| Although the supreme people's court announced on November 30,2016,the eighth national work conference on court civil commercial trial(civil)notes clearly by unit of choose and employ persons in the labor contract deadline "take out" in the form of a terminate an employment contract unilaterally terminate the labor contract is illegal,but in reality the bottom out still.In this paper,the research thought is to ask questions first,then to analyze problems,finally puts forward the solutions to solve the problem.This article through to 68 about the analysis of the bottom out of the judgment,take out the present situation in judicial practice in our country.With unit of choose and employ persons,laborer and court for Angle of view,the bottom out in the judicial status quot of our country presents the following features: the enterprise legally terminate the labor contract in the form of a cover of the bottom out of the intention,the laborer of bottom out against improper way difficult to maintain the lawful rights and interests,the court in the standard and procedure complex,high cost of labor dispute cases.See the essence through the phenomenon,through the analysis of the status quot,can be found that the main reason is the lack of our country labor law limiting remove labor contract,the general legal theory,combined with the legal remove labor contract in labor contract law of PRC for too principled,the unit of choose and employ persons to take out the reason to use legally terminate the labor relationship,trying to take advantage of loopholes of law,the court to take the case to trial out,also is the unit of choose and employ persons take out and compare the main content of the legally terminate the labor relationship,by comparing process has large subjective tendentiousness,therefore it is not surprising that similar cases different referees results.In addition,"time" one arbitrament and processing mechanism of labor dispute cases,seems to have if have no of mediation,arbitration gradually blurred,mediation and arbitration not only failed to have the effect of shunt labor dispute cases,but also increase the cost of the rights of the parties.Take out as a kind of human resource management system,can improve workers' efficiency and increase the benefit of unit of choose and employ persons.But take out is not only related to the benefit of the enterprise,also involves the most basic rights of laborer,labor rights and legal value of justice.,therefore,must through the legal way to take out to correct the irrational factors,in order to realize the laborer and unit of choose and employ persons is a win-win situation.Mountain,can offend jade.Germany and Japan,while in law not to take out the direct expression of regulation,but we can still from the two countries to limit unilaterally terminate the labor contract to unit of choose and employ persons in a series of legal system on the regulation to take out the two countries is very perfect.In reference to foreign experience,on the basis of combining the reality of our take out regulation,this paper tries to put forward the perfect views from four aspects: one is to establish limits of unit of choose and employ persons unilaterally terminate labor contract law of the Angle to provide legal basis for the court's judges identity;From the perfect employer unilaterally terminate labor contract legal procedures to take out appropriate restrictions.Three is to optimize the handler of labor dispute cases,in a timely manner to ensure the bottom out the lawful rights and interests of workers;Four is to take out the related legal remove labor contract causes to be specific,put an end to take out to use the behavior of legitimate reason terminate the labor contract. |
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