The Legal Nature And Time Limit Of The Immediate Dismissal Of The Employer

Under the current labor law system in China,the employer has the right to terminate the labor contract with the faulty laborer,that is,the employer has the right to immediate release.However,the time limit for the employer to exercise the right of immediate dismissal has not been specifically defined,which leads to the fact that in the judicial practice,the employer often does not dismiss the employee after making a mistake.After a long period of time,this is an excuse,but in fact,due to other improper interests or reasons.The phenomenon of dismissal of laborers,the so-called "old account",seriously violates the interests of workers.In order to prevent the employer from abusing the right of immediate dismissal,safeguarding the legitimate rights and interests of the laborer and the employer,and maintaining the balance of interests between the employer and the employee,the employer's exercise of the right of immediate release shall be subject to appropriate restrictions and restrictions.In today's world,the nature of immediate rescission rights has three main viewpoints: social rights,liberty rights and formation rights.Using historical documents,comparison of legislative cases and comparison of practice,we can find that it is more reasonable to define the immediate right to reconcile the right to form,which is more in line with the current situation of social justice in China.Under the premise of determining the immediate right to dismiss the right to form ownership,explore the limitation of its exercise period.There are different approaches to the legislation in various countries: Germany has a system of invalidity of rights,France has set strict procedural standards and substantive standards,and Japan has set up a system of exclusion periods.Taiwan's region has adopted a system similar to Japan.China's current legal system does not expressly stipulate the time limit for the exercise of the right of immediate release,nor does it clearly indicate the nature of the right.It cannot be relied upon in judicial practice.According to the current social development background and judicial practice in China,it is more appropriate for the employer to apply the right of immediate release to the exclusion period system.Among them,determining the length of the exclusion period is an important part of the system.Article 39 of the Labor Contract Law stipulates six situations,and the fourth item: the laborer and the employer sign a labor contract that seriously affects the work of the unit or refuses to correct after being proposed by the employer.It is divided into two categories: “1.Labor contracts with multiple employers signing labor contracts seriously affecting the work of the unit” and “2.Laborers signing labor contracts with multiple employers and refused to correct after being proposed by the employer”.For the above seven situations,two different lengths of the exclusion period are specified.Five of them are mainly judged and decided by the employer.The right to form is further characterized as the formation of the right of action.The application of the right to form a right of sixty days is excluded.period.The other two cases that are not determined by the employer are set as ordinary forming rights,and the applicable period is 30 days.The establishment of these two different periods of exclusion is mainly to promote the use of human units to cultivate the awareness of exercising rights,to prevent employers from abusing the right to immediate release,to maintain the balance of rights between employers and workers,and to make laborers more stable in labor relations.