Of labor contract conclude should follow the principle such as lawful fairness, honest credence, unit of choose and employ persons has authority to understand laborer and labor contract, direct and relevant fundamental condition, laborer also ought to explain according to the facts, if is laborer entered,did not fulfill when duty how to explain effectiveness of this labor contract maintains obligation according to the facts?
Recommend case
Laborer was not fulfilled show obligation according to the facts, brought about unit of choose and employ persons to make conclude the meaning of labor contract expresses, form con, labor contract is invalid -- case of dispute of limited company of development of equipment of technology of canal of civil aviaton sky and Sui Yongjie labor
Case argument: The demonstrative obligation of laborer originates sincere letter principle, belong to the legal and collateral obligation that laborer ought to assume. The limits that judges laborer to show obligation ought to integrated form standard and substantial standard, formally servantchooses a person for a job namely the unit makes clear the information that imparts laborer adequately to need to offer and proof material content; The content that unit of substantial choose and employ persons asks laborer explains does not get the provision of lawbreaking, administrative regulations, and with laborer the job has direct, inevitable connection. Laborer did not explain according to the facts and do not form like that surely con, the information that did not show according to the facts only is as direct as labor contract relevant fundamental condition, did not explain according to the facts brought about unit of choose and employ persons to make conclude the meaning of labor contract expresses, just form con.
Record date: (2016) Beijing 03 civilian eventually 5844
Review analyse
Labor contract law sets the 8th times: "When action of unit of choose and employ persons uses worker, ought to inform reward of state of harm of requirement of worker job content, work, workplace, profession, safe production, work according to the facts, and the other condition that laborer asks to understand; Unit of choose and employ persons has authority to know the fundamental condition with laborer and labor direct and relevant contract, laborer ought to explain according to the facts. " this announcement that made clear unit of choose and employ persons the specification of obligation and laborer is compulsory, the issue that explains whether obligation brings about labor contract to disable according to the facts was not fulfilled when this case basically involves laborer to enter office.
1. laborer shows compulsory origin
Labor contract law the 3rd the first specific provision concludes labor contract, ought to follow sincere letter principle, the 29th sets: "Unit of choose and employ persons and laborer ought to the agreement according to labor contract, fulfil respective obligation in the round. " to the law undertake Wen Yi explanation and system explain, can reach Moses regards choose and employ persons as the unit and laborer exercise right, basic standard that fulfils obligation sincere letter principle, sincere letter principle is perforative labor concerns from beginning to end.
The specification that worker provides in labor contract law is compulsory, belong to the legal and collateral obligation that laborer ought to assume. As an active obligation, laborer is direct to fulfilling labor contract relevant fundamental condition, ought to make a specification according to the facts to unit of choose and employ persons.
2. laborer was not fulfilled explain whether obligation is formed according to the facts con
(1) laborer shows compulsory range according to the facts
In this case, formally, conventional laborer is made clear to must concern a provision according to the country in labor contract, hold card mount guard, to apply for a job person accountability provide effective qualificatory letter, closing attend inside the corresponding period about groom reach assessment, make sure qualificatory certificate is lawful and effective. Substantial, the job that Sui Yongjie pursues works for special type equipment, the basis works contract law, " safety of special type equipment is censorial byelaw " regulation, card of work of special type facility is the requirement that civil aviaton sky provides Sui Yongjie of company take sb on the staff, whether to acquire the legal specification obligation that evidence of lawful and significant work of special type facility is Sui Yongjie.
(2) the cognizance with con laborer
Top people court " implement civil code general rule about carrying out the opinion of a certain number of problems (try out) " the 68th regulation: "One party party tells each other intentionally false circumstance, conceal true condition intentionally perhaps, prevail on the opposing party makes wrong meaning denotive, can maintain for fraudulent action. " accordingly laborer ought to satisfy the following important condition false: (A) laborer is con intended, knowing perfectly well the news that tells unit of choose and employ persons namely is false perhaps conceal real message; (B) laborer carried out fraudulent action, incorporate is through the language or the character is concoctive and false circumstance or conceal true condition; (C) the behavior that unit of choose and employ persons is based on laborer is immersed in wrong understanding, have between the wrong understanding of the fraudulent action of laborer and unit of choose and employ persons namely causal; (D) the meaning that unit of choose and employ persons makes take sb on the staff because of wrong understanding expresses.
