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Comparative Research On Legislations Of Labor Regulations

Posted on:2012-01-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:L D M r . V i t o o n t h e p Full Text:PDF
GTID:1116330335988471Subject:Economic Law
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As to the importance of labor regulations in labor law system, this paper aims to do in-depth research on legislations and theories about labor regulations, and then offer personal views, which is on the basis of the comparative research on legislations of different countries'labor regulations. This dissertation is divided into five chapters:Chapterâ… is about the basic problem of labor regulations, including the legal definition, legal nature, and adjustment of law.1. Legal definition.1) Legal terms of labor regulations have been analyzed, and author argues that"labor regulations","labor rules"or"employment rules"are most specific legal terms.2) Legal concept of labor regulations has been defined, and author holds labor regulations could be defined as"various kinds of labor rules apply to employee."3) Relationships between labor regulations and labor disciplines in different countries'legislations have been discussed, and author thinks there could be cross relationship between labor regulations and labor disciplines, but it's still necessary for legislation to make clear the former contain the latter.2. Legal nature.1) There is a study on various theories of legal nature and comments about that have been made.2) The author has formed the theory of"New Standard Contract". The main contents of this theory are listed. A) The legal nature of labor regulations is standard contract, which includes two kinds of regulations, one is voluntary rights regulation and the other is factual administrative regulation. B) Rights regulation has a closing relation with employees'immediate or vital interests and also it's the purpose of transfer the rights of governing their labor for employees. Therefore, on the one hand, labor regulations should be public to employees after established and win the supports of employees. On the other hand, employees have the right to offer suggestions for rights regulation but employers are not compelled to accept that. C) Administrative regulation has a closing relation with administrative power of employer and employer could have the right to determine administrative regulation, which is a part of fractural regulation in standard contract and it should be public to employee but there is no need to be acknowledged.3. Adjustment of law.1) There is a study on the history of adjustment of law in socialist states and capitalistic states. A) With respect to socialist states such as China, it does research on how law regulates state-owned enterprise, collective enterprise and private enterprise in history. The regulation to state-owned enterprise, collective enterprise falls into three sections: national administration section, global constraint section and part-free part-limited section. While the regulation to private enterprise falls into two sections: extensive-free section and part-free part-limited section. B) With respect to socialist states, the legal adjustment to labor regulations could be divided into three sections: national administration section, all-free section and part-free part-limited section.2) Adjustment of law in history has been concluded, which comprises national administration model, freedom of contract model and state intervention model. And then it's summarized that the model which is based on freedom of contract and centering on state intervention is the most reasonable one in modern society.3). Legislative patterns have been discussed. This paper divides the legislative patterns into five types: statutory pattern, common authorized pattern, unilateral authorized consultation pattern, unilateral authorized limitation pattern and unilateral authorized pattern. Then the merits of these patterns, legislation and theoretical problems of representative countries have been analyzed, and author considers unilateral authorized consultation pattern is most advisable.Chapterâ…¡discusses the establishment and modification of labor regulations, including requirements and subject, procedure, content and modification of labor regulations. 1.Requirements and subject.1) Legislation types of requirements in various countries are analyzed, which contain autonomous-established without requirements, compulsory-established without requirements and compulsory-established with requirements. Author considers it reasonable to set requirements from two sides, employed scale and employed time.2) It also discusses the subjects, such as country, employer, employer and employee.2. Procedure.1) Procedure of determination. It is advisable that labor regulations are made by employer and employee has the right of suggestion.2) Procedure of publication. It is considered that public patterns should be distinguished: A) As to those existed labor regulations when signing the labor contract, they are deemed to be the attachment of labor contract and should be individually public. B) As to those new labor regulations when established in performance, they should be wholly public.3. Content.1) It analyzes the enforceability of labor regulations and author considers it necessary.2) It introduces the scope of content and author think labor disciplines, disposition basis, standard of right and obligation are the core of that.4. Modification of labor regulations1) Different legislation types about who requests modification are concluded, which contain employer modified initiatively, employee asks for modification and labor department orders modification.2) Specific contents of modification procedure are analyzed.Chapterâ…¢analyzes the issue of coming into force, the effect and the invalidity of labor regulations.1. The issue of coming into force1) Legal subject, legal content, and legal procedure are essential requirements to take labor regulations into force. Author also argues rationality belongs to the