劳动合同服务期规则的适用——以海南省某企业招聘信息为切入点

海南省某企业在其招聘广告中要求劳动者承诺终身服务,涉及服务期规则的适用问题。现行《劳动合同法》存在对劳动者过度保护的倾向性,劳动者约束性条款数量较少。而服务期规则作为用人单位长期留用人才的唯一法律依托,存在着可设定服务期的事项范围过窄、违约金条款不具有应有惩罚性的问题。服务期规则的不健全把企业吸引和培育人才的手段引向异端。司法实践中出现了对现行服务期规则进行突破的裁判或未突破现行规则但裁判结果有违诚信原则的情况。针对现状,建议拓宽可设定服务期的事项范围、改进违约金规则使其具有惩罚性来保障企业人力资本投入上的合理利益,同时规定最长服务期限来维护劳动者基本权益,从而最大限度地维持劳资双方利益平衡。

Application of Labor Contract Service Period Rules--Take the Recruitment Information of a Company in Hainan Province as the Entry Point

An enterprise in Hainan Province requires workers to commit to life-long service in its recruitment advertisement,which involves the application of service period rules.The current Labor Contract Law has a tendency to over-protect workers,and the number of binding clauses for workers is relatively small.As the only legal basis for employers to retain talents for a long time,the service period rule has a range of matters which include settable service period being too narrow and liquidated damages clauses being not punitive.The imperfect rules of the service period have led companies to attract and cultivate talents to heretics.In judicial practice,there have been cases in which a judgment that breaks the current rules of service period or does not break the current rules but the results of the judgment violating the principle of good faith.In view of the current situation,it is recommended to broaden the scope of matters that can be set for the service period,improve the penalty rules to make it punitive to protect the reasonable interests of the enterprise’s human capital investment;at the same time,it is recommended to set the longest service period to protect the basic rights and interests of workers so as to maintain the balance of interests between labor and management.