A Study On The Legal Problems Of The Workers’ Notice Resignation In China

In China’s Labour Contract Law,thirty-seven of its articles stipulates that workers who give 30 days’ written notice to the employer can be discharged from the employment contract.This provision is a legislative provision on the advance notice of resignation of workers,and also reflects the implementation of the principle of preferential protection and the principle of fairness,that is,emphasizing the protection of the rights and interests of workers,at the same time,considering the actual situation to balance the interests of both workers and employers,and ultimately promote the harmonious development of labor relations.However,with the continuous deepening of the reform of the market economy system and the rapid development of society,some local governments have overemphasized the employment rate and introduced some policies and regulations that are too protective of the rights and interests of workers,aggravated the contradiction of unbalanced development of labor relations,and with the gradual stratification of workers,it is no longer in line with the development trend of labor relations to apply the unified system of advance notice resignation to workers at different levels in practice,not conducive to maintaining a balanced and orderly labour market.In this regard,the relevant provisions and systems of workers’ notice to resign need to be improved in order to better protect the rights and interests of workers and promote the realization of Dynamic equilibrium.This is also the reason for the selection of this paper,in order to analyze in more detail the legal problems existing in the current practice of workers’ notice to resign,and thus to promote the improvement of the notice to resign system,this paper takes three cases of workers’ Notice to resign as examples,this paper summarizes the focus of the dispute,analyzes and discusses the legal theory,and finally comes to the Enlightenment and consummation of China’s workers’ resignation in advance.The first part,the brief introduction of the case and the summary of the focus of the dispute.This paper selects three relatively typical cases,narrates the case situation separately,and analyzes and summarizes three main controversial focuses,that is,whether the worker’s notice can be withdrawn,whether the employer can terminate the labor relationship in advance during the notice period,and whether the worker needs the employer’s approval to exercise the right of notice to resign.The second part,with the focus of the issue raised for the legal analysis.First of all,the author analyzes and summarizes the legislative concept of the right of workers to resign with advance notice,briefly describes the concept of the right of workers to resign with advance notice,and summarizes the legislative status of the right of workers to resign with advance notice in China,this paper analyzes and summarizes the principles and legislative purposes embodied in the legislation of advance notice resignation in China.Secondly,the nature of workers’ notice resignation and whether the notice can be withdrawn are discussed theoretically.In this paper,the author holds that a worker’s notice to resign before the expiration of the notice period is only a kind of declaration of intention,and that the worker has the right to notice to resign after the expiration of the notice period,and that the right is a kind of right of formation,it can be exercised without the approval or consent of any party and without any conditions or time limit.This is the embodiment of carrying out the principle of preferential protection to strengthen the protection of workers’ rights and interests.As to whether the notice can be withdrawn,this paper analyzes the issue on the basis of the nature of the notice.First,prior to the expiration of the notice period,the worker’s notice of resignation is an expression of intention,which may be withdrawn before or upon reaching the other party in accordance with the law.Secondly,the author holds that the withdrawal of the notice should take into account the intention of the employer after the notice has been given and before the notice period expires.Finally,the author makes a jurisprudential analysis on whether the employer can terminate the labor relationship in advance during the period of notice resignation.This paper holds that,firstly,the labor relationship between the employer and the worker is still in existence during the period of notice resignation,and secondly,the employer shall continue to enjoy the corresponding rights and obligations,including the right of unilateral termination,in accordance with the labor relations existing between the employer and the worker.Therefore,when the situation stipulated by law appears during the warning period,the employer may exercise the unilateral right to terminate the labor relations between the two parties before the expiration of the warning period.The third part,research conclusion and enlightenment.First of all,through the analysis of jurisprudence part,summarizes the conclusion of three dispute cases: 1.The worker and the employing unit may withdraw their notice and resign by consensus.2.The employer may terminate the labor relationship in advance according to law during the notice period.3.A worker’s exercise of the right to resign with advance notice does not require the approval of the employing unit.Secondly,combined with the above conclusions of the three cases,draw the inspiration and suggestions to improve the system of advance notice resignation.1.We should regulate the application of workers’ notice of resignation,distinguish different rules of notice of resignation for different types of employment contract and different levels of workers,and specify the applicable rules of notice period,etc..2.In view of the abuse of workers’ right to resign with notice and the protection of workers’ rights and interests after their resignation with notice,make clear the responsibilities of workers and employers;3.With regard to workers’ resignation by notice,a tripartite supervision and restriction mechanism shall be established by the Labor Administrative Department of the government in conjunction with trade unions and representatives of enterprises to supervise the employers’ implementation of the protection of workers’ rights after their resignation by notice,restricting the abuse of workers’ right to resign with advance notice.