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The Limitation Study On The Exercise Of The Right To Know By Employers To Laborers

Posted on:2020-01-24Degree:MasterType:Thesis
Country:ChinaCandidate:D J LiFull Text:PDF
GTID:2416330572994159Subject:Law
Abstract/Summary:PDF Full Text Request
The employer's right to know comes from article 8 of the labor contract law: "the employer has the right to know the basic information of the employee directly related to the labor contract,and the employee shall truthfully explain." The original intention of the right is to think Under the background of the principle of honesty and credit,the information exchange between the employer and the employee in the conclusion stage of the labor contract is realized,so as to grasp the basic situation of the other party and then make a judgment on whether to conclude the labor contract.However,due to the unclear content of rights and the inequality of labor relations,employers often use the right to know as an excuse to “difficult” workers in the actual exercise of this right.It is necessary to study the limits of the employer's right to know.This paper takes 85 refereeing documents as samples for research.,By analyzing the "basic situation of laborers",including workers age,real personal identity information concealment or fiction,experience,qualifications/skills certificate,examination,health,criminal record,family members information,status/part-time work,and other units of labor dispute,unit of choose and employ persons to laborer mobile phone positioning and install cameras,laborer position and so on to the judgment result influence,found that:Firstly,local courts have different opinions on the understanding of "basic information directly related to the labor contract",and there is no unified opinion on the exercise limit of the employing unit's right to know on the judgment reasons and results,cases of the same case with different sentences are common;Secondly,the principle of position distinction is rarely applied in judicial practice,which generalizes the relevant information of all workers;Thirdly,the employer's obligation to review the personal information provided by the employee in the contracting stage is ignored,and it is hardly considered that the employer should undertake this obligation in practice;Fourthly,there are many grounds for the employer to claim the right to know in the lawsuit,and the relationship between the basis other than the labor contract and the employer's exercise of the right to know is unclear;Fifthly,the judicial judgment acquiesced in the use of surveillance,monitoring,monitoring and other means by the employing units to exercise the right to know in the course of the performance of the contract.In view of this,should be from the legislative and judicial aspects of the employing unit to exercise the right to know the limits of norms.In terms of legislation,it clearly stipulates the basis for the employer to claim the right to know.If no written labor contract is signed or there is no special agreement in the written labor contract,the employer shall not claim that its right to know is violated by any document other than the labor contract;Reference to distinguish the different information in the personal information protection law to delimit the degree of protection and utilization,in combination with position principle,will be the contracting phase of laborer "and directly related to the basic situation of labor contract" is divided into absolute privacy information of individual laborers,workers relative privacy information and the general information of individual laborers,to limit the employer can never know and access to information and the employer can definitely know and access to information;It emphasizes the explicit principle that the employer should exercise the right to know at the stage of performing the contract.;Make clear the attached obligations that the employer should undertake when exercising the right to know,namely,the obligation of review and the obligation of confidentiality.In the aspect of judicature,first,the guiding case system of the supreme people's court should be improved to provide a unified judgment idea for hearing the same type of cases in different places,so as to establish a relatively unified judgment result.
Keywords/Search Tags:The labor contract, The right to work, Labor obligations, Privacy protection, Personal information, Abuse of rights, Employers have the right to know
PDF Full Text Request
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