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The Study on the Unilateral Termination of Labor Contract

Author: ZhangXingZuo
Tutor: ZhaoDeChun
School: Dongbei University of Finance
Course: Economic Law
Keywords: labor contract cancel the contract unilaterally some problems research
CLC: D922.5
Type: Master's thesis
Year: 2010
Downloads: 183
Quote: 0
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Abstract

Along with the reform of economic system and the development of the establishment of modern enterprise system, the enterprises have gradually become independent organization subject and competition entities of the market, and the labor relations have been changed gradually from administrative to institutionalized. The labor contract is different from the civil contract, as the status personalities of the parties of a labor contract are unequal and labor contract has personal attributes, the labor contract has been regulated through special legislation. Along with the Labor Law of the People’s Republic of China and the Labor Contract Law of the People’s Republic of China were enacted, the labor law system was constituted preliminary, which takes the labor contract as the core. The labor law clears the rights and obligations of the parties of the labor contract, determines the labor relationship. It played an important role in labor system reform, stabling labor department, making labor relations towards legalizing. It is not natural termination for the labor contract removing the labor relations. Termination of labor contracts is legal behavior which is eliminating labor relations in advance by one party or both parties of the labor contract, after concluding labor contract, before all performance, for some reason. It has a great influence on the relative person for it is against labor relations stability. Therefore legislation must be fully considering the rights and interests of the parties to employment contracts, perfect the relevant system, realize labor relations of liquidity in the guarantee stability of labor relations premise.This paper includes four parts. It summarizes the employment contract unilaterally terminate system in the first part, including the concept, the characteristics and the classification, it clears the distinction between labor contract removes labor and termination of contracts, also between the labor contract removes and civil contract termination. At last, it introduces legislation value orientation of the labor contract unilaterally terminate, which is to clear the aim of the legislation. According to the first question, it is problems of forecast period and the forms of the laborer forecast removing in the second part. In my opinion there is something wrong. We can draw lessons from foreign countries’ legislative experience. For forecast notice form, at present, the labor contract law only admitted the written form which is preventing laborers from abusing unilaterally terminate rights. But there is something wrong with burden in practice, so there is also a hinder in the laborer unilaterally terminate. Aiming at these problems, I put forward several suggestions, which is referencing foreign labor legislation which is relatively mature, on improving employees stipulating system. In the third part, the author puts forward the function of the trade unions when the employers terminate contract at their own will. Firstly it introduces the types and particularity of employing units to terminate an employment contract unilaterally, also the function that should be exercised by the trade unions when employers terminated the labor contract unilaterally. The author thinks that labor unions lack of independence, there is no clear procedure for the right to make suggestions for trade union, in a word, there is no procedural safeguard, so there is no legal consequence to be taken for employers. It is unable to safeguard the union realize its real functions. Finally the author puts forward suggestions to perfect it. In the last part, the author discusses the problem that the nature of the laborer removing the labor contract in advance, because there is still a academia controversy. The author thinks that it is not a noncompliance as it is legal rights.The innovation point of the paper:The author thinks that when laborer removes the labor contract in advance, the parties may prescribe forecast period, but there must be a strict procedure rules to prevent damage to the rights of both parties; When signing labor contract, the employer shall bear an inform obligation to make laborer know what is the specific implementation to forecast terminating the labor contract; when employers terminate the labor contract unilaterally, to guarantee the trade union functions of safeguard realization from the substantive or procedural.

The Study on the Unilateral Termination of Labor Contract

Abstract

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