The labor contract system is the basis of the labor employment system under the socialist market economy system and the basis of protecting the legitimate rights and interests of workers and employers. However, China's "Labor Law" is still far from perfect, and there are some deficiencies in the provisions of the administrative department on the labor contract system. Based on the judicial practice of China's labor law, this paper tries to analyze two problems existing in China's labor contract system in order to attract more attention.
First, the defects of the labor contract system on the establishment of labor relations.
Article 16 of China's Labor Law stipulates: "A contract shall be concluded to establish labor relations." Make it clear that the labor contract is a necessary contract, otherwise it will not be protected by law. The strict stipulation of the form of labor contract in the labor law reflects the trend of legal adjustment and standardization of labor relations, which is obviously progressive. On the premise of the existence of a large number of factual labor relations, the relevant interpretation of the Ministry of Labor stipulates: "If the factual labor relations do not conform to the provisions of the labor law, enterprises and employees should go through the formalities of dissolving or renewing the labor contract as soon as possible." The reply of the Ministry of Labor to the labor contract in Zhejiang Province pointed out that the factual labor relationship should be recognized, and the explanation of the previous question also implied the recognition of the factual labor relationship, which was contrary to Article 16 of the Labor Law. Compared with the labor law, the departmental regulations of the Ministry of Labor are obviously subordinate regulations, in other words. When the departmental rules and other normative documents of the Ministry of Labor conflict with the Labor Law, the Labor Law shall apply. Although the labor law is the integration of substantive law and procedural law, we can say that the labor law mainly includes substantive norms, and the specific application depends on the procedural provisions in administrative norms. However, when concluding a labor contract, it is difficult to ensure the implementation of Article 16 due to the conflict between relevant administrative norms and the Labor Law. In addition, without procedural safeguards, substantive provisions are often empty words. Employers have no obligation to conclude contracts with workers, and perfect legislative expectations become zero in the face of rigid reality. The employer deliberately delays or even refuses to conclude a labor contract with the employee. Once a labor dispute occurs, the rights and interests of workers are often not guaranteed.
Looking at the provisions of the Labor Law, it is difficult for us to find out how to investigate the legal responsibility of the employer when it fails to perform the obligation of voluntary conclusion. Although the "Labor Law" gives laborers a way to relieve their rights, it is difficult for laborers to prove without a labor contract. Labor contract should be the carrier and record of rights and obligations between the subjects of labor legal relationship, and also the evidence of labor legal relationship itself. The labor contract system occupies an important position in the labor law, but the lack of the corresponding "liability clause" means that Article 16 has essentially become an arbitrary norm, which violates the original intention of legislators and the legal spirit of the labor law. Legally speaking, it is incomplete to stipulate only the first obligation and not the second obligation, that is, the corresponding legal liability.
Here, we have not ignored Article 98 of the Labor Law and the relevant provisions of the labor administrative department. According to Article 98 of the Labor Law: "If an employer deliberately delays the conclusion of a labor contract, the labor administrative department shall order it to make corrections; If it causes damage to workers, it shall be liable for compensation. " Moreover, Article 2 of the Measures for Compensation for Violation of Labor Contracts issued by the Ministry of Labor (1995) stipulates: "If the employer deliberately delays the conclusion of the contract, that is, after the recruitment, the employer deliberately fails to conclude the contract according to the regulations, and the labor contract expires, the employer shall bear the liability for compensation." There are four problems worth considering in understanding these two provisions: first, the labor law does not stipulate the employer. Article 79 ignores this fact, from which we can draw the conclusion that the labor law is flawed in this respect. Secondly, the subjects of labor legal relations are unequal in reality. As a vulnerable group, workers can't take the initiative at the beginning of establishing labor relations, and it is difficult to prove the employer's intentional delay and its own damage scope in arbitration and litigation. Arbitration institutions and courts also lack standards when measuring "delay". Thirdly, as a vulnerable group, under the premise that the employment situation is not optimistic and the labor market exceeds demand, workers often succumb to the "delay" of the unit and some unreasonable or even illegal requirements in order to get a job. Labor law is essentially a private law, but from its development process, almost all countries' labor laws show the trend of public law. There is real inequality between the subjects of labor legal relations. Under this premise, it is in line with the inherent nature of the legal value of equality and fairness to stipulate more obligations for employers. Labor law needs the reasonable intervention of public power. The labor law only stipulates that when the employer fails to perform the obligation to conclude a contract, the labor administrative department shall order it to make corrections, which is obviously not enough. Finally, there is no mandatory provision for the employer that "the person who caused the damage shall be liable for compensation", and the labor contract is still in a "delayed state". How can workers prove the scope of their damage? Even if the compensation is paid, the job will be lost, which is undoubtedly a greater loss for the workers. The complexity of the labor dispute settlement mechanism-not to mention unreasonable regulations-makes it a long way for workers to safeguard their rights.