Study On Institutions Of Unlawful Dismissal Remedy For Corporate Managerial Personnel

Labor contract is an agreement between employers and employees to establish labor relations,defining rights and obligations for both parties.Labor contract concluded in accordance with the law shall have a binding force,and thus neither party is entitled to dissolve or terminate labor contract in violation of the law.Legal responsibilities shall follow if such circumstances do occur.Dismissal protection has become basic value for legislation worldwide,when it comes to constructing institutions of labor contract dissolution.This is revealed by the fact that restrictions on both substantive and procedure terms have to be met before employer exercises dismissal rights.Besides,it also lies in the fact that continuance of labor contract has been set as prime option for dismissal remedies.Employer can instead bear economic compensation as a substitution only under the following circumstances:employees choose otherwise,or condition for continuance of contract has not yet been met.Such institution is constructed based on subordination feature of labor contract,in which employer has a much stronger say and thus is inclined to unlawfully exercise dismissal right.This best provides protection for employees,who in comparison are in a weak position,in an effort to secure their jobs and cover basic livelihood.In China,legislation in terms of unlawful dismissal remedy has drawn lessons from its counterpart abroad,known as institution of dismissal protection.Article 48 in Labor Contract Law of PRC includes two remedies for unlawful dismissal:continuance of labor contract and economic compensation.However,biggest difference between practice in China and abroad lies in whether employees are further differentiated.We take the approach of treating them as a whole in application,the consequence of which leads to dilemma.The application of labor law on management is one of the above.The thesis conducts research on remedy for unlawful dismissal sought by management.It begins with analysis on theoretical ground for unlawful dismissal remedy,and further examines questions posed by its application for management in China,from both legislative and judicial perspective.Based on the above,it suggests that construction of unlawful dismissal remedy for management should be in accordance with their individual categories,with guidance of "protection through differentiation" theory.Structure of the thesis can be divided into following five parts:The introduction part mainly focuses on questions raised by three cases and further analysis on dozens of similar cases.Then it covers current achievement of study done by scholars,noting that results have barely been achieved so far,which basically are all focused on interpretation of articles in law,or study on application of labor law for senior level in management.No such research has been conducted on unlawful dismissal remedy for management,or application of labor law for intermediate or primary level in management.The second part gives a detailed analysis of theoretical ground for unlawful dismissal remedy.Its legislative principles include principle of leaning protection and principle of defending working rights,which are all based on judgement of employee's weak social status and thus aiming at securing their jobs and fixing unequal results caused by unlawful dismissal.Then it introduces unlawful dismissal remedy employed by foreign countries,from both legislative and judicial standpoints.The third part examines unlawful dismissal remedy sought by management in China from legislative perspective.It begins with introduction of relative current institutions,which includes normal mode and special mode.Then it summarizes controversies existing among scholars on views concerning reasonability of"double-upper-limit" standard set for economic compensation,and whether economic compensation should be applied in regard to management cases.This part ends up with comments on current legislation,pointing out the pros and cons.The fourth part examines unlawful dismissal remedy sought by management in China from judicial perspective.By doing research on cases found on "China judgement online",it probes into controversies between employees and employers and further categorizes them into two kinds:those seeking continuous fulfillment of contract and those seeking economic compensations.Then it focuses on how people's courts address and respond to these appeals,and comments on current judicial means.The fifth part advises on construction of unlawful dismissal remedy for management.Based on above research and analysis,it comes up with "application through differentiation" mode.This part analyzes theoretical ground for this particular mode,known as "protection through differentiation" theory.Thus management should further be divided into three independent sub-levels:senior level,intermediate level and primary level,according to certain standards.At the end of this part,"application through differentiation" mode has been introduced and explained in details:senior level excluded from application,intermediate level relatively excluded from application and primary level included in application.