People's Republic of China (PRC) Labor Law is a labor human rights law, and it is also a law to promote all-round economic and social progress. However, with the development of society, the labor law is not fixed and controversial. This paper discusses the laborer's freedom of resignation-the right to unilaterally terminate the labor contract. Firstly, the legislative theoretical basis of article 3 1 on this freedom is analyzed, and then the problems and defects of article 3 1 in theory and practice are emphatically analyzed. On this basis, the author puts forward suggestions to improve Article 3 1 of the Labor Law.
Keywords: labor protection, right to unilaterally terminate labor contract, notice period, "waiver clause"
Article 3 1 of China's Labor Law stipulates the general situation of the laborer's unilateral termination of the labor contract, which is of great significance, that is, "the laborer shall notify the employer in writing 30 days in advance." The legislative spirit embodied in this article has been highly appreciated by the theoretical and practical circles. However, the function of law is not only to declare rights, but also to pursue the realization of rights. Because the content stipulated in Article 3 1 of the Labor Law is too general and vague, it is not convenient to apply. Therefore, it is necessary to conduct in-depth analysis.
The first part is the theoretical basis of Article 3 1 of the Labor Law.
First, the legislative significance of labor law
The theoretical basis of each article in the law is inseparable from the overall theoretical basis. As far as the labor law is concerned, it embodies many ideas, including protecting the human rights of workers and promoting social and economic development and progress based on society. The legislative purpose of China's labor law should adapt to China's economic development, China's national conditions and be in line with international labor protection. In the market economy, labor is a special commodity different from ordinary commodities. While using civil law and economic law to regulate the labor market, so as to keep the labor market unified with the whole market system, we must also stipulate special rules of the labor market in labor legislation in view of the particularity of labor goods, so as to protect the legitimate rights and interests of workers in the labor market and maintain the operating order of the labor market. Generally speaking, the significance of China's labor law lies in (1) perfecting the socialist market economic system and promoting the reform of labor and social security system. (2) Rational allocation of labor force, improving labor efficiency and promoting the improvement of social productivity. (3) Guarantee the basic human rights of workers. (4) Solve labor disputes and ensure social stability and unity. (5) Actively promote the construction of socialist spiritual civilization. ⑴
Second, the legislative significance of Article 3 1 of the Labor Law
After grasping the significance of the labor legal system from a macro perspective, we can further think about the provisions of Article 3 1 of the Labor Law to be discussed in this paper. In fact, this article stipulates the freedom of workers to resign, because it has theoretical significance in promoting labor efficiency, economic development, labor protection and other aspects, directly embodies the freedom of workers to choose a job, and is an expansion of the freedom of choosing a job.
1, human rights protection. This provision fully embodies the concept of modern labor legislation-protecting labor. Modern labor law was born in19th century's "factory legislation". The development history of the labor law and the struggle course of the working class can fully prove that the labor law protects the just pursuit of workers. Although Article 3 1 of China's Labor Law is only a single provision for workers to terminate labor contracts, it gives them full freedom of career choice, guarantees their independent status, and is also a favorable relief for the weak. It can be said that Article 3 1 of the Labor Law is not only the legal guarantee of labor freedom, but also the legal embodiment of their independent personality and free will. ⑶
2. Economic development. This provision is conducive to the rational allocation of labor resources and the realization of maximum value. Labor resources are human resources and the fundamental driving force for the development of productive forces. The best way to allocate the labor force is the market, and the market is the best way to flow the labor force. Labor law is an important institutional tool for establishing and maintaining the labor market. Let people give full play to their talents, distribute according to work, combine the individual needs of workers with the needs of society, and stimulate the creativity and enthusiasm of workers. Objectively speaking, a combination of resources is not necessarily optimal and needs constant adjustment; Subjectively speaking, when workers decide that the existing units and occupations are not suitable for them because of their interests, hobbies, majors, treatment and other factors, their work enthusiasm and efficiency will be greatly affected and they need to realize new choices. Workers enjoy the freedom to unilaterally terminate the labor contract, so they can actively adjust the combination of resources, which makes it possible to achieve a new and better combination.
3. constitutionalism. This provision also embodies the principle of labor in China's constitution, which is the fundamental law and stipulates China's political system and economic system, so the constitution will inevitably have a decisive impact on the labor law. Because labor relations and labor systems reflect the characteristics of social and economic systems, and the nature of labor reflects the essence of different social systems, the basic principles of labor law are also stipulated in the Constitution in a more detailed and concrete way. According to the Constitution, this article stipulates the principle that the state promotes employment, and also embodies the principle that the state protects the legitimate rights and interests of workers, and the principle that the state respects and guarantees human rights. The influence of human rights theory and human rights protection movement is one of the important reasons for the rise and development of labor legislation, and labor law is the implementation of human rights protection in a certain sense.
The second part interprets and comments on Article 3 1 of the Labor Law.
I. Controversial issues in theoretical circles
1. Is Article 3 1 of the Labor Law an authorization clause or an obligation clause?
Generally speaking, legal terms such as "can", "ability" and "right" are usually used in the expression of authorization terms; Obligation clauses usually use words such as "should", "must" and "may not". Therefore, the provisions of Article 3 1 are mandatory. However, if article 3 1 is interpreted as a whole and its purpose is explained, it will be found that this article is still an authorization clause. The reason is that "the laborer terminates the labor contract" refers to a situation in which the laborer can terminate the labor contract, and this situation does not mean that the special termination stipulated in Article 32 has specific conditions for use (that is, the procedure only needs to be notified at any time without prior notice). Judging from the whole content of the Labor Law, we can't find the specific situation of the application of Article 3 1. Based on this, the first half of Article 3 1, "Laborer's Termination of Labor Contract", is not only a factual statement, but also an authorization for Laborer to terminate the labor contract, which establishes the independent situation for Laborer to terminate the labor contract. The Interpretation of Several Articles in the Labor Law of People's Republic of China (PRC) issued by the Ministry of Labor 1994 also explains: "This article stipulates the right of workers to resign". Then there is an unavoidable question: is it the right or obligation of the laborer to terminate the contract in advance? If it is considered that the early termination of the contract is a right enjoyed by employees, it is unfair to the employer, which will lead to the phenomenon that the terms of the fixed-term labor contract can only bind the employer but not the employee, resulting in the extremely unstable relationship between employees and the employer, and employees can terminate the contract at will during the contract period, which will often make enterprises face the threat of the loss of senior account managers and technical talents. On the contrary, if it is considered that it is the employee's obligation not to terminate the contract in advance, then this obligation violates the rights stipulated in the labor law. 5. As a "mixed clause", Article 3 1 of China's Labor Law integrates the granting of rights and the imposition of obligations, which is improperly expressed and the authorization content is too vague, which is easy to cause misunderstanding.
2. Is "notifying the employer in writing 30 days in advance" a procedure or a condition?
Is it a procedure or a condition to "notify the employer in writing 30 days in advance" stipulated in Article 3 1 of the Labor Law? Until today, there is still no clear answer to this question, which needs to be clearly stipulated by law.
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