validity, and it's not an independent essential requirement.2) It discusses some reasons why labor regulations couldn't come into force. If labor regulations couldn't come into force, the status would last from established to the time when come into force. Moreover, it includes couldn't come into force for all employees and for individual employee. The reason for the former is they don't meet the requirement and time determined by labor regulations, and the reason for the latter is that they're not public for new employees.2. Effect of labor regulations.1) Scope of the effect. Author raised the scope of effect consists of four elements, effect to person, effect to matter, time effect and space effect.2) Precedence of effect. It means the relationship of legal effect between labor regulations and labor law, collective contract, labor contract. Author argues that generally the effect of collective contract, labor contract is prior to labor regulations, but labor regulations supersede when they are more beneficial for employee because employee's interests could be protected according to basic principal of labor law.3. Invalidity of labor regulations.1) Reasons of invalidity are concluded, including illegal subject, illegal contents and illegal procedure.2) Consequences of invalidity are analyzed. A) Basis of which employer govern employee has gone. B) Disposition is also invalid and employee could request employer to be responsible for that. C) Employer should bear legal responsibility if illegal content or illegal procedure leads to the invalidity of labor regulations.Chapterâ…£is about system of disposition in labor law and this chapter restructures the system of disposition in labor law creatively, which contains the theory and specific system of that.1. Theory of disposition in labor law:1) It analyzes some theories about the basis of disposition in labor law .But author offers a more reasonable basis which is called bi-lever basis, which means, we have to know the basis of disposition in labor law on two levers: one side is the legal basis and the other is practical basis.A) Legal basis. The legal basis of disposition in labor law is labor contract rather than collective contract or law. There are two reasons:First, only after labor relationship between employee and employer has been established, employee transfers the right of being supervised to employer and then employee gains labor remuneration. That's why disposition has produced and sustained. Second, labor contract is the basis of labor law and collective contract. On the one hand, labor law derives from intervention country imposes to labor contract. On the other hand, collective contract is born after labor contract logically as many employees could sign collective contract only after each of them has a labor contract with employer separately.B) Practical basis. The practical basis is the fact that employee is subordinated to employer. On the one hand, employee is subordinated to employer personally, which is the direct practical basis. On the other hand, employee is subordinated to employer economically, which has large deterrent effect.2) It raises the original system of disposition. The origin of disposition includes the content and source, such as labor regulation, labor law, labor contract, collective contract, and labor discipline, etc.2. Specific system of disposition in labor law:With respect to specific system of disposition, author raises the view that it contains reason of disposition, principal of disposition, prescription of disposition, measure of disposition, and procedure of disposition.1) Reason of disposition. According to the basic type of different countries'legislations, the reasons of disposition include dismissal reason and general reason. Author focuses on many kinds of dismissal reason, compares them and raises suggestions.2) Principal of disposition. This paper acknowledges there are many principals of disposition in different countries'legislations. Appropriateness principal, equal disposition principal and the principal of justice that a man ought not to be punished twice for the same offence are all valuable, and this part emphatically analyzes these three principles.3) Prescription of disposition. There are several types such as unified disposition prescription, classified disposition prescription, single disposition prescription, and no disposition prescription in different countries. Compare with these systems of disposition prescription, author argues that classical disposition prescription is most reasonable. For one thing, it reflects the theory of balancing employee and employer. For another, it meets the requirement of refining the law.4) Measure of disposition. Various countries particularly emphasize dismissal measures while as to other disposition measures, different legislative models exit, some are suggestive measures, and others are authorized by labor regulations completely. Besides that, author has done research on the rights to fine and the limitation of that which are quite controversial.5) Procedure of disposition. This paper focuses on the subject of disposition, the process of disposition, the manifestation of disposition, how to appeal to disposition and other relevant problems.Chapterâ…¤discusses the legal liability about labor regulations, which is divided into legal liability for employer and for employee.1. Legal liability for employer. It is analyzed from three aspects: 1) Civil liability, including civil liability for illegal disposition and for carrying out the illegal content of labor regulation. 2) Administrative responsibility, including administrative responsibility for illegal procedure and for illegal content. 3) Criminal liability, this part introduces criminal penalty imposed by countries for violation of the Labor Standards Law.2. Legal liability for employee. Similarly it is analyzed from three aspects, civil liability, administrative responsibility and criminal liability.
Keywords/Search Tags:Labor regulations, Labor disciplines, Disposition
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