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Research On The Dismissal System In Japanese Labor Contract

Posted on:2010-08-20Degree:MasterType:Thesis
Country:ChinaCandidate:D S ZhanFull Text:PDF
GTID:2166360278472912Subject:Law
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The dismissal system is one of the most important aspects of Chinese Labor Law. Referring to and emulating the key features of similar systems in other jurisdictions is essential in perfecting the Chinese dismissal system in labor contract. Japan, being one of the earliest countries to enact labor legislation, has a dismissal system which can be traced back to the late 19th century Civil Code governing contracts of employment. Apart from the relevant regulations in civil law, the Standard Labor Law and other compulsory laws also prescribed regulations pertaining to various other aspects of the dismissal system, such as the time limit for dismissal, the requirement of advanced notice, as well as the limited reason. Furthermore, corporations, employees and trade unions were free to specify any additional rules regarding dismissal through the rules of employment and collective contracts. Despite the longstanding practice of lifelong employment in Japanese corporations, which would, in theory, restrict a corporation's right of dismissal, the Japanese law then still recognized and adopted the principles of free dismissal. However, in the 1960s and 1970s, after a fierce debate regarding the freedom of dismissal amongst Labor Law academics within the Japanese legal circle, a theory pertaining to the abuse of the right of dismissal was finally established.With regard to judicial decisions, the Supreme Court formally established the legal principle pertaining to the abuse of the right of dismissal from the cases of Japanese Salt Manufacturing and Kochi Broadcasting, and later based on the cases of Toshiba Yanagi Plant and Hitachi Medical, the supreme court extended the application of such principle from no fixed-term contracts also to fixed term contracts. Regarding to the economic layoffs, a Japanese district court, upon examining a series of previous cases, established the legal principle of "Arranged Dismissal" based on the cases of Oomura Nogami and Toyo Sanso. The enumerated principle was as such: In the process of retrenchment, a corporation is limited by four main factors - whether retrenchment was necessary, whether the obligation of avoiding dismissal was discharged, whether the employee to be retrenched was selected on reasonable grounds, and whether the dismissal procedure was legitimate. These factors strictly limited the right of employers to engage in arranged dismissal, thus conferring stronger labor rights upon the employees.In 2003, the principle of the abuse of the right of dismissal was finally included in the Standard Labor Law. The entrenchment of this principle in the written law is significant in illustrating the importance of limiting employers' rights to dismissal. Japan has thus shifted from the practice of free dismissal to the current practice of limited dismissal. In the recent years, Chinese corporations have been grossly abusing the right of dismissal, and in order to address this problem, it might be possible for the Chinese labor law to introduce a similar principle regarding the abuse of the right of dismissal, to perfect the dismissal system. At present, if a Chinese corporation wishes to retrench, there are very few regulations assessing the legitimacy of the retrenchment. For instance, unlike Japanese law, Chinese labor law does not determine if the employer has discharged its obligation to avoid dismissal, and neither does it asses the reasonableness behind the selection of the employee to be retrenched. The Japanese Labor law pertaining to rights of dismissal in labor contract thus serves as a useful model in reforming Chinese labor law in this area.
Keywords/Search Tags:Dismissal, Japanese Labor Law, Abuse of Dismissal Right Legal Principle, the Legal Principle of Arranged Dismissal, Economic Downsizing
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