Judicial Application Of Labor Rules And Regulations In The Termination Of Labor Contract

Labor rules and regulations are internal norms formulated by employers to manage enterprises and regulate employees' behaviors.They play an important role in clarifying the rights and obligations of employers and workers and coordinating the contradictions between them.Labor rules are not only the embodiment of the employer's employment autonomy,but also the important basis for the employer to exercise the right of punishment and dismissal and the court to deal with labor disputes.The premise of employing unit using labor rules and regulations to exercise disciplinary power and dismissal power and court handling labor disputes is that labor rules and regulations are legal and reasonable,but in practice,there are illegal and unreasonable situations when employing unit makes labor rules and regulations,and using illegal and unreasonable labor rules to terminate labor contract at will,abuse rights,and damage the legitimate rights and interests of workers.Labor laws and regulations have no specific and detailed provisions on labor rules,which leads to different judgment standards when judges deal with labor disputes and different judgments for the same case.Therefore,based on the analysis of judicial cases,this paper selects three types of typical labor disputes related to labor rules and regulations: first,the publicity of the legality of labor rules and regulations,second,the review of the rationality of labor rules and regulations,and third,the "severity" of the termination of labor contract by the employer with "serious violation of labor rules" by workers Based on the judgment,this paper analyzes the factors considered by the judge in the specific cases and the judge's judgment logic,and provides solutions for the labor rules and regulations in the judicial application stage by combining the views and research of relevant scholars.This paper takes three cases of labor disputes caused by laborregulations as the starting point,analyzes the dispute focus of the cases,so as to lead to three issues to be discussed in this paper.First of all,the publicity procedure of the legality of labor rules is the requirement of legislation in China,and the publicity of labor rules is also to protect the right to know of workers.Only the labor rules that conform to the publicity procedure can be used as the basis for the employer to exercise the right of punishment and dismissal and the court's judgment.Because the legislation does not clearly stipulate the way of labor rules publicity,the court adopts the appearance doctrine when hearing such labor dispute cases,that is to say,taking the written carrier as the determination standard.In judicial practice,the court should strictly abide by the examination of the appearance,but also adhere to the substantive examination,judging whether the workers really know it from such factors as the object of publicity,the time of publicity,the nature of the enterprise,the nature of the post,the trade habits of the industry and the education level of the workers Whether the rules and regulations really reach the state of publicity,rather than just relying on the general written form.Second,there are different views on the rationality review of labor rules and regulations between the academic and judicial circles,and different local legislative provisions.However,the mainstream view and practice is to empower the court to review the rationality of labor rules and regulations.The legal nature of the labor rules "management decision" determines that the individual will and group will of the workers cannot be truly realized,and the rational economic person of the employing unit may formulate legal but unreasonable labor rules.This also needs to give the court the power of reasonable review.The court should adhere to the principle that the content is clear and operable,that it is related to work,and that the behavior is equivalent to the way of punishment,so as to protect the private field of workers from infringement.Finally,in judicial practice,some courts do not conduct substantive review on how to determine the "severity" of "seriousviolation of labor regulations",but regard the violation of labor regulations as serious violation of labor regulations.The courts that conduct substantive review consider various factors,and make favorable evaluation on the same cause,and some make adverse evaluation,leading to different judgments in the same case It is necessary to establish a standardized and unified evaluation standard system in the judicial application stage.In the specific judgment,the court needs to judge the severity from two aspects: the subjective fault degree of workers and employers and the damage consequence caused by behaviors.In addition,it is necessary to grasp the "comprehensive consideration principle" and "foreseeing principle".This paper uses case analysis and literature analysis methods.(1)Literature analysis.The author collects relevant scholars' articles,analyzes scholars' research ideas,draws on scholars' views,and fully justifies his own views.(2)Empirical analysis.The author analyzes the cases of labor regulations collected from the judgment document network,and analyzes the logic and consideration factors of the court's judgment in the judicial application level.To provide a reference for the court,regulate the employer's right to dismiss,balance the rights and interests between the employer and the workers,and promote the harmony of labor relations.