On The Judicial Application Of ’the Significant Change Of Objective Circumstances’ In The Labor Contract Law

Since the enactment of the Labor Contract Law,Article 40,paragraph 3,“the significant change of objective circumstances” still follows the provisions of article 26 of Description of certain provisions“law of the People’s Republic of China” issued by the general office of the ministry of Labour in 1994.But with the progress of the times and the development of diverse forms of employment,We have found that due to the archaic nature of the regulation,differences in local regulations,judge’s discretion and so on.As a result,the application of “the significant change of objective circumstances” in the labor contract law is extremely inconsistent.The application of Article 40,paragraph 3,urgently needs to be improved.In order to solve the above problems,this paper will analyze the theoretical basis of “the significant change of objective circumstances”,the legislative situation and the current situation of application in the judiciary,etc.so as to make clear its establishment basis and to understand and apply the article more profoundly and appropriately.Specifically,the text of the paper will be divided into four chapters.Chapter One summarizes the legislative status quo of the clause “the significant change of objective circumstances”and the legislative differences in various places.In combination with the collection of relevant cases in judicial practice,it analyzes the reasons for the differences in cases and concludes the necessity of clarifying the judicial application conditions of“the significant change of objective circumstances”.The second chapter,starting from the theoretical basis of “the significant change of objective circumstances”,determines that this article is the application of “change of circumstances principle”in the field of labor contract law,and provides a theoretical basis for the analogy reference of “the significant change of objective circumstances”.The third chapter is the key chapter of this paper,mainly according to the description of legal provisions.This chapter is divided into “objective situation”,“major changes” and procedural requirements in three parts.The first part summarizes the specific situation applicable to the“objective situation”according to the case analysis.According to the causes of“objective situation”,the application conditions of the principle of change of circumstances can be divided into external reasons and internal reasons.And put forward the judgment criterion of whether it belongs to “objective situation”respectively,and determine the frame requirement of applying this article.Based on the analysis of the similarities and differences between the“economic redundancy” and the “the significant change of objective circumstances”,it is concluded that the former and the latter should be the same in the applicable situation only because there is a difference in the number of employees.The second part,according to the standard of case trial,analyzes and determines the identification standard of“major changes” from three aspects,such as objective situation,subjective intention and strength of evidence.The third part discusses the procedural requirement of it by combining the relevant procedures of the principle of change of circumstances,and determines the importance of performing the procedures of consultation,notification of workers and the trade union.Based on the research results of the first three chapters and combined with the legislative experience of various countries,the fourth chapter puts forward the author’s personal views and Suggestions on how to interpret and apply the clause of “the significant change of objective circumstances”.