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Employment Agreement From The Perspective Of Labor Contract Law

2008/12/18 16:20:00 41903

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Employment agreement from the perspective of labor contract law

摘要：《勞動合同法》實施后，大學畢業生就業面臨新的法律問題。畢業生就業協議的法律性質是否僅為畢業生和用人單位雙向選擇的意向性協議書？畢業生就業到正式與用人單位建立勞動關系的這段時間，是否應按照《勞動合同法》的內容加以規制？本文通過分析畢業生就業協議和勞動合同的本質，以《勞動合同法》為視角，并結合當前大學畢業生就業新情況，力圖對這些問題進行思考，以作拋磚引玉之用。

After the implementation of the labor contract law, not only the employers attach great importance to it, but also the colleges and universities that export laborers attach great importance to it. They have held lectures or set up courses to train graduates on how to face the labor contract law.

If we analyze the evolution of the employment policy of our university graduates and the essential characteristics of the labor contract, it is not difficult for us to find out that people have always thought that the time when graduates from universities (graduates) are from finding a job to formally graduating to the employers to register formal labor relations do not apply the labor law and the labor contract law. It is because our policy ideas and legislative guiding ideology have problems and can not keep pace with the times.

I believe that due to the seriousness of law and policy, we can not equate the "employment agreement" to the "labor contract" in form, but we should let the labor contract law be involved in the employment of graduates in a legal spirit or in essence, so as to better protect the rights of graduates.

一、“就業協議”與“勞動合同”概念辨析

《全國普通高等學校畢業生就業協議書》（以下簡稱“就業協議”）是明確畢業生、用人單位和學校在畢業生就業工作中權利和義務的書面表現形式,俗稱為“三方協議”。[1]筆者認為，就業協議是出于政策的考量而非立法的本意，是面對我國高校畢業生就業由計劃到市場過渡時期政策調整的，介于國家分配（派遣）和市場尋找（勞動合同）之間的特殊產物。而“勞動合同”反映的勞動關系則是源于法律的規定，具有深厚的歷史淵源。簡言之，勞動關系是勞動力所有者與勞動力使用者之間，為實現勞動過程而發生的一方有償提供勞動力，另一方用于同其生產資料相結合的社會關系。[2]兩者主要存在以下不同：

（一）法律性質不同

Employment agreement is a civil juristic act of graduates and employers on the basis of equality and mutual benefit. It is essentially a civil contract.

Some people think that the employment agreement is related to the main body of a university, while the University and the graduates belong to the administrative category. The employment agreement should be an administrative contract in essence.

The content of administrative contract is to perform public duties for the sake of public interest. Administrative contracts are signed for fulfilling the rights and obligations of public law. If the contents of the contract involve only the rights and obligations in private law, they should be regarded as civil contracts.

The signing of the employment agreement means that graduates have the right to work in the employing units, whereas employers have the right to manage graduates, which only involves the issue of private rights, that is, the employment agreement should belong to the civil contract; the labor contract is adjusted by labor relations, labor relations are different from equal civil relations, labor relations have natural personal attachment, laborers and employers are essentially inequalities, workers are always in a weak position, so workers will get the mandatory provisions of law and greater protection from labor and social security departments.

（二）依據不同

The legal basis of the employment agreement is the reform plan of the distribution system for college graduates promulgated by the Ministry of education in 1989, and the Interim Provisions on the employment of ordinary college graduates formulated by the State Education Commission in 1997.

Therefore, the employment agreement is only formulated according to the lower level departmental rules, and its policy, pitivity and temporary nature are obvious; the labor contract is based on the labor law of the People's Republic of China, the labor contract law of the People's Republic of China, and other laws and regulations.

（三）簽訂的主體不同

The employment agreement, also known as the three party agreement, is signed jointly by the University and the employing unit of the graduates, the graduates, and the labor contract is only signed by the parties to the laborer and the employer.

(four) the content is different.

The employment agreement is only an equal civil contract, and is affected by the state employment management policy. Its content is relatively simple and general. It mainly refers to the fact that the graduates have introduced their own situation, and has expressed their willingness to go to the employing units for employment and employers to accept graduates. The school has agreed to recommend graduates and be included in the employment plan for dispatching. The labor contract is influenced by the mandatory laws and regulations of the state labor security, and its contents are more abundant. There are not only essential clauses but also promotive clauses, and the labor rights and obligations are more specific and specific.

