The researching object of this topic focuses on lawful comparision research on labor contracts of Vietnamese and Korean labor laws. The comparative content is shown by comparing 2 regulations of labor contracts of two countries, mainly the provisions of Labor Code 2012 of Vietnam and documents instructing to the implementation of this Code with the system of rules. labor contract according to Korean labor law.
Trang 1INTRODUCTION
1 The neccessity of researching topic
Labor contract is an agreement on the basis of voluntariness and equality of the subject known as an Employee (the Employee) who has the requirement of job to earn income (salary) to ensure his own life and his family; with the Employer (the Employer) need to hire labor for production, business to earn profit In particular, the Employee is under the management of the Employer, committed to work to get salaries and perform the rights and obligations as agreed
In Vietnam, the Labor Code (Labor Code) has been issued since 1994 and amended and supplemented three times in the years of 2002, 2006 and 2007 In
2012, Vietnam has continued to amend and supplement for the 4th time of Labor Code and it is expected to continue revising in the year of 2018-2019 Labor market, labor relations have been developing more and more constantly,
on the other hand, the changes of labor market as well as the awareness of the participants in labor relations have also changed Meanwhile, the Labor Contract Law has revealed a lot of limitations, a lot of general provisions, unclear in the different versions of the Labor Code with 3 revisions, caused difficulties to acquire, understandi and perform Some regulations on current labor contracts still have a lot of inadequate things, or lack of necessary regulations such as regulations on labor contracts; cases of terminating the labor contracts and procedures for terminating the labor contracts to leave work and enjoy the pension policies ; general procedures for terminating the labor contracts; legal consequences and invalid mechanism of labor contract handling; severance allowances, job loss allowances; regulations on testing work, testing time; regulations on contents in the labor contracts; conditions on terminating the labor contracts; paying for severance allowances There are legal regulations that have not kept up with the operation of labor market The explanation and application of lawful reglations on labor contracts are not consistent, affecting the implementation process as well as settling the labor disputes The integration and international cooperation in the field of labor contracts is not high Practical implementation of legal regulations on labor contracts also raises a lot of in adequate problems False signature on the type
of contract also occurs popularly, affecting the benefits of employees The content of labor contract is still sketchy and does not guarantee the minimum contents as prescribed by law A great deal of labor contracts have not actually been "committed" but mainly "enterred"; The provisions in the labor contract documents are prepared by the Employer, a lot of clauses are detrimental to the Employees, however, due to the pressure of having employment, the legal consciousness is not high or due to lack of skills, the Employees are often reluctant to accept The situation of "dodging the law" in the conclusion, terminating the labor contracts, dismissal of illegal employees takes place quite popularly, as a result that labor disputes arisen
Trang 2In Korea, the Labor Code has also been revised and supplemented continuously from 1953 until now (1st September 2014) The Korean Labor Code consists of a lot of laws, including the labor law standards consists of 12 chapters, of which chapter 2: Labor contracts are regulated clearly, contributing
to promote the formation and healthy development of labor market However, labor relations are becoming more developed and discontinued on changes, on the other hand, labor market as well as awareness of the participants in the labor relation has had a lot of changes Meanwhile, legal regulations on labor contracts have also revealed a lot of restrictions The continuous change of labor law caused the Employees and Employers meet a lot of restrictions in implementing and remembering the items in labor contracts
The reality of applying the labor law between Vietnam and Korea in recent years showed that, despite good preparation from the recruitment of employees and labor management, in Vietnam, labor relations in Korean Enterpriese remains the "hot spot" of labor disputes, especially in collective labor disputes In Korea,
in the recent years thousands of Vietnamese employees have been sent to work under contracts to send the employees to work abroad through labor brokage companies, contributing to solve the labor shortages for the world's most developed production market However, due to the training, guidance of enterprises to send the employees to work in Korea is not profound; qualifications and understanding of labor laws in general, Korean Labor Laws of Vietnamese employees have not satisfied the requirements, so a lot of employees violated Korean law Since then, it has affected the production and business environment and labor cooperation relations between the two countries
