중국의 노동계약법에 대한 고찰

Study on The Labor Contract Law in China

The Labor Contract Law was legislated to supplement the limitation that the existing labor law has and solve the social imbalance and inequality caused by the enforcement of whole contract of employment and accomplish the society in harmony after reform & open policy in China. The Labor Contract Law uses the name called Contract law, but it does not belong to the civil law and has the position as the special law against the labor law that regulates even the group labor relations as well as individual labor relations in the system of labor relations law. The Labor Contract Law is the law that clarifies the rights and duties between the parties of labor relations by protecting the laborers and aims 3 objectives such as protecting the rights & interests of laborers, establishment of stable labor-management relations and regulation of new type of employment for the intent of protecting the legal rights of laborers as the method that respects the spontaneous intention of the parties and secures the equity between labor-management. The main contents of the Labor Contract Law are as follows. ① There are many regulations for stable employment relations. In order to solve job insecurity generated from short-term employment that appears as the result of enforcement of whole contract of employment, it is willing to stabilize the employment by restriction of the number of employment contract, conversion into the contract of employment whose time limit is not specified when renewing the contract of the person in 10 years of continuous service, obligation of concluding the employment contract whose time limit is not specified when renewing the contact after the employment contract that has 2 times of continuous time limit, consolidation of concluding employment contract in writing and restriction of the shortest period of work, dispatch & labor, etc. ② One of the biggest characteristic of the Labor Contract Law is the extension of applying the economic compensation. The Labor Contract Law set the payment of the economic compensation as mandatory even in case the employment is terminated at the time of expiration of employment contract, not like the labor law. It is adopted to suppress the practice of short-term employment by the employers, but it can be also regarded as a kind of new establishment of retirement allowance system. ③ The Labor Contract Law extended the protection range of the laborers comparing with the labor law. The Labor Contract Law sets the laborers as the objects of legal protection who could not receive the legal protection because they did not conclude the contract of employment even while they were under the actual labor relations. ④ Comparing with that the regulations of employment rules of labor law were only the declaration due to lack of concreteness & clarity, the Labor Contract Law regulated the reflection of opinions of laborers and legislated the employment rules by concretizing the related regulations more regarding establishment, entry items & procedure. ⑤ The Labor Contract Law forces the parties to conclude the contract of employment in writing in the Article No. 10. It prescribes that the case the contract of employment is concluded in writing yet as well though the employment relations is concluded before this law is enforced should be concluded in writing within 1 month before the enforcement date. In case it is not concluded in writing after concluding the employment relations are concluded, it also prescribes that the employers should pay 2 times of wage each month when the contract is not concluded after the employment relations are established and in case the written contract is not concluded when even 1 year passes after the employment relations are established, it shall be regarded as that the employment contract whose time limit is not specified. ⑥ The Labor Contract Law recommends to conclude the type of group contract as the basic employment condition, not individual co