我国中小学教师交流轮岗与聘任合同的冲突与协调

The Conflict and Coordination between the Teacher Exchanges and the Teacher Employment Contracts of Our Primary and Secondary Schools

我国中小学教师交流轮岗与聘任合同的全面实施,引发了若干需要深入探讨的理论与实践问题。关于交流轮岗的强制性与聘任合同的平等性问题,本文认为行政性是聘任合同的本质属性,行政权力在合同中起主导作用;契约性是聘任合同的形式特征,在合同中属于从属要素。两者的主要特征是强制性,它们之间没有根本冲突。关于交流轮岗的资源均衡与聘任合同的资源聚集问题,本文认为教师聘任合同具有集聚和均衡校际优质资源的两种功能,在均衡资源上它与交流轮岗具有同样的作用。关于交流轮岗行为导致的合同变更解除问题,在教师人事关系转出的情况下,本文认为交流教师与流出学校之间的合同应自动解除,教师必须与流入学校签订新的聘任合同;在人事关系不变的情况下,本文认为根据现行法规,交流教师没有与流入学校和流出学校形成双重劳动关系或劳务派遣关系。

The full implementation of the teacher exchanges and the teacher employment contracts raises several theory and practice problems that need to explore deeply.With respect to the compulsion of the teacher exchanges and the equality of the teacher employment contracts,the administration is the essential attribution of the teacher employment contracts,the administrative power plays a leading role in the contract.The contract is the surface characteristics of the teacher employment contracts,belongs to the subordinate elements in the contract.The compulsion is the main characteristics of the teacher exchanges and the teacher employment contracts,there is no fundamental conflict between them.As regards the functions of the balancing of the teacher exchanges and the gathering of the teacher employment contracts,the employment contracts have two functions of the balancing and the gathering the teacher resources of the primary and secondary schools in the city and the countryside.On the balance of the resources,the employment contracts and the teacher exchanges have the same effect.In regard to the change and the dissolution of the contract caused by the teacher exchanges,under the teacher＇s personnel records from the previous school to the new school,the contract should automatically dissolved between the flowing teacher and the previous school,and the teacher shall sign a new employment contract with the new school;under the teacher＇s personnel records kept by the previous school,there are no the double labor relationship or the‘labor dispatch＇relationship among the flowing teacher and the previous school and the new school.