However, so far there have been no specific studies of academic programs
as well as profound, statured and high generalized practices to help the Labor Relation's parties in Korean investment enterprises in Vietnam and in enterprises in Korea to understand and apply the labor law in general and the labor contract law in particular This is the starting point of the idea to compare labor laws of Vietnam and Korea with a doctoral thesis So I have selected the topic: "Comparing the law on labor contracts between Vietnam and Korea" to make my own doctoral thesis
2 Purpose, obligation of research
Rearching the topic for general purposes is to build up a thesis on comparing the preparation of Vietnamese and Korean labor contracts, thereby proposing recommendations on solutions to improve the compatibility and effectiveness of implementing labor law of Vietnam and South Korea in the context of labor cooperation and investment cooperation between the two countries
- Specific targets:
+ Contributing to make clear the history background, relationship situation between Vietnam and Korea, meanwhile going in to details of researching the investment siuation of Korean Enterprises in Vietnam, Korea Employee works
in Vietnam, Vietnamses Enterprises invest in Korea, Vietnamese employees
Trang 3working in Korea to serve for Korean Enterprises to invest and recruit workers
in Vietnam
+ At the same time, through the study of labor laws of Vietnam and Korea will contribute to helping the Vietnamese Employees in Korea to grasp and understand the law
+ Making the proposals and suggestion on measures to improve the law on labor contracts of Vietnam and Korea in order to create favorable conditions for approaching, implementing and resolving the issues related to labor law of two systems
3 Object, scope of research
The researching object of this topic focuses on lawful comparision research
on labor contracts of Vietnamese and Korean labor laws The comparative content is shown by comparing 2 regulations of labor contracts of two countries, mainly the provisions of Labor Code 2012 of Vietnam and documents instructing to the implementation of this Code with the system of rules labor contract according to Korean labor law
Scope of researching is mainly focused on resolving the following issues
- Theoretical problems on labor contracts; historical context, economic situation and lawful system in general, labor law system of Vietnam and Korea
socio The system of legal provisions on labor contracts according to Vietnamese labor laws with the regulations of labor law according to the Korean labor law Therefore, evaluating the regulations of law on labor contracts of two countries, withdrawing the advantages and disadvantages of regulations as said above
- Reality in implementing to the law on labor contracts in Korean Investment Enterprises in Vietnam and Enterprises using Vietnamese Employees in Korea The researh aimed to clarify the status of applying the labor law, advantages, restriction and causes
- Other rekated problems to Labor Contrac, law of labour contract in
service for topic
4 New contributions of thesis
Thesis has contributions in argument and reality as follows:
- Contributing to clarify the historical context, the situation of relations between Vietnam and Korea, in which going into the study of investment situation of Korean enterprises in Vietnam, Korean employees working in Vietnam, Vietnamese enterprises investing in Korea, Vietnamese employees working in Korea
- Presenting some general problems on Labour Contract, Labour Contract Law of Vientam and Korea as the following research basis
- Presenting systematically, analyzing and evaluating the lawful regulations
of Vietnam and Korea, in particular clarifying the current labor law system between two countries Comparing and making clear of similarities and differences in the regulations of the labor contract law between Vietnam and Korea; the application of these regulations in practical labor relations in
Trang 4enterprises; labor disputes related to labor contract regulations and the causes of such disputes
- The thesis proposed the mainly solutions to improve and enhance the compatibility of labor contracts with Vietnam and Korea in order to create favorable conditions for approaching, implementation and settlement on related issues to the law on labor contracts of two systems At the same time, outlined the main solutions to improve the efficiency of implementing labor law of Vietnam and Korea in the coming time
- The thesis is the first scientific research document on a systematic comparison of two labor contract regulations in the labor law between two countries with economic and labor relations, and valuable for reference to labor laws for policy makers, lawmakers, the employers recruiting workers, the employees approaching the jobs, and helping the employers to grasp of more information and legal knowledge about labor disputes settlement of the labor contract is in accordance with the law
5 Meaning of theory and reality of thesis
