Research On "incompetence" Dismissal System

The system of "incompetent" dismissal belongs to the unilateral rescission right of the employing unit,which is clearly stipulated in the legislation of our country,but there is no clear stipulation on how to determine "incompetence".There are many puzzles and controversies about the application of this clause in judicial practice.This paper analyzes the problems existing in the system of "incompetent" dismissal in our country's legislation and judicial practice,and the text is divided into three parts.This paper mainly analyzes the current legislative situation and existing problems of "incompetent" dismissal system,and puts forward some suggestions to improve it.First of all,by combing a large number of relevant academic works,periodical literature,and combining with the relevant judicial cases,this paper comprehensively analyzes and interprets the dismissal system of "incompetence".The author introduces the meaning of "incompetence" at the beginning of the article.It also analyzes the relation and difference between "final elimination","negative idle work","work error","failure to meet the conditions of employment" and "incompetence" and lays the foundation for the accurate identification of laborer's "incompetence".It is of great practical significance to restore their respective legal roles and emphasize the necessity of establishing the standard of "incompetence".Secondly,the author analyzes the current legislative situation and existing problems of the "incompetent" dismissal system.Due to the lack of clarity in legislation,there are many problems in practice: in the "incompetent" dismissal system,the employer is the single subject of identification.This may lead to abuse of the right of dismissal;the absence of standards in the "incompetent" dismissal system;whether or not subjective factors should be included in addition to objective factors;and the vague and non-standard content of "incompetence".In judicial practice,the rate of successful litigation is not high,and the disposal of "incompetent" work is not standardized in practice.Finally,through the deep analysis of the existing problems in judicial practice,the author summarizes some suggestions on how to perfect the "incompetent" dismissal system.The author believes that the interpretation of the "incompetent" dismissal system should always carry out two principles.That is,the principle of balancing the interests of labor and capital and the principle of prohibiting abuse of rights,which is the basis of accurately grasping the system of "incompetent" dismissal.In view of the confusion in judicial practice,the author's suggestion is to expand the cognizant of "incompetent" dismissal system.Giving full play to the role of trade union participation in supervision,introducing democratic evaluation and expert demonstration mode to participate in the determination of supervision,defining the standard of "incompetent" dismissal should include subjective factors,and according to the depth of subjective degree,the concrete and accurate application should be made;Perfecting the proof content of "incompetence",perfecting the performance appraisal system of the unit of choose and employ persons,making it legal and reasonable,standardizing the measure of "incompetence",realizing the original intention of the system,and achieving the balance between control and self-control.