The Study On The System Of Dismissal Protection

As the promulgation of Labour Contract Law of the People’s Republic of China is in place (hereand after referred to as Contract Law), a new height of the level of protecting labour from dismissal has been achieved. The unpredictability of the labour relations, however, renders our Protection against Dismissal System faultiness, leaving the legitimate interest of low-level labourers and theright of autonomy hiring vulnerable. This essay would address the Protection against Dismissal System, basing on the analysis of two specific perspectives, namely, fixed and non-fixed term contract. Meanwhile, identifying the problems from the both is included, which would be followed by recommendations on trying to perfect our Protection against Dismissal System in terms of this pecific system designs, deriving from induction and integration of domestic theories concerning dismissal protecting as well as the comparison with exotic systems. There would be four chapter in this essay:1. General status quo of the Protection against Dismissal System and main problems underlies.This chapter primarily illustrates the current situation of the existing system, according to how the laws and regulations interpret on the termination of contracts. Then, it identifies the problems regarding to the issues of none strict restrictions on the times signing a fixed terms contract, none rigorous regulations over resigning right of workers, the over-narrow range for the subject matter of non-fixed term contracts to be applicable and the Protection against Dismissal System being over-rigid.2. Controversy and criticism in the academia over the protecting system. Three major theories would be presented. The theory of rigid restriction which is based on the presumption of capital exceeding labour and the priority of the worker’s right for living, seeing all the labour as disadvantaged groups which, to some extents, conflicts with the domestic economy though.The theory of fair granting of rights. The supporters argue that both employees and employer sin a contract are entitled to equal rights, negotiating the agreements, therefore, this would undoubtedly apply in the Protection against Dismissal System. This argument, although, is inconsistent with the substance of inclined protection in legislation. Lastly, the theory of moderate restriction defines the labour relations as the combination of relationship integrating fairness and subordination and relationship including personal and property relations. The close and appropriate comprehension onto the labour market make this theory the leading ideology in the domestic dismissal protection system.3. Comments on the exotic system of protection against dismissal. This part will be introducing the loose dismissal protection system and the strict dismissal protection system. The loose dismissal protection system, typically adopted in Anglo-American countries, in which the at-will employment doctrine plays the essential role, even though highly fitting the labour market, is incompatible with the traditional culture and the economic situation in China, though. Aucontraire, the strict dismissal protection system, prevailing in continental-Europe countries, like Germany and France, features high level protection of labour, should be well recommended todraw on.4. Recommendations on perfecting the domestic dismissal protection system. The main idea in this chapter is to make recommendations regarding the fixed and non-fixed term contract by holding onto the practical and employing the advanced foreign experiences. For the fixed term contract, the initial step is to confine the applicable range, in the way of enumerating specific range for both the employees and employers. Secondly, to improve the compensation system on the unilateral breach of the contract by employee resigning, in example of setting default fine policy to make up for the loss of employer caused by unilateral resignation by employee,then encouraging the employers, preference of non-fixed term contract over the fixed, finally facilitating the achievement of the dismissal protection. Lastly, according to the practical situation of our country, there are also needs of protection over fixed term contract and the effective ways are seemingly going to be focusing on the dismissal reason, dismissal process and dismissal compensation afterwards. In terms of non-fixed term contract, the priority take place in enlarging the scope of application. Confining the applicability of fixed term contract and encouraging to switch from it to non-fixed term contract would contribute tremendously.what is also essential is to make substantive recommendations to improve the non-fixed term contract system from the essentials of dismissal reason, dismissal procedures, compensation policy and other related key points.