The Coordination Of The Employee's Obligation Of Speech And The Freedom Of Speech

On the basis of the principle of good faith and the subordination of the labor relations,the employees have the duty of loyalty,that is,to maintain and realize the interests of the employers,the employees should carry out the inaction and obligation to obey,keep secret and benefit the interests.The obligation of speech is one of the contents of the duty of loyalty,which aims at restricting the publication and dissemination that go against employers.There is no doubt that the obligation of speech is in conflict with the freedom of speech: excessive ban on speech will violate the freedom of speech;It will be very vulnerable to the interests of employers if we don't limit employees' freedom of speech,especially in the era of Internet.Due to the absence of legal rules,judicial practice in China is still unable to reconcilt this conflict.The essence of the conflict is the clash between employer's interests and employee's rights,as weii as employer's interests and social welfare.In some western developed countries,through the formulation of law or case law,the duties of the employees are clearly defined,and the legislative principles of protecting the freedom of speech as an exception are established.The United States,Germany and the European Court of human rights have more mature trial experience in harmonizing the conflict.Although they have different protective tendencies,they have a common point,which is to measure the interests by setting a standard or procedure and focus on the positive sense of the procedure,in which the principle of proportion analysis of the European Court of human rights is divided.By using the experience of legislation and judicature in western developed countries,this paper puts forward the limitation of the obligation of speech and the freedom of speech.The application of the obligation of speech must consider the different levels of the employees,the scope of time and space,the relationship between public welfare and private benefit,and the important legal interests of the employees.The protection of the freedom of speech must be in accordance with the subject and the guest,and view elements of procedural requirements.At the legislative level,it is suggested to expand the scope of application of whistle-blowing,protect employees' interests and balance the interests of employers.On the judicial level,it consummates the principle of interest balancing,including value order principle and the principle of proportion,so as to achieve the purpose of realizing the justice and balancing the interests of all parties to the greatest extent.