The Study On Dismissal Protection System

Dismissal is one form of the termination of employment contract abroad, whereas in China the release and the termination of the employment contract are two different concepts in essence and in some degree dismissal in China means employer's right to relieve the employment contract unilaterally. Since the establishment of market economy in our country, the system of labor using has changed a lot from planning labor use in instruction of the state in the time of planning economy into present market oriented labor use. Therefore employers have more freedom to decide employment, moreover freedom to dismiss has become the domain of employers' management power. Meanwhile since work is a means of security of employees' survival interest, freedom to dismiss will to some extent directly deprive or threaten employees' survival interest. Freedom to dismiss and limitation on the abuse of dismissal right have always been the controversial topics in the arena of theory. Legislation of countries around the world has also been continuously seeking to keep the balance between protection of economic interests of capital and that of survival interest of employees. Due to the particularity of economic redundancy, the thesis will only focus on the situations prescribed in Article 25 and Article 26 of Labor Law to compare dismissal protection system of China with that of five other countries like the U.K., USA, France, Germany and Japan. By such comparison, it's obvious that our dismissal protection has stayed on a higher level but there still exist some deficiencies in regard to the reasons of dismissal, notice period and compensation awards in the case of unlawful dismissal. As the old saying goes "stone of other hills can be used to make jade", to study the advanced legislation of other countries to perfect the dismissal protection system is an important way to balance the interest between capital and employees and also to promote harmonization of the relationship of capital and employees.The thesis is composed of four chapters. The first chapter is on freedom to dismiss and dismissal protection. It introduces the historical background of freedom to dismiss and dismissal protection, two debates on freedom to dismiss and dismissal protection in theory and comparison research of dismissal protection system.The second chapter is titled as comparative law research of the level of dismissal protection of China. After comparing the regulations of our country on reasons of dismissal, notice period and compensation awards with those of England, America, France, Germany and Japan, we can find that the level of dismissal protection is relatively higher.The third chapter is about perspective study on the deficiencies of dismissal protection system of our country and the reason. The level of dismissal protection of our country is relatively higher, however, limitation on management power of employers has been relieved a little after economic form changed into market oriented from planning, which is slightly different from the practice of mature market economy countries. Thus although there is strict limitation of dismissal right of employers in legislation, the abuse of dismissal right and the fact of infringement of employees' legitimate rights is everywhere in practice.The fourth chapter has proposed suggestions on perfection of dismissal protection of our country. They include the following measures: standardize the dismissal right, limit it reasonably and lower the threshold of relieving the contract so that employees can get compensation awards and other legal remedies, extend the use range of non-fixed contract and limit the signing scope and term of fixed contract to improve the termination of employment contract. Hoping by taking such measures, we can further perfect the dismissal protection system of our country.