On The Judicial Cognizance In The Situation Of Dissolving The Labor Contract For The Employee Seriously Violation Of The Rules And Regulations

“The Labor Contract Law of the People's Republic of China”,the most significant law in the social security field,clarifies the rights and obligations of both parties of labor contracts for protecting the labor relationship between employers and employees.It confers nearly unlimited rights for employees to dissolve a labor contract,while confers the same rights for employers only in several legal situations.The second paragraph of Article 39:"where an employee is under any of the following circumstance,his employer may dissolve the labor contract,:(2).The employee seriously violates the rules and procedures set up by the employer;”This paragraph is one of legal situation that employers have the right to dissolve the labor contract.The purpose of formulating the article is to encourage employers to exercise labor autonomy right.In this legal situation,employers can legally and rationally weed out the employees who fail to meet the requirements.Since the law awareness of employees has been constantly enhanced and the lawsuit cost of labor disputes isn't high,employees always choose to protect rights through the legal channel,once their employers dissolve the labor contracts based on the second paragraph of Article 39.In fact,the two parties of the labor contract have the debates on whether the rules and regulations set up by the employees is effective or not,whether the employee violates the rules and regulations or not,whether the violation of the employee is serious or not,whether the procedure for dissolving the labor contract meets the requirements of the law etc,because of lack of further interpretation on the legal article mentioned before.The labor dispute arbitration commission and the people's court,as adjudication organs,both tend to judge the cases based on personal understanding of the legal provisions and past experience,because the legal provisions are broad and vague.Under the circumstance,the judges enjoy greater discretion.That's why the similar cases have different outcomes of adjudication,even the same case has the opposite results in different trial levels.Thus,the above-mentioned problem of applying the the second paragraph of Article 39 does not achieve the purpose of formulating the law,but also seriously damages the judicial authority.Both employees and employers do not easily apply this legal provision to protect their own rights.It triggers the author' consideration on the identification standards of the "labor contract law" article thirty-ninth(two).The author hope that it can urge employees and employers to apply the legal provision accurately to build a balanced and harmonious labor relations.The author chooses two cases mentioned in the paper as the breakthrough point.Firstly,the author summaries the debates of the cases which are caused by applying the "labor contract law" article thirty-ninth(two).the debates focus on three aspects,such as whether the rules and regulations set up by the employees is effective or not,whether the violation of the employee is serious or not,whether the procedure for dissolving the labor contract meets the requirements of the law.Secondly,the author analyses the debates one by one,and cards out the judicial identification standards and procedures,especially the extent to which each standard needs to be achieved,meanwhile emphasizes the significant matters when employers dissolves a labor contract by applying the "labor contract law" article thirty-ninth(two).Finally,the author will make several suggestions on applying the above mentioned legal provision.The main points of this paper is focused on the debates mentioned above: first,to maintain the effectiveness of rules and regulations should be based on the formulation procedures and contents are legitimate and reasonable;second,to identify whether the employee have serious violations should be consistent with evidence,the rules and regulations,determined by legal body.;third,the employers should follow the proper procedures to dissolve the labor contract by making a preliminary decision,granting a defense to the employee,informing trade unions and soliciting the views of trade unions and issuing notice by a legal procedure.Through exploring the above three aspects,this paper finally proposes to unify the judicial identification standard,give the employer much confidence in the area of human resources management,so that the "labor contract law" article thirty-ninth paragraph(two)can play its due role.