劳动者辞职权的合理边界——以制度制衡为中心

Employees' right to resign and its reasonable limit: An analysis in view of institutional balance

关于劳动者辞职权的争论持续已久,在《劳动合同法》修改争议的背景下加剧。现行法之失在于以粗放的方式放纵了自由,辞职缺乏必要的条件限制与制度制约。辞职权重构的根本方向应当是为辞职权设定合理边界,为此应采制度制衡的系统化规制路径。应将辞职权与劳动合同期限制度衔接起来,对身份分层的劳动者实行个性化的辞职规则,劳动者辞职构成违约的应承担相应的违约责任,并充分发挥意思自治在增加辞职弹性方面的作用。

The issue about employees’ right to resign has been in dispute for a long time which is intensified in the background of amending Employment Contract Law. The right is justified by at least such three factors as follows. First, it is included in the fundamental employment right; Second, it is a weight to balancing the interests of employers and employees; Third. it functions as a useful tool to allocate human resources in labor market. The shortcomings of current legislation lie in that the freedom to leave is unlimited and that there exist no restrictions and conditions. To reform the right to resign, the key is to set up a reasonable limit for employees’ freedom to leave by employing a systematic regulation. The right to resign should be connected with the term of employment contract, and it should be restricted more strictly under the contract with a fixed term. Diversified rules should be available for employees of all types, among whom executives and high-tech workers should be treated differently. The employees should take the liability for breaching caused by resigning. The party’s free will should be respected to increase the employment flexibility, and the validity of agreements about warning days and some other articles should be recognized.