Research On The Legal Issues Concerning The Unilateral Termination Of Labor Contracts By "Serious Violations Of Discipline"

With the increasing prosperity of China's labor market,labor disputes naturally increase,and present the characteristics of novelty and complexity.In practice,disputes arising from the dissolution of labor contracts account for a large proportion,among which disputes concerning the termination of labor contracts by employers on the basis of serious violations of discipline by workers are quite controversial.Based on the particularity of labor relations,China's legislation gives employers the right to unilateral termination of labor relations,namely,the provisions of Article 25 of the Labor Law and Article 39 of the Labor Contract Law.Based on the provisions of the Labor Law,employers can make immediate dismissal on the basis of workers' serious violation of "labor discipline",but the Labor Contract Law rejects this basis,resulting in The inconsistency of legislation and the ambiguity of concepts have brought great difficulties to the application of law.The study and perfection of the legal issues of severely violating discipline and rescinding labor contracts are of great significance to the protection of the legitimate rights and interests of both sides of labor and management,the construction of harmonious labor relations and the improvement of judicial efficiency.From the current legislative situation,China advocates that employers have a sound set of rules and regulations,but in practice,employers,especially small enterprises,often do not have enough capacity to establish their own rules and regulations,and the rules and regulations are difficult to cover all kinds of labor conflicts that may arise in employment.So when the employer has no rules or regulations,and the worker obviously violates the honesty and credit,professional ethics,industry rules and other improper acts,can the employer immediately dismiss the worker? Can serious violations of "labor discipline" be used as grounds for dismissal at this time? Some opinions are that the prohibited act is not explicitly stated in the rules and regulations,and the workers do not know that the act will bring about serious consequences of the dismissal of the employer.If there is no prohibition in the law,then the acts that are not explicitly prohibited in the rules and regulations can be done.The employing unit has no right to find reasons to terminate the labor contract beyond the rules and regulations.It is also argued that although the Labor Contract Law only gives the employing unit the right to terminate the contract in case of serious violation of the rules and regulations,the Labor Law,as the basic law of the labor law,employs people.Units still have the right to terminate contracts based on serious violations of "labor discipline" by workers.It can be seen that the concept of "serious violation of discipline" has not yet been clearly defined,and in practice there are many phenomena of "serious violation of discipline" to terminate the labor contract,so this paper aims to make a clearer definition of the concept of "serious violation of discipline",and through the analysis of the relevant concepts of rules and regulations,labor discipline,industry rules and so on,draw the specific meaning of "serious violation of discipline" in practice.According to a large number of controversial case studies in practice,on the one hand,China's fault dismissal clauses adopt a closed enumeration model,lacking the corresponding back-to-back clauses,resulting in judicial personnel relying too much on the interpretation of "rules and regulations" and the invocation of the basic principles of the Civil Law,which is not conducive to safeguarding the independence of departmental law;on the other hand,legislation lacks the exercise period of the right to dismiss in violation of discipline.The stipulation of limitation and the criteria for determining the degree of violation of discipline lead to the abuse of the right of dismissal by employers and the different criteria for determining the degree of violation of discipline,which is not conducive to maintaining the fairness of the law.The article also uses the comparative analysis method,through the investigation of the immediate dismissal system in the United States,Germany and Taiwan,draws inspiration for the study of the legal issues of disciplinary dismissal in our country,such as the legislative model listed clearly in the summary clause to remedy the drawbacks of closed listing in legislation;the introduction of labor legislation into the system during the exclusion period,and the exercise of the employer's right to dismiss in violation of discipline.Limitation of time limit,exemption of rules and regulations for small and micro enterprises,lightening the burden of management cost of small and micro enterprises,promoting the development of small and micro enterprises,etc.Finally,the article puts forward some suggestions on the improvement of the legal issues related to the termination of labor contracts in serious violation of discipline,including defining the general standard of serious violation of discipline,perfecting the legislative mode of dismissal in violation of discipline and limiting the scope of application of dismissal protection,so as to better solve the application problems of the right to terminate violation of discipline,safeguard the legitimate rights and interests of both sides of labor and management,and build a harmonious labor relationship in the new era.