Study On The Formulation Of Work Rules Of China

Germany's"Total Determination" System was referenced by the Law of the Peoples Republic of China on Employment Contracts concerned with the work rules. The draft ever stipulated that when an Employer formulates on work rules, the matter shall be determined through consultations with the Trade union or employee representatives conducted on a basis of equality and reaching consensus. However, the provisions of this draft cause considerable controversy during the discussion. Finally, the stipulation of Article 4,paragraph 2 of Employment Contract Law caused more argument,especially in the different interpretation about consultations and reaching cosensus between two legislative departments which makes Article 4, paragraph 2 obscure.The author will analyze some basic theory issues,the cause of controversy,the judicial practice of the measure of the formulation of work rules at the regional lawmaking in our country on the basis of the controversy, legislative reference as a clue,and throughout the result of the legislative ambiguity and theory debate. Moreover, the author will examine the relevant system abroad and go into the choice of China faced. This thesis is composed of six parts including the preface, main body and the epilogue. The object matters of each part are as follows:The Preface part starts from the definition of work rules and the limited scope of this study. Then it points out that the topic dues to the ambiguous legislation produced from Germany's"Total Determination" System which was referenced by the Employment Contracts Law concerned with the work rules. In addition, it reviews the literatures and illustrates the innovations and research methods.Chapter One introduces and analyzes Germany's"Total Determination" System concerning its history, the functions and powers, the management and organization agency.On the basis of foregoing, Chapter Two elaborates the ambiguity of Article 4,paragraph 2 of Employment Contract Law, especially the probable conflict with Article 18 of the company law of the Peoples Republic of China after the Law issued. It also introduces and analyzes the different between Article 4, paragraph 2 of Employment Contract Law and the democratic management ordinance of local governments. In addition, this paper firstly generalizes the theory of examination of the Article 4,paragraph 2 of Employment Contract Law.The author finds out that the issue about the"Total Determination" System or"Single Determination" System is divergent,and thinks that it seems that the Theory of Classifing Total Determination and the Theory of Negotiating Single Determination are advisable. However,what is the position of the employers in the employment relations is still a problem. And what is the difference between the collective agreement and the work rules in the way of"Total Determination" is also still a issue.Chapter Three widens the research of some basic theory problems on the basis of the work rules——Transfer of Control over the Manpower, and illustrates the generative process of two patterns of such kind of transfer, which is specific acceptance and general acceptance, namely enacting produces of work rules.The formulation of work rules is connected with the process to be in force and one of the "in force" necessities of work rules. Different necessities are required to the Theory of Classifing Total Determination and Theory of the Negotiating Single Determination, and thereafter they are called substantive necessities and pro forma necessities. Moreover, the author puts forward that the legal practice at the region will stipulate how to deal with if the pro forma necessities is absent. In addition, the author brings forward that the causes of the legislative ambiguity and theory debate are academic uncertainty and the shortage of collective negotiation, at the same time, the author disproves the Theory of Classifing Total Determination and maintains the Theory of Negotiating Single Determination.In Chapter Four, under the governance of the relevant legislation of extraterritorial, the author advocates that the Theory of Negotiating Single Determination is conformed with academic and economic situation of our country in present,and thereby gives some advices.At the end of the thesis, the core point is emphasized and reaffirmed by the author in order to improve the irregularity of provisions and define some basic views, such as the maker, contents, authorities and process, etc. The author also looks forward to providing some reference to the pertinent contents of the work rules during the lawmaking of the Democratic Management Ordinance in our country and Trade Union Congress of Enterprises of Shanghai on Ordinance.