Extraterritorial Reference of China‟s Labor Market Flexibility Adjustment

China’s labor market is facing a policy and legal dilemma of balanced flexibility and security adjustment. Under the condition of the continuous development of new economic conditions such as sharing economy and platform economy, the new employment pattern of the labor market presents new challenges to the current legal system. It is of great significance to optimize and perfect China’s existing labor policies and regulations by studying the experience of representative countries such as the United States, Japan, and Germany in labor market regulation and drawing on their scientific adjustment model.

In the early industrialized countries of the West, contract freedom was pursued in the field of the labor contract, which was the labor market practice under the guidance of liberal economic theory. The management has greater freedom in the exercise of the right of employment and dismissal. As some scholars have discussed, the management in the process of enterprise management, has a certain degree of internal management authority of the enterprise is taken for granted, the right to fire should be regarded as a kind of enterprise production and operation rights. But with the development of industrialization, the workers" awareness of labor rights, the development of trade union organizations, workers began to be less and less satisfied with their lives in a state of insecurity. For example, by introducing the French Labor Code, France has stipulated that a fixed-term labor contract may not exceed 18 months and that a fixed-term labor contract cannot be entered into without objective reasons.

Right to Change a Labor Contract
Germany and France are more stringent in the use of public law to adjust labor contract changes.
Germany mainly adjusts the contracting power of the parties by contract, which adopts two main modes of adjustment: the legitimacy guarantee model and the self-determining model. German law holds that if the status of the contracting parties is too wide, the autonomy for the change of contract is made by a powerful party, so intervention through public law allows the parties concerned to seek a relative balance in a changing environment. At the same time, the social legitimacy of the terms of labor contract changes is reviewed, such as articles 2, 4, and 8 of the German Law on the Protection of the Termination of Labor Contracts, which clearly state that the conditions of the change should conform to social legitimacy, and list the relevant conditions and standards.
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French labor law distinguishes between unilateral changes by employers. Different adjustments have been made to the change of labor contract and the change of labor conditions, for example, for the adjustment of labor conditions, the employer can make full use of its employment autonomy, under the premise of making small-scale adjustments to wages, working hours, etc., the labor contract has not changed substantially. Employees may not agree with the employer's chance of working conditions and may resign, but must make clear their intention to resign. Otherwise, if the employer is prosecuted for unlawful dismissal after resigning, the judge generally does not recognize it, and the employee will not receive any compensation or compensation. In the case of changes in the labor contract itself, the

The Right to Choose the Form of a Labor Contract
There are three main ways to adjust the form of the labor contracts in the international market. One is to adopt a liberal model. Mainly representing countries and regions such as China"s Macao and Hong Kong Special Administrative Region, Eastern countries such as Singapore, Europe, and the United States, Italy, the United Kingdom, Australia, and other typical countries; Such as China"s Taiwan, France, Belgium, Indonesia, and other countries; Third, it is mainly written, oral as the exception mode.
Such as Vietnam, Sweden, Russia, and other countries. For example, the Vietnamese Labor Code makes it clear in its article 28 that labor contracts should be signed in writing. However, for temporary work with shorter durations, such as temporary jobs of up to three months, written confirmation is not necessary if the parties to the labor relationship agree. The main reason for confirming the form of labor relations in writing is to give the written labor contract the function of evidence value. The reference to China is to clarify the evidence value of written labor contracts, not to make strict provisions on the form of non-fixed-term labor contracts, but to pass written documents, rosters, wage payment vouchers, unemployment registration information, separation certificates, and so on. As long as the relevant materials can prove the existence of labor relations, it is considered effective. However, for fixed-term labor contracts, it must be confirmed in writing, otherwise, it will also bear adverse consequences, mainly to prevent the moral risk of the subject of labor relations, save trial resources, and so on.

The Right to Agree on the Term of the Labor Contract
At present, there are three main types of legal adjustment on the duration of labor contracts. One is the model of free application and dismissal for just cause represented by the United Kingdom; Second, the free application and prohibition of the abuse of dismissal power represented by the United States; Third, France and Germany as the representative of the strict application, justifiable combination model.
However, China"s current adjustment mode is different from the above three, or it can be summarized as the fourth type of mode, which is based on the current labor contract term rules in China. Its characteristics are compared in the following table. Therefore, the proposal to our country is to dismiss during the probationary period, enterprises need more autonomy, while the scope of application of dismissal protection is defined in the scope of non-fixed-term contracts, for economic compensation only applies to medium-and long-term labor relations, further increase in the constructive dismissal while refining the unfixed term dismissal related adjustment measures.