The research results of thesis contribute to enrich further the basic theoretical system of labor contract as well as practical implementation of labor contracts of Vietnam and Korea The thesis is particularly necessary for the employees as well as the employers in raising legal knowledge in order to understand properly and grasp the regulations on making the labor contracts, thereby properly implementing the labor contracts in enterprises so that they are flexible and effective, avoid the case of misinterpretation and abuse of power to use the labor contract as a tool to enjoy the benefit for the employers that affect the benefits of the employees as well as the common benefits of society The thesis is a useful reference for agencies and organizations in the process of implementing and amending and supplementing the labor laws; for the establishments engaged in scientific research, teaching and learning on labor legislation; For the employees and other objects of both countries, they want to learn about labor laws in general and Labor Law of both Vietnam and Korea in particular
1.1.1 Research situation in Vietnam
For the labour contract, content of labour contact for the Employer and the Employee has been updated in the Labour Law Textbook for teaching the training sysstems in university level of lawful training bases and other specialties In addition, there are referrence documents book specialized in
referrence, compositional thesis such as Learning about Vietnam Labor Code"
Trang 5(2002) of Mr Pham Cong Bay, “Labor Contract Law of Vietnam – reality and development” (2003) of author DR NguyEn HUu ChI, “Editing, signing the Labour Contract and dispute settlement on the labour contract” (2005) off Pham Cong Bay, “Scientific comments on Labour Code of the Socialist Republic of Vietnam” of Ph.D Luu Binh Nhuong (Chief Editor), “Labour Contract, collective labor agreement and labour dispute settlement according
to the regulation of Vietnamese Law” (2014) of MA Phan Thi Thanh Huyen (Chief Editor), Reference Book “Law on the labour management right of the Employer in Vietnam” of Dr Do Thi Dung,… to refer clearly from concept,
nature, origin, role, reality of contracting performance, changing, temporary cancellation, terminating the contract From then making the directions of fulfilling the law of Labour Contract,… , In addition, there are scientific topics
such as Vietnamese Law with Japanese Investors (2009) of Hanoi Law University, due to Dr Lưu Binh Nhuong as Chairman, "Researching in order to contribute on modifying, supplementing the Labour Code in the current period"
(2010) of Hanoi Law University due to Dr Tran Thị Thuy Lam as the
Chairman of Topic, "Applying the Labour Law in the personnel management in Enterprises" (2011) of Hanoi Law University due to Dr Do Ngan Binh as the Chairman of Topic, "Rehiring the contract – A tendency to adjust of Vietnamese Labour Law in the marketing economic condition and international integration" (2012) of Hanoi Law University due to Dr Nguyen Xuan Thu as
the Chairman of Topic… Thesises and compositions such as Doctoral Thesis
“Labour Contract in the market mechanism in Vietnam” (2002) of Researcher Nguyen Huu Chi - Hanoi Law University , Master Composition “Some issues
on theory and reality on Labour Contract (2001) and Doctoral Thesis “Labour Conract is invalid according to the present Vietnamese Labour Law” (2009) of the author called Pham Thị Thuy Nga, Doctoral Thesis “ Law on terminating the labour contract unilatrerally- problems on theory and reality” Nguyen Thi Hoa Tam (2013) – Ho Chi Minh City Law University, Doctoral Thesis “Law on the labour management right of the Employer in Vietnam” (2014) of the author
called Do Thu Dung – Hanoi Law University For the magazine publishing article, scientific seminar in referring quite variety and details related to the
Labour Contract It can be told that “A few of features on the Labour Contract
in some countries in the world” of the author called Luu Binh Nhuong – Law Magazine in May 1995, "Labour Contract according to Vietnamese Law" of the author called Luu Binh Nhuong – Lawful Magazine No 1/1996, “Right unilaterally to terminate the contract” of MA Dao Thi Hang- Law Magazine
No 16 (2011), Article on "Labour Contract in modifying, suppementing some articles of Labour Code" of the author called Luu Binh Nhuong, Law Magazine
No 5/2002, Article on “Some problems on the Labour Contract Policy according to the regulation of Labour Code and Law on modifying, supplementing some articles of Labour Code” of the author called Nguyen Huu Chi – Magazine on the State and Law 4/2003, Article on“Problems neccesary
to modify the Labour Contract in the Labour Code” of Dr Tran Thị Thuy Lam
Trang 6– Law Magazine No 9/2009, Article on "Reality of Labour Code Application and tendency to complete the labour law" of MA Luu Binh Nhuong, Magazine
on Lawful Research No 5 (142) T3/2009, Article on Debating more on the renovated labour code draft, Dr Luu Bình Nhuong – Magazine on legislative research (National Assembly Office) No 11/2012, Article on “Labour Contract Signature according to the Labour Code in 2012 from regulation to awareness
on implementing” of the author called ASSOC.PROF.DR Nguyen Huu Chí – law magazine No 3/2013, Article on “Performing, terminating the labour contract according to the labour code in 2012 from regulation to awareness and performance” of the author called Assoc.Prof.Dr Nguyen Huu Chí and
