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Law on unilateral termination of labor contracts - theoretical and practical issues - 1


MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW


MAJORITY: ECONOMIC LAW CODE: 62.38.01.07

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Scientific supervisor : Associate Professor, Dr. DAO THI HANG

Law on unilateral termination of labor contracts - theoretical and practical issues - 1

Dr. DO NGAN BINH


HO CHI MINH CITY - 2013


COMMITMENT


I hereby declare that this is my own research work. The data and research results presented in this thesis are true and I am responsible for all of them. This thesis has never been published in any other work.


Ho Chi Minh City, September 9, 2013


NGUYEN THI HOA TAM

LIST OF ABBREVIATIONS


Ministry of Labor, War Invalids and Social Affairs: Ministry of Labor, War Invalids and Social Affairs

Labor Code 1994 amended and supplemented in 2002, 2006, 2007: Labor Code

Labor Code 2012: Labor Code 2012

Labor Code of the Russian Federation: Russian Labor Code

Labor Code of the French Republic: French Labor Code

Enterprise: Enterprise

Labor contract: Labor contract

Law on protection against unilateral termination of employment contracts of the Federal Republic of Germany: Law on protection against unilateral termination of employment contracts of Germany

The Enterprise Law of the Federal Republic of Germany (BetrVG): The German Enterprise Law (BetrVG)

Workers: NLĐ

Employer: NSDLĐ

Labor relations: Labor relations

Ho Chi Minh City: Ho Chi Minh City

International Labor Organization: ILO

Supreme People's Court: TANDTC

INDEX

INTRODUCTION 1

1. Urgency of the topic 1

2. Research purpose and tasks 2

3. Research object and scope 2

4. Scientific and practical significance of the thesis 3

OVERVIEW OF THE RESEARCH PROBLEM 4

1. Research situation 4

1.1. Domestic research situation 4

1.2. Research situation abroad 10

1.3. Overview of research situation 11

2. Theoretical basis and research methods 12

2.1. Theoretical basis 13

2.2. Research methods 14

3. Structure of the thesis 15

SECTION 17

Chapter 1 17

THEORETICAL ISSUES ON UNILATERAL TERMINATION OF LABOR CONTRACTS AND THE LAW ON UNILATERAL TERMINATION OF LABOR CONTRACTS 17

1.1. Theoretical issues on unilateral termination of labor contracts... 17

1.1.1. Concept and characteristics of labor contract 17

1.1.2. Concept and characteristics of unilateral termination of labor contract

................................................................ ................................................................ .......................... 21

1.1.3. The significance of unilateral termination of a labor contract for the parties in the labor relationship 27

1.2. Legal regulation of unilateral termination of labor contracts 30

1.2.1. The need for legal regulation of unilateral termination of labor contracts 30

1.2.2. Legal regulation of unilateral termination of labor contracts 34

1.3. Overview of the history of formation and development of Vietnamese law on unilateral termination of labor contracts 50

1.3.1. Period from 1945 to 1954 51

1.3.2. Period from 1954 to 1985 52

1.3.3. Period from 1985 to 1994 53

1.3.4. Period from 1994 to 2002 55

1.3.5. Period from 2002 to 2012 55

Chapter 2 58

CURRENT STATUS OF VIETNAMESE LAW ON UNILATERAL TERMINATION OF LABOR CONTRACTS 58

2.1. Regulations on unilateral termination of labor contracts by employees and implementation practices 58

2.1.1. Employees unilaterally terminate labor contracts in accordance with the law 58

2.1.2. Employees unilaterally terminate labor contracts illegally 65

2.2. Regulations on unilateral termination of labor contracts by employers and implementation practices 69

2.2.1. The employer unilaterally terminates the labor contract in accordance with the law 69

2.2.2. The employer unilaterally terminates the labor contract illegally 82

2.3. Regulations on resolving the rights and obligations of the parties regarding unilateral termination of the labor contract and implementation practices 88

2.3.1. Resolving the rights and obligations of the parties regarding unilateral termination of the labor contract in accordance with the law 88

2.3.2. Resolving the rights and obligations of the parties regarding the illegal unilateral termination of the labor contract 94

2.4. Regulations on dispute resolution regarding unilateral termination of labor contracts and implementation practices 107

2.4.1. Resolving disputes regarding unilateral termination of labor contracts according to labor complaint procedures 108

2.4.2. Resolving disputes regarding unilateral termination of labor contracts according to labor litigation procedures 110

Chapter 3 114

IMPROVING THE LAW ON UNILATERAL TERMINATION OF LABOR CONTRACTS IN VIETNAM 114

3.1. Requirements for improving Vietnamese labor law on unilateral termination of labor contracts 114

3.2. Some solutions to continue perfecting the regulations on unilateral termination of labor contracts in the 2012 Labor Code 118

3.2.1. Perfecting legal regulations on unilateral termination of labor contracts 118

3.2.2. Some solutions to improve the effectiveness of implementing labor laws on unilateral termination of labor contracts 137

CONCLUSION 144

PUBLISHED WORKS RELATED TO THE THESIS LIST OF REFERENCES

APPENDIX

INTRODUCTION

1. Urgency of the topic

When society has a need to use labor, it will create a labor relationship. There, the parties carry out a special transaction that is not like other civil relationships of "buying and selling", but takes place during the process of putting the labor of the employee into use. The labor relationship between the employee and the employer is formed on the basis of the labor contract and therefore this relationship will end when the labor contract ends.

