Study On The Judicial Application Dilemma Of Article 39(2) Of The Labor Contract Law

The dismissal system is an extremely important part of labor legislation.The instant dismissal system is one of the most stringent ones,and the relevant regulations should be cautious.Article 39 of the Labor Contract Law of the People’s Republic of China stipulates six situations that employers can immediately terminate the labourers.In addition to the five listed reasons for dismissal,labourers serious violate the labor regulations seems to be the only reason that the employers can be control.Such a provision can easily lead both employers and employees to fall into awkward situations.On the one hand,for the employer,the closed enumeration limits theirs autonomy of employment,and on the other hand,for the employees,it makes them face the risk of the clause will be abused by the employers.From an empirical perspective,through the summary analysis of the cases,it can be concluded that the judge tend to make disadvantageous judgments when the laborer leaks,part-time,disobedience management.The judge tend to be hesitant when the unit rules rich of subjective judgments clauses.The employer mostly lost the case because the evidence was insufficient,the unit rules and regulations were not adopted,the procedure was illegal,the employee did not have the fault or the employee’s behavior did not reach the serious degree.The rate of change the original sentence of sample cases is high,it is not uncommon to have different judgments in the same case.Through the summarization of the cases,it can be seen that the factors that the judge consider when they reviewing whether the employer’s dismissal is legal or not.First,whether the employer dismisses the laborer for legal reasons.Whether the employees have a behavior of violates the rules and regulations.Whether the employees violate the regulations seriously,and whether the regulations of the unit are effective.The judges also pay attention to the procedure.The act of immediate dismissal by the employer fails to comply with the statutory procedure,even if the behaviors of the workers have seriously violated the regulations,the dismissal will often be illegal.Summarizing the review criteria of the judiciary,we can find out the problems existing in the current judicial practice.Specifically,there are three problems:First,does the court have the power to review the rationality of the unit’s rules and regulations?Second,who determines whether the "serious" degree of "serious violation of the unit’s rules and regulations" is defined by the laborer.How is the "serious" degree defined?Third,in the case that the unit rules and regulations are not clearly defined,can the employer immediately terminate the labor contract on the grounds that the laborer violates labor discipline?For the first question,starting from the essence of the unit rules and regulations,it can be known from the comparison with the Labor Contract Law(Draft)that laborers or trade union organizations are "slightly light" in the process of formulating rules and regulations.In the current employment environment in China,the rules and regulations decide by the employers mostly.The rules and regulations are formulated separately by the employer and are proposed separately.In order to achieve the efficiency of management and the universal applicability,the unit regulations like clause de style.So when the judges review the unit rules and regulations,their attention should be gradually transitioned from whether have consensus to a substantive examination.The criteria for the review of rationality can reference to the trading habits of the industry and the rules of the industry.Regarding the second question,from the purpose of labor legislation,the Labor Contract Law is to improve the labor contract system.Dismissal is the act of both labor and management to terminate the labor contract.If the employers want to dismiss legally,the laborers’ violations have already violated the core legal interests to be protected by the labor contract,and the legal benefits of the violations are greater than the legal benefits to be protected by the labor contracts.For the determination of the"serious" degree,the rights of the employer and the employee can be used.When the behavior of the laborer seriously affects the normal production and operation management order and damages the trust protection interests of the employer,the court can judge the severity of the behavior from the perspective of the prediction principle and the interest balance.Specifically from the consequences of violations,the degree of subj ective fault of the workers,and other comprehensive aspects.For the third question,due to the persistence characteristics of the labor relationship,the law should give the labor contract both parties the possibility of terminating the labor relationship,and because the long-term non-primary labor relationship needs to be based on trust,the laborer needs providing labor on time and complying with the main payment obligations of the labor contract.They must also comply with the accompanying obligations including the fiduciary duty.The loyalty obligation is the core content of the accompanying obligation,and it has the nature of implied terms.The laborer should abide by the loyalty obligation.The "dichotomy" can be used to classify the loyalty obligations.In terms of the laborer’s inaction obligations,the laborer should abide by the obligation of confidentiality and non-competition,and must not act to harm the interests of the unit.Their work nor should be affected by other labor relations.As far as the laborer’s act obligations,the laborer shall abide by the obedient duty,the good intention,the service period obligation,the notification obligation and the post-contract obligation.