The Study On The Right Of Laborers To Resign By Notice

The right to resign by notice is the basic right for laborers to voluntarily terminate the labor contract relationship without causes when they meet the notice period.This paper systematically studies the meaning of the right to resign by notice from the perspectives of theoretical origin and legislative evolution,and makes its legal concept clear.The change of the nature of labor relations and the emergence of contract relations have laid the foundation for the emergence and legalization of laborers’ right to resign,and developed the notice system of laborers’ right to resign.With the political reform,economic system reform and the awakening of people’s ideology,the system of laborers’ resignation by notice in China has experienced a long transition from scratch.The unilateral termination of labor contract system updates,making the balance of interests of both sides of the labor and capital broken.There are many controversies about the legitimacy and loopholes of the system.As the legal right,the right to resign by notice has clear right characteristics,and its procedural design of "a 30 days’ notice in advance" does not affect the nature of its right of formation.In order to solve the problem that different legal interpretations issued by relevant departments can easily lead to different handling of similar cases in judicial practice,this paper clarifies the connotation of the procedural element of "a 30 days’ notice in advance".This procedural element is the necessary procedure for the effect of the right,but it is not the limitation of the effect of the right of notice resignation.The right to resign by notice should not be defined as a civil juristic act with time limit or condition.After analysis,there are many differences in the nature of rights,the exercise of rights and the consequences of rights with similar rights in labor contract relations.It is one of the innovation points of this paper to analyze the composition of laborers’ right to resign by notice based on the features of elements.This paper clears the basic elements,content elements and standard elements of the establishment of the right to resign by notice,and has a deeper comprehension of the right connotation of the right to resign by notice.Combined with the judgment standard of laborers’ subject range in various countries and the conceptual extension of civil rights capacity and civil conduct capacity in relevant civil laws and regulations of our country,the scope and qualification of the right subject of the right to resign by notice are defined.The discussion on the content and elements of the right to resign before notice involves many practical points of dispute in judicial practice.Combined with domestic and foreign cases,this paper studies the disputes such as the time point of termination of labor contract relationship,the issuing and revocation of notice of resignation notice,notice of resignation without contract relationship,and the meaning reply of employer,and makes clear the content of the right to resign by notice.After the promulgation of "the labor law",the value judgment of laborers’ right to resign by notice has aroused controversy.There are doubts from the perspective of the principle of civil law contract and the term of labor contract.Whether it is based on the basic legal principles and legal ideas of respecting human rights,labor freedom,fairness and justice,order and stability,or resorting to the legislative value orientation expressed in international conventions and constitutions of various countries,we should recognize the legitimacy of the right to resign by notice as one of the basic rights of laborers.Legal principles and ideas are enough to provide value support for the establishment of the right of laborers’ to resign in advance.But in the sense of social value,we need to consider other factors to improve the system of laborers’ resignation by notice,in order to deal with the complex changes of labor contract relationship,and eliminate the gap between legislation and judicial practice.Combined with the operation of the notice resignation system in judicial practice,this paper innovatively considers how to perfect the notice resignation system from the theoretical contradiction between the notice resignation and the principle of contract compliance,the research on the classification and weakness of workers,the difference of workers’moral level,the conflict and choice between benefits and so on.China’s labor legal system endows laborers with a high degree of freedom of resignation,and the provisions are general and broad.The change of social form and economic development have brought about the differences in the interactive basis of labor relations and the working class.The theory of labor stratification brings challenges to the uniform system of notice resignation.Especially for the laborers whose positions are related to national security and public interests,whether they should adjust their freedom of resignation or not,the concentration of relevant domestic judicial precedents on the specific group of pilots in the civil aviation industry also reflects the contradiction in practice.The value pursuit and moral level of laborers affect the frequency of exercising the right of notice resignation and the legal degree of execution of the system in practice.At the same time,how to maximize the justice value of legal rights and maximize the social benefits are its internal requirements.the system of laborers’ resignation by notice is related to the game of economic interests between different market subjects,and sometimes to the balance between personal interests and public interests.The legislative and judicial problems caused by the related variables of the right to resign by notice require a more effective construction of the system of laborers’resignation by notice in China.This paper puts forward a more rational and complete system path to define the power boundary of laborers’ right to resign by notice.This paper makes a comparative study of the scope of application of laborers’ right to resign by notice with other countries.Based on the differences of social environment and legislative basis,restricting the right to notice resignation under fixed term contracts does not have the portability of the legislative model.In the legislation,we can provide the laborer in special position and determine the classification of laborer and the judgment standard of notice period according to the different length of working years,and endow the labor and capital with certain freedom of contract.This paper classifies the validity of the waiver clauses in different term types of labor contracts.The author advocates the feasibility of the service period system under the theory of limiting liquidated damages.The service period system is effective protection for the legitimate rights and interests of the employer and a legal correction for the defects of the current"the labor contract law".When affirming the value significance of the right of notice resignation,we should reasonably refine the procedure and liability for breach of contract of the right of notice resignation.