Study On The Transfer Rights

Under the economical globalization, the enterprise scale has the day by day expanded tendency. Transfer to another job or enterprise is utilized frequently as an employer's personnel management method, but because our country lacks the relative legislation or the judicial legal precedent, the dispute on transfer between the employee and the employer occurs repeatedly. The dispute mainly lies in two aspects, on the one hand, whether the employer has the authority to adjust; on the other hand, whether the transfer is legally right. Obviously, the understanding on the transfer right is the key to the solution. Unfortunately, our mainland scholars'research regarding transfer right is lacking, which does not meet with the urgent need in labor market. This dissertation sees the transfer right this as a core concept, and tries to explain the following questions: what kind of right the transfer right belongs to, including its types and its legal attribute; The what influence the transfer right will have on the work relations when the employer exercise it and the conflict between the transfer right and labor right; What is the legal basis of the transfer right, and how to judge the effectiveness of the transfer right in the labor contract; what limit the transfer right will meet in practice, how to relief blocked transfer right, as well as what kind of relief the violated labor right.The dissertation is divided into four chapters.The first chapter explains the basic question on transfer rights. The research must give the definition of transfer right fist. In this dissertation, transfer right refers to the employer changes the worker's operating post or the operating location as a legal act in a long-term, including transfer within and outside of the enterprise. In this foundation, this dissertation conclude the characteristics of transfer rights, define the transfer rights as the right of the enterprise in its own aspect enjoys to adjust the worker's operating post or the operating location based on the work relations dependency, and emphasizes that the transfer should be limited by laws and regulations, as well as the collective contract, the labor contract, and the work rule restraint. Taking the right origin of transfer rights as the standard, transfer right can be divided into legal transfer and agreement transfer, round which two kinds of transfer rules are formed. Transfer right, the disciplinary authority, and the dismissal right belong to human resource's right category, and they have the difference and to relation. Any right belongs to a right system, no exception to transfer right. Knowing from the legal attribute of transfer right, the source right of transfer right is an instructing right; therefore, the research on the transfer right can be launched on the existing achievement foundation of instructing right. In addition, from the angle of the constitution, transfer right have the freedom right attribute; from the angle of the civil law, transfer right have the forming right attribute.The second chapter mainly discusses the influence the elaboration of transfer right have on the work relations. It may have the big or small influence on the labor relations. From the large sense, it may affect the work relations lasting; from the small sense, it may change the essential factor of the labor relations. The employer exercises the enterprise internal transfer right or the on- registry transfer right will not affect the existed labor relations lasting, but off- registry transfer right will moves the end of original work relations and a new work relations production is produced. In addition, the employer exercising transfer right will have a certain effect on the subject, the object as well as the content, among which the key is what kind of influence the transfer right have on the labor right. The labor right is a right system. The most prominent effect is how the employer exercising transfer right will have on worker's right of choosing profession, the labor payment right, the resting right as well as the social security right. Transfer right and the labor right have respective and mutual restriction. The restriction that transfer right have on the labor right is that when the employer legitimately exercises the transfer right, the worker has the coordinate duty. And the restriction that labor right has on the transfer right includes the legislation restriction, the contract restriction as well as the judicial restriction. The third chapter mainly discusses the existing legal basis of the transfer right. Any"human"cannot enjoy the right only depending on its status, what enable"human"to enjoy the right is the law, the custom and the morals. This dissertation mainly discusses law origin. In The British and American legal system, the transfer right is put in under the theory of contract law, without special transfer right theory; In mainland legal system, such as France and German, in their labor law transfer right is not independent, but is discussed from the angel of labor contract change or the instruction right. In contrast, the Japanese labor law educational circle has a most thorough and comprehensive research on this issue. The typical theory has the management right, the general agreement, the labor contract, special contract and denying transfer right. In Taiwan, scholars mostly form the corresponding scientific theory from the Japanese theory foundation, in which the majority of scholars approve of"the general agreement"and"special contract". From the judicial practice, Japanese or Taiwan Courts learn from the perspective of scientific theory, and only have difference in the strict degree in a single case explanation. The existence basis of legal transfer right is fixed, while that of the agreed transfer right changes. To take this into consideration, this paper makes a further analysis on the agreed transfer right with the real condition and explains how to determine the potency of transfer right. The fourth chapter mainly analyzes the restriction and relief of the transfer right. The restriction is effective mechanism which may solve the conflict and make many kinds of rights coexist harmoniously. The restriction comes from three aspects: Legislation, contract, and judicature. It is mainly manifested in two kinds of legislations: one is the prohibition discrimination legislation and the other is the protection legislation to special worker. In the real working condition, the contract restriction is mainly manifested in the related work rules, but is rare in the contract agreement. The judicial restriction is mainly manifested in the case balance control for judge. For a long time, Japanese Court has the restriction on transfer right on the"prohibition on right abuse principle", although it has formed some more fixed judgment standard; it has not achieved an anticipated effect on the worker rights protection. This paper makes a thorough analysis regarding this, and proposes that the benefit weight method should move into the judgment on the authority abuses."Without relief, not a right."This dissertation discusses the relief to the subject of transfer right and the relief to unfair transfer right practice, and propose that the relief to the subject of transfer right includes two types: the public relief and the private one, while regarding the relief to unfair transfer right practice, the public relief is the key.