| With the deepening of economic and social development and an increase in international commerce, unit of choose and employ persons establish a set of rules and regulations to standardize the unit personnel activities of daily living standard and working standard, of employee seriously violates the regulations of the company of punishment, regard this as and employee terminate labor relations on the basis of. The rules and regulations of the employing unit, also known as the provisions of the internal autonomy of the employing units. Based on the provisions of Article 25 of China's "labor law" and "labor contract law" Article 39, serious violations of workers with the provisions of the regulations of the company as the employer may unilaterally terminate the labor contract, the employer will have the workers of serious violation of rules and regulations of the right of rescission. But the terms "serious" two words are normative elements, through the personal perception can not to "serious" word reached relatively uniform understanding of the judge, in the trial of cases in the evaluation. Rules are too broad and the expression of the fuzzy to a certain extent, led to the identification of the factors of the diversification of the case. Therefore, the local arbitration institutions and the courts for the "serious" is not the same as the same, how to unify the "serious" judicial standards? At the same time, the negative of the rationality and legality of the employer's rules and regulations, causing the author's thinking on the conflict and boundary between the independent employment right of the enterprise and the state's legal intervention.From the background, special commission of the International Labour Organization in 1995 published a book "LLO" special report on the inner rules defined as follows:"work rules, the rules and regulations of the company, workplace rules, job title rules, world all enterprises of all the practitioners or most practitioners complete or part for employment in the various rules and action." The employer's internal rules and regulations as a rule file to regulate the behavior of workers, there are a variety of ways to address:such as employment rules, the rules of practitioners. And many domestic enterprises will be called the rules and regulations, incentives, staff manuals, etc.. The role of the labor contract is to promote the establishment of labor relations between workers and employers, to make clear the interests and responsibilities of employers and employees, that is to define the rights and obligations of both parties. The content of the rights and obligations in the labor contract contains the contents of the rules of the employee's behavior. Employers in China's "labor law" and the "labor contract law" of workers serious violation behavior of internal rules and regulations of the employer in terms of according to relieve the labor contract with employees between, and do not need to pay additional compensation. But in the legislation, to determine the employee seriously violates the provisions of the standard of internal rules and regulations of the employer and does not have a written, which also makes judicial practice, around owing to limitations of their own practice, of workers serious violation of with internal rules and regulations of the employer behavior cognizance standard one, showing a masses of judicial decisions feel unfair phenomenon. Therefore, for workers serious violations of employing units of the rules and regulations of the people recognized standards to analyze and study, expect to help our social practice and judicial, and helps to build a harmonious labor relations, maintaining social stability and development.From the point of view of research ideas, this paper takes the case as the breakthrough point, first combing our country laborer from serious violations of starting with the legislative status quo of the regulations of the company and characteristics of research on the legislation of this kind of rule and existence problem. Secondly, the collection of the recent types of judicial cases to be classified, the characteristics of the case, the existence of the case of serious violations of the rules and regulations of the judicial precedent for the identification of standards for empirical analysis. Starting from the contradictions and the high incidence of daily life standard, system of check on work attendance case, analysis on whether the judge behaviors workers sometimes sleep, drink, playing phone, bathing, late etc. as a serious violation of the rules and regulations of the behavior and recognized standards, which started with the rules and regulations of the employer in whether it should be such acts as a harsh punishment of serious violations of the rules and regulations of the behavior and to give delisting of. At the same time, according to the case analysis of the employing unit itself has rules and regulations, rules and regulations are legitimate and reasonable, to discuss the judges to review the "serious" standards and classification. Through case analysis, we can draw the following conclusions:(1) considering the loss of the employing unit. Empirical methods to draw the case that the amount of loss is usually considered in the case of theft, fighting, occupation, and perform their duties in the case of adverse. (2) to consider the nature of the behavior of workers. The subjective cognition and the performance of the workers are combined with the identification. (3) from the severity of the results to consider. Through the study of judges on the admissibility of evidence, the judge usually use the burden of proof of what the facts of the case. Through the comparison of the cases, it is concluded that the judge has a wide range of consideration when judging the quantity, and the emphasis is different. Secondly, the theoretical thinking about the serious violation of rules and regulations, that is, the conflict and the boundary of the right of independent management of enterprises and state laws. At the same time identify