Paid annual leave for employees is a rest and leave system stipulated in the Labor Law. Many people complain that the period of paid annual leave in China is too short, and the law only makes authorized provisions, that is, the specific measures are stipulated by ***. Many people believe that it is legal for employees to sign voluntary waiver of annual leave, and arbitration and judicial practice may also confirm this. Social law has not been substantively understood by scholars and experts, and it is not legal for employees to voluntarily sign an agreement to waive paid annual leave.
Paragraph 2 of Article 45 of the Labor Law stipulates that employees who have worked continuously for more than one year are entitled to paid annual leave. The specific measures are stipulated by ***. Accordingly, most people believe that the current paid annual leave period is stipulated by ***, in fact, such as "employees who have worked for 1 year but less than 10 years, 5 days of annual leave" and other provisions of the leave period are determined by departmental regulations. Not only that, but relevant scholars also believe that paid annual leave is stipulated in the "Labor Law", for example, as stated in the law examination tutorial.
It is not uncommon for laws and administrative regulations to authorize the matters stipulated by ***, and departmental rules to "overstep the bounds". For example, the Measures for the Administration of Taxi Passenger Transport stipulated in the Road Transport Regulations, departmental regulations establish a permit management system. However, the Labor Code is not an administrative law, and the paid annual leave system is a worker's right. The relevant authorities cannot distinguish between the concepts of "employee" and "employee" in the workplace, and the paid annual leave system is "universal" for all employees.
The scope of application of paid annual leave has been expanded by scholars and relevant authorities, and the reason is roughly that many developed countries in the West do not have social laws, or social law departments, for example, most states in the United States do not have social insurance. Scholars also need to refer to the legal systems of countries such as continental Europe and Japan to study social law, for example, the gap in retirement benefits in Japan is not large.
There are different views on the origin and development of social law. For example, some scholars have argued that social law originated as a response to the "social problems" arising from industrialization, and that its content includes general terms for legal norms in the areas of labor and social security. Most scholars in China agree with this view, for example, the law examination tutorial book names social law as "labor and social security law".
Social law originated in utopia (utopian socialist societies of the 16th and 17th centuries) and developed, or was practiced in continental European countries, such as the National High Welfare State. Accordingly, the constitutions of socialist countries generally establish a social system and transform "utopia" into "reality" with guarantees such as the ownership of the main productive resources by the whole people.
From the analysis of the provisions of the Constitution, the main content of the "Social Law" is not only summarized in principle in the "General Program", for example, the fourth paragraph of Article 14 stipulates that the State shall establish and improve a social security system commensurate with the level of economic development. There are also specific provisions in the "General Program" and "Basic Rights and Duties of Citizens". For example, Article 21 stipulates that the state develops medical and health undertakings, modern medicine and traditional medicine in China, according to which the Drug Administration Law is a "social law". For example, Article 42 stipulates that citizens of the People's Republic of China have the right and obligation to work, and accordingly, the Labor Law is the "Social Law".
Scholars have different conclusions about the nature of social rights depending on the reference object of social law. For example, if we study social law with reference to the jurisprudence of the United States, we must conclude that social rights can be waived, but it should be noted that the eight-hour work of American workers is the result of struggle or resistance, and there is no specific legal provision.
The conclusion of social rights cannot be waived by referring to the provisions of the statute social law of the State as the object of study. For example, most people believe that an employee may waive the right to sign a written labor contract, but according to Article 6 of the Regulations for the Implementation of the Labor Contract Law, if the employee does not enter into a written labor contract with the employer, the employer shall notify the employee in writing to terminate the employment relationship and pay economic compensation in accordance with Article 47 of the Labor Contract Law.
The theoretical basis that social rights cannot be waived is that social rights involve public interests, for example, the rights (powers) of public officials cannot be waived. For example, if the employee does not sign a labor contract with the employer according to the rules for the disposition of rights, the employer does not need to pay economic compensation, but the disposition of civil rights is only applicable in the field of private law.
The reality that individuals cannot abandon their social rights is based on the fact that there is de facto inequality between the majority of individuals and social organizations. In the case of an employee signing an agreement with the employer to voluntarily waive paid annual leave, the employer may use various conditions to induce and coerce the employee into the agreement. In most cases, companies may be afraid to sign waiver annual leave agreements with senior executives, or senior technical employees who rely on them.Annual leave