in judicial practice respectively,including: the range of application is unreasonable,the coverage of the service period is narrow and the main body of labor The specific limitation is not enough;there is no stipulation on the setting standards of the service period and the amount of default fine;the agreed form of the service period default fine clause is not clarified;the creation of the liability system is not comprehensive enough,and the employers have not clarified the circumstances in which the employer shall bear the default fine.The last part combines the shortcomings in the application of the service period default fine mentioned above and proposes corresponding proposals for improving the system,including increasing the application of the service period default fine;reasonably setting the period of the service period,such as the maximum period and set standards;improve the provisions on the amount of default fine of the service period,and limit the amount of default fine while granting the right to adjust the amount of default fine;standardize the form of the default fine clauses during the service period;improve the establishment of the legal liability system during the service period. |
