Termination of labor contracts in the 2012 Labor Code and practical application in enterprises in Vietnam - 1

HANOI NATIONAL UNIVERSITY

FACULTY OF LAW

NGUYEN THANH HUONG

TERMINATION OF LABOR CONTRACTS IN THE 2012 LABOR CODE AND PRACTICE IN ENTERPRISES IN VIETNAM

Major : Economic Law

Code : 60 38 01 07

MASTER'S THESIS IN LAW

Scientific supervisor: Dr. PHAM THI THUY NGA

COMMITMENT

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

Hanoi, date … month … year 2015

The pledger

Nguyen Thanh Huong

INDEX

Page

Cover Page Pledge Table of Contents

List of abbreviations

INTRODUCTION 1

Chapter 1: SOME BASIC ISSUES ON TERMINATION OF AGREEMENT

LABOR CORPORATION 5

1.1. Concept of labor contract and its legal characteristics

employment contract 5

1.1.1. Concept of labor contract 5

1.1.2. Legal characteristics of labor contracts 9

1.2. Termination of employment contract12

1.2.1. Concept of termination of employment contract 12

1.2.2. Classification of termination of labor contracts 14

1.2.3. Legal consequences of termination of employment contract 17

Chapter 2: LEGAL STATUS ON TERMINATION OF CONTRACT

LABOR IN VIETNAM TODAY 21

2.1. Legal status on termination of labor contracts due to will

employer and employee 21

2.2. Legal status on termination of labor contracts due to will

employer or employee's will 22

2.2.1 Unilateral termination of labor contract by employee 22

2.2.2 Unilateral termination of the employment contract by the employer

labor 25

2.3. Legal status on termination of labor contracts due to will

Third Party Opinion 55

2.4. Legal status of legal consequences of termination of labor contract 56

2.4.1. Legal consequences of lawful termination of employment contract 56

2.4.2. Legal consequences of illegal termination of employment contract 59

2.5. Causes of the shortcomings 64

Chapter 3: DIRECTIONS AND RECOMMENDATIONS FOR IMPROVING THE LAW ON TERMINATION OF LABOR CONTRACTS IN

VIETNAM TODAY 68

3.1. Directions for perfecting the law on termination of labor contracts 68

3.1.1. Ensure compliance with the country's socio-economic conditions, compliance with international labor laws, and selective learning.

Filter foreign experience 68

3.1.2. Protect the legitimate rights and interests of the parties in labor relations, helping to develop stable labor relations and the economy 69

3.1.3. Ensuring the consistency of the labor law system in general

general and labor contract law in particular 69

3.2. Recommendations to improve the law on termination of labor contracts 70

3.2.1. Proposal to amend and supplement the law on termination of labor contracts 70

3.2.2. Recommendations to improve the effectiveness of law enforcement on termination of contracts

labor contract 76

CONCLUSION 80

LIST OF REFERENCES 82

LIST OF ABBREVIATIONS

ABBREVIATION

DOCUMENT NAME
Social insurance	Social insurance
Health insurance	Health insurance
Labor Law	Labor Code
Labor contract	Labor contract
ILO	International Labor Organization
employee	Workers
Employee	Employers
Labor Relations	Labor relations

Maybe you are interested!

INTRODUCTION

1. The urgency of researching the topic

The labor contract (LC) is the basis for binding the employee (LC) and the employer (LC) to properly implement the agreed commitments. Therefore, the LC is considered the most effective measure to help protect the legitimate rights and interests of the employee and the employer. Current laws have provided regulations requiring the parties to enter into a LC when entering into a labor relationship (QHLĐ), and at the same time, allowing the parties to have the right to terminate the LC in order to minimize the possible damage to the parties.

