Research on Labor's Premonitory Right of Resignation System
|Keywords||Labors Right of Premonitory Resignation Tilt Protection|
To labors, the right of premonitory resignation is an important and statutory right. Taking into account workers’ real vulnerability, the law grants the right of notice of resignation to balance the interests of the employers and the employees. The establishment of the right is of a unique value by recognizing and guaranteeing labors’ rights of freedom, survival and development. The right system of premonitory resignation in our country has undergone a rocky development process, and is the epitome of the whole social development. Current laws give workers an extensive and free right of premonitory resignation with fewer constraints, effectively maintaining workers’legitimate rights and interests, promoting the rational flow of labor. Through the analysis of basic theories and current legislative situation of workers resigning system, the paper points out its deficiencies, and comes up with some suggestions to improve the system in China by drawing on foreign successful experiences. The paper, with more than20,000Chinese characters, is divided into four parts. Each part is described below:The first part is about the basic theories of right of premonitory resignation. It mainly analyzes the content, nature, and value of the right, and makes clear its unique value and necessity of existence. The second part, foreign relevant legislation and its implications. It introduces current situation and analysis of the legislation of the right in such countries and areas as France, Germany, Japan, Italy, and Taiwan, which provide useful reference for improving the right in China. The third part, introduction of the evolution and current situation of the right of premonitory resignation in China. It analyzes the development process and makes clear the historical factors for the establishment of the right. It introduces specific provisions in the right system and mainly analyzes the deficiencies in the right system. Part IV, improvement proposals. It proposes basic principles of improving the right system, that is, the principles of honesty and credit, tilted protection, fairness, and impartiality, and materializes the principles as five suggestions:First, the improvement of the scope of application. It suggests the scope of application should be adjusted, namely, the right of premonitory resignation should be completely applied to the unfixed-term labor contract, conditionally to fixed-term contracts and contracts that have a period to complete the prescribed work, so as to maintain the stability in labor relations to some extent; Secondly, the perfection of the subject system of the right. It proposes taking into account the worker’s actual difference, system of the right. It proposes taking into account the worker’s actual difference, demixing workers, and granting different rights to different levels of worker’s; Thirdly, the perfection of notice periods. It advocates learning from French legislative experience, diversifying their notice periods, and allowing both employers and employees to agree notice periods to achieve mandatory harmony and unity with the autonomy; Fourthly, the improvement of service and penalty provisions. The provisions about the service period and penalty can be appropriately relaxed, and the employing enterprises should be allowed to make the provisions with the labors by considering such welfare treatment as registered residence and the other half’s employment; Fifthly, the improvement of legal consequences. It needs to be clearly defined by law the right of notice to resign without liability, and the labors’ compensation should be qualified in case of violating the resignation notice, with the employer’s actual loss as the cap and without threatening labors’ right of survival.