The Boundary Between Freedom Of Speech And Duty Of Loyalty Of Employees

Citizens' speech is subject to certain legitimate private interests or social public interests at many levels.In labor relations,this need to oppose the civic speech comes from the loyalty of the laborer to the employer.Among them,the question that is thought-provoking and worthy of discussion is: freedom of speech as the basic right of citizens,can workers advocate in the process of labor relations? To what extent should the loyalty of workers be achieved? If the two conflict,where is the speech boundary under the loyalty of the workers? Why should we use this standard as a limit?This series of questions makes the exercise of the right to freedom of speech and the fulfillment of loyalty obligations of laborers in opposite situations.At the same time,what kind of interests should be weighed against the legal considerations and become a theoretical and practical value.It is difficult to talk about it.This paper is based on the free speech of citizens in the current ever-changing network environment,and through the search and screening of the 20 representative tool cases that have been published in the case library of Peking University,which are related to the freedom of speech and loyalty.The sample was studied and analyzed through statistics on the overall situation of the sample and the claims concerning“freedom of speech”,“faithful duty”,how to balance the two,the content of the argument,the reason for the referee,and the result of the referee: in the labor relationship,the laborer It is inevitable that the employer is dissatisfied with it,and it is rather confusing on social tools or public media,causing a big or small public reaction.After the employer unilaterally terminates the labor contract relationship,it resolves the dispute through legal means.However,in the judgment,whether the freedom of speech expressed by the laborer in the labor relationship is protected by the opinions of the employer,few courts respond positively.Most courts emphasize the loyalty obligations of the laborers and overemphasize the laborers.Compliance with the rules and regulations,according to the staff code,the consideration and trade-offs of various factors are also biased,slightly wrong.In recent years,incidents caused by laborers' speeches on different occasions and the results of many workers have been pleaded guilty.At present,the concept of "faithful duty" has not been formally used in China's labor legislation.In addition,theoretically scholars' current research on the boundary between laborers' freedom of speech and loyalty is limited and thick,and neither legislation nor theory can be used.It provides an effective solution tohow to balance the judicial dilemma of laborers' freedom of speech and loyalty.Therefore,this paper attempts to think about the boundary between freedom of speech and loyalty in labor relations,and believes that the freedom of speech of laborers is strictly protected by the Constitution and its related laws,but at the same time it is not without boundaries,specifically the freedom of speech of laborers in labor legal relations.The exercise of the right,in addition to other restrictions stipulated by law,is subject to the loyalty obligations of the laborers from the labor legal relationship.However,the loyalty of laborers to the freedom of speech is also bounded.There is a need to find a balance between freedom of speech and loyalty.To further carry out detailed research,first of all,it is necessary to put the loyalty obligation and freedom of speech at the same level and under the ruler.It must be the necessity of the existence of the faithful obligation in the labor relationship,and it is also the premise for the follow-up discussion of the boundary between the two.This paper mainly relies on the theoretical research and experience of domestic and foreign scholars on the loyalty obligations and the implied obligations,the principle of honesty and credit to the loyalty obligation,the labor relationship has the nature of dependency and continuity,and the current labor of oblique protection and restriction.The background of the law is discussed in detail in order to make a judgment on whether or not the violation of the loyalty obligation by the freedom of speech can be presumed to seriously violate the rules and regulations of the employer and thus dismiss the laborer.Secondly,when citizens have the status of laborers,their basic rights to freedom of speech can be embodied in the field of labor law: 1.Inaction,including confidentiality obligations and speech in speech,does not harm the interests of employers;,including nuisance notification obligations and public welfare announcements.It is precisely because the workers "crime by words" are indeed linked to the loyalty obligations in the field of labor law,and there is still a lack of discussion on conflicts.It is necessary to focus on the analysis here and pave the way for the study of the limits of freedom of speech and loyalty.Finally,this paper attempts to make a preliminary analysis of the boundaries between freedom of speech and loyalty of laborers in judicial practice through the four elements of a core two principle two theory.The core is the measure of interest.When there is a conflict between the two,there is no absolute protected party,and the specific case is analyzed.The second principle is the principle of proportionality and the principle of disciplinary punishment.The principle of proportionality emphasizes the equitableness ofmeasurement means and purpose,the equitableness of public interest and private benefit,and whether the means adopted are necessary and appropriate.The principle of disciplinary punishment emphasizes the exercise of disciplinary power of employers.If you limit the problem,you should be punished as a blame.It is not appropriate to unilaterally dismiss.The second theory is the two-order theory and the two-track theory.The two-order theory treats the content of the difference speech differently.It should be strictly examined for high-value speech,and the standard should be relaxed for low-value theory.The dual-track theory involves content,appeal,and subject.The speech of other content is more protected,and the matters of non-speech content,such as the time,place,occasion,situation,channel,etc.of speech,should be comprehensively considered.The four elements are the reference criteria for the specific judgment and handling of freedom of speech and loyalty in the case.They respectively express the speech that harms the interests of the employer,and the speech causes damage to the interests of the employer,and the speech and interests of the publication are damaged.The causal relationship and the laborers who made the speeches are subjectively faulty in four aspects.Finally,the verdict of the Virgin Airlines flight attendant Weibo Tucao Case((2013)Changmin Si(Min)Chu Zi No.348)and employee friends The circle issued a statement of dismissal of dismissal speech((2018)Jing 02 Min No.970)how to apply the above-mentioned interest measurement principle and program design for deduction,and put forward personal opinions on the judgment results.