A Discussion On The System Of Protection Against Discharge

Protection against Discharge System focuses on the employees’interests or public benefits when the employers abused their dismissal right, which should be limited or prohibited by adverse interests. The system of Protection against Discharge is regarded as the nervus centralis of Employment Law concerning rights of individual employee in Germany. In China, the Labor Law on collective labor relationship is far to be perfect, and Employment Law concerning individual employee have to take more responsibility to protect individual employee’s rights, so it is worthy to further the research in this area. Although the scholars in China have realized that the employment contract has some special characters beyond the traditional civil contract which mainly regulates relation between creditor and debtor based on consideration, nevertheless, such issues as what features they have, what the mutual relationships are and how to define it in law are needed to be discussed systematically and deeply. The system of Protection against Discharge is one of the typical problems. In real life, in order to keep their jobs, employees have to bear all the infringements from employers. If a perfect system on the protection against discharge is established, it can promote the protection of employees’interests and improve labor relations and the social harmony and stableness; therefore employees will not be in fear of the troubles again. What’s more, disputes in Employment Law area have dramatically increased in recent years, especially in the field of wages, social security and employment contract dismissal. The improvement of the system of Protection against Discharge is useful to solve the above disputes. The thesis divides the main body into the following parts:Chapter One:The Theoretical Basis for the System on Protection against DischargeThe exploration of the theoretical basis for the system can be conducted from various aspects, but its investigation object is based on the recognition of the special features of the labor relations. In the thesis, the author holds that the most important special features of labor relations are their dependency, personality and succession, among which, the first two are essential, and the last one plays a role of intensification. Dependency determines employees in a weak tendency to have the requirements for social protection, meanwhile, the social protection of them is also necessary in terms of substantial justice, and therefore, it is necessary to take unequal measures formally, allocate the rights and obligations between the management and the work force in disproportion, and limit the employers’dismissal rights through the system. At the same time, apart from property interest, employees’interests retained from their posts include the interest of personality. Based on personality and the guarantee of human rights, labor forces, the property which is of personality significance shall gain a special concern. Just for this reason, the guarantee of the duration of the labor relations enjoys priority. The system on the protection against discharge performs an active function in properly guaranteeing the duration of labor relations, so the establishment is reasonable. Additionally, the system should also pay attention to the balance of profits between employers and employees and that between labor and management and public benefits. Some disputes about it in academic circles are too metaphysical, and even caused by personal feelings, which is not useful for perfecting the system. The goal of protecting laborers in a weak tendency by Employment Law is undeniable, however, in order to find out from which aspect and by which means to protect their interests effectively, we should plan it in accordance with the specific systems.Chapter Two:The Evolution and Model of the System on Protection against DischargeThe thesis discusses the developing process of the system on protection against discharge, some theoretical recognition concerning dismissal in the process mentioned above, and then clarifies the opinions about the abuse of the dismissal right and proper reasons for dismissal, which were misunderstood by the scholars in China. The thesis analyzes the evolution of the legislation for the protection against discharge in new China from three phases, which is used to work as the historical background of the choice of the protection model of China. Since foreign legislation is of reference significance, the thesis introduces and discusses American legislation and German legislation. The American model is of the features as follows:It is based upon the freedom for dismissal, with the protection for employees’interests as an exception; the private departments of union have not been established, and the model is sharply different from public departments and private departments belonging to a union. Anti-discrimination legislation plays a very important role in the protection against discharge. The German model is quite detailed and perfect in the protection against discharge, which constructs a systematical and perfect system on the protection, based on the minimum protection provided by Constitution and Civil Law, and centered by The Law on Protection against Discharge and Business Organization Law. The stipulation on abnormal dismissal is not far away from the traditional Civil Law, especially in terms of substantive law, while the normal dismissal has gained a great breakthrough. Besides the dependence on the historical discovery, the thesis puts forwards to the opinion that the protection system in China shall learn something from the German model so that we can realize the target location for our system on protection, based on the analysis of such social elements as the present situation of labor relations, the real status of the related Employment Law and the cultural tradition.Chapter Three:The System on Protection against Discharge Caused by Employees’ FaultThe thesis discusses the protection against discharge caused by employees’fault. Civil Law holds that one party of a contract of employment who has a major cause resulted in the fact that the performance of the contract can not be expected, the other party enjoys the right to terminate the contract. Employment Law has been amended in terms of jurisprudence and legal system. On the one hand, a comparatively clear and specific principle of portions, which is more strict in terms of examination, especially the principle of necessity and that of the last means without any other ways are used to be the specific examination standard for the major cause. The thesis holds that such kind of dismissal is the most serious punishment by employers, so it must have proper purpose, procedure and methods. The thesis proposes a more strict and detailed