劳动合同法“用人单位不得解除劳动合同”条款的不足与完善

On Deficiencies and Perfection of the Provisions in Labor Contract Law “Employers Must not Terminate Labor Contracts”

劳动合同法通过第二十一条和第四十二条之规定,限制了用人单位单方面解除劳动合同的权利。两条中都使用了“不得”这一规范词,法理上属于禁止性规范。但该禁止性规范与其他授权性规范的关系存在规定不明、逻辑不清的立法缺陷。两条规定本身也存在明显疏漏和立法瑕疵,严重影响劳动合同法权威,应尽快修法进行明确和补漏。

The Labor Contract Law has passed Articles 21 and 42, which restricts the employer’s right to unilaterally terminate the labor contract. In both cases, the normative term"must not"is used, which belongs to prohibitive norms in jurisprudence. However, the relationship between the prohibitive norm and other authorized norms has legislative defects of unclear provisions and logic.There are also obvious omissions and legislative defects in the two provisions, which seriously affect the authority of the Labor Contract Law. We should amend the law as soon as possible to clarify and remedy the omissions.