科技人才流动体制改革若干问题探究

Problems of Reforming the Mechanism of Hi-tech Intellectual Flow

我国新颁布的劳动合同法在实施方面还缺少对恶意解雇人才的处罚和限制,使用人单位可捆绑人才;其次,对人才流动不区分有无过错,硬定高处罚,也可能阻碍人才流动。建议今后规定,科技人才受到显失公平待遇或用人单位违法或违约的,人才流动限制自行终止;用人单位恶意解除合同的,可免除人才流动赔偿责任,以贯彻同时履行、对价限制以及比例性原则,从预防违约入手,综合考虑人才流动各方利益,改革、完善人才流动体制。

As the Labor Contract Law, published by the National People＇s Congress recently, lacks the limitation and punishment on evil discharge of employment, which may enable the employer to block the intelleetual＇s way of flowing. Meanwhile, that the draft doesn＇t distinguish the subjective fault and set a fixed heavy penalty may block the intellectual flow. Therefore, the authors suggest as follows： a high-teeh intellectual may resign with no limitation while he （she） faces an unfair treatment or requirement against law and contract from the employer. He or she is exempt from damages payment if discharged by the employer evilly. According to the principle of simultaneous performance, limitation of consideration, and proportionality, based on preventing the contract breach, and synthesize each party＇ s interest, the authors provide measures to perfect the intellectual flowing system.