Legislative Research On The Employment Rules And Regulations Of Employers

The harmonious labor relations are the inevitable requirement of the harmonious society. In the process of establishing the socialist market economic system and with the increasing efforts of the reform of state- owned enterprises, rapid development of private enterprises, and the influx of foreign investment enterprises and the establishment of labor free flow mechanism labor relations are characterized with diverse types, defined subjects, negotiated interests and market oriented operation. However, there are sorre defects in the coordination mechanis m of labor relations in our country, such as the lack of group consciousness of trade unions and the employing unit, the inadequate development of the collective labor relations, the difficulty of the individual laborers'interests to be expressed by the group, the result of which is that individual rights of the laborers are vulnerable to the infringement from the employing unit, leading to the low harmony and coordination of labor relations.To this end, to accelerate the pace of the construction of collective coordination mechanism for labor relations has become an important part of improving the coordination mechanism for labor relations. Under this background, this thesis makes research on the internal labor rules and regulations of the employing unit. The Labor law and labor Contract Law of our country clearly stipulates the employing unit has rights and obligations to formulate internal rules and regulations, even to make a decision of dismissing the laborers without paying any compensation according to the internal rules and regulations and thus the internal rules and regulations of the employing unit have "quasi legal effect" and the laborers shall abide by. In practice, due to various differences in the form, industry nature and scale of the employing unit, the law cannot establish a unified rules and regulations to regulate the labor relations of the employing unit. The currently dispersed legislation of labor relations in our country and many defects in the substance and procedure on the regulation of the labor rules and regulations of the enploying unit result in the abuse of right to unilateral rescission and randomtermination of labor relations with the laborers by the employing unit; however, the arbitration institutions and the people's courts are difficult to forma unified scale in the judgment, often resulting in the difficulty of properly protecting the legitimate rights and interests of the laborers. This thesis analyzes the defects in the substantive and procedural aspects on the regulation of the labor rules and regulations of the employing unit in the current legal system in our country, and proposes the impr ovement of the defects, so as to ensure that the employing unit can makes reasonable and legal rules and regulations and apply labor regulations, ultima tely make the rules and regulations play their role in regulating order and promoting operation and production and take into the laborers'interests and avoid labor disputes.This thesis is divided into three parts.Part One briefs the concept of the rules and regulations of the employing unit. Owing to the lack of unified understanding of the academic circle on the concept, this part selects some representative definitions to make analysis, aiming to clarify the connotation and extension of the labor rules and regulations. Then this part analyzes the principles that the employing unit should comply with when formulating the rules and regulations. This part focuses on the theories on the legal nature of the labor rules and regulations, makes respective evaluation on these theories and the author agrees with the "dual division theory" through comparative analysis.Part Two makes a concrete analysis of the legislation status quo and the defects of the rules and regulations of the employing unit in our country. The author first combs the current legislation of labor rules and regulations, and lists the provisions in the Labor Law, Labor Contract Law and some local regulations, which pave the way for the analysis of the existing legislation defects in the following text. The employing unit must comply with the principles of legal formulation subject, legal contents and legal procedures if validating its rules and regulations. However, by listing the legal provisions in our country, the author detects the defects in legislation, mainly including the dispersed legislation and overly general articles; the defects in formulation procedures in the lack of the way for the laborers to participate in the formulation of the rules and regulations, the way to ma ke decision when the employing unit and the laborers have disagreeme nt in formulating the rules and regulations, the way to publicize and notify the laborers after the rules and regulations are formulated; the lack of for mulated contents, that is, the lack of clear regulation on the specific issues for which the employing unit can formulate the rules and regulations and whether the e nploying unit has the punishment right according to its rules and regulations.Part Three discusses the suggestions for the improvement on the legislation of rules and regulations of the enploying unit in our country. In the choice of the legislation model of rules and regulations, the author proposes to first formulate the judicial interpretations on the labor rules and regulations and makes improvement fromthe following aspects, including to improve the contents of the labor rules and regulations in clearly listing them in the judicial interpretations, to improve the formulation procedures for rules and regulations, regulate the employees'democratic participation and publicity procedure of the rules and regulations, amend the publicity procedure as notification to make the laborers understand the contents of the rules and regulations to abide by, to establish the record system of the rules and regulations and increase the administrative review system for the legitimacy of the rules and regulations, to clarify the recognition on the "severity" of violating the rule and regulations and unify the arbitration and judgment standards for arbitration and justice, to enhance the punishment measures for the violation in the formulation of the rules and regulations by the employing unit and add procedural provisions on the termination of the labor contract in the excuse of violating the rules and regulations by the employing unit, listen to the laborer's excuse and restore the contract if illegally terminated by the employing unit.