A Research On Legal Regulation Of Transfer By Employers

According to the statistics,in the current labor dispute case,caused by the employer of the transfer case proportion from 20% to 30%.Unfortunately,the legal regulating of transfer was not perfect.Allowing the transfer of workers under certain circumstances is an objective need to maintain the right of employer's autonomy,but the inappropriate transfer behavior will harm the legal rights and interests of workers,destroy the harmony of management and labor.Through the analysis of the legal regulation of our country current situation of employer transfer,the author attempt to improve the legal regulation of the employer transfer and proposes feasible suggestions on the basis of discussing the problems in practice and learning from foreign experiences.The dissertation consists of introduction,main body and conclusion,and the body is divided into four parts.The main contents are summarized as following:The first part is the basic theory analysis of the employer transfer.This part defines the concept of transfer first and the transfer,disciplinary transfer,job rotation and other similar concepts are distinguished.In this foundation,the author makes a different classification of transfer according to different standards.The significance of distinguishing the types of transfer is to form different transfer regulations around different transfer.The author discusses the legal nature of the transfer at last.The legal nature of the transfer is the logical starting point of researching transfer problem,therefore,it is necessary to make a analysis in depth on the transfer properties,As for the legal nature of the transfer,the Japanese and Taiwan have a most thorough and comprehensive research.After years of development,Five typical theories are formed,such as the management right and the general agreement contract.The author makes a complete introduction of all theories and takes a theoretical foundation for adopting special contract in our country in the fourth part.The second part analyzes the current status and problems of the legal regulation of employer transfer in our country.First of all,the author analyzes it from the legislative and judicial perspectives.The author reviews the legislation on legal transfer,but there is no agreed transfer legislation.Judicial point of view,the author selected from a number of typical cases,summed up in the justice,the court found that the transfer behavior should meet some reasonable elements.Secondly,based on summarizing the current status,the author analyzes the specific problems of the legal regulation of employer transfer: First,the lack of relevantlegal provisions of the agreed transfer and there is also a conflict around the court hearing in various areas.Some think the provision of transfer is valid,while others argue that such provisions are invalid in violation of the relevant provisions of the labor contract law.Second,the lack of legal provisions exists on transfer procedures.It is not only to carry out the regulation from the entity,the procedural regulation is also not easy to ignore.Third,the legal transfer of "incompetent" is lack of standards.Due to the lack of specific criteria,the employer abuse transfer and Infringe upon the legitimate rights and interests of laborers.Fourth,in the judicial judgment,The court for the rationality of transfer has not formed a unified standard of review.The phenomenon that the verdict on the same case is different is more serious.The third part refers to the investigation and lessons of the legal regulation of the employer transfer abroad.This part introduced the circumstances of the legal regulation of transfer in Japan,Taiwan and Britain and other countries and regions.The legal regulation of employer transfer in Japan mainly includes four aspects: legal regulation,labor contract regulation,transfer procedure regulation and principle of prohibition of abuse of rights;the legal regulation of employer transfer in Taiwan mainly includes two aspects: legal regulation and transfer five principles of regulation.While Britain considers transfer as the problem of exercising the right to change the provisions of the labor contract to study.Although there are differences in the legal regulation of employer transfer in various countries,but they control the employer transfer in a fair and reasonable boundary that combined with their national conditions.When our country is in the face of employer transfer problems in the legal regulation,we are supposed to draw the precious experience of above countries and regions as well as enact reasonable and effective regulation methods combined with our national conditions.The fourth part describes the perfection of the legal regulation of the employer transfer in our country.Firstly,the author makes a comparative analysis of all theories combined with the current situation of China,and suggests that our country should take the view of the special contract.As for agreed transfer,the law is necessary to make specific provisions and admits that transfer clause can be used as the basis for transfer,but there must be a strict review on them;Secondly,increasing the legal provisions of relevant transfer procedures,which is ought to include three aspects in the author's opinion,is to make the transfer procedures more perfect;Thirdly,improving the recognized standards on the legal transfer of "incompetent" isto make the transfer have the law to obey;Fourthly,according to the problem that the rational review of transfer standard is not unified,the author constructs a judgment system of rationality and hope that the Supreme People's court will be issued in the form of judicial interpretation or typical cases to regulate,furthermore,unify the rational review standards.