Font Size: a A A

Judicial Determination Of Presumptive Dismissal

Posted on:2021-01-17Degree:MasterType:Thesis
Country:ChinaCandidate:L Y YangFull Text:PDF
GTID:2416330611961868Subject:Economic Law
Abstract/Summary:PDF Full Text Request
In practice,the unilateral immediate termination of the contractual rights of workers as stipulated in Article 38 of the Labor Contract Law is regarded as the performance of the presumed dismissal.However,from the content point of view,the said clause ignores the consideration of the employer's subjective purpose and the degree of analysis of the implementation behavior,and does not meet the presumed dismissal concept due to the employer's breach of contract or other violations of labor rights,which makes the labor contract Continue to fulfill the requirements.The full text is divided into four parts.The first part makes a conceptual review of the presumptive dismissal and compares it with general dismissal and unilateral termination of the labor contract by the laborer,pointing out that the presumptive dismissal refers to the employer 's intentional breach of contract or other violations of the laborer 's rights,resulting in the contract being unable to continue performance The applicant therefore resigned.Through an inductive analysis of the presumed dismissal cases,the second part points out that the current judicial organs generally apply the provisions of Articles 35 and 38 of the Labor Contract Law,follow the lack of rationality of the employer 's conduct,the laborer 's resignation,and both The "three requirements" theory with causal relationship or the "two requirements" theory that the employer has breached the contract and the laborer proposed to resign confirms the presumed dismissal.In the third part,based on the details of the aforementioned sample cases,it is pointed out that the complexity of the laborer 's resignation purpose and the vagueness of the legal norms are jointly affected.Sexual evaluation,the differentiation of the elements of court case review and the dilemma of the challenges of new types of cases.The fourth part is subject to the small sample size and the unpredictability of new types of cases in the future.This part only details the situation of serious defaults by employers,work discrimination during pregnancy,sexual harassment in the workplace,and cold violence in the workplace.By referring to the liability principlesof fault liability and fault presumption in the Tort Liability Law,the judicial determination path of presumed dismissal is classified into two types: explicit mode and implicit mode.In the explicit mode,the employer 's serious breach of contract is often discussed.It has the requirements that the employer has a serious breach of contract,has a subjective fault in the behavior,the worker resigns and there is a causal relationship between the two;in the implicit mode,the loss suffered by the worker cannot be quantified,and the employer will be seriously infringed.Sexual harassment and cold violence in the workplace are considered.At this time,it should meet both the objective fact that there is an infringement fact and the laborer 's resignation requirement,and in addition to the serious infringement by the employer,the unit should take objective measures to avoid the occurrence of the behavior or deal with it in a timely manner after the occurrence of the behavior.There are faults in the conduct,so the resignation of the worker does not constitute a presumed dismissal.It should meet both the objective fact that there is an infringement fact and the laborer 's resignation requirement,and in addition to the serious infringement by the employer,the unit should take objective measures to avoid the occurrence of the behavior or deal with it in a timely manner after the occurrence of the behavior.There are faults in the conduct,so the resignation of the worker does not constitute a presumed dismissal.
Keywords/Search Tags:Presumption of dismissal, Termination of labor contract, Liability for breach of contract, Empirical analysis
PDF Full Text Request
Related items