Study On Laborers' Right To Leave

The right to leave has not been paid attention to in Chinese academic circles,some are just the protection of the right to rest,although in the relevant legal norms have made some brief general norms of the right to leave,but the refinement of the protection has great defects or shortcomings,there is no strong operability of the legal provisions to support the rights of workers to leave,or there is no specialized system or procedures to ensure the rights of workers to leave,which requires perfect legal regulations to strengthen the protection of workers leave.Under the mode of stimulating economic development by production and consumption in China,if the right of workers to take leave is fully guaranteed,not only can stimulate consumption,but also can promote their own development through their own learning,will obtain multiple effects.Therefore,this article takes the laborer leave right as the research axis and the reference point,takes the literature review method,the comparative analysis method and so on the method launches the elaboration,aims at effectively safeguard the laborer's legitimate rights and interests,guarantees the laborer leave right to obtain the powerful maintenance.This paper is divided into four parts except introduction and conclusion,which are described as follows:The first part: the related theory of laborer's leave right.It focuses on the basic concept,content and historical evolution of workers' right to leave.Among them,the definition of workers pointed out that rural workers should be covered and some subjects of labor relations have been constructed.The definition of workers' right to leave points out that the right to leave is regarded as a particularly critical human right,which is the main component of human rights protection and the right of all workers to self-control time in accordance with the law to meet their leisure and entertainment needs.The value of the laborer's right to leave lies in the protection of the laborer's freedom;Promoting socio-economic growth in line with the need for efficiency in the value of the rule of law;Help to ensure social equality,ensure the full realization of the justice of the law.The workers' leave rights mainly include paid annual leave,sick leave,family leave,marriage and funeral leave,maternity leave and leave adjustment mechanism.The historical evolution of leave right is based on the western countries leave right,the international labor organization and China's leave right system in three aspects respectively,in order to compare the differences or deficiencies between China and foreign leave right system.The second part: the current situation and existing problems of legal protection of workers' leave right in China.It points out that the system of workers' legislative guarantee is imperfect,the specific leave system is imperfect,the labor dispute settlement mechanism is imperfect,and the labor tort liability system is imperfect.Among them,the analysis of the legal guarantee of workers' leave right in China focuses on the summary and analysis of the provisions of the constitution and labor law.The specific analysis of the legal protection of the right to leave of our country's workers is as follows: first,the system of the legal protection of workers is not perfect.It is pointed out that the concept of the right to leave is not clear in the labor law,some are only some specific norms of the right to rest,so the specific norms of the right to leave need to be found in other relevant laws and regulations.Second,the specific leave system is not perfect.It is emphasized that the compensation requirements for paid annual leave are general and the employer and the government regulations are different.family leave is also emphasized that the applicable population is too narrow,the level of marriage and funeral leave legislation is low,and the stipulated time is relatively short.Third,the labor dispute settlement mechanism is not perfect.It is pointed out that the cost of workers' right to leave is too high,the 60-day period of arbitration application is an obstacle to workers' right to leave,and the workers' right to leave has suffered a great loss without assistance and cost relief.Fourth,the labor tort liability system is not perfect.It is pointed out that the regulations in administrative institutions at or above the county level are general and the punishment for the employer's activities violating the right to leave is too small in the current law.The third part: the legislative provisions and enlightenment of the legal protection of foreign workers' leave right.In order to better solve the problems existing in the legal protection of workers' leave right,this paper compares and draws lessons from the leave systems of the United States,Japan and major European countries,and sums up the legislation of the legal protection of foreign workers' leave right.Among them,in the United States leave system pointed out that the United States has identified ten legal holidays and paid leave mechanism;Japan's leave system consists of paid leave mechanism,special leave mechanism(mainly including maternity leave,escort leave,marriage leave,sick leave,etc.)and statutory leave(mainly including 15 holidays);French citizens in major European countries paid leave duration of 30 days,legal holidays have Christmas,labor day,etc.,german citizens enjoy 30 days of paid leave,combined with six days of double leave,the total number of holidays per year is 104 days,there are 12 days of legal holidays;The length of paid leave in the uk is not defined by legislation,with eight statutory holidays in total.Therefore,the use of holidays in European countries is very high,the leave mechanism is particularly sound,the legislative level to determine the leave mechanism can be effectively implemented in real life,especially paid leave mechanism.The fourth part: suggestions on perfecting the legal protection of workers' leave right in China.Put forward to improve the relevant laws,improve the labor rights relief system,and through paid annual leave,family leave,wedding leave and leave related provisions to specify the specific leave system,by increasing the intensity of the employer to assume tort liability and increase the employer to assume tort liability to improve the labor tort liability system.Among them,first,improve the relevant laws.In the relevant improvement of the labor law,it is suggested to add provisions on the right of workers to take leave,and to make clear the provisions of the law.The perfection of other laws mainly points to the civil law,criminal law and company law.the civil law points out that the right to rest should be included in the scope of personality right,the concept,main content and attribute of the right to rest should be determined,and the mechanism of the right to rest should be improved.the relevant punishment and compensation documents should be issued for the violation of workers' right to rest;Criminal law clearly pointed out that the employer violates the relevant provisions of the violation of workers' right to rest,resulting in significant adverse effects shall bear criminal responsibility;Set up part of the charges to punish the employer damage workers' right to rest in violation of the provisions of the law,when the damage leads to significant adverse effects to the relevant employer accountability.Second,specify the specific leave system.It is more appropriate to stipulate 7 days,14 days and 21 days in paid annual leave;Family leave should be determined according to the distance between workers and relatives,to ensure that workers can at home and family reunion for 2 days,family leave can be combined with other statutory holidays;Marriage and funeral leave on the basis of kinship to determine the specific time,such as immediate family members,such as husband and wife,sisters,brother,parents and other time for five days,other relatives such as grandma and grandpa,grandma and uncle time for three days.Third,improve the labor rights relief system.It is suggested to strengthen the mediation of professional labor disputes and improve the coordination mechanism of arbitration,administration,justice and other mediation;Strengthening state supervision over the realization of the right to leave;(c)to adjust the guidelines for compulsory arbitration of labour disputes concerning violations of workers' right to leave.Fourth,improve the system of workers' tort liability.Suggestions to increase the intensity of the employer to assume tort liability pointed out that in addition to the workers should be paid in accordance with the relevant provisions of the overtime pay,should also be the corresponding compensation for workers;In addition to the employer to assume tort liability way suggested that the employer violates the provisions of the law,increase the working hours of workers,in addition to pay workers in accordance with the relevant provisions of the overtime pay should be,should also be the material compensation.