The Legal Thinking Of Workers’ Incompetence

In China,“Labor Contract law” takes the "incompetence" as the legal cause of the dissolution of labor relations.However,“Labor Law” “Labor Contract Law” and other related laws and regulations have not given specific provisions on the identification of the "incompetent" of the workers.In the specific judicial practice,it is also in a blank state,mainly based on the subjective judgment of judges and labor arbitrators.This paper makes a comprehensive analysis of the current situation of "incompetence" and the perplexity of practice and puts forward corresponding solutions,based on the main points of current academic circles,the practical practice of employing units and the referee points of nearly a hundred referee documents.After in-depth investigation and analysis,the main problems are the lack of credibility of the single cognizance subject,the lack of evidence identified by the employers and the limitations of objectivity,and so on.This paper analyzes the realistic predicament of "unqualified work" from these three aspects.At the same time,the "final elimination system",which is widely used in practice,is analyzed.In the management practice dimension of the employer,the workers in the "last" are often directly identified as "incompetent",and thus dismissal,the number of labor disputes arising from it continues to rise;in the judicial practice dimension Whether the labourer is at the end is equal to the "incompetence".The court’s referee results often have many problems,such as various identification methods,different judgment scales and different verdict results.The Supreme Law No.eighteenth guiding case has been explained in principle for the problem,which has important practical guiding significance.On the basis of the analysis of the important problems,this paper puts forward the corresponding suggestions on the identification of "unqualified work" : first,by expanding the scope of the main body of the cognizance,introducing the third party argument to promote the solution of the lack of credibility of the single subject;secondly,through the burden of proof To balance the risk of losing the litigation between the employers and the employers,and to make a comprehensive analysis of the evidence provided by the employers to solve the problem of the lack of evidence in the employer’s "incompetent work".Thirdly,draw the subjective and objective theory essence,and take the subjective factors of the workers as the "victory".The fourth,through the rational construction of the "The bottom elimination system",from the system norms to promote the employers to scientifically identify the "incompetent work".