MA Bui Kim Ngan – Magazine Law No 8/2013, Article on “Labour Contract- labour management tool of the Employer” from the author called Do Thị Dung – Law Magazine No 11/2014, Article on “Labour Contract Law from regulation to reality” of author called Le Thị Hoai Thu – Lawful Research Magazine No 23 (279) 12/2014, Article on “Some problems on labour contract performance according to the regulation of Labour Code 2012” of the author
called Dinh Thị Chien- Legal Scientific Magazine No 2/2015, Article on
“Influence elements on the law enforcement về on Labour Contract in Enterprises” of author called Le Thị Hoai Thu – Legislative Researching Magazine No 08 (288) 4/2015, Article on Refunding the training expenses in case that Employee unilaterally terminated the labor contract acccording to the item 3 article 37 of Labour Code” – People’s Court Magazine in Term II September 2015 No 18, Bài “Article on security- competitive restriction in the labour contract” of Doan Thị Phuong Diep – Magazine on “Legislative
Research” No 24 (304) term 2- in December 2015; For the report, scientific
seminar as there is seminar on “Labour Contract Dispute Settlement" (9/2015)
as organized at CEO Coaching interpretted by the lawyer called Nguyen Bang
Tu- TA Legal Limited Lawful Company , Article on “Some proposals of completing the regulations of Labour Contract in the Labour Code Draft” of Nguyen Thị Bich, Semianr on “Contributing the ideas to modify, supplement the Labour Code” of HCM City Law University as organized in May 2012
1.1.2 Research situation in South Korea
Textbook consists of “World of Labour Law in Korea” (2015) of Lee John, Publisher HUNE,“Labour Law in Korea” (2011) of Kim hyung bae, Publisher Parkyoungsa Providing all of definitions, concept on explaining the content related to the labour contract Scientific topics including “For the labour contract law of foreign countries mainly researching and discussing to apply with the method to apply in his own country” (2006), Hiệp hội luật lao động Hàn Quốc, “Nghiên cứu QHLĐ thời kỳ quá độ” (2008), Korean Institute of Labour Law Thesis, composition including the doctoral thesis “researching the structural restriction of law in the labour condition” (1987) of Dr Lee young
hee - Department of law in Seoul National University, Doctoral Thesis
“Researching on labour contract law” (1999) of Dr Lee seung gil, Faculty of Law, Seong kyun Kwan University, Doctoral Thesis “Law on the termed
Trang 7labour contract” (2004) of Dr No sang hyeon, Tokyo University, Master Thesis “Research on lawful problems in the labour contract signature” (2008)
of MA Ryu jae yul, Faculty of Law, Korean University, Master Thesis
“ Researchin on legality and restriction in invaliity and cancellation of labour contract”(2010) of MA Kim tae woo, Faculty of Law, Korean University,
“Researching on the non-official recruitment, testing work, learning vocation
in the labour law” (2007) of MA Kim hyun soo, Faculty of Law, Korean University Artcile published on the magazine: “Curriculum vitae of wrong declaration and cancellation of Labour Contract”, book 30 No 4 (February 2014) page.89-117 of Ha kyung hyo, Law Magazine on property “Researching
on the labour term, labour law researching magazine” No 32 (in 2012) page 1-
66 of Khang heone, Seoul University, “Changing the labour condition and sacking of the Employer” No 14/12/2008 page 71-110 of No byung ho, Labour
Law Comparision Magazine – Korean Labour Law Comparing Association
Report, scientific seminar: “Management Procedure for the non term labourer and Labour Management Procedure Code for termed labour” (2007) of the Ministry of Labour, “Importance and analysis of Labour Contrac” (2014) of
Shin, dong jin, Labor Law Book, Publisher called Joong Ang Economic,
“Salary, the Employee in the recruiting relation of the householder, labour time together with the form of labour contract ” (2015), Korean Statistics Office,
“In the real situation of recruitment in official comparision and non official comparision”(2015), Korean Statistics Office
1.1.3 Situation of researing in some other countries in the world
Reference book including: “Japanese labor law” (2015), Skeno Khazo Translated by Lee John, Nxb Bobmunsa, “Understanding Labor and Employment Law in China” (2009) Chapter XVI page 332 of Ronald Brown New York: Cambridge University Press, “Labour Law in China”(2010) của
Chen, Publisher called Kluwer Law Int'l, Labour Law of China, "Employment law for business" (2005), Dawn D Bennett-Alexander, Laura B Pincus, McGraw-Hill Companies, "Employment Law" (2010), Hugh Collins, Oxford University Press, “EU Labor Law” (2012), A.C.L Davies, Nxb Edward Elgar Publishing Inc, “Perspectives on Labour law” (2003), của A.C.L Davies, Nxb Cambridge University Luận án: “40 Years On” Industrial law Journal (Oxford
Journals) Volume 36, Issue 4, P397-424 (British) Lord Wedderburn, Labour Law 2008
1.2 Researched problems in relation to the thesis topic and some comments and evaluation
