The Study On Constructive Dismissal Systems

Labor contract comes from the civil contract, in the original labor contract, the rights and obligations between workers and employers are applicable to the general provisions the contract law,but it is not a good balance of labor relations. In order to solve this problem,the dismissal theory that most counstrise used is dismissal of legitimate reasons,that is, non for legitimate reasons,dismissal is not permitted. Only if the law expressly provides the case before can they dismiss the employees. But employers often fired deliberately without any proper reasons. In order to avoid dismissal costs, the employers take a series of measures to force workers to resign. Because the surface is presented the workers themselves to resign and not for voluntary psychological, workers can not obtain relief, behavior, which is a serious infringement of the worker’s right to exist, and cause laborer is out of work, the labor can not get the proper relief. Therefore, the constructive dismissal theory is generated to protect the workers’ rights and interests.This paper is divided into four parts. The first part is that the basic theory of constructive dismissal, including constructive dismissal system concept and the characteristic,compared with other related theories as well as the existence necessity of presumptive dismissal system, to the protect the labor rights and personal safety of the labor, and implement the substantial fair principle of the labor law and construct the harmonious labor relations. Followed by the system analysis of extraterritorial constructive dismissal, mainly lists the presumption dismissal system of Britain, the United States, Canada and other developed countries and Taiwan and Hong Kong area.Through the assessment of the constructive dismissal system to in these countries and regions,absorb relevant experience. Then about insufficiency and present situation of China’s constructive dismissal system, it mainly introduces relevant laws regulations of the current China’s constructive dismissal and the practice in our country, and points out the defects exsiting in the presumption fire system, including the specific circumstances of the list is too mechanical and there is not enough refinement, constructive dismissal standards need to be improved. A reasonable period of time is not regulated in the dismissal contrast in constructive dismissal, the responsibility undertaking of constructive dismissal is imperfect. Finally, there are the suggestions to improve China’s constructive dismissal system, including by means of generalization and enumerative refine our constructive dismissal case, make the standards of constructive dismissal explicit, set up a reasonable claim period and increase the constructive dismissal liability to pay compensation.The purpose of the legislation of the labor contract lies in the full protection of workers in the weak position,balancing the interests of employers and employees.In real life, the employers in order to pursue their own interests, forcing workers to resign is not uncommon.This is serious violation of the rights and interests of workers,so I hope through the study of this paper, our presumption of dismissal system will be improved, thus protect the survival rights of workers better, and maintain social stability.