An Empirical Analysis of the Impact of the Contract Book of the Civil Code on Labor Dispute Trial Practices:A Study of Four Hundred Judgments

Interpretation(I)of the Supreme People’s Court of Issues Concerning the Application of Law in the Trial of Labor Dispute Cases allows for the application of pertinent laws and regulations,including the Civil Code of the People’s Republic of China(hereinafter referred to as the“Civil Code”),in labor dispute cases.This has resolved the controversy over the relationship between civil law and labor law in academic and practical communities.In view of this development,we examined four hundred judicial documents,analyzing the focal points of disputes,the reasoning behind judgments,applicable laws,and judgment results.Our study identified seven impacts of the Contract Book of the Civil Code on labor dispute trial practices,exploring the underlying logic behind these changes and proposing policy suggestions to promote consistent judgments across jurisdictions,enhance judicial credibility,and encourage employers to govern enterprises in compliance with the law while empowering employees to safeguard their rights in accordance with relevant laws and regulations.

Improve Labor Contract System, Safeguard Lawful Rights and Interests of Laborers——An interview with Prof. Guan Huai of Law School of Renmin University of China

EDITOR＇S NOTE： The Draft Labor Contract Law of the People＇s Republic of China has been completed and was published for soliciting comments on March 20. In a short period of one month, 191,849 pieces of comments and opinions were received. Prior to the promulgation of the law, this reporter interviewed Mr. Guan Huai, a noted Chinese expert in labor law, professor of the Law School of the Renmin University of China and law advisor to the All-China Federation of Trade Unions.

Untying the Two “Deadlocks”of Labor Contract Law Is Necessary for the Recovery of Chinese Economy

Labor Contract Law receives mixed evaluations since its implementation.The call for the amendment is hot and even some scholars regard it as the"tiger in the road"which hinders the economic development. The Central Committee of the Communist Party of China pays high attention to the construction of harmonious labor relation and the amendment has been a top priority. Labor Contract Law leads to two"deadlocks"of which the entrepreneurs are afraid. The first one is that the non-fixed term labor contract cannot be cancelled and the second one is that they must pay the economic compensation at the expiration of contract. These two rules hinder the employment enthusiasm of entrepreneurs. The current laws have excessive expectation for the non-fixed term labor contract and too strict regulations; as for the economic compensation at the expiration of contract, it increases the enterprise cost. The amendment of these two articles will benefit the recovery of Chinese economy and make the labor relation more harmonious.

Effectiveness of China's Labor Contract Law——Evidence from China Employer-Employee Survey

Using micro-level data from China Employer-Employee Survey(CEES), this paper conducts an empirical analysis of firms' heterogeneous characteristics in the implementation of the Labor Contract Law and its effects on employees. Our findings are as follows: With China's economic development, firms more proactively implement the Labor Contract Law, resulting in a higher percentage of employees with labor contracts. Labor contracts significantly increase the probability of employees in receiving social insurances, such as pension, health, unemployment, work injury and birth insurances, and have a significantly positive effect on wage income. Longer term of labor contract corresponds to stronger employment protection, and such an effect is highly robust. Larger firms with higher capital-labor ratios have better results in implementing the Labor Contract Law. And employees of private and labor-intensive firms have poorer coverage of employment and social protection; such firms should be given focal attention in the law's implementation.

Contract Labor and the Right to Freedom of Association in the Oil and Gas Industry in Nigeria

Contract labor is one of several terms, which are widely used to describe work arrangements, which do not fall within the traditional definition of employment. Contracting out services and getting employees through contractors have become widespread practice by many employers because it helps them to cut cost since these contractors could often supply these workers more cheaply and efficiently. Labor rights and standards are sometimes seen as sacrificial lambs on the altar of competitive edge by companies due to the perception that they constitute ＂costs＂ which if eliminated or reduced to the barest minimum, will impact positively on the ability of companies to compete favorably in the global market and consequent improvement of their balance sheets, to the joy of shareholders. Contract work is increasingly becoming the norm in Nigeria＇s oil and gas industry as companies undergo restructuring, concentration on core activities and modifications in work organization and technology. These factors certainly affect traditional employment relations and the exercise of freedom of association and collective bargaining rights inherent in them. Contract workers now make up about 60% of the workforce in the industry and they are denied the right to organize into Unions. The denial of this right has resulted in exploitation of these workers. This paper seeks to examine the adequacy of labor law governing trade unionism in Nigeria in ensuring the right of contract workers to freedom of association, as well as its conformity to international labor standards. It is argued that Nigerian labor laws need to be enforced to ensure that this category of workers benefits from this right. In addition a proposal is made for a law reform which will define contract labor and provide a legal framework for the regulation and protection of contract workers in Nigeria in order to guarantee their right to unionize and enable them to improve their rights at work.

