Font Size: a A A

On The Laborer's Democratic Participation Right

Posted on:2009-01-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:J HaoFull Text:PDF
GTID:1116360272476112Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Along with the development of the knowledge economy, the incessant evolvement of human rights idea and the self-development consciousness of laborer continuously increases, the traditional labor relations are facing a series of changes, at the same time, the laborer democratic participation right also comes into the right pedigree of the exoteric and crescive labor rights step by step. The laborer democratic participation right is a kind of compound right that can underlines the comparatively unaided personality of laborer in the labor relation, and also can promote the wealth growth of the work class. Throughout the creation and development of the laborer democratic participation right in the history of other countries'national legislation,the right attribute of the laborer democratic participation right,the value appeal of legitimate exercise,the operating mechanism, all without exception have profound brand of social politics,culture and economical root. On account of the corporation is loaded with many social members'real and expected benefits, the laborer democratic participation right can be fairly and effective exercised or not, is very important to resolve the conflict of interest of all parties and protect interests of all parties equally. So, it's important to construct laborer democratic participation in management structure and distribution of profits, moreover the core of it is the appropriate collocation and exertion of the laborer democratic participation right, Just about the understanding above, this essay has studied the meaning, structure, nature and value of such basic areas of the laborer democratic participation right, at the same time, based on the current social reality, there is another analysis on the development trend and idiographic operation of the laborer democratic participation right of our county, under the background of harmonious society and knowledge-based economy.This essay has four innovations: first, discerns the core of the laborer democratic participation right, exhumes the attribute of the laborer democratic participation right a kind of compound right, cognizes its right system including laborer democratic management right (narrow sense) and labour property right. Second, On the basis of the explanation of the law value of"equality,development,harmony", probes into the course of the generation and vicissitude of the laborer democratic participation right, prospects the developmental trend of it. Third, doesn't cognizes the laborer democratic participation right an absolute right, its exertion must be restricted to a certain degree. Analyzes the reason and the settlement of the conflicts between right and role in the operating process of the laborer democratic participation right. Forth, regards the reality of China as a perspective center, tries to analyze the realization mechanism and protection frame. Brings forward the point that China should spurn the point of"public ownership determinism", should not take public ownership in enterprise as standard to confirm the applicability of the laborer democratic participation. Emphasizes to discuss how can employee director and employee supervisor,employee congress and labour union be compatible in order to adapt the need of the development of modern enterprise system, and also discusses the relationship between laborer management participation and capital participation, tries to make all the theories and institutions of the laborer democratic participation right a systematism.This essay is divided to six chapters:Chapter I through the introduction of academic theory, the essay summarizes diverges among law experts on the meaning of the laborer democratic participation right, and based on analysis and judge, the author constructs the meaning of the concept,the system of rights,the expressions of the laborer democratic participation right, and probe its law character. From the logic of how to write this essay, this chapter is the basic of later chapters. Through the explanation of these basic information, the purpose is to explain the characteristic of the complex of the subject,the comprehensiveness of the content,the multilevel of the goal,the multistage of the work of the laborer democratic participation right, accordingly to open out it's synthesis attribute of basal labor right and property participation right.Chapter II analyses the value and the positive and negative effects, opens out the legitimacy of the generation of the laborer democratic participation right. Its law value includes the value of equality,the value of development and the value of harmony. In this chapter, the explanation about the positive and negative effects of the laborer democratic participation right in practice, has affirmed the positive effects of this right in promoting enterprise and laborer's fortune, and also in making harmonious labor relationship.Chapter II analyses the value and the positive and negative effects, opens out the legitimacy of the generation of the laborer democratic participation right. The laborer democratic participation right contains law value system of logos itself. The laborer democratic participation right makes the laborer to participate the manage of enterprise and the distribution of margin, and then makes the station of laborer and enterprise more and more towards"equality". At the same time, The laborer democratic participation right as a single right that join in the right pedigree later, it emphasizes the other important side of labor right besides protection of right to life, to give the right and the opportunity of self-development to laborer, and shows the law value of development. Otherwise, because of that laborer have the right of democratic participation, makes enterprise's long-term economic benefit and laborer's current rights and interests correspond to each other well. So this right shows the law value of harmony also. In this chapter, the explanation and reflection about the positive and negative effects of the laborer democratic participation right in practice, has affirmed the positive effects of this right in promoting enterprise and laborer's fortune, and also in making harmonious labor relationship. The writer considers that the laborer democratic participation right has brought people the new cognize of law value and right collocation mechanism, weather to laborer or to enterprise therefore to the whole society, it has provided a new thought, it's a opportunity and not a risk, a kind of resource and not a burden.Chapter III mainly discusses the protection of the laborer democratic participation right in the foreign countries and TaiWan. Reviews the historical process of the laborer democratic participation right, focuses on recommending the parts of reference which are value to our country, For instance, the codetermination of Germany,the works council of France,the ESOPs of USA etc, and then permeates the historical and practical idea, pierces the skeleton of right development. From historical practical analysis, it comes to a conclusion that"the historical vicissitude of the laborer democratic participation right has vivid Attribute of the times, the development of this right has refracted the transitional skeleton of labor relationship, vividly depicted the faint of labor law of present age to protect and redress the laborer at the weak status". At last, the writer considers, overall, the laborer democratic participation right is consanguineous relating to social economic policy, it will be