A Study On The Regulation In Labor Contract Law

The Labor Contract Law has been in force for more than ten years,and the theoretical and practical circles have never stopped arguing about the system design and the legislative idea.The most fundamental and most divisive issue is the scope and degree of regulation,which is also the core and starting point of the design of the labor contract system.Understanding and applying well the regulatory power is also the protection and respect of the rights and interests of the parties to the labor relation.The study of the regulation in labor contract law needs to be grasped not only from the overall legislation,but also from the specific analysis of different subordinate systems.This article takes “the regulation in labor contract law” as the research object,and starts from the current status of the regulation in labor contract law by statistically combing the normative documents,reviews the historical evolution of the labor contract law system in the world,pursues the value and idea of the regulation in labor contract law,and grasps the limiting factors of effectiveness of regulation,trying to explore the improvement outlets of the current Chinese labor contract legal system from the aspects of legislative standard choice,the realization form of regulation,the scope of regulation and the construction of the system.Governance of labor relation is highly epochal.China’s economic development which has entered a “new normal” in the new era and new employment models have both brought new challenges to labor relation governance.Currently the labor relation in China are generally unharmonious,the problem of dishonesty of both parties to the labor relation is significant,and the employment costs are high,but the regulation in labor contract law did not solve these problems well,and in some respects there was even the possibility of backfire.Therefore,it is necessary to study the labor contract law,which is the main legal system of China’s adjustment of labor relation,especially the regulation system.The “regulation in labor contract law” studied in this paper refers to a kind of activity that the government creates,enforces and adapts regulatory provisions in the field of labor contracts to enforce restrictions on the autonomy of will and behavior of regulated subjects when needed in the market economy environment,to achieve the purpose of ensuring the efficiency and order of labor resource allocation,the harmonious labor relation and the rights and interests of employees.Through a statistical analysis of the national legislative documents and judicial opinions at all levels in China’s labor contract law,we can find that it has the characteristics that the ratio of regulation is high and the coverage is wide,the forms of regulation are vary,and the individual and collective autonomous spaces are greatly compressed.At the same time,by combing the labor contract legal provisions in Germany,the United States,and the Taiwan region,and comparing them with China’s current law,four phenomena can be found: First,regulations are widespread in labor contract legislation in different countries or regions;Second,the methods of regulation are mostly legislative,administrative,and judicial,and the role of mediation and arbitration varies in different legislations;Third,the areas and degrees of regulation in different legislations are different,and are affected by social traditions and political systems and other factors;Fourth,the development of collective labor relations has an impact on the degree of regulation in the labor contract law.It can be seen that regulation is a universal and special existence in the labor contract laws of various countries and regions.There are many reasons for the involvement of the regulatory power in the labor contract law.First of all,from a historical perspective,the nature of the social relationship of employment has experienced a transformation from an identity relationship in slavery system to the modern contractual relationship,and the contractual form for adjusting the labor relationship has also undergone the historical evolution of “lease contract”-“employment contract” – “labor contract”.The labor law born from the civil law plays a unique role in the adjustment of labor relations,which reflects the progress of human society’s understanding of labor relations from appearance to substance.Secondly,the unequal factors that are common to both parties to a labor contract during the conclusion and performance of a labor contract also determine that comprehensive contract freedom can only lead to the “Matthew Effect”.Third,the universality of the market failure and the impact of economic fluctuations on employment require appropriate intervention by the public power of the state to respond.Fourthly,the universality,basicity and significant marketability of the labor relation in society have caused the disputes between the interests of both parties in labor relations to spread from individuals to groups and society,and have an impact on social order.In addition,focusing on the history and reality of the development of China’s labor relations,the development process of the labor contract system is significantly different from the natural evolution of the West,showing strong repeatability,rapidity,and state orientation.The slow development of the collective labor relation,China’s historical tradition and realistic ideology all make regulation play an important role in the labor contract system.The labor contract law has objective and realistic needs for regulation.The regulatory power intervenes in labor contract law should comply with and reflect the concept of property when intervening in the labor relation,including: equality,which is a substantial equality after correction;freedom,a reasonable freedom subject to justice;efficiency,that is,restoring and maintaining market efficiency through regulation while also focusing on the efficiency of regulation itself;the balance of the employee’s and the employer’s interests,that is,the contradiction between the employee and the employer is controlled within the acceptable range of both parties;safety,including occupational safety and employment safety,and also includes macroeconomic security and social security;human rights,which are embodied that the state promotes the realization of employees’ rights and interests through regulation,which is the specific expressions of employees’ human rights;social public interests,the expansion of benefits based on the social characteristics of labor relations.The reason why the regulation should and can achieve the above ideas is due to its own functions: the distribution