By Will of One Party (Unilateral Termination of Labor Contract).

depends on their will and behavior. This affects the legal consequences of terminating the labor contract.

- The second characteristic: It is the special nature and diversity of its legal consequences.

Termination of a labor contract in any case will give rise to certain legal consequences. However, the legal consequences of the events of termination of a labor contract are not the same: if the labor contract is terminated due to the enterprise changing its technological structure, the employee will receive unemployment benefits (1 month's salary for each year of work, but the lowest is equal to two months' salary), and if the contract is terminated due to the expiration of the contract, the employee will receive severance benefits (1/2 month's salary for each year of work plus salary allowance, if any)...

In particular, unilateral termination of the labor contract can occur in a legal or illegal manner and can easily lead to two-way disputes between the employee and the employer. If the employer unilaterally terminates the labor contract illegally, the employer must accept the employee back to work and compensate an amount of money equivalent to the salary and salary allowances, if any, during the days the employee was not allowed to work, plus at least two months of salary and salary allowances, if any; ...

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- Third characteristic: termination of the labor contract frees the parties from the binding obligations in the contract, ending the labor relationship.

If the labor contract is concluded, the parties establish rights and obligations to bind each other, then when the labor contract is terminated, the employee as well as the employer are released from the rights and obligations that they were bound by in the previous contract. This is completely different from changing or suspending the labor contract. For changing the labor contract, it is the increase or decrease of one or more rights and obligations of each party; while suspending the labor contract is only a temporary suspension.

After a period of time, the parties continue to perform the rights and obligations stated in the contract without the contract being cancelled or invalidated.

At the same time as the termination of the labor contract, the labor relationship established under the contract also terminates. However, it is necessary to understand that not all labor relationships that are terminated are also a consequence of the termination of the labor contract. This is explained by the fact that labor relations are not established solely in the form of labor contracts, although in a market economy it is the main form of recruitment. Only labor relations established through labor contracts will have the termination of the labor contract result in the termination of the labor relationship, while labor relations established without labor contracts will have the termination of the labor relationship as a consequence of other events, for example: cases of resignation or forced resignation in the recruitment relationship for the state payroll...

1.2.2. Cases of termination of labor contracts.

1.2.2.1. By the will of both parties.

This is the case where the labor contract is terminated by agreement of both parties. Accordingly, the labor contract will be terminated when: The labor contract expires; The work under the contract has been completed; The two parties agree to terminate the contract.

1.2.2.2. By the will of a third person .

This is the case where the labor contract is terminated not by the decision of one of the parties but by the decision of the Court: the employee is sentenced to prison or is prohibited from holding the old job according to the decision of the Court; the employee dies or goes missing according to the declaration of the Court.

1.2.2.3. By the will of one party (Unilateral termination of the labor contract) .

* According to Article 37 of the Labor Code, employees have the right to unilaterally terminate the labor contract in the following cases:

For indefinite-term labor contracts, employees have the right to unilaterally terminate without giving a reason but must comply with legal procedures.

For contracts with a term of 12 to 36 months, seasonal labor contracts or contracts for a specific job with a term of less than 12 months, employees have the right to unilaterally terminate the contract before the term if they are not assigned to the correct job and working conditions; are not paid in full; are mistreated, forced, etc.

* According to the provisions of Article 17 and Article 38 of the Labor Code, the employer has the right to unilaterally terminate the labor contract in the following cases:

The employer has the right to terminate the labor contract in case of changes in structure or technology that make it impossible to arrange a new job for the employee.

The employer has the right to unilaterally terminate the labor contract when: the employee regularly fails to complete the work according to the contract; the employee is disciplined and dismissed; the employee working under an indefinite-term labor contract is sick and has been treated for 12 consecutive months; the employee working under a fixed-term labor contract from 12 months to 36 months is sick and has been treated for 6 consecutive months; and the employee working under a seasonal labor contract or a specific job contract with a term of less than 12 months is sick and has been treated for more than half of the labor contract term but the ability to work has not yet recovered; due to natural disasters or fires; the enterprise, agency or organization ceases operations.

1.2.3. Situation of resolving disputes over termination of labor contracts in our country in recent years.

Disputes over termination of labor contracts are individual labor disputes between employees and employers, so according to Article 162 of the Labor Code, the competent agencies and organizations to resolve them include: Grassroots labor conciliation councils or labor conciliators of the district labor state management agency.

District, town, provincial city for places where there is no grassroots labor conciliation council; People's Court.

However, in reality, our country does not have specific statistics on resolving disputes over termination of labor contracts through the grassroots labor conciliation council or labor conciliators of the state labor management agency at the district level for places where there is no grassroots labor conciliation council.

Currently, labor disputes brought to the Court are only concentrated in a few big cities and industrial zones such as: Ho Chi Minh City, Hanoi, Hai Phong, Da Nang, Dong Nai, Binh Duong, Quang Nam provinces...

According to statistics of Courts at all levels nationwide, in general, labor sentences increase every year but not much, specifically:

2001: The Court of First Instance accepted 650 cases; resolved 90.4% The Court of Appeal accepted 239 cases; resolved 57.3% The Court of Cassation accepted 41 cases; tried 87.8%

2002: The Court of First Instance accepted 808 cases; resolved 90% The Court of Appeal accepted 156 cases; resolved 85.8% The Court of Cassation accepted 12 cases; tried 66.6%

2003: The Court of First Instance accepted 652 cases; resolved 88.6% The Court of Appeal accepted 107 cases; resolved 84.1% The Court of Cassation accepted 22 cases; tried 63.6%

2004: The Court of First Instance accepted 714 cases; resolved 94% The Court of Appeal accepted 128 cases; resolved 89% The Court of Cassation accepted 2 cases; tried 50%

2005: The Court of First Instance accepted 950 cases; 94% were resolved.

