Right Of Labor On Transfer Of Enterprises Under The Comparative Study Of German And Chinese Labor Law

Since global merger and acquisition has entered into the marketization stage, the cross -regional, cross-industry and cross-ownership restructuring has became more critical. On the one hand companies are improving their industrial structure by industrial consolidation, paying attention to the interests of the shareholders rather than the labors, whose interests are most easily overlooked. On the other hand companies are enhancing the operative efficiency and raise their competitiveness in the market through reducing the cost of human resources. The instability of labor relations and even staff dismissal during restructuring involves several rights and interests of the labor. Though the Labor Contract Law stipulates the labor relation inheritance system and specific conditions of dismissal, but the provisions are still lack of maneuverability in theory and in practice.The enterprise as the employer during the transfer of enterprise faces the legal issue relating to whether the original employer is eliminated or changed, namely the modifiability of enterprise during the transfer of enterprise. Under the situation that capital employee the labor, whether the labor relation would also be transferred to new enterprise when the organizational change of enterprise occurs will have a huge influence on the rights and interests of workers. At the same time if the transfer enterprise could become an objective situation of contract causing the significant change to implementation of contract, so that the original labor contract can not be fulfilled, the labor relations between the two sides according to contract law are entitled to change or terminate the contract, thus becoming the exception for inheritance of the labor contract and propose additional requirements on dismissal protection system.To deal with the current problem, the master thesis tries to analyze German and Chinese labor relation inheritance system and dismissal protection mechanism with the comparison method by drawing lessons from German advanced legislation experience, so that overcome the deficiencies of Chinese Labor relation inheritance system and dismissal protection mechanism.There are six chapters in the thesis besides introduction and conclusion. The first part elaborates the basic theory of labor relation inheritance mechanism. The inheritance of labor relation during transfer of enterprise on the theoretical circles is mainly discussed from the two angles, general succession of debt and labor rights, the majority opinion claims that the general succession of debt extends to the labor relation but labor relations as a special debt that employees has dependent relationship to the enterprise, which requires national public power intervene autonomy of labor contract actively an entitle the protection the legitimate rights and interests of employees. ; the second part introduces the German labor relation inheritance mechanism from the view of legislation, components and substantial rights mechanism. Thus we find that German laws detail the prerequisite of inheritance of the labor relations, the rights of employees and the obligation of old and the new enterprise during the transfer of enterprises; the third part mainly describe the legislation and substantial rights mechanism of Chinese labor relation inheritance system; In the fourth part the thesis is based on comparative analysis to the above countries on labor relation inheritance mechanism and combined the current problems of China’s system to put forward the suggestions; chapter five mainly describes the four dismissal protection factors, including dismissal causes, social justice, social selection and dismissal compensation in Germany; basing on the comparative analysis of Germany dismissal protection system chapter sixth inquires into the shortcomings of the dismissal cause and dismissal compensation in China and proposes some reasonable suggestions.