无固定期限劳动合同功能定位之反思

A Reflection on the Functions of Non-fixed-term Labor Contract

《劳动合同法》规定了强制用人单位订立无固定期限劳动合同的情形,使无固定期限劳动合同承载着保护劳动者、维护劳动关系稳定的功能。由于实践中用人单位采取各种措施规避与劳动者订立无固定期限劳动合同,致使其立法初衷不能实现。在劳动合同立法中,应当确立以无固定期限劳动合同为原则,固定期限劳动合同为例外,同时放宽无固定期限劳动合同的解除条件,辅之以完善失业保险等制度,以实现劳动关系的稳定和谐。

Labor Contract Law prescribes that the concluding of non-fixed-term labor contract with employees by employers is mandatory, which makes non-fixed-term labor contract possess functions of protecting employees and maintaining stable labor relations. However, in practice, employers tend to take various measures to avoid concluding non fixed-term labor contract with employees and that makes the legislation intent impossible to be achieved. The legislation of labor contract should be established, with fixed-term labor contract being the supplementary, on the basis of the principle of concluding non-fixed-term labor contract. Meanwhile, with the simpler process of dissolution of labor contract coupled with improving unemployment insurance system, the harmony and stability of labor relations can be achieved ultimately.