Ye Jingyi, Peking University Law School
The promulgation of the Regulations on Personnel Management in Public Institutions (hereinafter referred to as the Regulations) is an important measure to further promote the reform of personnel system in public institutions by the rule of law. The staff of public institutions are an important part of China's human resources and talent team, and the governance of public institutions is an important aspect of the modernization of national governance capacity. The formulation and implementation of the "Regulations" is of great significance for promoting the legalization of personnel management in public institutions, improving the efficiency of human resources management in public institutions, gathering and making good use of talents, and then providing better and more efficient public services for the broad masses of the people.
The implementation of the "Regulations" needs to pay attention to three aspects:
First, grasp the legislative spirit and purpose of the regulations from the height of the reform of public institutions. The "Regulations" comprehensively implemented the central government's various arrangements for the reform of public institutions, and initially established a legal system for personnel management in public institutions around the transformation of the employment mechanism. The guiding opinions of the Central Committee and the State Council on promoting the reform of public institutions by classification and the opinions of the Central Office and the State Council on further deepening the reform of the personnel system of public institutions have made comprehensive arrangements for the reform of the personnel system of public institutions and are the main basis for formulating the Regulations. As the leader and core of the legal system of personnel management in public institutions, the Regulations pay attention to systematicness and eliminate the blind spots of the system. In order to transform the employment mechanism and realize the transformation from fixed employment to contract employment and from identity management to post management, the Regulations have improved the employment system and further determined the employment system as the basic employment system of public institutions. The special chapter stipulates the post setting of public institutions, which provides a basis for public institutions to employ people and manage people by posts; Improve the system of open recruitment and competition for posts, improve the system of assessment, training, rewards and punishments, wages and benefits and social insurance, and establish the guarantee of recruiting talents and improving the enthusiasm of staff in public institutions in legal form; The regulations on handling personnel disputes have been strengthened. The promulgation of the "Regulations" plays an important role in achieving a sound management system, a sound employment mechanism and a complete system of policies and regulations by 2020.
Second, we should grasp the relationship between "Regulations" and separate personnel legislation and "Labor Contract Law" from the perspective of legal system. In the process of institutional reform, Relevant departments in the State Council have successively issued the Trial Measures for the Management of Post Setting in Public Institutions and their implementation opinions (2006), Interim Provisions on Open Recruitment in Public Institutions (2005), Opinions on Trial Employment System in Public Institutions (2002), Explanations on Relevant Issues Concerning Trial Employment System in Public Institutions (2003) and Interim Provisions on Staff Assessment in Public Institutions (2003). The Interim Provisions on the Punishment of Staff in Institutions (20 12) and the Provisions on the Punishment of Staff in Institutions (2004), and the comprehensive personnel management departments of local institutions at all levels have also issued a large number of relevant detailed rules. Most of these separate personnel laws were formulated by Ministry of Human Resources and Social Security (former Ministry of Personnel), and their effectiveness is lower than the Regulations. In case of any conflict with these provisions, these provisions shall prevail. At the same time, as the core of personnel legislation in public institutions, regulations pay attention to systematicness and principle, and the specific content depends on the filling of individual personnel legislation. Under the condition of not violating the regulations, the separate personnel legislation that has been promulgated will continue to be effective. For example, regarding the term of employment contracts, Article 12 of the Regulations stipulates that "the term of employment contracts concluded between institutions and staff shall generally not be less than three years". The Opinions on the Trial Employment System in Institutions stipulates: "Short-term contracts of less than three years are generally signed for positions with strong mobility and low technical content." This provision does not conflict with the regulations and is still valid.