The Labor Relations Identification and Subject Classification Adjustment System Represented by Germany and Italy
The different subjects of labor relations are classified scientifically, and the adjustment mode of differentiation has been adopted by many countries in the world, and the legislative practice has been carried out. For example, Japan, the Netherlands, Italy, Switzerland, Germany, France, the United Kingdom, etc., through the design of their national civil codes or other labor legal systems, to achieve the adjustment of the classification of the subject of labor relations. The best representation is the German, Italian civil codes and Swiss debt laws that provide for this in more detail.
The first is Germany. German law adjusts labor relations according to the size of enterprises, the number of workers, and other factors. The main reason for Germany"s classification adjustment is to play the leading role of small and medium-sized enterprises in the economy, and to cultivate the size of the country"s middle-class development, through scientific calculation, the performance of the enterprise through the setting of a critical value of this criterion to adjust the scientific classification of enterprises. In the setting of critical values, the selection of parameters or indicator systems is very important. The basis of the threshold is mainly to look at the size of the number of workers in enterprises, some special groups such as part-time employment groups, apprentices, dispatchers, etc.
are also considered within the scope of indicators, but also take into account the scale of production of enterprises and other conditions. The calculation of critical value is rational and gives a visual and quantifiable criterion for the classification of enterprises, and its calculation process is also the result of the interesting game of all parties.
As for the division of workers" identity, the mainstream opinion in Germany holds that the personality of labor relations should be regarded as the main basis for determining. Mainly from two aspects of the investigation, one is to see whether the employee joined the employer"s organization, and the other is to see whether the work has been carried out under the command of the employer. According to these two major judgments, the focus is on the actual case of workers in the work content, location, duration, conditions, and other aspects of the situation under the command of the employer, supplemented by other elements of judgment, and finally concluded. About the classification of workers, German labor law adopts a three-way system that divides the group of workers into self-employed groups, similar groups of workers, and groups of standard employees. Similar groups of workers enjoy almost the same treatment in legislative protection because they are similar in nature and external form to standard employees. At the same time, different groups within, but also carried out a detailed decomposition. The second is Switzerland. In the era of amending and perfecting its creditor"s rights law in Switzerland, the construction of its labor legal system has become more perfect, and the labor market is in a benign state of development. Based on a full study of the labor market, the Swiss government has carried out a scientific classification for its domestic employees and employers by setting different standards, which provides different subjects with different means of adjustment, thus adjusting labor law to the subject of labor more precise. Switzerland established the legal system of employment contracts in 1911 and amended the debt law to a greater extent in 1917 when previous employment contracts were amended to labor contracts.
The third in Italy. In the first four chapters of its Civil Code, Part 5, on labor legislation, Italy has also made different classification adjustments to labor subjects and treated different objects differently. The

Non-standard Employment System Represented by Japan
 In terms of the labor dispatch system. The legal adjustment of the labor dispatch system in foreign countries can be interpreted mainly from the next few aspects. The first is to lift the veil of labor dispatch. The condition is that if the employer or employing unit violates the relevant provisions of labor law, the relevant departments and legal systems may make the dispatching act labor-related; For example, article 54 of the Vietnamese Labor Code stipulates that the period of service of human resources intermediary services shall not exceed one year; Third, the standards applicable to labor dispatch contracts are strictly qualified. The German Law on Part-time Employment and Fixed-Term Contracts applies to labor dispatch, so it can also be inferred that labor dispatch must be temporary or temporary, while the Labor Dispatch Law stipulates that labor dispatch is not allowed in the construction industry; Article 42, paragraph 2, of the Japan Labor Dispatch Law, makes it clear that workers of a continuous nature of employment for more than 12 months shall be under an "obligation to make immediate employment efforts". Article 124-3 of the French Labor Code also states that the provisions of the dispatch contract prohibiting the dispatched enterprise from employing the dispatched workers are invalid. The Vietnamese Labor Law also makes it clear that workers may, if they wish, negotiate with the employer for the establishment of fixed or non-fixed-term labor contracts after the expiration of the employment service agreement provided by the relevant employment intermediary; Fifth, to promote the realization of the transformation of irregular employment contracts. ② In terms of non-standard workers. In the process of adjusting the flexibility of their labor market, western countries have put flexible employment, including but not limited to labor dispatch, part-time employment, etc., in the prominent position of adjustment, and make full use of their flexibility to stimulate the flexibility of the entire labor market. There are two common practices in Western countries: first, policy-led adjustment. The government has adopted the corresponding labor adjustment policy to realize the standardized, scientific, and orderly management of flexible employment, and the second is to enact relevant laws to ensure the effectiveness of the adjustment of flexible employment groups by the force of law.

