Research On The Application Of Force Majeure In The Performance Of Labor Contract

The outbreak of COVID-19 has fully exposed the deficiencies of the labor contract system,and how to apply force majeure rules to labor disputes has become an urgent problem to be solved.Since force majeure is not explicitly stipulated in the Labor Contract Law,it is necessary to clarify whether force majeure can be applied to the labor contract.Due to the private law nature of labor contract and the sharing of rights and interests of parties without fault,it is legitimate to introduce force majeure into labor contract,but the effect of exemption and dismissal should be limited,and the "agreement" between labor and capital should be properly restrained.The obstacles to the fulfillment of labor contracts caused by the epidemic are derived from the problems of wage payment and the survival of labor contracts,which are based on the theory of risk burden.China’s policies include work stop-downs and absenteeism caused by the government’s epidemic prevention actions as business risks,and impose the risks on employers.This is obviously unreasonable and cannot effectively protect the rights and interests of workers,and even expands the social risks of the epidemic.We should follow the law of the market and consider the nature of social protection,and type the risk distribution into the treatment that the workers cannot pay and the enterprises are delayed in receiving,and the risk distribution in the case of government intervention is not liable to both labor and capital,but the government should remain neutral and modest.Wage payment mode is carried out in combination with current policies under the theory of risk burden.The termination of labor contract will liberate the employer from the pressure of wage payment,but the legal restrictions on the termination right of enterprises may make it into a worse situation.The labor contract suspension system can suspend the contract obligations of both parties,which is conducive to alleviating the contradiction between labor and capital,connecting it with unemployment insurance,giving full play to the function of social insurance,constructing the corresponding wage compensation mechanism of workers,and reasonably sharing the force majeure risk among the three parties of labor,management and government.Starting from the objective fact that the legislation of force majeure labor relations is seriously absent in China’s response to the epidemic,this article is divided into five parts for the purpose of analyzing and solving the problems.The first part,the content is firstly divided into two parts,legislative and judicial,the former of the labor contract law was introduced in detail about the regulation of force majeure,the latter from the Wolters Kluwer database to "COVID-19" "force majeure" "terminate the labor relationship" as keywords retrieval out three cases a brief comparative analysis to the basic details of a case and court opinions.Then,according to the legislative and judicial status quo,four issues to be studied in the latter part of this paper are proposed,namely,whether force majeure can be applied in labor contracts,how to share the risk of force majeure during the epidemic,how to pay wages under force majeure,and how to keep labor contracts under force majeure.In the second part,it is necessary to discuss whether force majeure can be applied to labor contracts and clarify the necessity and boundaries of force majeure rules in the performance of labor contracts in the context of COVID-19.Based on the private law attribute of labor contract and force majeure foothold is the no-fault party’s rights,to the introduction of the force majeure labor contract has its legitimacy,but shall be in effect and firing effectiveness to a certain limit,and on both sides of Labour and capital "desirable" constraints of appropriately,to maintain the balance of interests of both sides of Labour and capital.The third part explains the impact of epidemic force majeure on labor relations,which is inseparable from the discussion of its essential risk burden rules.Firstly,starting from theoretical research,the risk allocation rules of some representative countries and China are sorted out,which is actually the historical evolution of the theory,and theoretical evaluation is carried out.Then,based on the specific application of the risk burden theory in the epidemic period,a categorization analysis is made: the performance failure caused by the employer belongs to the business risk borne by the enterprise;If labor payment cannot be paid due to the laborer,he/she shall bear the risk but the personal affair leave rule may apply;If the performance cannot be performed due to the government’s epidemic prevention actions,it can be further subdivided--the medical period system applies to the infected persons,and the enterprise cannot in principle terminate the contract and pay sick leave wages or disease relief fees in accordance with relevant regulations;In case of absence from work due to close contact or quarantine,annual leave may be negotiated.If no agreement can be reached,personal leave shall be applied.If a worker is quarantined for failing to comply with the rules and regulations of the enterprise or the requirements of the government for epidemic prevention,or evades work on the grounds of independent isolation,the employing unit shall,of course,have no obligation to pay wages.In the fourth part,on the basis of the risk burden rules mentioned above,this chapter is analyzed and discussed by adopting the model of problem raising and problem solving.The former part proposes how to understand "work remuneration" and how to pay the wages of downtime,while the latter part separately proposes solutions to the above-mentioned problems.Answer the first question in terms of "wages to be paid in exceptional circumstances".The second problem is discussed in different cases to distinguish whether the obstacles to contract performance are caused by the employer or the worker,and to sort out the different payment methods of the wages for downtime in the local documents,that is,a salary payment cycle is taken as the limit to make a difference.Based on the above problems,the author also proposes the institutional suggestions for establishing the wage compensation mechanism for workers under epidemic prevention and control.The fifth part,the survival of labor relations under the influence of epidemic force majeure shows whether the labor contract is cancelled or suspended.The first part of the labor contract termination and termination of the legal provisions and related consequences,and the advantages and disadvantages of the two are analyzed and compared.Based on the foregoing discussion,the following part puts forward suggestions on whether to apply termination or suspension.Labor contract removes of unit of choose and employ persons can be liberated from the pressure of the wage payment,but the enterprise wants to lift should be negotiated by the front of the program and have 30 days notice period,this may user units into a more embarrassing situation,and labor contract suspending system can give a contractual obligations on both sides,to relieve the contradictions of labor to maintain the stability of labor relations,It is suggested that it should be connected with unemployment insurance mechanism.