requirement for the major cause in legal system, which can be usually realized by the specific cause and standards established by labor legislation and justice. Of course, it still reflects the spirits of Jurisprudence and also make Employment Law possess the features of Judge Law. Based on what mentioned above, the thesis points out the following shortcomings and proposes some suggestions:some stipulations have violated the basic jurisprudence in the system on dismissal resulted from employees’fault; the stipulations on the procedure before enjoying the dismissal right is lacked; the examination of some conceptions of uncertainty is not strengthened; stipulations can not cover real situation completely.Chapter Four:The System on Protection against Discharge Caused by Non-faultThe thesis discusses the protection against discharge caused by employees’personal reasons or employers’business reasons, in which employees are not imputable. Foreign legislation holds that the dismissal resulted from major cause is applied to fixed term contract and unfixed term contract. While the dismissal resulted from non-fault is only applied to unfixed term contract, which only needs notification in advance without asking for reasons. As for the period for the notification, some countries or areas have stipulated in Civil Law, Employment Law has not changed it a lot. But as for the effect of the dismissal which did not follow the period of notification in advance, the scholars have different opinions, therefore, this chapter will respond to it. Compared with Civil Law, Employment Law has made an essential breakthrough in terms of non-fault cause for dismissal. No matter by generalization legislation or by listing legislation, dismissal for no cause has been taken place by dismissal for causes, which can embody the special features of the system on protection best. Additionally, Common Employment Law stipulates the causes for stopping dismissal resulted from non-fault, based on which, the chapter evaluates this system:Some stipulations are too rigid, the separation of the causes for unfair dismissal from causes for staff reduction, and the alteration of dismissal is in double bind. In addition, the thesis analyzes the following two issues:Whether the dismissal resulted from non-fault in the System on Protection against Discharge is only applied to unfixed term contracts? What period limitation system can avoid the system’s performing no function practically?Chapter Five:The System on Protection against Discharge in Staff ReductionStaff reduction can be regarded as dismissal resulted from non-fault, it is necessary to study it in a single chapter because of its special features. The chapter analyzes the specialty of staff reduction in terms of the purpose for the protection and the mechanism for the protection. The thesis holds that the essence of staff reduction not only lies in the individual dismissed staffs, but has something to do with the reasons for the staff reduction, therefore, the System on Protection against Discharge gives more concerns to the social benefits and social elements, making the purpose of labor market policy first and basic purpose, and giving consideration to the protection against discharge. The second part of the chapter is concerned with the investigation of foreign system on protection against discharge in staff reduction, focusing on that of International Labor Organization, U.S., Britain, Japan, Germany,France and Taiwan. The author tries to verify the basic theories for the special protection against discharge and staff reduction mentioned in the first part by comparing of different legislation. The third part is concerned with the evaluation and improvement of the system. This part evaluates the advantages and disadvantages in the system on protection for employees’ interests in staff reduction and dismissal in terms of the causes and procedure for staff reduction and after-staff-reduction responsibilities by comparative analysis of the related stipulations on economical staff reduction in Employment Law and Employment Contract Law. The content of the new stipulation on causes for staff reduction has been expanded and is more scientific, but the number of staff reduction, its computation method and the range for the staff reduction are not quite clear, and the related provisions lack of accuracy. The new stipulation is almost the same as the old one, but both have some shortcomings in the obligation for explanation by employers, notification procedure; and the system of collective negotiation and the provision of the opportunity of substitution employment. As for the after-staff-reduction responsibilities of employers, the present stipulation has clarified the priority to be employed, but such services as the job introduction and job training and so on seems to be neglected, therefore, the thesis proposes some specific suggestions for perfecting the System on Staff Reduction in China.Chapter Six:The System on Economic CompensationGenerally, economic compensation can not only relieve employees from the suffering from their unemployment, but also economically deter employers, which make them exercise their dismissal right carefully based on the consideration of adverse interest of their cost so that protect employee’s rights and interests in dismissal. Foreign legislations on economic compensation are quite different from each other, and they hold different opinions on the nature of economic compensation, so it is improper to make a conclusion just only based on the context. The thesis holds that we should explain the nature of economic compensation in terms of the historical evolution and the system of legal system by evaluating the related doctrines, paying much more attention to the system background. While except the fact that we can assume that the effect of the economic compensation system established in1980s is clear, the research conclusion makes people frustrated. By tracing to the history of some related stipulations, we have learned that no doctrine on economic compensation is adopted by administrative responsible institutions, and the rational extent is doubtful. After a systematic investigation, we may learn that the related legislation holds different positions, and there is no consistent conclusion about the nature of economic compensation. The recognition of the nature of the economic compensation has to be back to the logic deduction. The thesis intends to study the features from the natural relations between economic compensation and insurance against suspension of work and the function of economic compensation, holding that its nature is a social payment, and proposing some suggestions in terms of the recent perfecting of countermeasures and the outlook about it in the future.Finally, the thesis makes a conclusion of the whole study.