On The Judicial Cognizance Of The Laborer's Serious Violation Of Employer Rules And Regulations

Labor relations are an important part of production relations.Whether the labor relations are harmonious or not concerns the vital interests of workers and enterprises as well as the economic development and social harmony.Since the 18 th CPC national congress,the CPC central committee has placed the construction of harmonious labor relations in an important position,and the third,fourth and fifth plenary sessions of the 18 th CPC central committee all put forward clear requirements for the construction of harmonious labor relations.At present,China is in the period of economic and social transformation,and the subjects of labor relations and their interest demands are becoming more and more diversified.In 2019,the case of "haier employees being fired for taking a nap" aroused public discussion,and the issue of labor disputes again attracted the attention of all sectors of society.The market economy is booming day by day,the law gives employers the right to employ workers,and the rules and regulations have become an important basis for employers to manage enterprises and restrain workers.The second paragraph of article 25 of the labor law of China and the second paragraph of article 39 of the labor contract law stipulate that when a laborer seriously violates the rules and regulations of the employing unit,the employing unit has the right to unilaterally terminate the labor contract.However,because the provisions of the current labor legislation in China are too general,the specific situation of "serious violation of rules and regulations" has not been detailed,most of the employing units to formulate the "serious violation of rules and regulations" related rules;At the same time,the legislation of "gravity" no unified standard,judicial interpretation is focused on procedural content,the judge has larger discretion space,the result is often dependent on the values of justice and the public opinion direction,therefore cause in the judicial practice in our country,judicial review standard is different,different connection phenomenon outstanding.In order to reduce labor disputes,promote the harmonious development of labor relations,and clarify the "seriousness" boundary of laborers' violation of the rules and regulations of the employing unit,it is of great importanceto properly judge the cases of laborers' serious violation of the rules and regulations of the employing unit.Through literature research and empirical analysis,this paper intends to make a systematic analysis of the status quo of judicial recognition of "workers' serious violation of the rules and regulations of the employing unit",clarify the legal positioning of the rules and regulations of the employing unit,and make an in-depth analysis of the difficulties and reasons for their application,so as to put forward targeted Suggestions for judicial application.This paper mainly has the following four parts:In the first part,three similar cases are introduced,and through the description of the basic case,the summary of the gist of the judgment and the analysis of the controversial points of the case,the validity of the rules and regulations in the "serious violation of the employer's rules and regulations" and the disputes over the procedures and standards for the determination of "serious violation" are introduced.The second part,from the legal point of view of the employee serious violations of the employer rules and regulations of judicial cognizance to explain.This paper analyzes the meaning,nature and effectiveness of the employer's rules and regulations and the relationship between the rights and obligations of the employee and the employer.The third part deeply analyzes the identification standard and procedure of employee's serious violation of employer's rules and regulations in judicial practice.The standard of effectiveness of the employer's rules and regulations is discussed,including the legal rationality of the content of the rules and regulations and the explanation of the formulation procedure.Then,the criterion of "seriousness" of violation of rules and regulations shall be extended in two directions: first,the severity of the loss caused to the employing unit;second,the post characteristics and behavior nature of the laborer.Finally,it is clear that the employer to the serious violation of rules and regulations to identify procedures.The fourth part,in view of the problems exposed in the case,puts forward the corresponding countermeasures from the three aspects of clarifying the content scopeof the employer's rules and regulations,strictly grasping the standard of the employer's serious violation of rules and regulations,and standardizing the identification procedure of the employer's violation of rules and regulations.