Discussion On Legal Nature And Legislative Modes Of The Work Rules Of The Employers

Work rules, labor contracts and collective contracts are the important foundations and instruments to guarantee the legitimate rights of the parties and to harmonize the labor relationships between the two parties. Therefore, how to deal with a series of issues relating to the lawmaking of the work rules becomes a key point.This thesis is composed of five parts including the preface and the epilogue. The object matters of each part are as follows:The Preface part starts from the classification and definition of such related conceptions as the work rules, labor contracts, collective contracts and labor disciplines. Then it points out that there are still some confusions on the provisions of work rules over some basic issues in virtue of the shortage of expressed academic guidance for the lawmaking activities of the work rules. While such kind of situation further results in the irregularity of provisions at the central legislation and the regional lawmaking. The author also makes clear that the essential reasons leading to the confusions are the shortage of the exact definition to the legal nature of the work rules of the employers. She further emphasizes that the legal nature of the work rules of the employers should be exactly defined from an academic view.To clarify these confusions, Chapter One widens the research and discussion further by introducing present legislative modes of various countries, it also introduces, analyzes and disproves, one by one, such theories as Pure Agreement Theory, De facto Practice Theory and Adhesion Contract Theory ( All of them can be classified into the Theory of Contract Rule), as well as Theory of Management Power, Theory of Practice Law and Theory of Law Authorization (All of them can be classified into the Theory of Law Rule) and the related Theory of Basis Dichotomy and Theory of Collective Acceptability.On the basis of foregoing, Chapter Two brings forward the author's opinion on the legal nature of the work rules of the employers, namely the Theory of Transfer of Control over the Manpower. She further points out that the force of the work rules derives from the employee's acceptance to transfer his control over the manpower. Thus the realization of the importance of the employee's acceptance to transfer of the control power is the key point to give an exact definition to the legal nature of the work rules. With respect to the fact that the control over the manpower is transferred by execution of the labor contract, the force of the work rules derives from the labor contract. Chapter Two further puts forward that there are two patterns of such kind of transfer, one is specific acceptance and the other is general acceptance. The two patterns differ from each other in the formation fields and phases, manifestation, influence on the employees and their force. While there are still some connections between them under the preferential legislative mode of social law. Then, from the view of the Theory of Transfer of Control over the Manpower, the author resurveys all the abovementioned theories and makes a deep analysis and soul-searching.Under the governance of the view and connotation of the Theory of Transfer of Control over the Manpower, the author makes some discussions on some disputed issues arising out of the law making proceeding of the work rules in Chapter Three. Those include the contents of work rules; some procedural issues as publication, participation of the employees and administrative examination; the relationships among the work rules, labor contracts and collective contracts and the force of disadvantageous alteration to the work rules.At the end of the thesis, the core point is emphasized and reaffirmed by the author in order to provide some reference to the pertinent contents of the work rules during the lawmaking of our country's Labor Contract.