Research On Restrictions Against Dismissal Right

As a mutual and beneficial intersection for employee protection and business interests, the issue of restrictions against dismissal right specifically expresses the social law's ideology of favoring and protecting the employees. From the aspect of the theoretical study, the issue of restrictions against dismissal right not only reflects the conflict conciliation between the employee's survival right and the employer's employment freedom right, but also provides rational thoughts on harmonious employment relation construction. Research on restrictions against dismissal right shall be based on the analysis of the basic theory and overall logic of the system arrangement for employment contract, and rely on the connect to the basic conceptual elements of Western dismissal law, in order to construct a basic framework of Chinese dismissal protection by integrating the domestic resources of labor law.Chapter one of this thesis analyzed the legal principle of the restriction against dismissal right. In the context of Chinese labor law,"dismissal"is a unilateral legal act for an employer to discharge the employment contract with an employee, which is in essence equivalent to"termination"of the employment contract in the civil law without ex post facto legal effect. In terms of function, the existence of dismissal, serves the function of making the employment flexible and adjusting the cost which has become a powerful weapon for employers to manage enterprise on the one; on the other hand, however, the existence of dismissal threatens the employee's survival. In terms of legal nature, dismissal right is one typical right of formation, and the restrictions on dismissal right via labor contract law per se have already been included in the topic of dismissal protection system. The guarantee on the employee's basic survival right has made all the explanations for the reason restrictions on the employer's dismissal rights. Originally, the conflict between the right to work and the dismissal right is interest conflict, and in essence is the conflict between the employee's right to work and employer's property right. Dismissal theory has experienced the evolution of theory: free dismissal, prohibiting dismissal right abuse, and just cause dismissal, which shows surpass of the social law over the traditional civil law.Chapter two analyzed the basic mode of restrictions on dismissal right from comparative law prospective. In the complicated mode of restriction on dismissal right all over the world, the restriction mode with employment-at-will exception in America and the strict restriction mode in Germany are the two typical contrary modes, and the latter leads the tide of world's dismissal protections for its suitability protecting the employees. As a basic judging standard of the extent of restrictions on dismissal right, dismissal cause, dismissal procedure and dismissal pay are the three dimensions which formed one nation's legal structure of restriction on dismissal right. The formation of three standards tends to cause to form the type of way of restriction on dismissal right. Mode of restriction against dismissal right of one country or region is a typological and individual mingle and mix, which is affected by multiple factors such as legal system structure, union, employment market, business culture and the level of social security.Chapter three inquired into the moderation of restriction on dismissal right in China."Labor contract law"has reformed the system of restriction on dismissal right in China internally and externally, which has triggered the academic dispute about moderation of restriction on dismissal right. The controversy in theory about restriction level on dismissal right is the nature's reach of dispute on labor contract purpose of legislation, and its essential issue is how much restriction should be exerted on dismissal virtually. In terms of the labor relation's operation, there were a contest between mobility and stability of labor relation behind the restriction on dismissal right, namely, stability as the basis for mobility or mobility as the basis for stability? From the aspect of the basic principle of labor law favoring and protecting the employee, China's reform on dismissal protection system has deviated from the"limit"of social justice to some extent. The orientation of nation in constructing harmonious labor relation shall be as follows: on the one hand, to actively involve in micro-labor relations to guide correction of imbalance by the regulation of labor contract; the other hand, to respect and protect the spontaneous operation of employment market mechanism assisting to remove the institutional barriers in labor-capital autonomy. The choice of"limit"of restriction on dismissal right should be one path of maximum social benefit between nation enforcement and autonomy of will. The suppose of case Barbara in different jurisdictions shows that the restriction level against dismissal right in China has reached a higher position internationally and has blocked the mobility of the labor relation.Chapter four analyzed the dismissal cause in restriction on dismissal right. China's dismissal cause constructs on the theory of statutory just cause and divided legal requirement into three types: fault dismissal, no-fault dismissal, and economic layoff. For probation period dismissal in fault dismissal, China should lower the level of dismissal protection moderately and reduce the employer's burden of proof in dismissal cause about employee's professional fitness to restore the legal nature of probation period to"retaining the right to dismissal". Chinese legislation about rule of employment is in close to the theory of"attachment to labor contract", which treats rule of employment as one kind of standardized contract. Labor arbitration and litigation should regulate the rational setting of dismissal right in rule of employment by judicial control to review the effectiveness of rules. Labor contract with defective express on mind should be included in the scope of revocable contract to distinguish with void contract. In theory, the no-fault dismissal in China's labor contract legislation adopts mainly the"principle of changed circumstances"of contract law. From the prospect of the function, it is similar to the principle of last resort in the West. The main differences exist in the following: the principle of last resort in the West is formed with judicial practice; while this is expressed in statute law in China, which shows the stricter favoring protection for the employee. Chinese economic layoff has had the purpose of employment market policy and has enlarged the scope of applied objects, which is contrary to the principle of distinction. On the judging to social justification choice, China should consider adopting a more comprehensive standard of fairness. On the whole, Chinese reform of dismissal cause would be the combination of generalization and enumeration to link up the legislation, enforcement and jurisdiction.Chapter five analyzed the dismissal procedure in restriction on dismissal right. The existence of termination procedure, is to make