In this case, sui Yongjie offers testimony of false work of special type facility and civil aviaton sky intentionally to be in charge of a company to conclude labor contract, and card of work of facility of this special type belongs to Sui Yongjie to show compulsory range according to the facts inside, accordingly, sui Yongjie's behavior is formed con.
(3) whether does unit of choose and employ persons check information authenticity not to affect con cognizance
The author thinks, unit of choose and employ persons not authenticity of information of examine and verify does not affect the cognizance with con laborer, main reason is:
The first, from form false in light of, the condition should be narrated before laborer behavior is contented only, can hold water false, with unit of choose and employ persons whether examine and verify and nonrelevant.
The 2nd, from practice the operation looks, on one hand, the program standard degree of laborer of collection of action of unit of choose and employ persons and can burden cost is restricted by a variety of elements, unit of not all choose and employ persons can throw manpower, material resources, financial capacity to undertake checking. Although check, because lack is professional, accuracy of unwarrantable also information. On the other hand, considering the efficiency sex of invite applications for a job, if unit of choose and employ persons is checked,can avoid false as laborer duty main content, unit of choose and employ persons may use his strong position, laborer of relevant and compulsory impute to, ask for example uniform undertake notarization to record of formal schooling, affect the efficiency of the labour market badly.
The 3rd, set out from fair justice principle, of the basic principle that although the property of social law decided to tilt,protects applicable, its tilt protective measure also should be restricted somewhat. Accordingly, outside the range that should not set in law, will examine compulsory exacting to add unit of choose and employ persons.
3. laborer concludes false the law of labor contract is sequential
Labor law set the condition with labor invalid contract the 18th times, labor contract law the 26th, undertake the 27th times complement and be makinged clear to its further. From 26 the first can see, if laborer did not explain according to the facts,make con word, criterion the labor contract that its and unit of choose and employ persons conclude is invalid. About the consequence of invalid labor contract, main show is tripartite face:
(1) the right that laborer has request work reward.
(2) unit of choose and employ persons is OK home remedy removes labor contract, and need not pay economy to compensate gold.
(3) laborer causes losing to unit of choose and employ persons, ought to assume corresponding liability to pay compensation.
Juridical regulation
1. laborer did not tell new employer its were not stopped with before the contest course of study between employer restricts an agreement, new employer does not build labor to concern with laborer accordingly and all without exception is become -- Xiao Zheng and Weishibai (Shanghai) desk of dispute of contract of labor of business management limited company
Case argument: Of labor contract conclude ought to follow the equal and lawful, fair, freewill, principle that arranges consistent, honest credit. Laborer did not tell new employer its already with before employer is signed " confidential, invention and contest course of study prohibit clause " , the employer before affirming signs again after " the official letter that prohibits reaching confidential obligation about contest course of study " , the limitation of contest course of study that extends according to the employer before the agreement of this official letter was gotten actually compensates gold. Afore-mentioned behavior of laborer disobeyed its and new employer " the announcement that recruit cases " agreement, new employer does not build labor to concern with laborer accordingly and all without exception is become.
Record date: (2014) Shanghai 2 in civilian 3 (civilian) eventually word the 1357th
2. laborer uses certificate of false record of formal schooling and unit of choose and employ persons to sign labor contract, put in fraudulent action, labor contract is invalid -- limited company and Xia Yuan send trade of labour of a person of extraordinary powers when Zhejiang desk of labor contract dispute
Case argument: Unit of choose and employ persons and laborer are in when signing labor contract, should abide by principle of honest, credence, unit of choose and employ persons has authority to know the fundamental condition with laborer and labor direct and relevant contract. Laborer was not fulfilled show obligation according to the facts, use certificate of false record of formal schooling to apply for foreign trade to be in charge of one duty to part of unit of choose and employ persons, because misunderstand,allow unit of choose and employ persons and sign labor contract to it, laborer is put in fraudulent action, the labor contract that reason both sides concludes should is invalid.
Record date: (2011) Hangzhou below civilian first word the 364th
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