Research On The Protection Against Dismissal System

The essence of China's social labor problems is the protection of labor rights within the labor relations.The most besic rights of labors are the rights to subsistence and work, and the realization of these labor's rights depends heavily on the existence of the labor cntract relationship.Dismissal is a form of terminating a labor contract which determines the existence of the labor cntract relationship.If the employer can dismiss labors arbitrarily and put the labors in the situation out of the labor relations without rationable reason,whose actions are working against the right to work, the right to survival, individual dignity and the right to pursue one's own happiness, and then the labor legislation needs to provide forceful relief and protection.Based on this,discussing the protection against disimissal system become an important and essential part of the labor law research.This thesis is divided into five chapters without the introduction:The introduction introduces the motivation and significance,the study current situation and range,and the research methods and train of thought.Chapter I clarifies the basic issues of the protection against dismissal mainly,such as concept and connotation etc..Alough the relevant provisions of China's"Labor Law"and"Labor Contract Law"limit the employer's firing practices,but did not form a complete protection against dismissal system which safeguarding the legitimate rights and interests of labors. At the same time, scholars of the dismissal and the protection against dismissal is also related to differences in understanding of the concept, and there are also differences in the use of the concept of the dismissal and the protection against dismissal. To this end, a clear connotation of dismissal and protection against dismissal, and froming a historical perspective on the protection against dismissal system, are the logical starting point to study China'protection against dismissal system. Dismissal is the employer for some reason unilaterally terminate the labor contract or the fact of termination, including the notice of dismissal, summary dismissal and redundancy. In addition, China still exists the fact that has the same elements but not identified as the dismissal. These facts does not apply the relevant legal institutions of protection against dismissal, with leaded to the legitimate rights and interests of labors are violated no lawless. Therefore, the dismissal should also includes two parts: be forced to resign and compensable terminate the labor contract.At last, through exploring the development process of protection against dismissal system,the chapter concludes that protection against dismissal system has the following two characteristics: public law adjustment combined with private law adjustment, procedural law combined with substantive.Chapter II expounds the legal theory of the protection against dismissal. First, the thesis analyzes and complies the three current academic theories of protection against dismissal,namely dismissal at-will, just cause and dismissal right abuse.And the thesis think that the protection against dismissal do not originate from the very limpid,very clear and logic rigorous logical legal principles,but is the reflection and answer for"fair and judstice"and"freedom and efficiency"which shoud be the priority protection in the socio-economic development. Second, the thesis analyzes the legal nature of the dismissal for redundancy from different angles. From the perspective of labors, the dismissal for redundancy belongs to dismissal category;judging from society angle, the dismissal for redundancy belongs to large-scale dismissals category; from the perspective of legal regulation, the dismissal for redundancy is regulated by the labor contract law and special law. At the same time, the thesis considers that in judicial practice, a growing number of employers to terminate the labor contract by the way of consultation to avoid legal regulation of their dismissal practices, in order to achieve the purpose of cutting down the staff. This consultation should be built to lift the parties on a voluntary basis of equality, however, the dismissal for redundancy is based on the employer side's intention.And this condition leads to the procedural conflict between the employer involuntary and the employee involuntary. At last,the thesis concludes that the legal theories of dismissal should not be limited to the legal theory of dismissal for redundancy and the legal theory of dismissal of the abuse.We shoud identifies the relevance theories of the forced to resign as the theory of intending to dismissal. Based on the analysis of the meaning, the nature and behavior criterion standard of the intending to dismissal, the thesis points out that the intending to dismissal is the the labor's resignation which is based on the employer's subjective intent to dismiss, which has restrictive.Chapter III is the detailed analysis of the substantive elements of dismissal. Also known as the just cause of dismissal,the substantive elements of dismissal is"Under the specific conditions of cases and the interests of both the contract,any fact that make the employer can not by law, collective agreement, the contrct period or the notice period of special labor contract, continue to employ employees".By comparing the relevant provisions of the substantive elements