Misunderstanding Of The Termination Of Non Fixed Term Labor Contract

Many employers and workers are No fixed term labor contract There is also a general misunderstanding of the dissolution of the labor contract. Relieve 。 Therefore, many workers regard the unfixed term labor contract as a "talisman" and do everything possible to sign an unfixed term labor contract with the employing unit. On the other hand, the employer regards the non fixed term labor contract as a "life-long burden" and tries to avoid the legal obligation to sign an unfixed term labor contract.

In this regard, the author's view is that, as those who are qualified for the "golden age" of the unit, the employing units should sign an unfixed term labor contract according to law and give reasonable protection. However, standing on the position of the employer can not increase its burden. For those eligible employees, the employer can terminate the unfixed term labor contract.

Those who believe that no fixed term labor contract can not be lifted. viewpoint yes error . According to China's current legal system, non fixed term labor contracts, as one form of different forms of contract, can be lifted in three ways, including negotiation dissolution, legal dissolution and agreement dissolution.

1, negotiation is lifted. The dissolution of negotiation refers to the rescission of the contract by consensus by the parties during the performance of the contract. The twenty-fourth provision of the labor law stipulates that "the labor contract can be terminated by consensus between the parties through the labor contract". Obviously, no fixed term labor contract can be changed not only by negotiation, but also by negotiation.

2, Statutory Dissolution. Statutory Dissolution means that the parties have the right to terminate the contract when there is a Statutory Dissolution contract in the course of performing the contract. The twenty-fifth provision of the labor law stipulates: "if a worker has one of the following circumstances, the employer may rescind the labor contract: (1) it is proved to be inconsistent with the employment conditions during the probation period; (two) a serious violation of the labor discipline or the rules and regulations of the employing unit; (three) serious dereliction of duty, malpractice, and causing significant damage to the interests of the employer; (four) being investigated for criminal responsibility according to law."

The twenty-sixth provision of the labor law stipulates: "the employer can rescind the labor contract in one of the following circumstances: but the worker himself should be informed in writing thirty days in advance: (1) if the worker is sick or is not injured by work, after the expiration of the medical treatment, he can not engage in the original work or engage in any work arranged by the employer separately. (two) the worker is not competent, and after training or adjustment of his job, he is still not competent." (three) the objective situation based on the conclusion of the labor contract has undergone significant changes, resulting in the failure of the original labor contract to be fulfilled.

The twenty-seventh provision of the labor law stipulates: "when the employing unit is on the verge of bankruptcy, during the period of statutory rectification or serious difficulties in production and operation, it is necessary to reduce personnel. It should state the situation to the trade union or all the staff thirty days in advance, and listen to the opinions of the trade union or the staff and workers. If the employing units reduce personnel according to the provisions of this article, those who employ them within six months shall give priority to those who have been laid off. {page_break}

The thirty-first provision of the labor law stipulates: "when a worker terminates a labor contract, he shall notify the employing unit in writing thirty days in advance."

The thirty-second provision of the labor law stipulates: "under any of the following circumstances, the worker may at any time notify the employing unit to terminate the labor contract: (1) during the probation period; (two) the employing unit shall force labor by means of violence, threat or illegal restriction of personal freedom; (three) the employing unit fails to pay labor remuneration or provide labor conditions in accordance with the labor contract."

The author believes that the above is the statutory rescission right of the parties to a labor contract. As long as the twenty-fifth, 26, 27, 31 and 32 articles of the labour law or force majeure cases prescribed by law are in conformity with the labor law, one party of the labor contract may exercise the right of rescission according to law and terminate the unfixed term labor contract.

However, a worker has the following circumstances: (1) if he or she is suffering from occupational disease or is injured or injured by work and has been confirmed to lose or partially lose his ability to work, (two) if he or she is sick or injured, the employer shall not terminate the labor contract in accordance with the twenty-sixth and twenty-seventh provisions of the labor law during the prescribed medical period, (three) during the pregnancy, childbirth and lactation period, (four) other circumstances stipulated by laws and administrative regulations.

3, the agreement is lifted. Agreement dissolution refers to the matter of cancelling the contract in the contract. When the agreed cause arises, the litigants have the right to terminate the contract. A non fixed term labor contract can be stipulated by the personnel concerned before the contract is rescission. When the conditions are established, one or both parties can terminate the contract.

However, it must be noted that no fixed term labor contract is required to terminate the conditions for statutory termination. In order to circumvent the termination of the labor contract, the employer should bear the obligation to pay the laborers economic compensation. This restriction, as early as 1995, has been clearly stipulated by the Ministry of Labour's opinions on Several Issues concerning the implementation of the labor law of the People's Republic of China.