the dismissal procedure to be an orderly and streamlined selection of results by assigning relevant parties'roles in dismissal and compressing the arbitrary space. For the depth of employment involved in the termination procedure, the performance of industrial democracy takes three forms: first, the employee dismissed or the representative body of employees is informed in advance; second, labor-capital negotiation, namely, the employer has consulted with the representative body of the employees to listen to their views for the dismissal; third, co-determination, the representative body of the employees own the consent right after the employer dismisses the employee. China's labor legislation should expressly prescribe that employer shall inform the employee dismissed in advance and shall be obliged to give the employee dismissed a chance to explain. Failure to notice the employee's union on the part of the employer will constitute unlawful dismissal, and the employee's require to resuming labor relation or to pay compensation should be supported. On the notice of termination period, it is a fairer choice for China to make the determination of period more flexible based on employment period. For the dismissal without notification, paying one-month salary is a proper selection and should not be treated as unlawful dismissal in labor contract law. Compared with Taiwan's economic layoff, the key procedure setting of economic layoff in Mainland China would adopt tripartite consultation mechanism based on free consultation. In the consultative process, we should establish tripartite consultation mechanism, in which neutral executive department promote equal negotiation between the employment and capital power and facilitate the participation of employment in economic layoff procedure rather than intervening dismissal substantively. In the future, Mainland China should integrate relevant legal resources to form a single law of economic layoff based on the procedural law.Chapter six discussed the severance pay in restriction against dismissal right. For the legal nature of severance pay, scholars focused on the four theories:"compensation of labor contribution","statutory breach penalty","unemployment risk sharing"and"employer's obligation of assistance". Among them,"employer's obligation of assistance"explains the payment scope, standard and limitation of severance pay in legislation in force better, which is a kind of reasonably qualitative interpretation. From the aspect of employer's obligation of assistance, the calculation of China's severance pay should take the parallel calculation capping lines of base and length in order to display severance pay the character of social law, protecting the benefit of employment and taking the employer's affordability into account. China's level of severance pay has been high-ranking in the world. The legislation of severance pay in future should lower the high welfare standard coordinating the relation to dismissal cause and procedure. As for the relation of severance and compensation, taking requesting compensation with punitive nature into the civil liability system will make compensation for punitive and compensatory confused. It is worth affirming for labor contract law implementation regulations to absorb the severance into compensation scope for illegal termination and discharge.Chapter seven analyzed the legal remedy of unlawful dismissal. There are great difference in defining the unlawful dismissal among the laws of United Kingdom, United States and France. In terms of the legal nature, China's unlawful dismissal is closer to the unfair dismissal in United Kingdom, which is a statutory breach of obligations under the dismissal. As for the efficacy of unlawful dismissal, the nations adopting just cause theory recognized unlawful dismissal no legal effect and labor relations living on. The employer's liability of unlawful dismissal included the following: restoration of labor relations; pecuniary compensation; and administrative fines and penalties. On the resumption of relief in terms of labor relations, by the way of legislation or judicial interpretation, China should, on the one hand, confirm that"continue to fulfill the labor contract"include resumption of labor relations such as wages, post, length of service, terms of employment, etc, and on the other hand, confirm that employees have the right to request wage loss compensation in period of unlawful dismissal restoring the labor relation. In the perspective of practical effects of legal remedies, China's legislation should authorize the employer the right of refusal on the problem of"continue to fulfill labor contract", and at the same time, add employer's liability of refusing to"continue to fulfill labor contract"to guide the parties choose appropriate relief channel. In the confirming of condition of continue to fulfill, the employer's willingness of re-employment and feasibility of continue to carry out should be considered. It is a more appropriate choice to take double standard of severance pay as compensation, which not only makes up the losses and punitive to the employer who has taken unlawful dismissal, but also makes use of the function of severance pay to correct high-income groups.Chapter eight evaluated and reflected the China's dismissal law as a whole. As for the unique treatment mode of labor contract period system, China's dismissal system is different from the western countries to a large extent. In western countries, fixed-term labor contract is generally made as an exception of entering into labor contract. In entering into a fixed-term labor contract, it is common for many countries to set strict confirming condition to control its scope of application, as well as limit the period or number of signing contract and stipulate conversion condition for no-fixed term contract. China took the fixed-term labor contract and non-fixed term labor contract in the dismissal protection system and led to the collision of two period systems to some extent. In order to overcome the conflict of short-term labor contract and long-term labor relations,"labor contract law"abandoned the main mode of fix-term contract and turn to non-fixed term contract following standard international. When non-fixed term labor contract was established as main labor mode, system of restriction against dismissal right should be reformed at the same time. On the assumption of three essentials of dismissal protection in labor contract law, non-fixed term labor contract should focus on dismissal liability and adjust appropriately to reduce protection intensity weakening its welfare attribute, to shape long-term dynamic balance of labor relations. By making reference to the law of France and Germany, fix-term labor contract should not be discharged prior to the termination of the period except for opponent party's serious mistake or force majeure, and create"breach of contract termination"to shape short-term static balance of labor relations. In addition, in the reconfiguration of dismissal system, one unified, clear and standardized definition of judicial control elements effecting application of dismissal right should be made.