On The System Of Labor Notice Cancellation Labor Contract

On the right of unilateral notice of cancellation of workers, judicial practice has a lot of problems. Do the workers can go back during the forecast period, and revoke their resignation? What is the legal relationship between the two parties in the forecast period? Do the employing units can terminate the labor contract in advance of the notice period? The settlement of these problems depends on the scientific understanding of the notice right of cancellation and the nature and effect of the workers’ notice right of cancellation. These problems appear simple, but from the current judicial practice and literature, the theoretical understanding of these issues still has a big difference. And the referees results are not unified, therefore, need further in-depth study.In this paper, take the labor disputes case of the Xie and One Property Management Company for example, and with the "China International Airways Corporation and Lee labor contract dispute case", "Jia and Nanjing xxx company labor contract dispute case" and other cases, through literature analysis, empirical analysis, comparative analysis and other methods, study the notice right of cancellation of workers and the nature of the notice period, and demonstrate relevant issues. Through the study of these issues, not only to clarify the nature of the notice right of cancellation, deepen the understanding of the right to formation, but also helps to regulate related referee about the workers’ notice cancellation right problems, to maintain the authority and credibility of the judiciary. Besides preface and conclusion, this paper is divided into three parts.The first part: "the basic situation of the case", mainly introduces the case and the dispute focus of the labor disputes case of the Xie and One Property Management Company, thus leads to the problem. The problems in practice appear to be more and more scattered, but in essence, they are the same as the focus of the dispute, that is, the workers’ notice right of cancellation and the nature of the forecast period.The second part: the legal analysis of the case related issues, mainly demonstrates the notice right of cancellation and the nature of the forecast period. Workers’ notice of cancellation right should be characterized as the right of formation with legal time limit. Workers’ notice cancellation right meets the concept and characteristics of the formation right. The law does not provide the exclusion period, but this is not to deny it can be formation right. The refute reason that the so-called formation right Theory cannot effectively protect the interests of workers cannot be established. The formation right will not cause the problem of logic confusion and interpretation. The right of formation is not wholly without a deadline, if the deadline is certain, then it can be attached. The forecast period is not the condition of the civil law, but the legal time limit for the formation right. In the forecast period, the labor contract has not been released; the parties are still subject to the labor contract. In the notice period, the employee shall not withdraw the notice of notice cancellation, and, in addition to the employing units’ legal situation of the unilateral cancellation or the parties agree to early terminate the labor contract, the employer may not agree with the employee to resign and terminate labor contract before the expiry of the notice.The third part--the handling of the case--on the basis of theoretical analysis, put forward suggestions that how to deal with the case. The property management company agree or not does not affect Xie exercises the notice cancellation right and the occurrence of its effect, the notice that property management company agreed to terminate the labor contract is not able to terminate the labor contract in advance in the notice period, the two parties labor contract to terminate the notice expires, so Xie can apply for identification of work-related injuries.