Employer Dissolves The Labor Contract System

The discharge of labor contract means such an action :after the availability of the labor contract came into existence, and before it was carried out or fulfilled ,the single or both sides of the contract will destroy the relation of contract .The action can be considered as a kind of legal system at the same time. The discharge of labor contract is not equal to the termination. Because the termination of labor contract equates to the destruction of labor contract according to china's labor law, and the discharge of labor contract is only one reason of the destruction of labor contract.The discharge of labor contract can be classified as many sorts. It can be classified as two sorts :the employment entities discharge the contract and employee discharge the contract. Depending on whether the discharge of the contract need or not the pre-notification, the labor contracts can be classified as the instant discharge and the pre-notification discharge. This paper will analyze the laborer discharge the contract instantly and in pre-notification. But it will laid a strong emphasis on the latter.From the angle of the labor legislation and judicatory affair, the protection to the laborers who want to discharge the labor contract is not enough in China. When the employment entities occur the fatal breach of faith, we did not run the responsibilities of the entities powerfully. When the laborer discharges the labor contract during the probationership, on one hand the validity of laborer's action is acknowledged; on the other hand the entities runs the laborer's responsibility for breach of contract. Such action as these breach not only the justice principle but also the essential principle of jurisprudence.The prescription about the laborer discharging the labor contract can be found at item 31~st, labor law . There is a great difference in understanding between the circle of theory and that of affair. Do they need other conditions in exerting the right of discharge in pre-notification way that the item 31~st have prescribed ? There is two opposite viewpoints about that :first, the item 31~st is only the procedural regulation, if laborer want to exert the discharge right, he must possess other conditions. Otherwise, the action will be considered as breaching the faith. Second, exerting the discharge right did not need other conditions. If laborer wants to exert the labor contract Jhe only need inform the employment entity 30 daysin advance. This paper adopts the explanation of the article's meaning, system, law meaning, certain ,aim , comparison and sociology and so on. All of those explanation ways think that laborer discharge the labor contract need not other conditions. There are many viewpoints about the aftereffect of pre-notification discharge that prescribed at item 31 as following: the first ,the labor exerts the right of pre-notification resignation should be thought as breaching the faith, so he must respond the liability for breach of contract. The second, the laborer discharges the labor contract by law should respond liability for breach of contract and tort. The third, the laborer resignation by law is not breach of contract, so he need not respond liability for breach of contract. But the laborer must respond the liability for damages. The forth, because the laborer resigning by law is not breaching the faith, his action does not constitute an infraction .So he need not respond the liablility for breach of contract and for amends in principle. The paper try to bring forward a new viewpoint by sufficient argumentation: That laborer exerts the right of pre-notification resignation by law is neither breach of promise nor tortious act. And there are no other especial legal provisions that require the laborer assume more responsibilities. So the laborer discharges the labor contract by law should not assume any legal liability.The liability that the laborer discharging the labor contract by illegal act should respond will be analyzed in stylized way. Under the condition that the laborer have no discharging right ,the laborer discharges the contract is considered as tortuous act. such action belong to repudiating labor contract, so laborer should compensate for the negative and active loss. After the labor law brings into effect, this condition does not exist any more, when labor own the right of discharging and the exertion to the right disobey the law (i.e. employment entity discharge the labor contract without pre-notification),in this case, laborer should compensate for the loss of employment entity in the light of the wages in the no-prospective course. When the laborer discharge the labor contract by law, the laborer need not assume any legal liability.The right of laborer's pre-notification discharge have not come true in reality. Why ?on the surface , legislation; virtually, idea, i.e. absence of idea about private law. If we want to ensure the laborer can exert the right of pre-notification discharge, we must strengthen the idea of private law. Furthermore, we must absorb and learn the market economy country's experience about labor legislation, accordingly liquidate hypogynous legislation and improve judicatory art.Currently there are three comments about the system of laborer' pre-notification discharge in China as following: The first, no any restrictions to the laborer's pre-notificationdischarge at the 31st item of labor law transgress the legal reason. The second, the system made the different prescription respectively to the laborer and employment entity and did not accord with the international practice of labor legislation. The third ,they think there are no difference about the time of pre-notification at labor law , therefore the employment entity's legal right can not be protected effectively. So, people should prescribe the different time of pre-notification according to the laborer's post I think these comments do not accord with the practice of labor law, and should not be adopted. China's labor law should made regulation respectively to the pre-notification discharge of the laborer and employment entity. These days the system of laborer' pre-notification discharge is the same with all kinds of labor contracts in china. Compared with other countries, the time of pre-notification discharge regulated by china's labor law is more moderate and should be maintained. Certainly ,the legislation art of pre-notification discharge should be improved in order to reduce different comprehensions and safeguard the laborer.