高校教师服务期违约责任的法律规制

Legal Regulation of College Teachers'Liability for Breach of Contract During Their Service Term

高校教师服务期违约责任缺乏人事立法明确规定,导致司法裁判标准不一,加剧了教师与高校的利益博弈。根据《劳动合同法》第96条从而严格依照该法第22条审理此类纠纷,将导致高校教师服务期违约责任的虚置。实际上,该法第96条之“依照”实为“参照适用”,属于目的性评价,由此,高校教师服务期违约责任因与该法第22条之规定目的一致故而获具了正当性。依据目的解释,高层次人才引进资助、公费支持教师攻读更高学位或脱产进修、安排落户或子女入学应属合理的服务期协议事由,高级专业技术职务晋升则不宜作为协议事由。应依据损害填补原则确定违约金总额,并根据总额明确服务期期限;确立按比例返还的违约金支付方式;明确违约金与损害赔偿金择一适用。

The lack of legislative provisions on the liability for breach of contract during the service period of university teachers and the lack of unified judicial judgment standards have intensified the conflict between teachers and universities.Strictly following Article 22 of Labor Contract Law will result in this system becoming virtually non-existent.The meaning of Article 96 of Labor Contract Law is reference applicable clause,and since the liability for breach of contract during the service period has the same purpose as the provisions of Article 22 of Labor Contract Law,it has legitimacy.Funding for the introduction of high-level talents,public support for teachers to pursue higher degrees or pursue further education outside of work,arrangements for settling down or children's enrollment are reasonable reasons for agreement.We should reasonably determine the total amount of liquidated damages,service period,payment method of liquidated damages,and it should be clarified that liquidated damagesshould be applied to the alternative of the damages.