Legal Protection Of Employment Right

Scholars in our country have made intensive study on right to employment. However their researches are relatively independent, the characteristic of which result in the incompatible views in several issues in the field of right to employment. Take the definition of right to employment as an example. The right to employment can be defined as the micro right and micro right, the failure in the combination and exchange of the concepts will result in the contradiction and definitions in other theoretical issues in right to work. The author hold that the vague in theoretical issues will surely lead to the weakening, even the misguide of the instructive effect of theory on practice. Therefore, the paper aims to achieve a common understanding and uniformed practice mode of the right to employment by way of reorganization and conformity of the research result obtained. The theoretical route is designed from the exact right to employment to the legal one and then turned to actual one, which is also the common route adopted in the research of the issue of right. Besides the analysis on the condition of the protection to right to employment at home and the default in law, the paper draw on the successful experience of other countries in the practice of the protection of public's right to employment and propose the assumption to conform a perfect system of protections of right to employment. Research method adopted takes account of both the theory and practice and the structure of the paper is organized as the follow:Part one is the argumentation of right to employment, along with the summary of current condition, existing problems and the difficulties in the research, the construction of definition, right system and principle structure of right to employment and exploration in major characteristic of it. All of that is the exploration in universality in basic theory of the right to employment which founds the foundation of the paper. The issues need to be discussed about right to work include the concept, feature, major content and characteristic of it. The definition of the right to employment originated from the different regulations in Constitution and Labor Law. In Constitution, the right to employment is defined in narrow sense as the right to apply work opportunity with the purpose to declare public's right to work. While the right in Labor Law which aims to specify the Constitution is viewed as, along with the right to apply work opportunity, various rights related to employment. The concept of right to employment defined in Labor Law in broad sense which is not contradictive with the narrow sense of it in Constitution. The paper abstracts some characteristics of right to employment which portray the right from different angles from the statements by numbers of scholars with the aim to give a clear definition of it. The characteristics include: the right to employment is both the legal and moral right, both the right to live and to develop, both the human right of individual and collectivity, both the negative and positive right. Another issue need to be discussed is the principle part of right to employment. Actually, part one describes and defines the right systemically and gives author's understanding of it. That is, the right to employment is a kind of complex right led by the right of freedom and consists the character of social rights. Taking the character as the premise and tool in the analysis of right to employment with the theoretical analysis as the basis and taking consideration of both the documentation and history research, we can come to the conclusion that right to employment is a system of rights with the right to choose job and the equal right to employment from the perspective of the right of freedom as the dominant right and the right to obtain job from that of social character as the supplement, which are complementary and fit in with each other.Part two gives systemic analysis to the current condition of right to employment and the factors contributing the condition, including the statement of legislation of the right and the excising problems in legal protection to the right to employment. In this part, analysis also given to the rules and regulations as well as the international treaty sanctified by our country that are related to the right to employment, on the basis of which the current condition of protection to right to employment in our country. Besides, further analysis is given to the implement of the right and the achievement, problems and the spring of the problems in the field at home. What's more, the major types of employment discrimination and the factor results in the discrimination, and on the basis of which the default in legal protection to right to employment currently can be shown. Therefore, the legal protection of which can be completed in the future.Part three gives explanation to the legislation and the actual protection of right to employment. Analysis and comparison will be made in law and regulation about right to employment in the world, so as so draw some enlightenment on this issue. The research on right to employment in other developed countries includes the Right Declaration in Constitution and regulations in Labor Law about various rights, as well as related regulations about right to employment in Social Protection. With the lateral comparison in right to employment adopted at home and abroad, the aim that to overcome our own shortcomings by learning from each other's strong points can be achieved. Analysis and research are made on the experiences of other countries in legislation and implement in right to employment. Employment Non-Discrimination Act (ENDA) signed by America is analyzed in this chapter. On the basis of the analysis of system of ENDA and that of right to employment signed in other countries, the frame of right to employment in our country is formed, providing experience for the protection of right to employment in our country.Part four is about the improvement of protection of right to work in our country. On the basis of the theoretical analysis and statement above, comment is made on current regulation and system about right to employment signed in China. Meanwhile, through the examination of the history and current condition of right to employment in China, the method to solve the problems about employment in Chinese society will be proposed, namely, to establish the complex legal employment system. Efforts should be made in the legal constructor of protection to right to employment in China on the basis of the impotent in the content of right to employment and the protection of employment by Constitution. Emphasis is placed on the legislation in right to employment and legal relief framework. This part is the examination in the substantive law about right to employment. Unemployment and discrimination is viewed as the failure in achievement in right to employment which seriously undermines the live, development of employees. It is the duty of every government to provide more employment opportunity and protect the employees from discrimination to reduce the employment rate and promote the economic development. Thus the protection and legal improvement of right to employment in China is proposed. Special attention should be paid to the establishment of the legal protection mode of right to employment under the new situation, and the improvement in supervision system by Constitution and the construction of the regulation under the rules of which the public's right to employment is protected by Constitution and court.