Judicial Cognizance Of "Serious Violation Of The Rules And Regulations Of Employers"

Article 25 of Labor Law and Article 39 of Labor Contract Law stipulate that the employer may “seriously violate the rules and regulations of the employer” and the employer may unilaterally terminate the labor contract.Therefore,the employer establishes various rules and regulations when guaranteeing the operation of the company.Used to punish workers and use the law to give them the right to dismissal.However,because the term “serious” in the “serious violation of the employer's rules and regulations” stipulated by the law is a normative term,relatively unified understanding cannot be achieved through personal perception,and the inconsistency between the laborer and the employer's understanding and the excessive interpretation of the employer The "serious" phenomenon of dismissal of laborers has led to a huge number of cases involving labor arbitration and courts.On the other hand,the ambiguous provisions of the law actually bring considerable discretion to the judges.The lack of theoretical means leads to different judgments in the trial of the case,which increases the unpredictability of the law and damages the public power.Authority and the interests of both the employer and the employer.The issue of judging the judicial practice of "serious violations of the employer's rules and regulations" urgently needs a unified orientation to maintain the harmonious and stable development of labor relations.Based on the above reasons,this paper uses empirical research,literature research and other research methods to study the relevant legislation and judicial precedents in the labor field.By consulting relevant legal provisions and judicial trial cases,it is known that judges lack guidance in theory and principle at the discretion.There are differences in the consideration of factors in the case.In order to unify or narrow this difference,this paper bases on the theory of the relationship contract and the labor contract legislative purpose,clarifies the main characteristics of the relationship contract theory,and points out that the labor contract as a relationship contract theory develops more emphasis on the closeness of the person and the community of interest.That is survival dependence,labor dependency,explain the core interests of labor autonomy and the core interests of labor rights,so as to promote the deepening of the theory of "serious violation of the rules and regulations of employers" in the labor field;Based on the above theory,the four basic principles that can be referred to in the trial of such cases are the principle of rationality,the principle of final means,the principle of comprehensive consideration and the principle of predictive restoration.Specifically,on the basis of reasonable rules and regulations formulated by the employer,dismissal should be exhausted.After a variety of factors and comprehensive considerations of various factors in the case,the disciplinary judges predict whether the trust base of the employer and the employer will be completely damaged after the occurrence of the negligent act and the employer and the employee continue to perform.Will the labor contract continue to damage the employer of interest.Through the combing of related cases,systematically summarizes and summarizes the typical factors of how to identify “serious violations of the employer's rules and regulations” in practice,such as the loss of employers,the positions and responsibilities of laborers,and the length of service.In the conclusion of the case factors,combined with the basic principles,the purpose is to provide a reference for the future judicial judges in the trial of such cases,in order to determine whether the dissolution of the labor contract is legal,thus promoting the "serious violation of the rules and regulations of the employer" Judicial recognition research.