Practice has proven that the Labor Contract facilitates the parties in the Labor Relations when entering into and performing agreed work. To ensure the legitimate rights and interests of the subjects when one party no longer wants to continue to perform the Labor Contract due to their will, the law must have strict and specific regulations on this matter, because its consequences for the parties and society are not small. The act of unilaterally terminating the Labor Contract will free the subjects from the rights and obligations that previously bound them. This act is considered an effective measure to protect the parties of the Labor Relations when there is a violation of the commitment in the contract, a violation of labor law by the other party or cases prescribed by law. Protecting employees against arbitrary termination of labor contracts and ensuring the legitimate interests of employers within the standards and legal corridors issued by the state are the top concerns of labor laws in countries around the world, including Vietnam. Ensuring the right to unilaterally terminate labor contracts is also an important factor contributing to balancing the flexibility and dynamism of the labor market.

Unilateral termination of labor contracts by subjects in labor relations is a right recognized by Vietnamese law since Decree 29/SL in 1947 and included in the Labor Code 1994, the Law amending and supplementing a number of articles of the Labor Code in 2002, 2006, 2007 and related documents. During the implementation process, these documents have revealed shortcomings and lack of practical effectiveness. The Labor Code, which was recently passed by the National Assembly on June 18, 2012, has made amendments and supplements to this content. However, after its promulgation, the new Labor Code still reveals many issues that need to be studied, further amended and supplemented to perfect the regulations on unilateral termination of labor contracts in the Labor Code 2012 and included in the guiding documents for implementation in the coming time.

Compared with the laws on unilateral termination of labor contracts of countries around the world (Germany, Russia, China, etc.), the relevant international conventions of the ILO (Convention No. 158, 135, etc.), the provisions of the Vietnamese legal system on unilateral termination of labor contracts still have many inconsistencies. In the context of Vietnam's increasingly deep integration into international economic institutions, it is necessary to have rapid, appropriate and effective reforms of the law, especially the law on labor contracts and unilateral termination of labor contracts, in the direction of selectively absorbing the progressive points in the labor laws of other countries and the ILO.

For the above reasons, the researcher decided to choose the topic " Law on unilateral termination of labor contracts - theoretical and practical issues" for his thesis.


This article aims to clarify some theoretical and practical issues on unilateral termination of labor contracts in Vietnam today.

(The bold and italicized content in the thesis is emphasized by the author)

2. Research purpose and tasks

The purpose of the thesis is to clarify some theoretical and practical issues of the law on unilateral termination of labor contracts. On that basis, propose solutions to improve the law on unilateral termination of labor contracts to meet the requirements of practical customers.

uan in the current market economic conditions and integration trends of our country. Thereby, improving the effectiveness of the adjustment of Vietnamese labor law on unilateral termination of labor contracts.

With the above purpose, the thesis sets out the following main tasks:

1. Research some theoretical issues such as the concept and characteristics of unilateral termination of labor contracts, the meaning and legal consequences of unilateral termination of labor contracts for the parties in labor relations;

2. Study the necessity of legal regulation and the content of legal regulation for unilateral termination of labor contracts to serve as a basis for assessing the reasonableness of current laws on unilateral termination of labor contracts;

3. Research the current status of our country's laws on unilateral termination of labor contracts and the practical implementation of these regulations to find out the shortcomings and unreasonable points of current regulations on unilateral termination of labor contracts, creating a premise for making recommendations to improve the law on unilateral termination of labor contracts;

4. Propose some recommendations to improve the law on unilateral termination of labor contracts in Vietnam.

3. Research object and scope

3.1. Research object of the thesis

Legal documents on labor contracts in general, termination of labor contracts and unilateral termination of labor contracts in particular;

Current status of Vietnamese law on unilateral termination of labor contracts and some newly issued legal documents on this content.

3.2. Scope of the thesis research

Termination of labor contracts is one of the basic contents of the labor contract regime and is related to many provisions in the Labor Code, so it is a fairly broad issue that can be studied and approached from many different perspectives. However, within the scope of this thesis, the author only focuses on studying the legal aspects of the issue of unilateral termination of labor contracts - one of the cases of termination of labor contracts, in order to systematically study the basic theoretical issues of the law on unilateral termination of labor contracts. The thesis assesses the current state of the law on unilateral termination of labor contracts in Vietnam, thereby making recommendations for improving the law on unilateral termination of labor contracts in the current conditions of our country.

The issue of unilateral termination of labor contracts is mainly associated with market economic conditions.

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