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Workers to resign the right to notice of the exercise

Author: WuHongJun
Tutor: LiLi
School: Nanjing Normal University
Course: Economic Law
Keywords: Unequal protection labor contract duration advance notice of resignation legal liabilities
CLC: D922.5
Type: Master's thesis
Year: 2011
Downloads: 24
Quote: 0
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The article 31 in Chinese "Labor Law" endows laborers with advance notice exercising system of resignation; however there have been continuous controversies on this provision in the theory circle, the same practice of laborers’ advance notice in exercising resignation rights may lead to different judicial adjudications. The reason which leads to this phenomenon is due to labor and capital and judges are subjected to the influences of the thoughts in civil law when they recognize this issue. It understands the advance notice exercising system of laborers’ resignation rights from the perspective of contract law and comes to the conclusion that there are conflicts between advance notice in exercising resignation rights and the principles of contract law. The advance notice exercising system of laborers’ resignation is an important content in labor law which protects the laborers, the system value of it shall be recognized and properly understood by people and it shall be properly exercised during practice, otherwise the intention of legislators can not be properly implemented. If we intend to understand this problem correctly, we should transform perspectives and understand advance notice exercising system of laborers’ resignation within the framework of labor law. The resignation right of laborers has unique functions in the field of labor law which reflecting balancing the interests of employers and workers and coordinating stabilities and liquidity of labor relations.In China, advance notice exercising system of laborers’ resignation is not just applicable for flexible-term labor contracts, but also should be applicable to fixed-term labor contracts. When laborers exercise resignation rights, they shall obey the stipulations of notice period, laborers notice periods of resignation rights are not uniform and tidy. So we should make different arrangements by taking the length of contract terms and position factors into account. For the legal responsibility which shall be shouldered by laborers during their exercise of resignation rights, if laborers conform to the legal conditions and carry out statutory notice of resignation, they should not bear any responsibilities. Only when laborers make unauthorized resignation which causing damages to the employing unit they shall shoulder corresponding legal responsibilities.Labor law endows workers with the rights to resign, but which makes employing units feel that labor law endows too many favoring stipulations to laborers. Thus during practice the employing unit often negotiate terms with employees on the relinquish terms, penalty terms and general training provisions to limit the exercise of the resignation notice of laborers’ rights in order to avoid damages to their own interests. This practice is contrary to the true legislative intention for advance notice exercising system of laborers’ resignation and it is not compliant with the unequal protection concept of labor law, so all these means which limiting the resignation right of laborers are ineffective. Meanwhile, the labor law allows employing unit to enter into service term agreement to make restrictions on the resignation rights of laborers in order to avoid the abuse of resignation rights of laborers. That limitation has legitimacy and if employees violate the service term agreement, they shall bear the corresponding legal liabilities.

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CLC: > Political, legal > Legal > Chinese law > Labor Law
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