Netherlands
One of the most representative homes in the flexible security balance is Denmark and the other is the Netherlands. The flexible security model of the Danish labor market has its characteristics. First, the existence of this Anglo-Saxon free flexibility, refers to the enterprise can be following changes in the external environment and internal production structure adjustment at any time to hire or fire employees, if the reasons are reasonable, then it is not subject to any legal constraints and constraints; Of course, employees do not see their dismissal as a "flood beast", because the country"s well-developed social security system can help them, when they lose their jobs, does not mean that they lose their source of income, the state through unemployment benefits and other means to ensure their income security.
Denmark"s flexible security mode is also known as the "Golden Triangle" model (see figure below). This model has three fulcrums, one is the flexible labor market of the country, which guarantees a high degree of flexibility, the other is the stable social security system, which guarantees security, and the third is the active labor market regulation policy, which guarantees the motivation. According to statistics, in the 1990s, at least a third of employees rotate from one workplace to another, and a quarter of them would be laid off and flowed into the social security net to protect their income through unemployment benefits. This part of the staff can be divided into two categories, one is a short break after looking for work, and the other is more than a certain period still unable to find a job if there is a problem with their ability, then to receive the country"s skills upgrading training, otherwise can no longer receive unemployment benefits. The other is the "idler", who, if they are not keen enough to find work themselves, will be forced to stop receiving unemployment benefits and find a job. Through this structure, a virtuous circle is formed. One thing to mention here is that Denmark"s social security system is perfect. Statistics show that low-income groups have a higher income substitution rate of their own when combined with the various subsidies associated with their jobs and combined with Flexible Labor markets The social security Education policy, etc.
Active labor market policy, loose legal environment

Income protection
The safety effect of legal guarantee in the labor market Job security The flexible effect of legal guarantee in the labor market

Experiences and Enlightenments of Foreign Expeditions
With the continuous development of the global economic model, the mode of labor is constantly changing, and its legal adjustment is also adjusting. The legal adjustment in the field of labor in western developed countries shows the following characteristics: First, the specialization of labor legislation. The specialization of legislation is aimed at the recurring problems in the field of labor and is fine-tuned by special legislation. For example, concerning the mode of labor dispatch, Germany has introduced the Employee Transfer Act, through which labor is permitted dispatch, and the dispatch method, requirements, etc. are specified. Japan introduced the Japan Workers" Dispatch Law in 1985, and the labor dispatch began to be fine-tuned. Germany and Japan through a special form of legislation to the labor dispatch have made a detailed response, and the background is the dispatch abuse, workers" rights and interests have been violated more serious stage, therefore, the legislation began to send near-harsh provisions. With the development of the economy and the gradual standardization of dispatch forms, it is possible to "unbind" labor dispatch (Note 3).
Second, the labor legal system serves the economic development trend. With the increasing trend of economic globalization, the adjustment of domestic industrial institutions, enterprises face increased competition, to reduce costs, enterprises on the autonomy of employment calls are becoming more and more strong. At the same time, to increase the employment rate and give more workers access to work opportunities, the law began to adjust the mode of employment. One is to allow flexibility in the way of employment, especially the proportion of part-time workers increased. Germany increased from 100,000 flexible workers in 1980 to more than 900,000 in 2011, and article 8, paragraph 1, of the German Law on Part-time Employment and Fixed-Term Labor Contracts makes it clear that if full-time workers apply for part-time employment, the management should agree. The reason is that Germans believe that a full-time switch to part-time will free up more jobs, allow more workers to get jobs, reduce the country"s pension burden, but also protect the flexible employment model of enterprises.  situation in the field of employment. Therefore, in the process of dealing with flexibility, we should not only absorb the foreign advanced experience but also learn the lessons of its adjustment. Combined with the actual situation of China"s labor market, creatively realize the scientific adjustment of the labor legal system to labor market flexibility.