Whether the opinions on several issues concerning the application of the Labor Contract Law are vali

1. On the issue of the signing of labor contracts by factory directors and managers.

According to the provisions of No. 1994 No. 360 issued by the Ministry of Labor, if the factory director and manager are appointed (appointed) by their superior department, they shall sign a labor contract with the hiring (appointing) department. The directors, managers and relevant management personnel of enterprises implementing the company system shall sign labor contracts with the board of directors in accordance with the provisions of the Company Law of the People's Republic of China on managers and management personnel.

2. On the issue of the signing of labor contracts by the secretary of the party committee and the chairman of the trade union.

According to the provisions of Document No. 19 and No. 33 of 1995 issued by the Ministry of Labor, the secretary of the Party committee, the chairman of the trade union and other full-time personnel of the Party and the masses are also members of the employees, and shall sign a labor contract with the employer in accordance with the provisions of the Labor Law. Where there are special provisions, it may be handled in accordance with the relevant provisions.

3. On the issue of signing labor contracts for permanent workers.

In accordance with the provisions of Document No. 1994 No. 360 issued by the Ministry of Labor and Document No. 19 No. 1995 issued by the Ministry of Labor, in order to make a smooth transition from the fixed-term labor system to the labor contract system, the old employees who have worked for a long time and are within 10 years from the retirement age can sign an indefinite labor contract if they request it. For other permanent workers, in the current process of converting the old and new employment systems, as a one-time transitional measure, all provinces, autonomous regions, and municipalities directly under the Central Government may make some special provisions in accordance with local conditions and in order to protect the interests of workers who have worked longer hours.

4. On the issue of signing labor contracts for employees on long-term sick leave, long vacation, and early retirement.

Employees who take medium- and long-term sick leave, take long vacations or retire early from the enterprise are still employees of the enterprise and maintain labor relations with the employer, and in accordance with the provisions of the Labor Law on the conclusion of labor contracts for the establishment of labor relations, the above-mentioned employees shall also sign labor contracts with the enterprise.

5. On the issue of the term of labor contracts for peasant rotation workers.

Order No. 87 issued in 1991 stipulates that the term of labor contracts for migrant workers recruited in types of jobs and positions that are harmful to their health as determined by the competent labor administrative department shall not exceed 8 years, in order to protect the health of workers. After the implementation of the Labor Law, this provision should still be implemented in order to continue to protect the interests of these employees.

The "Labor Contract Law" and the "Contract Law" belong to different departmental laws in the composition of China's socialist legal system, the "Labor Contract Law" belongs to the social law, and the "Contract Law" belongs to the civil and commercial law, and the difference between the two is mainly from the following aspects:

1) From the perspective of the subject of regulation, the subject of the Labor Contract Law is specific. The employment contract must be constituted by mutual agreement between the employer and the employee. One of the parties to the labor contract must be an employer, such as an enterprise, a public institution, an agency, a social organization, etc., that is, a user of labor; The other party is the laborer himself, that is, the owner of the labor force.

Therefore, an employee who can become the subject of an employment contract must have the ability to provide labor; The employer must have the ability to use the labor force, that is, it must be a legal person with specific qualifications or other legally established organizations or groups. However, both parties cannot be both employers or employees at the same time, otherwise the employment contract will not be constituted. However, the Civil and Commercial Contracts regulated by the Contract Law can occur between legal persons, other economic organizations, and natural persons, or between legal persons, other economic organizations, or natural persons, and there are no special requirements for the subject.

2) From the perspective of standardized social relations, the labor relations regulated by the Labor Contract Law are subordinate. At the time of conclusion of the labor contract, both the employee and the employer are in equal legal status, and the content of the labor contract is determined through free negotiation. However, in the process of performing the labor contract, since the employee is included in the production system of the employer to engage in labor, he must obey the command and supervision of the employer, thus forming the subordinate nature of the labor relationship. Due to the subordinate nature of the labor relationship, it is inevitable that the employee will accept the command and supervision of the employer in the process of performing the labor contract.

However, civil and commercial contracts regulated by the Contract Law do not have subordination in either the contract signing stage or the performance stage, and the two parties are always independent and equal subjects.

3) From the perspective of the content of the norm, the labor contract regulated by the Labor Law is an agreement for the purpose of determining the labor relationship and clarifying the rights and obligations of both parties, including: work content and work location, working hours, rest and vacation, labor remuneration, social insurance, labor protection, working conditions, occupational hazard protection, etc. The civil and commercial contract regulated by the Contract Law is an agreement to achieve a certain economic purpose and clarify the relationship between mutual rights and obligations, including:

subject matter, quantity and quality, price or remuneration, etc.

4) From the perspective of the social nature of norms, in labor relations, because the employer has an advantageous position over the employee based on its economic strength, the labor conditions are often determined in advance during the establishment of the labor contract, or the subordination of the labor relationship arises based on the exercise of the right of operation and management. Therefore, in order to protect the legitimate rights and interests of the weaker party, the workers, the state or trade union groups often intervene in the labor contract, forming a social character of the labor contract that is different from the Contract Law. As a result of the involvement of national laws and trade union groups in labor contracts, the minimum standards for working conditions established by the State by law or collective contracts are formed.

Therefore, the content of the employment contract is greatly influenced by national laws and collective contracts.

How can the contract law not be applied, the relationship between the general law and the special law is that the special law is applied first, and if the special law does not provide for it, the general law will apply, and if the general law does not provide for it, it will be in accordance with social practice. I think you are relatively familiar with the legal provisions, so let's take a look at the explanations at the same time.

1. The contract mentioned in the Contract Law and the labor contract in the Labor Contract Law are not a general and special relationship. The former is civil law and the latter is economic law.

2. The labor contract is an important part of the labor law. The Labor Contract Law is a specific provision of the labor contract in the Labor Law.

3. Therefore, there is no inclusive relationship between the Contract Law and the Labor Contract Law, nor is there an intersecting relationship.

First of all, these are all laws related to workers' protection. Due to the early promulgation of the Labor Law, many provisions are no longer suitable for today's employment relations. The Labor Contract Law, which has only been promulgated in recent years, sets out in more detail the rights and obligations of both employers and employees.

According to the principle that the new law prevails over the old law, where there is a conflict between the Labor Law and the Labor Contract Law, the Labor Contract Law shall prevail, and the parts that do not conflict will remain valid. In other words, if there is a conflict between the Labor Law and the Labor Contract Law, the Labor Law is invalid and the Labor Contract Law shall apply. The parts of these two laws that do not conflict are in force separately.

Answer]: b, e

Answer] be, [Analysis] According to the provisions of the Labor Law and the Labor Contract Law, if there is a dispute about the invalidity or partial invalidity of the labor in accordance with the confusion, it shall be confirmed by the labor dispute arbitration institution and the people's court.

Answer]: b, e

Answer] beAccording to the provisions of the Labor Law and the Labor Fraud Contract Law, if there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution and the People's Law Burning Court.

Answer]: Sun Kai b, c

Answer] BC Analysis] If there is a dispute over the invalidity of the labor contract or the invalidity of part of the banquet, it shall be confirmed by the "labor dispute arbitration institution or the people's court".