On The Terminating Stalemate Of College Graduates' Employment Agreements And Its Legal Remedies

In order to suit the socialist economic development, the employment of college graduates in the mid-twentieth century entered a market-led stage_ "choose their own jobs" stage. Market-oriented employment system requires educational administrative departments gradually let go of the control of the flow of college graduates, changing its dominant position in the employment of graduates. However, graduates still can and must be regulated by the state, because they are rare resources. The State Education Commission in September 1997 issued the "University Graduates Interim Regulations" and the employment agreement of college graduates came into being.As time goes by, the employment of college graduates becomes increasingly market-oriented. It is difficult to imagine, the old regulation which had to balance national, individual and social interests of three parties, the tripartite initiative designed to mobilize the employment agreement caused dislocation of the inherent difficulties in practice. Existing laws and regulations on the nature of the employment agreement, the lifting of the conditions and procedures, and does not provide for liability, causing confusion, unable to continue to perform the employment agreement, which may lead to social conflicts. There are still gaps in theory:the existing research does not discriminate terminating an agreement and breaking a contract, moreover it stresses in the circumvention of the graduates who break a contract. It has no idea to carry on the rules and regulations or the relief for the existed stalemate.What kind of legal measures or corresponding design can respond to the employment agreement to break free from the stalemate? This is the purpose and also the tasks of this thesis.This study follows the path of positivism. From the real existence of the employment agreement to lift the stalemate, starting to study in the employment agreements within the framework of the existing system and the educational administrative department of the parties to break the deadlock. The effectiveness of the old system is running poorly, causing us to explore the reasons why the impasse is formed. Reconstruction of the employment agreement and, ultimately, form a new system for the college graduates to show their ideas. The whole paper is divided into four parts.Introduction is mainly raising questions and definition of the problem.When interviewing and investigating the system to understand the operational status of the employment agreement, co the termination of disputes of college graduates came into my perspective. I selected a representative case from actual cases, termination disputes panoramic display of graduates in the bucket in the hedge, induction and deduction out of the employment agreement termination of the existence of the impasse that can not be ignored. Analyzing the employment agreement to lift a major impasse in the system to show the practical value and theoretical significance, stand to explore characteristics of the social contract of employment agreements, and try to build the labor contract system of employment agreements to get rid of the deadlock.Starting from the perspective of the college graduates, universities, employers, education and other administrative departments and theoretical researchers, the second part demonstrated five different perspectives interested in the lifting of the deadlock employment agreements in the practice. First, the author analyzes unilateral termination of employers and graduates of the unilateral termination in different situations, come to the conclusion that the employment agreement mainly constrains college graduates, the employers pay low cost. As a result, the graduates are at a passive and vulnerable situation in the denunciation of the practice of the system, to survive with despair; while the employers will occupy the moral high, subjectively judge the students' behavior and wait for an opportunity to make the students surrender. Since their position in the employment agreement is unclear, their responsibilities are confused; the transcendent universities had to play it safe, to avoid disputes. Secondly, a comparative analysis of some provinces and cities on college graduates employment agreements shows that the reform of employment policy initiatives. Unfortunately, reform of education administration is determined to change the three sides into two sides, to some degrees, away from the employment agreement, away from disputes, but it did not clarify the nature of the employment agreement, It will not be able to break the deadlock. Finally, some radical theorists call for a thorough reform abolition of the employment agreement. The author of this thesis holds:because of the special nature of the employment of college graduates, the employment agreement of reform should be gradual and cautious, and in the process of reform, before the employment of college graduates is completely built we should face the reality of the legal existence of the employment agreement, try to understand the nature of the employment agreement, and think of ways to solve the problems.The third part is to investigate the employment agreement to reveal the causes of the deadlock. The practice of the main parties within the framework of the existing system in breaking the deadlock is unsatisfactory. This makes us think that the reasons of the stubborn deadlock must exist within the system. First, the author of this thesis makes use of empirical analysis, using real existence of the employment agreements of legal norms and legal activities for the empirical representation and description. Clearly set out in