论高校聘用合同中的服务期违约责任

The Liability for Breach of Contract During the Service Period in the Employment Contract of University Teachers

高校聘用合同中服务期违约的实质是教师流出与高校反流出的权利与权力博弈。约定服务期义务及违约责任的高校聘用合同具有极强的自治性,其性质应为兼具民事合同属性的特殊劳动合同。在理念上遵循“平衡协调”的高校聘用关系调整观,最大限度尊重双方当事人的意思合致。采用《事业单位人事管理条例》优先适用、《中华人民共和国劳动合同法》补充适用及《中华人民共和国民法典》合同编参照适用的多重调整维度,以公平原则为利益衡量工具,对高校聘用合同中服务期违约行为、责任承担方式及责任限度予以重新厘定,旨在实现教师生存利益与高校期待利益间的协调与平衡。

The essence of the breach of contract during the service period in the employment contract of university teachers is the right and power game between teacher supported outflow and the university against outflow.The employment contract of universities that stipulates the obligation of service period and the liability for breach of contract has strong autonomy,and its nature should be a special labor contract with the attributes of civil contract.The current article argues to follow the concept of"balanced and coordinated"adjustment of the employment relationship in university teachers,and respect the agreement of both parties to the greatest extent.It is better to adopt the multiple adjustment dimensions of the preferential application of the regulations on personnel management of public institutions,the supplementary application of the labor contract law,and the reference application of the contract series of the civil code.Policymakers should take the principle of fairness as the interest measurement tool,redefine the breach of contract during the service period,the mode of responsibility,and the limit of responsibility in the employment contract of colleges and universities,in order to realize the coordination and balance between teachers'survival interests and colleges'expected interests.