【作者】 太月；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 经济法学， 2010， 博士

【摘要】 劳动合同违约责任作为明确劳动合同当事人在违反劳动合同约定义务时应承担的民事责任制度,其重要性毋庸置疑。但不可否认,相对于劳动实务的需求,劳动违约责任的制度建构还存在一些不足之处,使得劳动违约纠纷中受害方的损失得不到充分地救济。而且理论研究的不足,也制约了劳动违约责任制度的发展和完善,这不利于其制度功能的发挥。《劳动合同法》的出台一定程度上完善了我国劳动违约责任制度,尤其是关于劳动者承担违约金责任的规定,具有一定的进步性。本文以劳动合同的特殊性为基本出发点,借鉴国外相关立法经验,具体提出如下设想:其一,在责任界定方面,认为劳动违约责任应限于民事责任的范围;其二,在责任主体方面,认为特定情况下由新用人单位与劳动者承担连带赔偿责任的规定是对劳动违约责任主体的突破;其三,在归责原则和构成要件方面,提出应对用人单位和劳动者适用二元归责原则,这决定了劳动者承担违约责任的构成要件为:违约行为和过错,用人单位则仅为违约行为;其四,在责任承担方面,认为违约金、损害赔偿和继续履行作为劳动违约责任的承担方式有其独特之处,并创新地提出劳动合同解除也可作为劳动违约责任的承担方式;其五,论文基于我国《劳动合同法》规定的可由劳动者承担违约金责任的情形,将违反服务期的违约责任和违反竞业限制的违约责任作为特殊劳动违约责任进行重点阐析。更多还原

【Abstract】 The Liability for breach of labor contracts is the core of labor contract, which makes clear the issue of civil commitment for the parties in violation of the obligations in labor contract. It also plays important role in protection and constraints in the performance of labor contract and compensation for the injured party. Before Labor Contract Law of the People’s Republic is passed, legal rules for liability for breach of labor contract has deficiencies in our country and its theoretical research stays on a frivolous level. Labor Contract Law has contributed to the development of the China’s labor system for the liability for breach of labor contracts. However, it is a lack of systematic research in relation to liability for breach of contract law system. Meanwhile, labor practices require improving the system of the liability for breach of labor contract.In this paper, the basic rule of research on the liability for breach of labor contracts is employed. The definition, the subject of legal responsibility, the principle of culpability, the constitutive elements and the methods of bearing civil liability for breach of labor contracts are analyzed comprehensively, and finally focuses on responsibility applicability. On one hand, the impact of the particularity in labor contract on construction of the labor contract system is analyzed in a great detail. On the other hand, the protection of employers and the interests of employees are also taken into account in discussion.This dissertation is divided into six chapters:Chapter 1 is about some problems of the liability for breach of labor contracts such as research cause, development and methods, and so on .It is in order to discuss subject more clearer.Chapter 2 analyzes the basic connotation of the liability for breach of labor contracts comprehensively. Firstly, the liability for breach of labor contracts is that a party who fails to perform his contractual obligations shall bear civil liability through general analysis and combing the definition of it from scholars. And, the characteristics of liability for breach of labor contracts are summarized the following three points by analyzing its specificity: 1. the inequality of the main party responsible for breach of labor contracts; 2. liability for breach of labor is mandatory; 3. the liability for breach of labor contract can be applied in many areas. Secondly, through analysis of the development of the breach of contract responsibility system in China, it can be divided into three phases that are beginning to take shape, comprehensive establishment and refine. Lastly, the liability for breach of labor contracts related to others responsibilities have are discussed in this chapter which are about three pairs of relations. First one is that making clear of the distinction between the liability of breach of labor contract and the liability of breach of contract demonstrate the necessity of former. Second one is that the basic of connation of the system of liability for breach of labor contract can be understand clearly by clarifying its relation with other liability of contracts. Third one is that making clear of the relation between the liability for breach of labor contract and the liability of labor contract conclusion negligence prevents their misapplications.Chapter 3 analyzes the subject of liability for breach of labor contracts in order to make certain who should be responsible for this liability. The subject of liability for breach of labor contracts includes workers and employers. Some conclusions can be drawn from the basic law of the main responsibility and the civil liability of the main responsibility for workers and employers. The workers with non-work capacity and restrictions on working capacity do not have responsibility. Therefore, the workers with full working capacity suit for the subject of responsibility. The employers who can pay wages, social insurance and labor protection for workers can be as a suitable one. They can be as independent individuals or organizations that bear the legal liability. In addition, the responsibility for breach liability of labor is relative under the condition of new employer and workers bear joint and several liabilities. This breakthrough conclusion is based on recognition of liability for breach of labor contracts and some stipulations about three joint responsibilities in Labor Contract Law in China.Chapter 4 discusses the principle of culpability and the constitutive elements of the liability for breach of labor contracts in a detail. The first part is about the principle of culpability. Both labor relations sides have different principle of culpability. Specifically, the principle of tort liability should be adopted when workers breach labor contract. While employers breach the contract, it’s desirable to adopt the principle of strict liability. Based on the application of this principle, some conclusions are drawn: 1. This principle of labor liability for breach stems from fair value. 