Although scientific works as mentioned are not concided with the thesis topic, but in different levels, containing the problems related to the content of thesis topic In foreign countries, especially in South Korea as well as in Vietnam has quite a lot of detailed research work pursuant to the regulation of law and reality, also there is a lot of work related to the contract problems but
no work mentioned in systematical comparision between two countries Vietnam and South Korea in each theorical problem and content reality of
Trang 8labour contract However, thanks to the reseaching works as mentioned above the author can withdraw, arrange, evaluate overally the aspects of labor contract
in both nations From then providing the researching orientation for topic
1.3 Basic problems necessary to resolve in the thesis
Thesis is necessary to resolve with three of basic theory problems as follows Firstly, analyzing the theoretical problems in labor contracts of all countries
in the world including Vietnam and Korea Based on the differences in theory
of labor contract law as well as the situation of entering society, the development process, characteristics and contents of labor contracts, it is possible to provide the most common criteria for labor contracts From those standards, it is possible to compare the labor contracts between two countries
in the most standard way The identification of labor relations deepens in theory The previous works showed only very general labor contract characteristics, it can be seen that it is not necessary to have a new contract to recognize the labor relations If there is an employment relationship, it will be classified as labor, not the form of a contract, then put into labor relations It caused a lot of enterprises to avoid insurance, so they signed a civil contract but are essentially
a labor contract, so they have to bring about labor relations Currently, there has not been any analytical study that points out the theoretical features of the labor contract so that in this thesis, it is possible to fully analyze this problem
Secondly, it is possible to analyze and compare the differences in concepts, subjects, principles of commitment, form, content, type of order, validity of labor contracts, performance of labor contracts, termination of labor contracts between Vietnam and South Korea In South Korea, the employees and the employers not only apply the labor force, but also apply the Labour Union Law, Law on working time limit, case law, etc On the contrary, in Vietnam, labor problems apply only the Labor Code and Labor Union Law Since then, we can see that system of applying laws for labor contracts in two countries is quite different Therefore, based on the practical application of labor contract and labor contract, it is possible to analyze, look carefully and in detail about the content of regulations of both countries, thereby seeing good points, bad points contributing to improve the labor law system of both countries
Thirdly, from the comparison of law in two countries as said above, it can
be seen in Korea that there are a lot of problems of dispute that do not have any rules in the law but must be base on the case law, so there is no any consistent standards, the same as in Vietnam, there are more specific regulations than Korea, even if there is a dispute and no applicable rules, it is difficult to resolve the dispute Since then, it is necessary to approach with solutions to solve the inadequate situation in labor contracts of both countries today In addition, it can be based on the advantages of labor contract conditions in the countries around the world to refer to, applying for Vietnam and Korea, contributing to improve the quality of law
Trang 9Researhing on the labor law problems has been mentioned in different areas and aspects, but there has not been any intensive and comprehensive research work on theoretical and practical comparisons according to lawful regulations
of both countries is Vietnam and Korea
Researhing on the problem of "Comparing the law on labor contracts in Vietnam and Korea" is a necessary scientific task based on selective inheritance
of research results
CHAPTER 2: SOME THEORICAL PROBLEMS ON
THE LABOUR CONTRACT AND LAW ON LABOUR CONTRACT 2.1 Some theorical problems on labour contract
2.1.1 Concept of Labour Contract
In order to understand exactly about the definition of labor contract, we will research on the history of labor contract formation of countries in the world History of labor contract formation started from ancient Rome times According
to the Rome's Law, the premise of establishing a labor contract is based on an agreement between two parties Currently, along with the development of labor law science and new awareness of labor goods, most countries have changes in the perception of labor contracts Therefore, in addition to civil law which is considered a legal basis to create the general principles for contractual relations,
in the adjustment of Labor Relations, there are separate laws such as Labor Code, Law on Labor Standards, Law on protecting the female laborers, minor laborers, or be adjusted through case law
Thus, it can be seen that nature of labor contract is a negotiation between
two subjects, one side is the employee who has a demand for employment, and