whether or not a serious principle is:on the one hand, when the employee behavior has seriously damaged the normal production and operation order, the employer based on the autonomy of production and management, can make the punishment to terminate the labor contract for workers, the thirty-ninth labor contract law shall confirm; on the other hand, the workers what behavior a serious impact on the production order, not by the employer unilaterally decided to prevent the employer by the rules of the machine, malicious to expand the scope of the unilateral termination of the contract, damage the legitimate rights and interests of workers and direct evidence of serious violation of the rules and regulations behavior standards regulations, will dissolve the labor contract is premature also, do not comply with labor law to protect the interests of workers priority concept, should also be listed exceptions. Finally, case by using local regulations to solve practical problems in, put forward with industry regulations, provisions of the labor and social security departments, local regulations recharge method a fuzzy real need to restrict the enterprises free to terminate the labor contract and the judge free play free adjudication right were discussed.From the perspective of research methods, this article mainly uses the comparative analysis method, the empirical analysis method and the literature analysis method:(1) the literature analysis method. By library books in the library, HowNet is included in the literature were summed up, combs the domestic and foreign scholars about employee seriously violates the regulations of the company standard in the determination of the subject of study, the contents and main results. Then study the thought that it wants to express, analyze and supplement the deficiency of the present stage, and finally form the basic idea of this paper writing. (2) empirical analysis. The author from the "Chinalawinfo" database selected a large number of workers has been in force for the serious violations of the regulations of the company case, were selected as the sample, through a detailed statistical analysis, empirical study of the judicial cognizance of the consideration, for the next step perfect finds workers serious violations with standard regulations of the company to provide a reference. (3) Comparative analysis. Based on the relevant cases in the employee seriously violates the standard to judge the regulations of the company different comparison and discussion enterprise operational autonomy and national conflict of legal intervention and the laws of the state of the boundary, so as to promote the employee seriously violates the regulations of the company standards to further improve and perfect.From the point of view of the significance of the topic, the labor relations is close, and sharing weal and woe, it relates to the basic rights and interests of workers and enterprises, is the most basic and most important social relations. Industrial relations directly affect the social and economic development and social stability. As one of the most basic social economic units, the competitiveness of enterprises plays an important role in the development of the market, and the main way to enhance the core competitiveness of enterprises lies in the rational allocation of human resources. Based on this, in protect the legitimate rights and interests of workers at the same time, labor protection of enterprise autonomy, labor management rights, so that the two achieve the balance of interests, to form a win-win situation, reduce labor disputes and form a harmonious and stable labor relations. Standardization of enterprise employee management and reduce the occurrence of labor disputes, and explore the employee seriously violates the standard to judge the regulations of the company so as to solve the problem of labor disputes, to resolve conflicts and disputes construct harmonious labor relations has a very important practical significance. At present, the provisions of the labor law in our country is ambiguous, such as to what extent the violation of the law constitutes a serious violation has not been defined, so that the phenomenon of judicial practice is not uniform. Based on this, the author analyzes a large number of new strong case, combined with the current economic and institutional development of the reality, put forward relevant opinions, improve the labor law in our country, the standard of the identification of serious violations.From the content of innovation, the innovation of this paper lies in:first, the topic is more specific and innovative. After consulting monographs and periodicals, research labor regulations and labor contract unilaterally right of rescission, the dismissal cause, the autonomy theory more papers, but few of workers serious violations of internal rules and regulations of the employer identification standard for empirical analysis of the, is probably just a part of the mentioned this problem, and not yet been thoroughly explored. Therefore, the author specifically involved in the case of a serious violation of the employer's internal rules and regulations, the case for the collection and collation, empirical analysis will be highly targeted. Second, pay attention to the judicial practice in our country, and summarize the system of how to judge the employee's internal rules and regulations. Previous studies are from the perspective of comparative law, law interpretation, legislative proposals, system improvement, but ignored the serious violations of the employer's internal rules and regulations of the practice research. Research related legislation, the system is not perfect and can not effectively solve the problem of serious violations of labor legislation in the application of the problems encountered. On the contrary, it is a combination of theory and practice, which has a certain reference value for the future review of the case of the employees who violate the rules and regulations of the employer. |
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