of the world, the thesis thinks that the cause of dismissal can be divided into the economy origin of an incident and the origin of an incident of people. Economic reasons can be divided into the crisis withdrawal type and the strategy rationalization type.The origin of an incident of people can be divided into person-related dismissal and conduct-related dismissal.The thesis examines the Germany's unfair dismissal, French discharge immediately and American dismissal at-will,and founds that China's labor legislation confused the matter of the origin of an incident of people between summary dismissal and notice dismissal. The origin of an incident of people of summary dismissal should be the labor's fault or misconduct behavior, but the origin of an incident of people of notice dismissal including three kinds:inability, lack of capacity and lack of qualifications.At the same time,the thesis thinks that, in judicial practice,the judge should be deteminne labor's subjective intent as the premise to judge whether the fault act is a cause of summary dismissal, and labor legislation shold requires employers to limit the time of exercise of the right of summary dismissal.Through analyzing the type of the origin of an incident of people of notice dismissal,there are some common can be summarized: the objective reasons can not attributable to both parties, after the processes of re-coordinating the interests of both parties and exploring the new interests balance point, various harmony of interests measures can not be effective.And the thesis suggests that employer should follow three principles when he exercises notice dismissal according to the origin of an incident of people:inverted burden of proof principle, predictability principle and benefit balances principle.Chapter IV discusses the procedure elements of dismissal.Dismissal should be a legal way.The protecton against dismissal ask for the notice dismissal and the redundancy should have both the substantive and procedural elements. The employers whether or not following the dismissal procedures determines how the effectiveness of dismissal behavior, and without adopting the reasonable and legitimate procedure the dismissal behavior is invalid. This chapter is divided into four parts.The first part is the general procedure elements of dismissal——dismissal advance notice scheduled time.This part discuses the value of the dismissal advance notice scheduled time, and thinks that dismissal advance notice scheduled time creats the preparatory period of the termination of labor relation,and gives labors the right to be a paid job seekers,and becomes the necessary mean to guarantee the labors'right to work totally.Comparing with the national legislative provisions of the well-developed comparatively protection against dismissal system, this part finds that there are many defects of our current dismissal advance notice scheduled time which is not conducive to protect labors.The second part is the special procedure elements of dismissal——the payment of"three financial award".Basing on the respection of labors'personality and freedom,the payment of"three financial award"is the substantive protection of dismissed labor's rights and interests, and violating this procedure will lead to dismissal invalid.The third part describes the other countries'worth learning and special provisions,such as Pink Slip,discuss face to face in advance, notify the competent administrative department of labor, Changing of the Job Agreement and Social Plan.Finally, this thesis analyzes China's legislative defects of the procedure elements of the protection against dismissal,and suggests specific predictions.Chapter V is the reconstruction of the protection against dismissal system in China. With the evolution of the contractual labor relationship, the protection against dismissal generated from this process in which the relation between labors and employers is continued confrontation and cooperation, and it is the result of labor legislation's seeking to protect labors'right to life and dignity. The protection against dismissal is rstrainted by market forces when safeguarding the public interests, in other words, it should take into account the reasonable and good causes for the employers to dismiss the employees, the employer's lawful business interests and the decision-making right in operation and management. Meanwhile, the protection against dismissal system interweaves the procedural law and substantive law suitably. On the establishment of the protection against dismissal system, this thesis has two suggestions:audit program for the dismissal legitimacy, and stipulating specific penalties for unfair dismissal.At the same time,on the notice scheduled time which is regarded as one procedure element,the law shoud give to the labor contract both parties the right to ascertain the reasonable notice period by consensus;the law should set the notice period flexibly according to the labor's job character and job fixed number of years; the law should regulate the labor's option when the emloyer terminated the labor contract by violating the notice duty;the law ought to stipulate that the labor can leave to find a new job in the notice period.At last, this thesis considers that China should perfect the the procedure elements of dismissal by improve the proceedings,and transplant the action mechanism of preservating work into labor dispute lawsuit.