The Court of Appeal accepted 174 cases; 85.5% were resolved. The Court of Cassation accepted 5 cases; 100% were tried.

Thus, because labor cases in our country are still few, when counting, there is no distinction between disputes over termination of labor contracts or lawsuits for compensation for damages and disputes over wages and social insurance. However, in reality, the number of labor cases accepted and resolved focuses on two main types of cases: unilateral termination of labor contracts and disciplinary dismissal of employees (termination of labor contracts due to the will of one party).

The Labor Code has gradually entered life, the propaganda and guidance on the implementation of the Labor Code has been paid attention to and well implemented by trade unions at all levels, the rights of employees as well as employers are increasingly implemented in accordance with the provisions of the Labor Code. These are basic advantages that help courts at all levels coordinate better in successfully conciliating labor disputes (the rate of successful conciliation increases every year; the number of cases accepted by the Supreme Court decreases every year). However, the statistics on the adjudication of labor cases mentioned above also partly show that: Labor cases are a new type of case for the Court. The team of judges trying labor cases are mostly not professionally trained, do not have much experience in adjudication, so they cannot avoid confusion in both the application of procedural procedures as well as the application of adjudication methods. On the other hand, the application of labor law still has many problems that have not been unified in guidance, so when encountering a specific case with problems regarding the documents, the Courts of First Instance and Appeal are confused and apply the provisions of the Labor Code incorrectly. Moreover, the judges and officers assigned to handle the case have not carefully studied the guiding documents and are not careful in applying some specific provisions of the Labor Code, so the decision on the case is still incorrect. This also proves that the quality of adjudication of labor cases is not really good, leading to the parties appealing and complaining, so the higher Court has to amend or annul the judgment... In addition, there is another reason that leads to the situation of having to amend or annul the judgment... which is due to the public.

legislative work, guidance on law enforcement... (We will discuss this issue in detail later).

Chapter 1 Conclusion

From studying the basic theoretical issues on termination of labor contracts, the author draws the following conclusions:

1. Issues regarding the concept, characteristics of labor contracts and termination of labor contracts show that there is an interaction between them as well as other provisions of labor law.

2. The law on termination of labor contracts has contributed to ensuring freedom of employment for employees; freedom of production and business of employers; ensuring the legitimate rights and interests of the parties in labor relations; at the same time, termination of labor contracts has contributed to creating a labor market and promoting healthy competition in the market economy.

CHAPTER 2

VIETNAMESE LAW ON TERMINATION OF LABOR CONTRACTS AND IMPLEMENTATION STATUS

2.1. BASIS AND PROCEDURES FOR TERMINATION OF LABOR CONTRACT.

2.1.1. Termination of the labor contract by the will of both parties and the applicable situation .

2.1.1.1. Contract expiration .

When concluding a labor contract, the employee and the employer must agree on the term of the contract. This is one of the necessary provisions to ensure the existence of the labor contract. When the contract expires, the labor contract is automatically terminated regardless of whether the work under the contract has been completed or not. If the employer wants to continue to keep the employee, they must negotiate with the employee to extend the contract or sign a new labor contract. Of course, this basis only applies to labor contracts with a fixed term. For labor contracts with an indefinite term, there is no termination due to the expiration of the contract.

In reality, there are cases where the labor contract has expired but both parties do not terminate the labor contract, the employee continues to work and is still paid by the employer. In this case, Clause 2, Article 27 of the Labor Code must be applied to resolve the issue.

In addition, according to the provisions of Clause 1, Article 36 of the Labor Code, the Labor Contract will terminate when the contract expires, but this is not always the case. For example, near the date of termination of the Labor Contract, the Employee is examined by a medical practitioner and is diagnosed with an occupational disease. After that, they must be treated in the hospital for many months, so the Labor Contract cannot be terminated even though it has expired because it is still related to the legal rights and obligations of the parties regarding the new legal event that has appeared above. Currently, the Labor Law has not specifically regulated this case, but in Article 39

The new Labor Code only stipulates that in this case, the employer cannot unilaterally terminate the labor contract.

2.1.1.2. Completed work .

This case only applies to labor contracts for a certain job where the term of the contract depends on the completion of the job. When the job agreed upon by the parties in the contract is completed, the labor contract automatically terminates, such as: in the case of an employee harvesting crops for the employer, when the employee has finished harvesting, the labor contract automatically terminates...

2.1.1.3. The two parties agree to terminate the contract.

Labor contracts, like other types of contracts, are built on the basis of free agreement between the two parties. They agree on the work, working conditions, wages, workplace, contract term and other conditions... The right to free agreement of the parties is a principle of the labor contract, so it is not only used when concluding the contract, but also maintained throughout the process of implementing and terminating the labor contract. For some reason, during the implementation of the contract, the two parties may agree to terminate the labor contract, the law respects that free agreement and considers it an event that terminates the labor contract.

In reality, there are cases where the two parties agree in the labor contract: "...The labor contract can be terminated at any time by either party, the party that terminates must notify the other party 1 month in advance...". Is this considered an agreement that is not against the law? If so, after the employee has worked for a period of time, the employer terminates the labor contract with the employee and pays the employee 1 month's salary in lieu of the notice period, is this case considered the employer unilaterally terminating the labor contract or the two parties agreeing to terminate the labor contract?

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