Implementation Regulations for China's Labor Contract Law

1.Introduction On January 1,2008,the Labor Contract Law of the People's Republic of China(LCL)became effective,resulting in wide- spread changes in labor policy for all companies and other af- fected organizations.As is the case with legislating in China, many details were left for resolution in implementing regulations,

On Autonomy of Will and the Applicable Law of Labor Contract:From the Perspective of Chinese Legislation

There are so many different opinions on whether the autonomy of will is applied in labor contract.In this paper,the author discusses the application and limitation of autonomy of will in labor contract,and puts forward some suggestions on the application of Article 43 of Law of the Application of Law for Foreign-related Civil Relationships after the introduction of Chinese legislation of the applicable law of labor contract.Autonomy of will is a useful principle in resolving disputes arising from foreign-related labor contract in China.

Administration of Contract,Labor Trade Improved

The Ministry of Foreign Trade andEconomic Cooperation will accelerate theapproval of contract and trade rights forqualified producers,construction companiesand design

Psychological Contract within Labor Relation and Its Management Strategy

The paper argues that labor contracts between employees and organization includes two facets, i.e. economic contracts and psychological contracts, and along with enterprise competition becoming fierce increasingly and labor force becoming diversified all the more, the psychological contracts have crucial effects on employees＇ attitudes, behaviors and performances. We also argue that, under the challenging organization context, if managers want to make strategic partnership with employees, they must link employees with hearts, pay attention to the management of psychological contracts before, during and after signing labor contracts, and keep dynamic equilibrium of psychological contracts.

Link China issues regulation to clear labor contract law misunderstanding

China's State Council,the country's Cabinet,issued an implementation regulation for Labor Contract Law on September 18 in an effort to clarify confusion surrounding the law.

Labor Contract Law,Warm or Cold for Migrant Worker?

The new labor contract law has exerted an unprecedented impact on manufacturing industry that has been progressing at much cheaper labor cost over years. The fact is the workers are not born cheap, they are made less costly without necessary welfares by some factory owners who often go to extreme to run sort of "sweatshop", as often reported by local and western media. The new labor rules could not possibly liberate all those sufferers.

Automatic &Safe Oxytocin Induction of Labor

Aims: To prevent fetal damage by excess oxytocin administration of manually controlled infusion, by automatic and safe increasing infusion setting with monitoring uterine contraction and fetal heart rate. Methods: Starting infusion level was 2 milliU/ml, as oxytocin sensitivity of a pregnant uterus is unknown, to avoid hyper contraction and fetal bradycardia caused by unexpected excess oxytocin sensitivity. The infusion automatically increased with automatic monitoring of uterine contraction curve, then the increasing stopped when contraction reached to normal labor level, where the infusion level maintained, which continued until delivery, if there is no trouble. However, the infusion continued until expiring all fluid in case of insensitive uterus, where the induction was performed in another day. The infusion stopped automatically when contraction was too strong, or fetal heart rate is abnormal. Thus, oxytocin sensitive case is protected from excess contraction and fetal asphyxia. Results: Normal vaginal delivery was achieved in 28/33 cases (85%), which was more than manually controlled infusion. No case was abnormal in successful oxytocin infusion. Conclusion: The automated technique will be applied to oxytocin labor induction.

New labor law makes firms cautious to hire,fire

The Law of the People's Republic of China on Employment Contracts has stoked wide concern across China.One of the focuses of debate is on termination costs.Utilizing an enterprise attitude survey,this article discusses the impact of the law on termination costs and employment behavior of China's enterprises.The research shows that the law has different impacts on enterprises of varied ownerships and scales.The law,while giving rise to higher termination costs for enterprises,urges them to take diversified measures to adjust their human resources.

Determination of Relationships and Al ocation of Responsibilities——Taking the Adjudication of Household Service Contract Disputes as an Example

The combination of the realistic demand of urban families to raise children and provide for the aged and the employment demand of rural migrant workers will inevitably lead to the continuous growth of the market demand for household care services.The determination of the tripartite legal relationship between household workers,household service agencies,and families(individuals)is an important issue for the normative development of the household service industry.In specific judicial practice,local courts perform differently in the determination of the relationship between“household workers and household service agencies.”The application of law in relevant cases also often swings between the civil law and the labor law.The Civil Code of the People’s Republic of China(hereinafter“the Civil Code”)does not retain the concept of“employment relationship”used in the original Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases.Then,what is the relationship between household workers,household service agencies,and families(individuals)after the Civil Code came into force?This article shows the judicial dilemma currently faced by the household workers in the protection of labor rights and interests through an empirical analysis of the victim liability disputes of household workers and puts forward countermeasures and suggestions for improving the occupational injury protection mechanism of household workers in China through a comparative study of the occupational injury risk sharing mechanism of household workers and an analysis of the local exploration of the occupational injury protection system of flexible employees in China.