adjusted and corrected by national policy and social need, it will be repeated sometimes, but there is still space for development.Chapter IV focuses on the theoretical basis for the formation and development of the laborer democratic participation right. This chapter has not enumerated so many theoretics gists from external and internal jurisconsult that reaches erery aspect of a matter, but chooses some theories that has role of foundation or has been disputed to explain and comment, such as economic democracy,corporate social responsibility and stakeholder,human capital, reles on these theories, explains the orientation and function of the laborer democratic participation right in the labor relationship. First, analyses the solicitation function of economic democracy for the formation and development of the laborer democratic participation right. The application of economic democracy in the arrangement of enterprise, in some sense, is the germination of the laborer democratic participation right. Second, discusses the basic function of human capital theory for the formation and development of the laborer democratic participation right. Emphasizes that the investor of human capital should be the one who has corporate control rights and margin obtain right, this theory has breached the mode of one-side corporate management and margin distribution of"capital hire labor". At last, surveys the support function of corporation social responsibility theory and stakeholder theory for the development of the laborer democratic participation right. On the problem of corporate control rights and margin distribution, the idea of corporate social responsibility and stakeholder are incompatible with the foundational theory of traditional corporate law——stockholder's benefit is paramount. Based on expanding the theory of corporate social responsibility and stakeholder at large, the writer introduces the academic divarications surrounding the essence and power of corporate, then indicates the basic point that the writer opposes to make the stockholder's benefit maximized and opinions the benefit of every side should be protected equally. But the writer does not opposed some logical opinion of the theory of stockholder's benefit should be maximized, considers that corporate should still be juridical association for-profit, under the principle of protection of stockholder, benefit of every side should be evenly protected with general consideration.Chapter V especially discusses the problem of practical operation of the laborer democratic participation right. The operation of the laborer democratic participation right can eradiate other domains besides labor with its effect, the course of the operation is a course of interest distribution for multi-side, and also with conflict of interest and role conversion of party. Especially for the laborer, they will face the illogicality of the different interest that presented between the original role and the role that changed later. In the end, it is because of the conflict of capital right and labor right that being contained in the laborer democratic participation right. This shows, the mechanism of right collocation of the laborer democratic participation right should follow the principle of lean and the principle harmony, namely based on emphasis on protection on labor right, and from the point of the right balance between the labor and capital, tries for the agreement of the labor right and the capital right, and maximizes the interest of both sides. At the same time, the laborer democratic participation right is not a imperium, it should be necessarily restricted; the way of restricted includes the principle of legitimate exercise and external supervisory mechanisms, the former including the principle of the catholicness and otherness co-existing,the principle of exertion in person and exertion by representation be integrated,the principle of the abjuration of right be restricted, the later including the intendance and passing judgement on laborer,labour union,enterpriser,government. When a laborer officiates the laborer democratic participation right, he should take on the obligation of Non-Disclosure and Non-Competent too. At last, from the angle of right realization,right protection and relief, focuses on the realization and protection of how can the laborer democratic participation right be Institutionalized. Being premise of the fundamental effect to the realization of the laborer democratic participation right by laborer,enterprise,nation and society separately, further analyzes the administrative guarantee mechanism and judicial relief framework.Chapter VI combines the realistic condition that the social economic structure and social value of our country are keeping constantly changing, based on the consideration of the history and the realization of the laborer democratic participation right of China, learns from other countries with advanced legislation, brings forward the settlement that the laborer democratic participation right can be institutionalized in China based on law, namely to construct a system of integrative laborer democratic participation based on labor right. The writer relies on the organizational form of corporation, analyzes the soil for the life and development of the laborer democratic participation right in our country first, from resolution to the environment of politic, economic,law in our country, considers that a"congenital"advantage being provided with our country on establishing the laborer democratic participation right, but In economic globalization today, China should spurn the point of"public ownership determinism", change to build up the concept of"people-oriented", no longer take enterprise ownership as standard to confirm the applicability of laborer democracy participation. Second, aims at laborer management participation, emphasizes to reflect on employee director and employee supervisor,employee congress and labour union of China, brings forward the points of the general suitable compulsion of the employee director,defines the qualifications of employee director and employee supervisor,ordains the formality of election and demission of employee director and employee supervisor,excavates the new attribute of employee congress inside,re-defines the limits of employee congress functions and powers. Especially discusses the problem of the collaboration of employee director,employee supervisor and employee congress. Third, learns from the Employee Stock Ownership Plan, the writer brings forward some suggests to the consummation of the capital participation of laborer in our country. On the base of discrimination of the nation of Employee Stock Ownership,service contribution,non-financing shares etc, makes a forethoughtful pondering on the legislation form,applicability,qualification of employee stockholder,capital origin and shares of holdings,the alienation and withdrawal share mechanism of staff shares of the employee stock ownership in China especially analyzes the function fashion of employee stock ownership. At last, presents the developmental direction of the laborer democratic participation in our country, namely cooperated by laborer management participation and capital participation, this system will become a universal legal institution faced all enterprise, and become a"tridimensional","comprehensive"legal institution that be combined with the participation in enterprise management,the works council,the ESOPs, and also a legal institution that pays equal attention to material law and procedural law.
Keywords/Search Tags:Laborer's democratic participation right, Equality, Harmonious labor relationship, Laborer democratic participation
PDF Full Text Request
Related items