function,including the distribution of rights and obligations,and the distribution of economic benefits and risks;the correction function,From the perspective of the object,it is the correction of the actual situation of the parties to the labor relationship and the defects of the market mechanism,and from the perspective of functioning,it is the correction of the overall and the correction of an individual case;response function,the scope,degree,and implementation of regulation are corresponding responses to the needs of economic and social development.Of course,the regulation itself is not omnipotent.There are multiple boundaries of its effectiveness,including: Regulatory failures caused by the assumption that the prerequisite assumptions for the effectiveness of regulation cannot be fully established,as well as asymmetric information distribution,lack of efficiency guarantee mechanisms for public power,and the possibility of the power being captured or rent-seeking;the regulation is less effective than autonomy in some areas;the “problem generation gap” and the coexistence of three intergenerational social law issues in China leads to the inability of regulation to fully resolve existing problems in the labor relation;the regulation and positive incentives are functionally complementary and cannot replace the latter.Based on the overall understanding and analysis of the regulation in the labor contract law,the sight should return to the reflection on the regulation in the specific system of China’s labor contract law,taking several specific systems as examples.In terms of regulatory legislative design,the labor contract term system designed with the goal of promoting labor marketization and long-term labor relations while achieving the above-mentioned regulatory objectives has also adopted a series of evasion and response measures by employers due to increased labor costs,not only the side effects are obvious,but the function of the term of labor contract is not fully exerted,and it cannot fully adapt to the current economic development and the employment needs of different employers;the unilateral dissolution system of labor contracts has the problems of improper over-regulation of imbalances not only in the control of employees’ right to resign and employers’ right to fire but also in the design of their internal circumstances,the rigid and single notice period,closed enumeration of dismissal rights,improper design of economic compensation and illegal dismissal compensation,absence and failure of regulation such as the lack of effective guarantee mechanism for advance notice obligation of employees to resign,etc.,leading to the problems of too free resignation and high dismissal costs.The administrative regulation method that should play an active role in law enforcement,the labor security supervision system,has moved to the operation mode of “no trial without charge”.The passive triggering of the law enforcement mode,focusing on case resolution and mediation,reflects the alienation of the function.The reasons include system restrictions,lack of administrative coercive power,the containment of a large number of disputes involving migrant employees,and the direction of the “major mediation” dispute resolution policy.Facing the problem of improper regulation in legislation,the judicial regulation method strives to play an adaptive role in the form of case judgments and judicial opinions.Its initiative is based on judges’ understanding of the law,their understanding of social development situations,regional differences and internal similarities and other factors,but it also has the limitation of high uncertainty.Through the analysis of the basic theories of regulation,the review of extraterritorial legal provisions,and the recognition of the existing problems of regulation in China’s current labor contract law,the regulation in China’s labor contract law should be improved accordingly.Regarding the methods of regulation,the legislative regulation method should make good use of the role of different levels of legal norms,the role of the regulation plays in labor contract law should be designed scientifically,making the system more responsive to the reality;the administrative regulation method should strengthen vertical system construction,increase personnel and financial support,and reasonably arrange the function setting between labor inspection and labor dispute arbitration,and set up special internal institutions to deal with the protection of migrant employees’ rights;the judicial regulation method should strengthen the professional ability of labor dispute handling by the ways of the establishment of specialized labor courts,timely summary and release of judicial opinions,etc.,to actively achieve case justice in the changing development society and economy.Regarding the problem of improper regulation in the specific system of the labor contract law previously analyzed,the system should also be modified and improved: in terms of the labor contract term system,on the basis of maintaining the scope of the current fixed and non-fixed-term labor contracts,micro-enterprises are exempted from entering into two consecutive fixed-term labor contracts to convert them into non-fixed-term labor contracts,in order to adapt to the status quo of micro-enterprises’ survival and development,and enhance economic development and innovation;regarding the unilateral dissolution system of labor contracts,different provisions should be made for fixed-term labor contracts and non-fixed-term labor contracts,and restrictions on unilateral termination of fixed-term labor contracts should be appropriately strengthened,at the same time,by appropriately increasing the bottom-up clauses and other appropriate measures to loosen the regulation of employers on unilateral dismissal of non-fixed-term labor contracts,lower the economic compensation payment standard,and improve the constitutional design of illegal dismissal compensation,thereby making the system more scientific and guiding employers to choose non-fixed-term labor contract;for the unilateral dismissal of the labor contract during the probation period,the nature of “probation” should be taken into account to coordinately deregulate.In addition to improving and perfecting the regulations in the labor contract law,achieving harmonious and stable labor relations,multiple ways of coordinated governance are also required,including but are not limited to improving the employment rules,promoting the transformation of the trade union,and increasing the provision of social public services,etc.,to substitute some regulatory measures so that social co-governance of labor relations can be achieved.