The Legal Definition Of Serious Violation Of Rules And Regulations By Laborers

Instant dismissal is one of the legal forms for employers to unilaterally terminate labor contracts,and its influence on the stability of labor relations is self-evident.With all cases in 2017 associated with instant dismissal collected,sorted,counted and analysed,I found that the terms of serious violation of rules and regulations occupied nearly ninety percent of trial practice in instant dismissal,but so simple legal relationship cases in practice responded with the high judgement-changing rate,stability and predictability of the result of the trials were greatly reduced,both legitimate interests of employee and employer cannot be effective guaranteed.The above practical difficulties include not only the reasons for the current situation of the labor market,but also the reasons for the lack of legislation that leads to the ambiguity of system application standards and the serious divergence of practical views.The reasons of the labor market mainly reflect in the large number of small and micro enterprises in China and the low comprehensive qualities of laborers.The former reflects the current situation of the demand of labor market,small and micro enterprises are seeking survival and development as the primary goal,and paying more attentions to economic benefits,which also determines the formulation and implementation of rules and regulations as the existence of economic costs,irregular phenomenon is common,not only the supply of labor management,the operation and implementation of existing rules and regulations,but also the education and training for labors;The latter reflects the current situation of labor market supply,the low level of education and low cultural literacy of the laborers result in the inability of some laborers to restrain and regulate their behaviors,and the violation of rules and regulations is often done inadvertently.The lack of legislation mainly reflects in the lack of standards for the definition of severity and the rationality review.After searching for any relevant statements in labor law,labor contract law and relevant supporting institution,we cannot find any expression of "serious" violation of rules and regulations,neither the rationality of employer rules and regulations.The current situation of the labor market is the objective background of practical problems,it takes time to correct or improve the situation,but the lack or ambiguity of institutional norms will make the accumulation meaningless,neither the regulate running and benign operation of the labor market.The absence or vagueness of legislation has not prevented the academic and practice field from scrambling to make up for the defects,and the enthusiasm of scholars for learning from beneficial foreign experience has never been extinguished.Under the guidance of the idea of free dismissal,the United States protects the rights and interests of laborers by adding the stipulation of prohibiting the dismissal of laborers except for "just cause" in the collective agreement,and forms a reasonable double restriction on the formulation of rules and regulations through the social supervision mechanism and religious moral standards.Under the active interaction between the judicial circle and the theoretical circle,Germany filled in the legislative blank of "significant cause" of instant dismissal through cases.France determine the principle of proportionality through the negative enumeration in practice in its labor code.In Japan,the Supreme Court decided the mode of judgment with comprehensive consideration of case factors through example cases,and the review of "rationality of dismissal" was determined through the revision of Labor Standards Law.At the same time,domestic scholars have made admirable achievements in their thinking and exploration.In terms of the definition of severity,some people think that the principle should be refined rather than specific standard provisions,and from the perspective of the dynamic application of the punishment clauses of rules and regulations,the author holds that the punishment behaviors of employers should be limited in principle and the scope of application of rules and regulations should not be expanded arbitrarily or blindly.At the same time,domestic scholars have made admirable achievements in their thinking and exploration.In terms of the definition of severity,some people think that the principle should be refined rather than specific standard provisions,and from the perspective of the dynamic application of the punishment clauses of rules and regulations,the author holds that the punishment behaviors of employers should be limited in principle and the scope of application of rules and regulations should not be expanded arbitrarily or blindly.Some other scholars specify the criteria for severity determination and extract various typical factors from empirical cases from the perspective of empirical research.When it comes to the issue of rationality review,some people hold that,in order to promote the application and improvement of rules and regulations,and to ensure that both parties to perform labor obligations and enjoy labor rights in accordance with the law,arbitration committees and courts should have corresponding authority for rationality review.It is also held that the rationality of rules and regulations is subject to individual differences due to different time,place and objects,and different arbitrators or judges have different consciousness,therefore,the predictability and stability of the result can hardly be guaranteed,so the rationality cannot be taken as the basis of the judgment.The exploration and excavation of labor law in the theoretical world of China and the benefit of experience in the field is admirable,but there is still room for it.On the basis of the above research,the author re-systematizes the factors under comprehensive consideration,based on the legal theory of the interpretation of labor contracts,I think that the factors under consideration should be divided into internal and external aspects of labor contracts,the internal aspect includes the employer and the employee,while the external aspect includes the social public interest and other third party factors.On the question of the examination of reasonableness,the author thinks that the judicial department should be endowed with the examination of reasonableness,and should pay attention to the procedure requirements such as the application of laborers.Finally,the author proposes to amend the item 2 of article 39 of the labor contract law to: serious violation of rules and regulations,or the continued performance of the labor contract will lead to the imbalance of interests of both parties or damages to social and public security.On specific define standards,principles and the seriousness of the problem of rationality review,the supporting files can be expressed as: When determining the seriousness of laborers' violation of rules and regulations,the court should make a fair and impartial judgment in accordance with the law under the guidance of the principle of prediction,the principle of interest balance and the principle of public safety priority in combination with specific case factors.If the laborer thinks that the corresponding provisions of the rules and regulations are unreasonable,he may apply to the people's court,and the people's court should examine the rationality of the rules and regulations,and the examination results must serve as the basis for judgment.