A Comparative Study On Labor Contract Law Between Mainland China And Taiwan

After the reform and open in Chinese mainland, China has made frequent economic and trade exchanges with other countries and districts, which shows direct investment and labor mobility. The Chinese Mainland and Taiwan are important trade partners of each other. Direct investment and labor mobility result in labor employment relationships. The harmonious and stable employment relationships in a large extent influence the effect of the investment on both sides and the cross area employment, especially under special background of political relations. A comparative study on labor contract law between mainland China and Taiwan is very important in practical value.Mainland China and Taiwan where the people share the same culture root and source are both in the continental law system. The core law of Mainland China on labor relationship is Law of the People's Republic of China on Employment Contracts. The basic law of Taiwan is Labor Standards Act. First, the thesis reviews the process of the law-making and enaction and completion in order to explore the background of the law-making and the economic level and tells the sources of the two laws. We should study the basic law terms on the base of the content in order to master the constitution of the laws. And we should analyse the logic thought compared with the two laws to get the purpose of the legislators.To define the suitable body of the labor laws clearly is the base of the comparative study. The suitable body of Labor Contract Law in mainland China are employing unit and laborer. Employer and worker are the suitable body. The intension of Taiwan has more wider range with comparisons. The duty of employing is in the charge of someone. The employing subject can be units or natural person only if the labor employment happens. But Chinese law says nothing about this. After the establishment of labor employment, the employer and the employee will sign a written agreement, which is called labor contract. The name of labor contract has some differences in Chinese, yet is same in meaning. Mainland China emphasizes the written contract especially. The key of this thesis is the comparison of the two labor laws. They are pay, working time and relax and holidays, labor protection of special people, fire protection system, collective contract, Dispatched employment. Pay includes base wage, average wage and overtime wage. The base wage is the important topic of people right. To set base wage must base on the laborer family's needs of normal life. Labors can share the fruits of economic development. Average wage is the calculation standard of maternity leave, dismissal wage, relief compensation. The set-method between mainland China and Taiwan has some differences. The payment amount of overtime wage in mainland China is larger than that of Taiwan. Eight-hour working system is the legal provisions. However, many employers order the workers'extra work, but pay nothing. The rules about relax and holidays are the same both in two areas. The special groups of labor relationships are children, teenagers and women. The partitioning method on age of children and teenagers are different. The authorities of the two areas are both care for the children and teenagers'right rooted on their physical and mental healthy and education right. Women are vulnerable groups due to the natural differences on their physical strength and physiology. The labor standard act rules that women are unfit for night work ordinarily because of social and personal safety. If the factories will arrange women work by night, they must ask for the parties' agreement and consider whether they can provide necessary safeguard and life convenience. There are no rules about this in mainland China. The two laws care women in pregnant and perinatal period considerately which protect them mostly. Fire protection system is consist of dissolution of contract and termination of contract. There is no definition of fire in mainland China. Yet in practice, the dissolution of contract and fire have the same legal effect. Here, we will use fire. The labor standard law doesn't only confine written contract when the employer and employee establish labor relationship. Other forms of labor contract is permitted, which broaden the protective range. Though the two parties didn't sign written contract, they have establish the labor relationship when employers hire laborers. Taiwan law doesn't formulate probation period. So if they remove their employ relationship, they must fulfill the obligation of informing ahead of time and offer severance pay. Pink slip are same in both laws except for some language description. If employers fire employee unilaterally and the employees don't do anything wrong, the employers must offer severance pay. The scope of severance paying is more broad and specific in which paying standard is higher. Taiwan doesn't distinguish dissolution and termination of contract strictly. Taiwan regards the two circumstances as termination of contract. The law standard act doesn't rule fire protection system roundly as mainland China. Collective contract is a new provision in the labor contract law. Laborers appear as a group. In mainland China enterprise representatives can consult with the employers, but that is illegal in Taiwan. Dispatched employment is a new clause in the labor contract law which remedy Chinese legislation blank. The law clause in Taiwan is just in the draft stage.There are a lot of laws and regulations in mainland China, which is more complicated when the law runs into endemic regulations and systems. Sometimes differences may appear among them. China should regulate various law more perfectly and guarantee the labor contract law. To Taiwan, relative enterprises and persons should know the two law as soon as possible, and standardize labor employment system, and hold a better mentality. The labor standard act in Taiwan needs perfection as well.