Study On Judicial Determination Of Employee Materially Breaching The Employer's Rules And Regulations

Employers can formulate various rules and regulations to strengthen employee management,maintain production order,and lead or direct employees according to rules and regulations.When the employee breaches the rules and regulations,the employer can discipline him.When the employee breaches the rules and regulations to the extent of “severity”,the employer may terminate the employment contract with the employee.The second item of Article 39 of Law of the People's Republic of China on Employment Contracts has already stipulated the provision.This article mainly analyzes the status quo of materially breaching the employer's rules and regulations in the judicial practice,and discusses the balances between the employer's interests and employee's interests and the boundary of judicial review from the legal point of view,furthermore the article mentions the criteria for judicial identification.It also provides a path for the improvement of relevant legal systems.First of all,on the basis of the second item of Article 39 of Law of the People's Republic of China on Employment Contracts,the article clarifies the material breaches of the employer's rules and regulations,and lists specific provisions in the existing laws,judicial interpretations,and local judicial documents.By discussing the property of the employer's rules and regulations,it is clarified that the rules and regulations can be used as the basis for dismissing the employees.At the same time,it summarizes the legislative defects in the existing legal provisions,such as the abstract expression of laws,lack of substantive rules,and so on.Secondly,through empirical research on selected cases,the article discusses the practice of juridical cognizance,points are as follows:In the current judicial practice,the judge review the employer's rules and regulations from legality and reasonable content.At the same time,the article sums up the types of employee's behavior and the criteria for the material breaches.In general,there is a dispute between substantive review and formal review in the current judicial paratice.When the judge determines the material breach,the judgment lacks the inspection of the subjective fault of the worker,and it is easy to overlook the determination of the legality of the dismissal procedure.Finally,the article discusses the reasonable construction of the legal system.After researching on the balances between the employer's interests and employee's interests and the boundary of judicial review,then the standards will be established,a comprehensive evaluation should judge employer's subjective and objective aspects.At the same time,a reasonable operating standard should be adopted,the judge's act of judging the worker's breaches of the rules and regulations shall be limited to the existing provisions in the rules and regulations.The disciplinary measures for the employee shall be equivalent to the breaches degree.Employers should bear the liabilities of proof of employee's breaches and it has reached the extent of severity,and the court should also review relevant evidence.The judge should explained legitimacy of the employer's rules and regulations,the facts of the employee's behavior,and the legality of the dismissal.