The Economic Compensation Right Of The Employee When The Labor Contract Is Removed

The rescission of the labor relation tend to make the disadvantaged labours faces dilemma, so the appearance of economic compensation rights provide some help to the labours in a difficult period. It’s not a very long time since economic compensation rights appeared in our country, which still in the period of development and improvement. I try to expound the related issues of economic compensation rights from four aspects in the article, in order to contribute a mark to perfect the related system.The nature and value of economic compensation rights are discussed in the first part. Due to complexity and diversity of the application situation and assurance means, economic compensation rights can only be looked as a new type of rights, in the nature of subsidy, sanctions and legal constraints.As an inclining protection on the disadvantaged party, economic compensation rights has values in five aspects,including assurance, fairness, restriction, complement and compensation, which is also the requirement of essential fairness pursued by law.The scope of economic compensation rights is discussed in the second part. labours can enjoy economic compensation rights in the following circumstances:labours terminate a labor contract in accordance with the thirty-eighth item of the "labor contract law". The employing units claim and have consensus with labours to terminate the labor contract. The employer terminate a labor contract not due to the fault of labors. The employing units downsize because of bankruptcy reorganization.The employing units is declared to bankrupt, dissolve, revoke business license or be ordered to close down by law.The employer decide to disband the company in advance and so on. Of course, the existence of "labor law" can not blindly pursue the protection of laborers’interests at the expense of the employing units’interests. It is pursuing a balance of interests of contracting parties, Under the premise of appropriate inclining protection on the disadvantaged party.The labour does not enjoy economic compensation rights in the following cases:The employing unit and labours remove labor contract according to the twenty-fifth item of the the "labor law".labours terminate the labor contract,on the basis of clause1in the thirty-second item of the "labor law", or not according to the thirty-first item of the "labor law".because of the employing units’division or merger,both parties Change or re-sign labor contracts on consensus. Consequently,these regulations can prevent labours abusing economic compensation to damage the interests of the employing units.The realization of economic compensation rights, namely the payment of economic compensation funds, is discussed in the third part. Reference to wages and working years to determine the standard of economic compensation funds. For the general case,"labor contract law","labor law" and the relevant regulations have detailed provisions.Of course, some special circumstances about working years require special treatment, including the employing units’division and merger, retired and demobilized soldiers,_re-employment of labours,length of service calculation for child labours and so on.Wage Standard and scope should also make concrete analysis of concrete conditions. Generally speaking,it Should refer to the average wage of12months before the termination of labor contract.If the standard is lower than the average monthly wage of enterprise or the local minimum wage standard, the higher level of standards among should be chosen. The employer shall pay all the economic compensation funds at the same time of the handover work, otherwise the employer shall be liable to pay one to five times the compensation,and labours also can access to court.The deficiency of economic compensation rights and how to perfect it are discussed in the fourth part.The inclining protection on the disadvantaged groups in law can not excessively sacrifice the interests of the other side. According to the general provisions of law, if the employer terminate the labor contract and the parties cannot come to an agreement,the employer has to offer economic compensation, this provision is prone to be abused by certain "have an ulterior motive" labours, it is not fair to the employer.The law stipulate that the employer has to pay economic compensation as long as there is layoffs,which would also allow the employer to bear too much pressure.The relevant provisions of the law are not clear, the provisions of remedy measures are not perfect.Thus, labours’economic compensation rights can’t completely have effective security, these need to be improved.At the same time, in the process of making laws, lawmakers should also consider some special cases, including the elderly staff and workers, high income staff and workers,rising prices and so on.