论我国无固定期限劳动合同制度——以用人单位单方解除制度为视角

On the System of Non-fixed Term Labor Contract——From the Perspective of Unilateral Cancellation of Working Contract by Employers

劳动合同制度是劳动法的核心,劳动合同解除制度是劳动合同制度中的主要内容之一,单方解除则为解除制度的重点。无固定期限劳动合同制度重点在于合同解除后责任承担问题,其法律效力理论体现了对用人单位单方解除权的限制。我国应借鉴国外解雇自由与解雇保护原则相协调的模式,而我国现行立法三种劳动合同适用同一种解除制度,其合理性有待商榷。解除原因认定、解除期限通知等规范的可操作性也应进一步加强。

The system of labor contract is the core issue of the Labor Law.The termination of labor contract is one of the main contents in the system of labor contract while unilateral cancelation of a labor contract becomes the key issue.Responsibilities are the key points in the system of non-fixed term labor contract after the cancellation of such contracts,whose lawful force theory shows the restriction on unilateral cancellation right of the employers.China should draw lessons from foreign countries where the freedom to dismiss and limitation of the abuse of dismissal right are well-reconciled in dismissal protection systems in its legislative improvement as the justification of the current dismissal system while,in China,just one exclusive method is applicable to the termination of all the three types of contracts,which remains questionable.Besides,improvements are required for what facts constitute dismissal,reasons for dismissal and length of notice of termination of employment contracts.