Termination of labor contracts has been recognized by Vietnamese law in the 1994 Labor Code, the Law amending and supplementing a number of articles of the Labor Code in 2002, 2006, 2007 and related documents. However, the regulations are still sketchy and impractical, thus creating loopholes for violations to continue to occur during the application of the law. These shortcomings have forced Vietnamese legislators to research and issue more practical and effective regulations on this issue. After a period of research and discussion, the Vietnamese National Assembly has recently officially issued the 2012 Labor Code, which took effect from May 1, 2013. It has issued revised and supplemented regulations on termination of labor contracts. Because it has just been issued, the effectiveness of the regulations in the 2012 Labor Code has not been fully verified. Therefore, to answer the question: Are the changes of the 2012 Labor Code on the issue of termination of labor contracts really practical and will be effective in the coming time, I have chosen the topic "Termination of labor contracts in the 2012 Labor Code and practical application in enterprises in Vietnam" as the topic of my thesis to contribute to answering the above question.

2. Research situation

Termination of labor contracts is not a new topic. There have been many research works and articles that have chosen this issue as their research topic. Typical examples include the article " Labor contracts - One of the main institutions of Vietnam's Labor Law " by author Pham Cong Tru, State and Law magazine, No. 7/1996, pp. 19-23; the article " Right to unilaterally terminate labor contracts " by author Dao Thi Hang, Law magazine, No. 4/2001, pp. 16-20; the article " Discussing the concept of Labor contracts " by author Nguyen Huu Chi - Law magazine, Labor - Social Publishing House, Hanoi, No. 4/2002, pp. 3-8; the article " Law on termination of labor contracts and the current situation of application in Vietnam " by author Diep Thanh Nguyen, No. 2/2004, pp. 32-40; The article “ Improving regulations on the responsibility of employers who unilaterally terminate labor contracts illegally ” by Tran Hoang Hai, Do Hai Ha – Legislative Research Journal, Ho Chi Minh City University of Law, No. 8/2011; Research topic “ Law on labor relations in Vietnam – Current status and direction of improvement ” chaired by Associate Professor, Dr. Le Thi Hoai Thu (2012); Doctoral thesis of author Nguyen Thi Hoa Tam (2013) on “ Law on unilateral termination of labor contracts – theoretical and practical issues ”; Master’s thesis of author Nguyen Thanh Dai (2004) on “ Termination of labor contracts under Vietnamese law ”; Master’s thesis of author Nguyen Thi Ngoc (2007) on “ Termination of labor contracts and legal consequences ”; Master's thesis of author Nguyen Thi Vui (2012) on " Unilateral termination of labor contracts by employers under Vietnamese labor law ". However, since the Labor Code 2012 was issued and took effect, there has been no thesis that comprehensively studies the provisions of the Labor Code 2012 on termination of labor contracts, as well as the application of these provisions in practice. Therefore, my thesis will both inherit the research results achieved before and provide analysis.

New analysis and research on the termination of labor contracts under the 2012 Labor Code.

3. Objectives of the topic

General objective: Point out new points in the regulations on termination of labor contracts of the 2012 Labor Code; Point out the shortcomings that still exist in the 2012 Labor Code and from there make some proposals to improve the law on this issue.

Specific goals

- Systematize basic legal knowledge on termination of labor contracts in the labor law system. Specifically: Research on the concept of termination of labor contracts, classification of termination of labor contracts and legal consequences of termination of labor contracts.

- Point out new points in the regulations on termination of labor contracts of the 2012 Labor Code

- Point out the shortcomings that still exist in the provisions of the 2012 Labor Code on termination of labor contracts.

- Propose some recommendations to improve the law on termination of labor contracts.

4. Research object and scope

The thesis studies the legal regulations on termination of labor contracts in Vietnam today.

5. Research methods

To achieve the objectives and research tasks set out, the thesis used the methodology of Marxism - Leninism and a number of traditional research methods of social sciences (analysis, synthesis, deduction, logic, history) and interdisciplinary research methods of social sciences.

The thesis uses analytical and synthetic methods when studying theoretical issues in Chapter 1.

In Chapter 2, the thesis continues to use the analytical method and the synthetic method when analyzing and evaluating current legal regulations.