The Right To Canel The Labor Contract In The Bankruptcy Proceedings

As a representative department code of social law,the labor law pays attention mainly to the oblique protection of the rights and interests of laborers,by balancing the differences between laborers and employers due to information asymmetry,negotiating ability,and the physical dependence of labor relations,in order to realise the equal status and the realization of the social goal of substantive equity.The legislative purpose of the bankruptcy law has gone through the development process of ”maximizing the interests of creditors” to ”take the interests of creditors,the goal of debtor's restructuring,and the stability of social economic order into account”.A labor contract is a typical continuing contract.Whether it is a fixed-term labor contract or a non-fixed-term labor contract,as long as the enterprise enters the bankruptcy proceedings,the labor contract has not expired,and both the contractual obligations of the laborer and the employer are not fulfilled.So that,in the bankruptcy proceeding,the labor contract is naturally under rule of the bankruptcy law.The in forced bankruptcy law of China and its judicial interpretation do not make any special provisions for the handling of non-expired labor contracts in the bankruptcy proceedings.The special law is superior to the general law.According to this rule,it seems that the treatment of the labor contract in the bankruptcy proceedings can only be based on the labor law and the labor contract law,which provided special regulations for this situation.However,the regulations in both labor law and labor contract law have some defect not only in the aspect of the protection of the legal interests of the labors,insuring the way of expressing the requests for the labors,but also in the aspect of maintaining the choosing-right of the bankruptcy administrator for the non-expired-contracts,or by rising the efficience of the bankruptcy process.The law guides the practice,the lack of legislation always leads to confusion in practice.In the practice of treating the labor contract in bankruptcy process,the debtor's administrators had to wait for the court's bankruptcy announcement to terminate the labor contract because of the strict regulations in the code of labor laws.For the corporations with the hope of restructuring,when the administrator refuses the fulfill of labor contract,the assets of debtor usually has to stand huge economic stress.Otherwise,the abuse of the right for laborer to terminate the labor contract without an inform before could also disturb the goal of restructuring.As for the laborer,due to information asymmetry,slack mind and many other reasons,after they made the consent to terminate the labor contract,they would find that the payment from the company for their social security expenses is insufficient,so that their interest is partly damaged.In addition,there is still the problem that the labor claims are delayed due to the long duration of the bankruptcy proceedings.It costs too much time to wait for the liquidation proceeding.This article is divided into four chapters in order to discuss the solution to the problems above:The first chapter discusses the legislative issues and the shortcomings in the practice of the cancellation right of the labor contract in the bankruptcy procedure.The relationship between the two parties from the provisions of the bankruptcy law and the labor contract law will be explained,especially in the sector of the right to discharge labor contracts.The space to optimize the current regulations about the treatment of the labor contract in aspect of rights and interests of laborers and that of employers is going to be clarified.The second chapter discusses the principle of balance of interests on the authorization,guarantee and power restriction for debtor enterprises and laborers.By analyzing the relationship between the principle of balance of interests and other basic principles of bankruptcy law and labor contract law,the value orientation in the rules of labor contract cancellation right in bankruptcy proceedings is obtained.Through the comparison with the relevant rules of German labor law and bankruptcy law and its implementation status,this chapter proposes the direction to optimize the regulations above the cancellation of labor contract in the bankruptcy process.The third chapter discusses the unilateral right to revoke the labor contract when the employer goes bankrupt– the economic layoffs.Starting from the theoretical basis of the employer's economic layoffs,combined with the legislative value orientation,the proper design of the conditions and the legal consequences for the economic layoffs in the employer's bankruptcy proceeding will be resulted.The fourth chapter also analyzes the right of workers to dispose of the labor contract when the employer goes bankrupt,and in concrete,in the aspects of exercising conditions and dissolving the consequences.