The Conflict And Solution Of The Application Of Law In The Dismissal Of Executives

The formal promulgation of the labor contract law in 2008 marked the construction of labor relations in China into a highly regulated era.However,there has been a continuing controversy surrounding this Law in China.In most opposition voices,an important argument mentioned is directed at senior managers.As a special concept in the context of corporate governance,executives,in addition to the legal regulation of the company law,have also been evaluated as workers under the current legal system of China,and at the same time,the adjustment of labor law has caused many disputes.More importantly,this traditional "strong group",when facing labor contract law,which takes "inclined to protect workers" as a legislative guide,should be directly applicable or special,and how to coordinate the relationship with the company law when it is applied to the law oriented labor contract law.The evasion of lawmakers has not only triggered widespread controversy in academic circles,but also led to chaos in the practice of executives' labor disputes.The most typical is now the status of the executives.When a company wants to dismiss a manager,it only needs the effective resolution of the board of directors in accordance with thecompany law,while it needs strict requirements for dismissal under the labor contract law.The parallel application of the two laws appears to have produced a clear conflict.In this case,how to choose,different courts take the consideration of different referees and finally give it different answer.The first part of this article is a case of Wang Zhuo's dispute about the labor contract dispute in Shanghai,with an in-depth examination of the application of the law of labor relations of senior managers.Then the article details the object of this paper--the senior management and its definition.As a unique concept in the context of company law,the change of status is closely related to the change of corporate governance system.This part is to analyze the history of the evolution of the management practice and related legislation from the "shareholder centralism" to "the centralism of the board of directors" to the current "centralism of the manager layer".It leads to the importance of coping with the special legal regulation of senior managers today,providing a background support for the following research.This part also introduces the breakthrough point of this paper,namely,the difference between company law and labor contract law in regulating the disqualification of executives.Considering that the two laws belong to different sectors and the rank of validity is in the same order,it is not easy to apply the legal principles,such as "superior law precedes lower law","new law is superior to the old law",thus the applicable "conflict" becomes a proposition that must be solved.The second part is the theoretical focus of this article.From the perspective of "ought to be",we will discuss the possible legal basis behind the "conflict",in order to provide theoretical support for the justification of "conflict".The first is to evaluate the reasonableness of the two conflicted stipulations,although there is a conflict in the literal sense,are consistent with the basic concepts of their own department law,which is essentially an inevitable manifestation of the difference between the legal benefits protection,and cannot be simply classified as a legislative error.Therefore,we must further study the cooperation between executives' identities and their legal interests.Secondly,based onthe status of executives in the corporate governance practice and the actual relationship with the company,the internal identity attributes of senior executives are analyzed and demonstrated.At the end,the legal relationship and the applicable law under the two identity attributes are further analyzed under the premise that the executives and employees and employers are in a single identity.The dual identity of senior executives makes it exist at the same time in two legal relationships,and the difference between the interest demands and the value orientation behind the dual attributes will inevitably make the adjustment and regulation of the same matter in the two legal relations different.The last part of the article is a partial continuation of the theory of laborers' stratified protection under the premise of respecting the system of the preceding labor law.It is claimed that the termination of employment relationship does not lead to the termination of labor relations.And according to the fault level of the executives,the right of the employer's unilateral rescission is stipulated,so as to get a logical and reasonable way of thinking after operation.Generally speaking,this paper hopes to achieve the following goals in the research process.Firstly,in the cross view of company law and labor law,to analyze the dual attributes of senior executives in Chinese law,the dual attributes of their identity and the origin difference between the company law and the labor law.Combined with the acceptance and revision of some academic viewpoints,the paper will demonstrate the legitimacy of the laws' status relieving regulation.Secondly,according to the practical operation of corporate governance and labor relations in China,this paper analyzes the lag and deficiency of the current legislation in China on the problem of regulating the status of senior executives.And draw on the relevant rules of the comparative law,and put forward some pertinent suggestions for the revision of the labor contract law in the short term in order to realize the comprehensive coordination of legislation on this issue.