The Judicial Determination Of The Dismissal

The 2nd item of the Article 39 of Labor Contract Law is a provision which describes that employees in serious violations to the rules and regulations of the employers can be dismissed immediately.The clause is a common situation of employees' faulty.On the achievement of the following conditions the employer can terminate the labor contract on serious breaches of rules and regulations: Firstly,Employers develop and improve the rules and regulations.Secondly,the improper behavior of employees is in line with the rules and regulations.Thirdly,rules and regulations are based on democratic procedures and publicity procedures.Fourthly,the seriousness of the violation of the rules and regulations achieve the need to terminate the labor contract.Fifthly,the employers shall notify the trade union before the termination of the labor contract.In accordance with the requirements of laws,that the employer legally dismisses the employee with the rules and regulations must be based on the fact that the laborer violate the rules and regulations to a serious extent.The law,however,does not only not not define what is the severity in detail,but also lacks the necessary operational standards.As the internal management rules for the employers,the rules and regulations are effective as long as they are not against the mandatory and restrictive provisions of the laws and administrative regulations.In reality,the rules and regulations of different employers are in great difference.The types of behavior involved,the specific degree of the provisions and whether a perfect disciplinary mechanism existed all affect if the rules and regulations can be a basis for the judicial trials.When the courts hear such cases,in order to determine whether it exists a serious violation of rules and regulations,from the substantive law judges will review the rationality of the dismiss and the severity of the employee's behavior,and from the procedural law judges need to identify if the procedural flaws may affect the judgment.As the laws have not clearly defined such concepts as seriousness,severity and rationality,it happened in cases that a large number of different standards,different trail standards in the same situation.The idea of this article is to sort out and classify the specific reasons for dismissals on the basis of serious breaches of the rules and regulations through a wide range of collection and study of judicial judgments and try to find out the facts and discretion of the court on a particular matter.So I can make some suggestions on the unified trial standards and optimizing the trial model.The text is divided into four parts.The introductory section introduces the current status of the Chinese labor market.The higher standards of dismissal protection affect the flexibility of the labor market.We can review the pros and cons of the law through judicial practice.The first chapter carries on the empirical analysis to the cases of labor contract which seriously violates the rules and regulations.First of all,conducting a concise analysis and induction through of the judgment of the court.I can get such conclusions as ‘general factor review model',‘review the basic indicators of procedural model',‘the review model on no clear rules or regulations' and other formal characteristics in the trials.And I will type the specific causes of such cases,describing the characterizations and sum up the elements of courts' review of the various circumstances and its discretion.In the second chapter I will discuss the degree of dismissal protection in China.Based on the cases of reality,I will analyze the difficulties and contradictions that may exist in the judicial trials under current system design.Currently the overall level of dismiss protection in China is high,that it's hard to lay off employees who made mistakes.Through the deconstruction and analysis of the elements,I will point the shortcomings of the current law.In the third chapter I will make some suggestions on the formulation rules and regulations,legislation and legal interpretations according to the problems in the judicial trials.In order to meet the labor market flexibility and the urgent need for enterprises to reduce the labor cost,the direction of our reform in the legislative level should be to reduce the applicable standards.And at the judicial level,it is necessary to standardize the types of the cases and to clarify the operable possibility of the law in practice.