2010年12月ACCA考試考官報告(F4)(2)

　　具體意見：問題三要求考生列出勞動管理部門在行使其監(jiān)督和檢查職能時所擁有的權利，并指出四種勞動管理機關可以對違反勞動合同法的雇主發(fā)布行政指令的情況。問題四要求考生解釋名詞“合同終止”，并說明合同解除和合同終止的主要區(qū)別。

Question Three
This question required candidates to state the various powers of the labour administration in exercising its supervisory and examining functions,and state any FOUR kinds of situations under which the labour administration may issue administrative orders to an employer for its activities in violation of the Labour Contract Law.

On the whole,the performance of candidates in this question was unsatisfactory.
Part(a) of the question required candidates to state the powers of the labour administration.The answer to this part of question could be found directly from the relevant provisions of the Labour Contract Law which includes the authority to review any documents relating to labour contracts,conduct an on-the-spot inspection of the work premises,etc.Most of candidates were unable to state the power of conducting an on-the-spot inspection of the work premises,and the obligation of the employer to provide truthfully relevant information and materials.

Part(b) of the question required candidates to state some situations that violate the Labour Contract Law and will be ordered to rectify by the relevant labour administration.Most of candidates were able to state two or three points.They mainly focused on the relevant provisions of labour contracts that should be deemed as a violation of the Labour Contract Law,but did not state various illegal activities in the process of operation of labour contract.For instance,all the following activities conducted by an employer shall be regarded as the illegal activities and be ordered for rectification by the labour administration:an employer illegally detains the ID cards of the employees;an employer collects the personal properties as security or under some other guise;or an employer fails to issue a certificate of dissolution of labour contract or certificate of termination of labour contract to the employees,etc.Many candidates merely stated the illegal activities committed by the enterprises,failed to state relevant orders for rectification issued by the labour administration.

Question Four
This question required candidates to explain the term termination of contract,and state the major differences between dissolution of contract and termination of contract.

Part(a) of this question required candidates to explain the term termination of contract.Under the Contract Law termination of contract refers to such a situation or a state where the rights and obligations arising out of a contract dissolve due to various circumstances as prescribed by the law or agreed upon by the parties to the contract.For instance,a contract is terminated when it is fully performed by the parties;a contract is terminated if one party declares the dissolution of contract under the condition of the other party’s fundamental breach;a contract is terminated if the two parties to the contract merge which results in the right and obligation absorbed by one party;or a contract is terminated if the two parties to the contract mutually agreed upon,etc.Therefore,the key point to termination of contract rests that the legal consequence of the termination is of no any contractual right and obligation between the two parties.The contract should have no binding force upon the two parties.

Performance on this part was not as expected.The common errors for this part of question included:
•Failing to explain correctly the term;
•Failing to state the legal consequence of the termination of contract;
•Confusing the termination of contract with the dissolution of contract.

Part(b) of this question required candidates to distinguish the dissolution of contract with termination of contract.Comparatively speaking,it was a quite difficult question requiring candidates to make necessary comparisons from the relevant provisions of the Contract Law.In summary,termination of contract is a much wider concept than dissolution of contract,i.e.termination of contract includes the situation in which a contract is claimed dissolution by a party.Therefore,to discuss termination of contract people pays attention to the state of contract,which does not legally bind the parties as prescribed by the law or agreed upon by the parties.To discuss dissolution of contract,however,people focuses on the legal action or a declaration of dissolution of contract taken by a party to the contract.Therefore,if a party intends to dissolve a contract it must give a notice to the other party and such a notice of dissolution of contract must be based various conditions as prescribed by the law (Article 94 of the Contract Law) or contained in the relevant contract.Without such a notice there will be no dissolution of contract.

Performances on this part were not satisfactory.Common errors for this part of question included:
•Failing to understand the meaning of dissolution of contract or confusing dissolution of contract with termination of contract;
•Failing to state the statutory requirement of give a notice for a party intending to dissolve a contract;
•Failing to state that termination of contract covers the circumstances under which a party may dissolve a contract.