2. The tort liability of workers comes from their weak position in labor contract. 3. The strict liability for employers stems from their strong position between two parts. It also can constraint the employing unit. In second part, the constitutive elements of liability have been analyzed. The element of liability for workers is breach of contract and fault because the principle of fault liability requires that workers should bear the responsibility for breach of contract. And, the element of liability for employers is only breach of contract. Therefore, the principle of breach of contract is emphatically discussed in this section which contains the analysis of breach of contract, typical analysis of breach of contract-illegal dissolution of the labor contract and the impact on identification of the breach from the characteristics of performance of the labor contract. In the third part, the reason about the breach of duty exemptions on labor contract is discussed. These clauses that the force majeure, nonresponsibility, creditors’fault, change of circumstances and so on have also unique application in the liability for breach of labor contracts.Chapter 5 is the core of this dissertation and fully discusses the methods of bearing liability for breach of labor contacts. The first method for is liquidated damages, which acts as a remedial measure in the traditional sense. This dissertation has emphasized particularly on its penalty unique properties in the liability for breach of labor contact and further noted that it should give full play to initiatives in bearing penalty for the employing units and judge’s power of discretion. The second method is damages, which is discussed by focusing on characteristics of damages to breach of labor contract in our country, such as single in responsibility type, inclining protection in system construction, distinction in responsibility applicability and concurrent responsibility. In some cases spirit damage indemnity to the laborers caused by breach of contract maybe also compensated by the employing units, but only serious spirit damages to laborers. The third method is continuing performance of contract. This dissertation specifically introduces its applicable characteristics and further points out that the losses of laborers may not be compensated completely by simply application to continue the contract as the employing units break the contact, at the same time, damages is also applicable for the employing units. The fourth method is dissolution of labor contract. Dissolution of labor contract as one form of bearing responsibility for breach of labor contact indicates the innovation of this dissertation. First, the reasonability of this form is analyzed. Second, two characteristics of this form are shown as follows: its appearance based on legal rule and fundamental breach as the condition to rescind the contract. Finally, in order to fully protect the non-breaching party’s rights and benefits, it is necessary to correct understanding the relations between dissolution of labor contract and other relief measures. Specifically are the following two aspects. One is that dissolution of labor contract and damage can be applicable simultaneously through the choice of non-breaching party. The other is that dissolution of labor contract and liquidated damages can coexist for the employing units, but the right of choice belongs to the worker, of course.Chapter 6 individually analyzes breach of the period of service and breach of competitive restriction as special liabilities for breach of labor contacts. The first part is breach of the period of service and focuses on its appliances. First discusses the choice of application of breach of the period of service and violation of labor contract term through two cases, which specifically analyze that of coexisting service period and term of a labor contract and that of service period longer than term of a labor contract. Second illustrates concrete applicability of breach of the service period for the employing units and the labor, respectively. On one hand, it is realized that asking the employing units to bear responsibility for breach of labor contact by the labor has feasibility and necessity as the service terminates before the employment contract expires. On the other hand, it is realized that penalty punishment is a feasible choice, but the amounts should be limited within the profit loss caused by labor turnover. The second part is breach of competitive restriction. This part is discussed through cases analysis. Based on making the differentiation and analysis for liability of breach of competitive restriction and determining value proposition, the reasonability of its construction is analyze and then the conclusion is drawn as follows. For the body of responsibility for breach of contract, the new employing unit should be jointly and severally liable. For breach of competition restriction, it should determine through the scope, time and regions of breach of competitive restriction. For bearing responsibility, it should include penal sum, damages, prohibition and so on.In a word, this dissertation makes an attempt to establish a reasonable and operative system of liability for breach of labor contacts based on the experience of correlative legislation from other countries combined with labor practice in our country.更多还原