Dilemma And Outlet Of Law Application Of Service Period Clause

Service period rule provides a new idea for employers and employees to carry out cooperation,mutual benefit and win-win can be achieved under this system design.Its essence is the resource substitution between employers and employees,efficient utilization of resources can be realized through the exchange of economic resources and labor resources,such cooperation is of great significance to maintain the stable development of labor relationship.However,the legislation of service period in our country is a little rough with a lack of corresponding applicable rules,which leads to the great discount of its function.This article regards the service period provision as object of study with the previous studies,and makes a comprehensive research on the theoretical and practical level.At the theoretical level,this paper defines the service period as the minimum working years of employees continuing to perform their obligations agreed by the employers and the employees after the employers providing certain conditions.Its nature is the relative period when the laborer’s right to freely chosen employment is limited.At the same time,this paper clarifies the differences between service period agreement and labor contract in the agreed basis,the agreed purpose,the sequence of exercising rights and performing obligations,and the legal consequences of rescission of contract.At the practical level,this paper summarizes the difficulties of the service period provision in the application of law and explores the reasons through case analysis: the different identification of the nature of the service period provision leads to disputes on whether the special treatment service period can apply to the service period provision;the lack of clear definition standards in legislation leads to unclear identification criterion of professional and technical training;Understanding the " tilt protection principles " from abstract perspective makes the amount of liquidated damages paid by employee unreasonable.Finally,this paper thinks that we should modify and improve the legislation of service period provision from three aspects: strictly limiting the applicable conditions of service period provision,constructing the hierarchical review standard of professional and technical training identification,and reasonably determining the liability of employee for breach of contract,so as to solve the dilemma of service period provision in judicial practice.