The Judicial Relief Of Unfair Dismissal In China

In our country,the relief of unfair dismissal includes reinstatement and compensation.If employees choose to continue to perform the labor relations,it means to give up the compensation.But according to the law,they can also ask the employer to pay wages.Most of the scholars agree that,it’s the employer’s fault that the employees can’t provide normal work,so they reserve the right to prosecute a lost of wages.If employees choses compensation,then it will lead to the termination of labor relations.The author has read and analysis the public judicial decisions through 2010 to 2015,on the premise of already being found illegal,select 867 cases,statistics found that employees demand reinstatement and compensation accounted for 79.58% and 20.42%,respectively.At the same time,in the case of employees demands reinstatement,the sum is 121,68.93%.The court’s final judgment is not restored labor relations,a sum of 56,accounted for 31.07%.And about whether to restore the labor relations between the two sides,the court’s decision was rocking larger "the original post has been replaced" and "the original post has been revoked”.The employees who is in medical treatment for illness;the employees who have worked for the employer for 15 years and less than five years away from legal retirement age workers as well as the female workers during certain period,the law prohibits to discharge,the court’s decision was generally allow the reinstatement.This also reflected the legislative idea”inclined protection” of the labor contract law in our country.The standard of compensation for Illegal discharge the labor contract of our country is the double of the labor contract termination compensation,reflects the nature of punishment of the compensation.Although our way to calculate the compensation includes the length of service and the monthly average salary of employees,has its rationality,it but also has some defect.Firstly,the amount of damages has no connection with the employers’ fault.Secondly,it failed to consider the actual loss of.Thirdly,it failed to consider different rights and interests for the law to protect.Labor contract belongs to continuous contract.The labor contract is about the behavior of workers,therefore,from the perspective of continue to perform,the bearing of perform for breach of contract can only apply employers,and may not apply to the employees.So the law only gives workers the right to choose continue to perform.Although the law choices reinstatement as the first relief of unfair dismissal,through the comparative study of law and practice,it is not difficult to find the trend is to replace the reinstatement with damages to end the labor relations.This may connect to the difficulty of reinstatement execution.Unfair dismissal causes the parties’ loss of trust,even if the court reluctantly orders to restore labor relations,laborers in fact was no longer able to have a harmonious work environment,for the career development of workers and the production and business operation were not well disposed.In the meantime,there are a lot of labor contracts which can not be restored.Therefore,our law should also change the rigid mode,we should focus on how to seek for a mechanism to replace the reinstatement of compensation.In conclusion,he relief of unfair dismissal of our country has its rationality,but it also has its defect.The focus of the legislation in our country should be to improve the compensation system,using the experience of other countries at the same time,looking for a more flexible system for restoration of labor relationship and damages to replace each other.