on the other hand the employer needs to hire employees to purchase the labor effots In particular, the employees have committed to voluntarily do an employment for the employers and put themselves under the management of the employers to have an income called salary
labor contracts can be seen in the following characteristics: Subjects participating in labor contract signature are anonymous - performed as a special individual with the employees, labor contracts with an object that is paid, there is a legal dependency between parties in labor contracts, labor contracts must be carried out continuously over time, labor contracts shall be performed within a certain period or indefinitely
Trang 102.1.3 Role of Labour Contract
Labor contract is a legal form of labor relations, labor contract defined recognized the rights and obligations of the parties in labor relations, labor contract is a legal basis on resolving the arisen problems of labor relations
2.2 Some of theorical problems on Labour Contract Law
2.2.1 Concept of Labour Contract Law
Law on labor contracts is understood as a combination of lawful procedures
on contracting, performing and terminating labor contracts that employees and employers must observe in the labour contract relations
2.2.2 Content of law adjustment on the labour contract
2.2.2.1 Commitment on Labour Contract
Subject of Labour Contract
The subject of labor contract is the parties of labor contract Engaging in labor relations with labor force and the employers Therefore, the subject of Labor Contract includes the employees and the employers
Principle of Labour Contract Commitment
The principle of committing a labor contract is one of important contents recognized by the laws of countries because it is a penetrated guidance thought from the stage of committing and implementing to terminate the labor contract
Sequence of Commitment
Sequence of commitment is a leading stage of making a labour contract
Form of labor contract can be presented clearly through speech, documents
or through the practical labor Not only in Vietnam, the countries in the world such as Korea, Japan, France, England, Germany, the form of committing the labor contracts also follows the principle of freedom: committing in oral or written
Each country has different economic, social and cultural conditions, so the type of labor contract is very different However, most of countries in the world divided the labor contracts into two main types: termed labor contracts and non-term labor contracts
The contents of labor contracts include the rights and obligations of employers and employees together with the content of labor conditions
In cases that the parties failed to comply with the regulations of law on labor contract commitment such as subjects, contents of labor contracts ., it may cause to the invalidity of labor contracts Depending on the socio-economic conditions, countries have different regulations on invalid labor contracts, but generally invalid labor contracts are often divided into two categories: partially invalid labor contracts and wholly invalid labor contracts
2.2.2.2 Performance of Labour Contract
Trang 11Mobilizing the laborer is often a change of job type and working position ò the Employee
Amending and supplementing the labor contracts is an amendment on the terms of labor contract The amendment and supplementation of labor contracts often leads to changes in the rights and obligations of parties in labor relations
Suspending the performance of labour contract
Suspending the labor contracts is the case where the parties temporarily stop performing their rights and obligations for a certain period of time but still existed
2.2.2.3 Terminating the labour contract
From the ILO's point of view, both parties are able to agree on terminating the labor contract or according to the laws of local country (Article 9 - Convention No 114)
In most of countries in the world such as Japan, England, France, Germany, the case is terminated due to both parties, the most typical will is when the Labor Contract term ends or an agreement on ceasing work
• Due to will of the third party or legal events
For the termniation of labor contracts in this case, according to ILO regulations, depending on the regulations in the laws of local country, in Japan and Germany as well as in many countries, it is regulated in the law on terminating the labor contracts due to the third person’s will or legal events arisen, for example, for subjects who lose the civil acts (dead, missing, people are convicted, ) According to the case law in France and the UK, this is also considered as a third party that regulates on terminating the labor contract
• Due to one party’s will
In general, pursuant the law of countries divided the cases of terminating the labour contract due to one party’s will including: the case of terminating the labour contract due to the will of the Employee andthe case of terminating the labour contract due to the will of the Employer Reason for the Employee terminated the labour contract with the Employer often are the cases that Employer is not sure about employment condition according to the Labour Cotnract , having not paid salary pursuant to the regulation, the Employee is abused or forced to labor Reason for the Employer terminated the labour contract on the Employee usually including: the cases due to the fault of Employee or because of objective reasons that Employer is unable to overcome
