Study On Judicial Settlement Of Agreed And Statutory Advance Notice Period In Workers’ Resignation

The Labor Law and the Labor Contract Law both stipulate the notice period for a worker to submit a resignation application to terminate the labor contract,while the parties to the labor relationship may agree to extend the notice period when signing the labor contract based on the content and nature of the work.In practice,there are many disputes arising from the agreement between the employee and the employer to change the notice period of resignation,and the results of the cases are not consistent.The uncertainty of the outcome of the decision may mislead the employer and the worker in agreeing on the notice period of resignation,which may lead to the damage of the legal rights and interests of both parties.The legal effect of the agreement on the period of advance notice of resignation is determined by the court according to the specific circumstances of each case to analyze,which is in line with the basic requirements of judicial fairness and justice.However,in reality,it is difficult to analyze individual cases with different standards,and the adjudication ideas and legal standards of the courts are not the same,resulting in far different adjudication results,which affects the justice and authority of the judiciary,so it is more detrimental to protect the legitimate interests of workers and employers.Therefore,after clarifying the legal nature and value function of the right of advance notice of resignation and the notice period of resignation,analyzing the problems and causes of the conflict between the agreed notice period of resignation and putting forward reasonable suggestions to improve the problem is the way out of the conflict between the agreed notice period of resignation and the statutory notice period of resignation for workers.After emphasizing the jurisprudential basis of the resignation notice period and the justification basis of limiting the right to resign notice,this paper clarifies the nature and value function of the resignation notice period.It is proposed that the declassification period and job filling period are the basis of existence and important value of the resignation notice period,and they are also the decisive factors that both parties to the labor relationship focus on when agreeing on the length of the notice period.We discuss the key issues of the effectiveness of the agreed resignation notice period in practice,and clarify the important premise and basis that the 30-day notice period in China’s Labor Law is not a mandatory rule for the exercise of the right to resign.The notice period can be changed by agreement between the employer and the worker,but the effect of the agreement to change this restriction rule should be different based on different jurisprudential basis and practical needs.The focus of solving the problem of the validity of the agreed advance notice period should be on judicial review and judicial discretionary standards,which should distinguish between different types of contracts and determine their validity at the level of collective contracts,distinguish between the status of workers and determine the validity of the agreed advance notice period for the resignation of company executives and senior technical personnel,and distinguish between the actual working hours of workers to determine the validity of the advance notice period,and pay attention to the judicial review of substantive and procedural standards in order to truly solve the problem of conflict between the agreed and statutory advance notice periods from the perspective of judicial practice.