Discussion Of Legal Restrictions In Dismissal Right

Dismissal means the form that employer removes or terminates employment relationship unilaterally.Development of global economic integration brings a profound change to the employment situations of employer.In the labor relation field of our country,the employment mode and labor management mode of employer become increasingly diversified and personalized,so that relations between labors and employers become increasingly complex with more disputes and controversies.Therefore,legal restrictions of dismissal right indicate that labor legislation can effectively reconcile enterprise business operation and labors,and also reflect that labor legislation tents to project subsistence right of labors.Restrictions of dismissal right are intended to balance the contradictions between labor right of labors and employment of employers.Establishment of restrictive system for dismissal right with certain obliquity can help to reduce benefits loss of employers and labors,so as to achieve institutional protection towards those vulnerable groups.At present,legislation of restrictions in dismissal right in China,has stipulated the legal restrictions in dismissal reasons,procedure and economic compensation against the tendency protection of labors' subsistence rights and the dismissal behavior of employers,so that the dismissal behaviors of employers can be more normative.However from the perspective of relevant system design of our existing labor legislation,something still shall be further discussed.For example,the dismissal reasons are not flexible enough;the advance notice specifications of dismissal are too stiff,and procedural legal norms of dismissal are not clear;level of economic compensation is set to be too high;benefit distribution for labors and employers fails to be well balanced.To further improve the restrictive system of dismissal right,we shall properly reform the substantive elements of dismissal and system contents of procedural documents,to achieve benefit balance between labors and employers.In this paper,starting from conceptual analysis of dismissal right,we retrospect the source of legal system of dismissal right restrictions and analyze relations of dismissal freedom and restrictions of dismissal right.Besides,on a basis of comparing legal provisions about restrictions of dismissal right between continental law system and anglo-american law system,we give following suggestions from the perspective of legislation improvement by analyzing our national dismissal right restriction system in dismissal reason,dismissal procedure,economic compensation and other aspects.Firstly,in terms of dismissal reasons,they shall be moderately transferred into principle and summarization,improve relevant stipulations in dismissal reasons of probation period,and refine the stipulation that any labor can be dismissed after being prosecuted for criminal liability;secondly,in the aspect of dismissal procedure,notice period of dismissal shall be associated with the working age and group level of labors,so that labor union can give full play to guarantee labor rights and interests in dismissal procedure,and further play the functions of labor administration department;thirdly,in the aspect of economic compensation,the high welfare standard for economic compensation shall be moderately reduced,and confirm the nature of economic compensation.These are expected to achieve effective balance of benefit distribution between labors and employers.