or due to the existence of enterprise in market economy (economic reason) , the Employee to the age of retirement, discipline sack, in addition that sacked because of economic reason
Trang 12As terminating the Labor Contract in addition to the reason for terminating, all parties must comply with certain procedures such as advance notice or notify the competent authorities
• Due to negotiation(will of 2 parties)
Each country has different procedures in terminating the labor contract by means of negotiations Normally, these regulations will refer to the valid times
as well as the sequence of notifying the parties before terminating the labor contract,
• Due to will of the third party and legal events arisen
For the procedure for terminating the labor contract in case the employee is dead or missing, the labor contract will automatically be terminated and the employer is not an individual but the successor will continue to operate the economic organization and the labor contract will not be terminated At this point, all countries in the world are the same, the only difference is that depending on each country, this regulation is projected into different codes or legal cases
Procedures for terminating the labor contracts due to the will of one party, depending on each specific case, depend on each country but have different procedures For the employer side, the notitication time before terminating the labor contract is clearly defined In summary, it can be seen the employer wants
to terminate the labor contract with the employees in each country according to the principle of "properly reason" (reasonable) In case there is no legitimate reason to terminate the labor contract, the problem of complying with the sequence of terminating the labor contract will not be considered If the termination of labor contract has no legitimate reason, the termination is, of course, considered null and void, then whether or not the termination notice is not a considered problem However, if the case ends with a reasonable reason but does not inform the procedure, such termination is considered invalid or effective, which is a necessary to raise
Benefit settlement as terminating the labour contract
As terminating the labour contract that benefit settlement for the Employee
is the most important problem on terminating the labor relations However, benefit settlement as terminating the labor contract depending on the subject of terminating and terminating is legal or illegal
Trang 13Conclusion of Chapter 2
Chapter 2 thesis system of theoretical problems on the labor contracts, providing the concepts and contents of labor contract law of countries around the world,since then providing the most common arguments for labor contracts Research results of chapter 2 will be a premise to research and evaluate the labor contract conditions of Vietnam and South Korea Since then, the comparison of laws in two countries has been made
CHAPTER 3: LAWFUL REALITY ON THE LABOR CONTRACT FROM THE COMPARATIVE POINTVIEW BETWEEN VIETNAM
AND SOUTH KOREA 3.1 Labour contract Commitment
3.1.1 Subject of Labour contract Commitment
3.1.1.1 Subject of Labour Contract Commitment pursuant to Vietnamese Law
Recommending on the employees, the employers pursuant to Vietnamese law regulation according to different ages and industries and have different restrictions At the same time, there are additional examples of case law related
to the subject of labor contract in Vietnam
3.1.1.2 Subject of Labour Contract Commitment pursuant to Korean Law
The same as the regulation of Vietnamese Law, it also regulated the content relevant to the employees, the employers such as concepts, age and industry Case law in relation to the labor contract subject in South Korea
3.1.1.3 Similiarity and Difference on subjet in the labour contract commitment between Vietnam and South Korea
From the regulations as above providing the similiar and different things in the Labour Contract Subject of both countries
3.1.2 For the principle of Labour contract commitment
3.1.2.1 Principle of labour contract commitment pursuant to Vietnamese law regulation
HĐLĐ được giao kết trên cơ sở các nguyên tắc sau đây: a Tự nguyện; b Bình đẳng; c Thiện chí, hợp tác và trung thực; d Không trái pháp luật, TƯLĐTT và đạo đức xã hội
The labor contract is committed on the basis of the following principles: a Voluntary; b Equality; c Goodwill, cooperation and honesty; d Not contrary
to law, Collective Labour Agreement and social ethics
3.1.2.2 Principle of labour contract commitment of South Korea
Gồm có 3 nguyên tắc: a Nguyên tắc tuân thủ pháp luật, b nguyên tắc bình đẳng, c nguyên tắc dựa trên quy định của NQLĐ và TƯLĐTT
Including 3 principles: a Principles of observing the law, b principle of equality, c principles based on the regulations of Labour Rule and Collective Labour Agreement
3.1.2.3 Similiarity and Difference on principle as signing the labour contract
in the law of Vietnam and South Korea
Accordingly, the principle of labor contract signature in Vietnam and Korea must comply with the principle of freedom, equality, voluntariness as signing