A Study On Legal Issues Of Termination Of Labor Contract By Employer During Probation Period

The probation period is a period of mutual investigation,two-way choice and trial-and-error agreed by the employer and the laborer.Employment autonomy is an important right of employers.Under the social condition of economic development in China,it is necessary to guarantee the employer's right to terminate the labor contract during the probation period in order to achieve the goal of sustainable development of enterprises and the construction of harmonious labor relations.This is a double reflection of respecting the employer's autonomy and giving full play to the role of probation period.However,through statistical analysis of 79 civil cases involving termination of labor contract disputes by employers during probation period,which were collected from January 2017 to September 2018 on the legal data network platform of "Beida Magic Weapon",the author finds that in judicial practice,the employer's list has been used in civil cases involving termination of labor contract disputes by employers during the probation period,which is referred to in Article 21 of the Labor Contract Law of the People's Republic of China.There are some legal problems in terminating the labor contract during the probation period.This paper chooses the topic of "Research on Legal Issues of Termination of Labor Contract by Employer during Probation Period" to study,aiming at analyzing the existing problems in the judicial practice of termination of labor contract by Employer during Probation Period,and putting forward some suggestions to improve the termination of labor contract by Employer during Probation Period,so as to further guarantee the employer's right to employ workers independently and give full play to the establishment of probation period.Use.In the course of the research,the author combs the existing research results of our country,summarizes the problems existing in the process of terminating the labor contract during the probation period in the judicial practice of our country by sorting out the data of 79 cases,and puts forward some suggestions in the following four aspects on the basis of drawing lessons from the relevant experience of labor law regulation in Germany,France and the United States.Define the legal criteria for the consideration of "not meeting the conditions for employment".Second,reduce the burden of proof of termination of labor contract during the probation period of the employer appropriately.Third,build a way of assuming the responsibility of the employer which pays priority to economic compensation.Fourth,strengthen the supervision of the trade union on on the assessment of "incompetent work" of the employer.Through the previous discussion and analysis,the author believes that the problems existing in the process of terminating the labor contract during the probation period are only temporary.Through the gradual improvement of the legal system,the role of the establishment of the probation period system will eventually be fully played,and the employer's employer autonomy will be better guaranteed.The Labor Contract Law "establishes a harmonious and stable development".The legislative concept of "labor relations" will be realized.