Legally speaking, the employment contract of public institutions and the labor contract in the Labor Law are both famous contracts, which are adjusted by the Regulations and the Labor Contract Law respectively, and the difference between them is obvious. However, employment contract and labor contract are closely related in legislation. Article 96 of the Labor Contract Law stipulates: "If there are other provisions in laws, administrative regulations or the State Council, those provisions shall prevail when institutions conclude, perform, change, dissolve or terminate labor contracts with employees who implement the employment system; If there is no provision, it shall be implemented in accordance with the relevant provisions of this law. " In other words, the regulations and the labor contract law constitute the relationship between special law and general law, and the labor contract law should be applied to the contents that are not specifically stipulated in the regulations. For example, the "Regulations" stipulates the system of unilateral termination of employment contracts between institutions and staff, but it does not stipulate or prohibit both parties from terminating employment contracts through consultation. At this time, Article 36 of the Labor Contract Law should be implemented: "The employer and the employee can terminate the labor contract through consultation." For another example, Article 19 of the Regulations mentions the dissolution of the employment contract according to law, but there is no provision for dissolution. At this time, Article 44 of the Labor Contract Law should be implemented.
Third, we should grasp the relationship between the Regulations and the legal reform of public institutions from the perspective of development and perfection. First, China's institutions implement the personnel management system, which is unique in terms of employment mechanism, management system and incentive mechanism. How to realize the effective connection between the personnel management system and the labor relations system is an urgent task to build a unified human resources market in China, and it has also received great attention from the broad masses of the people. To solve this problem from the legal point of view, we should first pay attention to fairness and straighten out the issues such as wages and benefits, retirement and pension benefits; The second is to promote the flow, realize the multi-directional exchange of talents under different employment mechanisms, and break down the institutional obstacles that hinder the flow of personnel. The Decision of the Central Committee on Several Major Issues of Comprehensively Deepening Reform adopted by the Third Plenary Session of the 18th CPC Central Committee calls for "reforming the wage subsidy system of government agencies and institutions", "promoting the reform of the endowment insurance system of government agencies and institutions" and "improving the system of smooth flow of talents in party and government organs, enterprises and institutions and all fields of society". The "Regulations" set up a special chapter on wages, welfare and social insurance, stipulating that "the state establishes a wage system for public institutions that combines incentives and constraints" and requires that "the wage distribution of public institutions should be combined with the characteristics of different industries and institutions, reflecting factors such as job responsibilities, work performance and actual contributions"; Establish a normal wage growth mechanism for staff in public institutions; Implement the legal working time vacation system; Implement a system of statutory retirement and social insurance. These regulations point out the direction for the reform of public institutions, but they need to be implemented by relevant departments and formulate operational norms.
Second, the "Regulations" have taken steps to improve the handling of personnel disputes, and subsequent reforms should be followed up. The "Regulations" set up a special chapter to stipulate the personnel dispute handling system, and improved the complaint, arbitration and litigation dispute handling system. In the future, we can follow up the reform from two aspects: First, promote the institutionalization and legalization of personnel dispute mediation. Mediation is the quickest and cheapest way to solve personnel disputes. Some places have issued regulations to establish specialized personnel dispute mediation organizations and standardize mediation procedures. At the national level, unified regulations should be made on personnel dispute mediation in due course. The second is to strengthen the guidance of personnel dispute trial. In 2003, the Supreme People's Court promulgated the Provisions on Several Issues Concerning People's Courts' Handling of Personnel Dispute Cases in Public Institutions, which included the disputes between public institutions and their staff due to resignation, dismissal and performance of employment contracts into the scope of litigation. There are only three provisions in the "Regulations", and although some trial guidance documents have been issued by local courts, the guiding significance for personnel dispute trials is limited. The regulations stipulate that personnel disputes shall be handled in accordance with the Labor Dispute Mediation and Arbitration Law of People's Republic of China (PRC) and other relevant provisions, and it is clear that the handling of personnel disputes in public institutions shall be linked with the Labor Dispute Mediation and Arbitration Law. In the future, we can coordinate the trial mechanism of labor and personnel disputes and improve the litigation system of personnel disputes in China according to the requirements of the Regulations and on the basis of summing up the experience of trial practice.