（五）糾紛的解決方式不同

Because the employment agreement is a civil contract, it is only an intentional agreement between the graduates and the employers. When there is a dispute, there are few ways to solve the dispute. Generally, the two sides can not go to court to settle the dispute if they fail to negotiate. However, the dispute in the labor contract reflects the contradiction between the employers and the employees. In order to better protect the rights and interests of workers, the law stipulates that there are many ways to settle disputes, such as negotiation, mediation, arbitration, litigation and so on.

二、就業協議的不足——與勞動合同的比較考察

The employment agreement is quite different from the labor contract in terms of guiding ideology and content. Compared with the labor contract law, the deficiencies of the employment agreement are obvious.

（一）就業協議的主體錯位。

According to the twenty-fourth provision of the Interim Provisions on the employment of ordinary college graduates, after the supply and demand meet and two-way selection, graduates, employers and institutions of higher learning should sign the employment agreement for graduates as the basis for formulating employment plans and dispatching.

Without the consent of the school, the agreement signed by the graduates is invalid.

That is, the university is not only a party but also determines whether an agreement can be signed between the graduates and the employers.

If an employment agreement is signed between the graduates and the employing units, if it is necessary to agree with the universities, how can it reflect the two-way choice of equality?

The role of universities has obviously been offside.

At the same time, colleges and universities, as the main body of a party, undertake this function, which is contrary to the Constitution's rights of employment and labor.

Under the condition that the employment system of university graduates is shifted from the plan to the market, the employment agreement still remains more coloring of the planned distribution, such as the employment agreement, such as "the school should introduce the graduates to the employer in good faith, do the recommendation work well, and after the employers agree to employ, they should be included in the proposed employment plan by the school audit, which is approved by the Ministry of education, and the school is responsible for handling the sending procedures."

"Any party's breach of contract must be subject to the consent of the other two parties" is not consistent with the state's employment guiding ideology.

The author believes that at present, the employment agreement can not exclude the University as the main body of a party, the university can only bear witness or guarantee function, that is, to witness the two-way choice between the graduates and the employing units, and to guarantee the authenticity of the information of their graduates. As for the rights, obligations and agreements performed by the Employment Association, the undertaking of responsibilities is entirely between graduates and employers, so as to implement the autonomy principle of private rights.

（二）就業協議的內容過于簡單、籠統，缺乏約束力。

According to the provisions of the labor contract law, the terms, contents, working places, working hours, working conditions, labor remuneration and welfare benefits of the labor contract are all essential clauses, and the two parties can also negotiate other contents.

The content is rich, and the agreement of rights and obligations is specific and clear.

The current employment agreement is still widely used, although the main obligations of graduates, employers and school three parties are described, but the terms of the articles are simple, and they are not involved in working hours, working conditions, wages and benefits, duration of service, amount of liquidated damages, and so on.

Although other agreements can be specified in the remarks column and regarded as part of the agreement, in fact, most of the remarks on the agreement are blank, not to mention other attachments, even if the units are not conducive to students' requirements.

Of course, such a situation is also based on reality. Under such a pressure of great employment pressure, graduates hardly have the opportunity to negotiate with employers and to write down these matters which they are more concerned about.

In addition, the content of the employment agreement is not only simple and very general, but also lacks of operability. For example, the employment agreement stipulates: "

If a party proposes a change agreement, it must obtain the consent of the other two parties to breach the contract, and the breaching party shall bear the liability for breach of contract, and shall indicate in the remarks column. "

How much responsibility should be taken by the defaulting party and how much responsibility it should bear is not known in the blank remarks column.

According to the legal principle of contract, the contract holder has no right to claim compensation for breach of contract while there is no definite agreement on the liability for breach of contract.

三、就業協議的完善——與勞動合同的有效銜接

As the market employment mechanism is still improving and developing, the employment agreement still plays a certain role as a form and means of employment management in educational administration organs.

The author believes that it is too radical to completely abandon the employment agreement at present and remove it from the historical stage. Especially under the current system of our country, it is advisable to improve the employment agreement and make it play its due functions.

At the same time, from a long-term perspective, we should abandon the policy and temporary agreement such as the employment agreement.

This requires our legislators and policy makers to change their concepts, improve their ideas, and incorporate the employment of university graduates into the scope of the labor contract law.

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