tabular form of graduates, universities, employers under the "Interim Provisions" and their duties, obligations in the employment agreement. The analysis reveals the contents of the existing system set biased towards the realization of national employment policies, but it ignored the essence of the contract agreement, lack of contract formation, validity, performance, modification, dissolution of the relevant contents. Content determines function. Followed by analysis of the employment agreement at the national macro-control on the contribution, contrasting the graduates and employers regulate the course of employment rights and obligations of the nature of its functions. Second, the function of the dislocation, prompt us to reflect on the "Interim Provisions" and co-ordinate administrative normative documents under the employment agreements of the system design of the existing ambiguity and gaps:extensive management, the absence of dissolution system, the nature of vague. Nevertheless, the employment agreement can not deny the contract property, the contract must be abided by, unless there is an agreement or statutory reasons occur. So it has rigid constraints to the agreement of two sides, especially college graduates. It is also the crux of the deadlock termination:termination condition has no legal basis, graduates got "bad faith" the moral stigma; not follow termination procedures, the employers take "termination" as" default ", refuse to surrender with the graduates or refuse the issue of termination letter; in terms of the agreement for the new issue of employment could not be found, the university does not provide new employment agreement, to prevent the students sign a new employment agreement; facing termination disputes there are no laws available. Termination of the employment agreement can not or will not get judicial and administrative remedies.The fourth part proposes some measures to lift the employment agreement stalemate. Facing the reality of legal existence of the employment agreement, taking into account the reform of the employment agreement can not be achieved immediately, the author advocates legal norms based on the existing countermeasures. Suit the remedy to the case. First, the nature of the employment agreement needs to have a clear positioning. By comparing the analysis of domestic employment agreement on the legal nature of the various theories, from abroad, especially in Japan "by default" the relevant legal principles, ideas under the employment agreement to classify the different analysis:from the main qualification, contracting purposes, the employment agreement study, compatible with the labor contract, labor contract argument will have the terms of the employment agreement, must be characterized as legal legitimacy of the labor contract. Contract offer and acceptance from the theory, advocates do not have the labor contract as the essential terms of the employment agreement included in the labor contract agreement preparation phase before the signing of labor contracts to inspect, analyze the possibility of the labor contract by mutual rights and obligations of the previous stage of the employment agreement. Led to a series of employment agreements, disputes, but also brushed aside the fog collective agreements, so that exposure of the labor contract before the stage in front of us, let us recognize that this stage of labor laws and regulation of major significance. After a clear need for full nature of its content, we can reinforce its function. First, in order to highlight the characteristics of the employment agreement contract, the employment agreement is law break the deadlock to lift standard, need to build the withdrawal mechanism. So according to the agreement of the different systems were constructed in order to get rid of the corresponding deadlock. Meanwhile, clarify the employment agreement to lift some of the problems that exist in practice. Through the introduction of labor contracts that exist in this particular area due to significant changes in objective circumstances, economic layoffs caused by the unilateral right of cancellation and a more specific right to terminate workers without due notice, to further differentiate unilaterally terminate and breach of contract, expected the elimination of the employer of the graduates biased moral judgments; of agreement the parties have agreed to lift the penalty in terms of the effectiveness of the employment agreement claim liquidated damages in the total rejection of the terms of the way taken to fill the loss, because it not only can obtain with the penalty The same effect, and further to achieve better docking and labor contracts. Second, with the transformation of government functions to adapt the administrative functions of the university weakening its role should be positioned as a night watchman, function should focus on "services "and limited to "the necessary supervision. "Due to the lack of gaps in the system theory and practical experience in employment terminating system, the author follows the path of the evolution of the concept of contract, through a comparative study of dissolution system, the lifting of the general civil contract system and the social contract (specifically referring to dissolution system of the labor contract), advocates relying heavily on labor contract to build the new system. Employment agreement will not have labor contracts, especially the terms of the employment agreements must include labor contract stages of investigation, the labor contract signed by both parties prior to the rights and obligations of its regulation has considerable theoretical risk. Do not surmise shallow, I rather to use as a bold hypothesis, careful verification.