试论我国劳动合同的保证担保

Discussion upon Security Guaranty of Labor Contract in China

在我国现实生活中,用人单位为防范求职者的诚信风险而要求其签定劳动合同保证的现象已大量存在,而劳动合同保证制度在法律上尚无明确的规定。在司法实务中,法官之间对劳动合同保证的性质及效力的认识存在巨大分歧,形成了不同的司法裁判意见,导致劳动合同保证纠纷裁判思路与适用法律混乱,已危及司法裁判权威、法律适用的统一性和严肃性。劳动合同保证其实就是一种特殊保证担保,我国的立法应当承认该类合同的效力,但应同时对其加以限制。

In practice, an employing working unit often requires a job seeker to sign a guaranty of labor contract to avoid good faith risk from him/her. But guaranty of labor contract doesn＇t exist explicitly in law. In judicial practice, different courts have different identification of the nature and effect of guaranty of labor contract, which form different judicial decision opinions, and bring about the confusion of judge thought for the dispute of guaranty of labor contract and law application. It has jeopardized the authority of judicial decisions, oneness and seriousness of law application. Guaranty of labor contract is actually a kind of special security guaranty. Our legislature should admit the validity of such a contract, but at the same time limit it.