The Labor Contract Is Terminated For "Incompetence" That The Judgments

Terms of the article to the "Labor Law", "Labor Contract Law" relevant "Employee is incompetent," as the starting point for legislation and judicial practice how to accurately identify the workers "not competent" to start research. Paper is divided into four parts, focuses on discussion of "incompetence" that the current legislation and judicial confusion and the questions with reasonable suggestions and measures to improve the legislative and judicial practice in two ways.First, the "incompetent" meaning, of the "Labor Law" Article 26, paragraph 2, and the "Labor Contract Law" Article 40, paragraph 2, did not give provisions, only in the"Ministry of Labour on <People’s Republic of China Labor law>"certain provisions of the instructions" for "can not win recognition" performance made simple instructions.How to recognize the "incompetent" and is based on the subject of laws, regulations and judicial interpretations are blank, thereby producing different types of doctrine on the issue. The author comparative analysis based scholar views and judicial precedent in the Taiwan region theorists and practitioners and the mainland theorists and practitioners on the doctrine set out three main types, namely, the objective can not be said, can not say that the objective and subjective, compromise.Secondly, the author of "incompetence" that the current legislation and judicial confusion to start on. China’s "Labor Law" will "not competent" as one employer Trailer labor relations subject, according to the systematic interpretation concluded that current legislation on the on the "incompetent" finds that the use of "objective can not say." But the law with a lag, with the continuous development and progress of society, using only the "objective can not say" can not meet the needs of judicial practice. Thus, judicial practice confusion ensued: whether one pair of "incompetence" should include the identification of subjective factors; 2 as a single employer finds that the body could leadto abuse of the right of dismissal; 3 leads to abuse of "bottom out system".Again, for the legislative and judicial practice problems exposed, the author gives the corresponding solutions. In legislation, proposed that "incompetent" includes not only the case objectively competent insufficient capacity, should also include the situation of workers due to subjective reasons of incompetence. In judicial practice, in order to balance the interests of the principle of prohibition of abuse of rights and principles as the guiding ideology for the employer as a single body to expose the shortcomings identified, the employer and the employees proposed democratic appraisal,employers and trade unions, employers and experts with the combination of the three identified main mode. Existing practice that standard currently four kinds: labor contracts, labor quota, employers internal rules and regulations, the employer internal evaluation, as well as the effectiveness of the relationship and identified four kinds of standards were analyzed. Proposed to establish and perfect the relevant systems, such as the establishment of an effective performance appraisal system, improve the system of dismissal notice period, in order to more accurately that "incompetent."Finally, the author of the practice of "incompetence" and easy to confuse the concept of "bottom out system" for the inquiry. In "Supreme Court Case No. 18 guide" as an example of the relationship between the two to do a more clear comb, and "bottom out system" legal roles positioning.