劳动关系微分化视角下网约工劳动权益的法律保障

在算法技术与平台经济相得益彰共同推进数字经济向纵深方向发展的过程中,劳动关系日益呈现出微分化的演化趋势,使得以网约工为代表的新业态从业人员陷入了“身份不明确”的主体性危机与“权益保障难”的双重困境,不仅对传统的劳动从属基础性理论提出了新的挑战,而且也日益凸显现行法律制度供给不足的现状。基于网约工群体经济从属性、人格从属性与组织从属性微分化趋势之系统理论分析,科学审视与证成微分化视阈下具有劳动从属性的网约工“第三类劳动者”之身份,并将“内在经济与人格从属程度的差距均以外在劳动量的差别为表现形式”这一从属性微分化之核心作为识别与判定标准,对具有不同强度从属性的“第三类劳动者”给予不同程度的劳动法倾斜保护,希冀能平衡平台经济有序发展与网约工劳动权益合法保障之间的关系,为健全和完善我国劳动法律制度体系提供符合数字经济内在运行规律的科学立法选择。

全面禁止抑或严格限制:我国竞业限制制度的模式选择与规范进路

竞业限制涉及用人单位的商业秘密权与劳动者的就业权,并对公共利益产生影响,相关制度设计及其司法适用应当平衡好各方权益。立法的不完善和司法审查的宽松标准助长了用人单位滥用竞业限制。在大力发展新质生产力的背景下,虽然我国不能移植美国最新的“全面禁止”规则,但可以借鉴美国审理竞业限制可执行性的司法经验,在竞业限制领域建立起较为严格的二重审查基准,并配套以预防“事实竞业限制”的相关措施。

服务期协议法律效力的判定与扩张

服务期协议法律效力的判定具有重要的法律意义,其为一种高度关涉当事人利益得失的法律操作。在判定服务期协议法律效力时,应确立和遵循一套合理并可操作的判定标准并秉持效力认定的基本态度。服务期协议效力具否之判定应分别考察主体、内容、形式和意思表示四大要素。如果可以同时满足主体适格性、内容合法性、形式完备性和意思表示真实性,则一般可判定服务期协议具备法律效力。对于形式欠缺完备性和意思表示欠缺真实性的服务期协议,在个案研判中不应机械和刚性地一味确认服务期协议无效,宜更加灵活和变通地处理这两种瑕疵情况下的效力问题,以充分体现和践行契约效力规则所应秉持的“尽量有效”的基本立法态度。服务期协议的时间效力和对人效力更具复杂性,需要在兼顾劳资双方利益的基础上适度突破契约相对性,肯认服务期效力在对人和时间层面上的适度扩张并加以必要的限制。

论二倍工资制度的限缩适用

《劳动合同法》创设了用人单位未按规定订立书面劳动合同即承担二倍工资的赔偿制度。由于构成要件、归责原则、认定标准等适用规则不明确,导致该制度在适用中存在争议,也导致实践中出现用人单位规避制度适用和劳动者滥诉等现象。为此,司法机关通过对归责原则、保护模式、书面形式的重新阐释限缩二倍工资制度适用范围。未来的制度完善应当回应劳动者分层的现实,限制强势劳动者的请求权,具体路径包括:区分管制与自治的调控对象,形成集体劳动关系和个别劳动关系的体系化调整;将主观过错和损害后果纳入责任要件,增设免责事由,引入小微企业豁免制度;确立赔偿金最高为工资二倍的弹性倍数模式,并实行限高封顶制度;建立劳动者维权异常名录。

关联企业混同用工的法律规制研究

在劳动法中引入关联企业概念,目的是赋予裁判机构审查认定关联企业混同用工行为是否存在规避劳动法、损害劳动者权益的情形;适用法人格否认规则,目的是在个案裁判中将关联企业视为联合雇主,要求其共同向劳动者承担用人单位法律义务。劳动者与用人单位签订劳动合同后被安排至关联企业工作的,劳动关系的归属以合同为判断标准;关联企业采取轮流订立劳动合同的方式交替用工的,应当认定劳动者与后签订劳动合同的用人单位存在劳动关系;未签订劳动合同的,则应以实际用工为考察依据判定劳动关系的归属。