Research On The Judicial Review Of The Rationality Of The Employer's Rules And Regulations

As a tool for employers to strengthen internal labor management,rules and regulations play an important role in ensuring labor production order and stabilizing labor relations.In order to ensure its legal rationality,China's labor legislation stipulates the democratic procedures for the formulation of rules and regulations,but does not directly stipulate the reasonable elements of rules and regulations.Due to the imbalance of labor force,the management,relying on its strong position,constantly squeezed the space of workers' autonomy in labor autonomy,resulting in unreasonable rules and regulations,creating conditions for employers to abuse disciplinary power,especially the right to dismiss.In judicial practice,the review standards and procedures of the rationality of the rules and regulations of the employing units are not consistent in all courts,and the relationship between judicial intervention and labor autonomy is not properly handled.The purpose of this paper is to improve the judicial review system of the rationality of the employer's rules and regulations on the basis of the balance between the punishment right of the employing units and the employment right of the workers and the balance between the judicial intervention and the autonomy of the labor and capital.Around the above problems,this paper is divided into four parts.The first part first analyzes the meaning of judicial review of the rationality of the rules and regulations of the employer,and explains the relationship between legitimacy and rationality.Then the author points out that the theoretical basis of the judicial review of the rationality of the employer's rules and regulations comes from the theory of rationality change,the theory of national integration and the theory of judicial balance.At the same time,the author thinks that the value of judicial review to strengthen the rationality of the rules and regulations of the employing unit lies not only in the restriction and protection of rights,but also in the promotion of the autonomy of labor and capital from the outside.In the second part,the author makes an investigation of the relevant systems outside China,analyzes and compares the relevant systems of Germany,France,Japan and Taiwan.It is suggested that the judicial review system of the rationality of the rules and regulations of the employing units in China should be set up with restrictions,comprehensive measurement standards and standardized judicial review procedures.The third part analyzes the current situation of the judicial review of the rationality of the rules and regulations of the employing units in China through empirical research.The author thinks that the existing problems in judicial review of the rationality of the current rules and regulations of the employing units lie in the fact that there are no restrictions on the intervention of judicial power in the autonomy of labor and capital,and the lack of unified standards and standardized judicial review procedures.The fourth part focuses on the judicial practice,and puts forward to improve the judicial review system of the rationality of the rules and regulations of the employing units in China.The judicial organs should adhere to the principle of "no notice,no ignore" and the principle of "equal emphasis on entity and procedure" to intervene in the labor and capital autonomy prudently.The judgment of the rationality of the rules and regulations should follow the exclusion rules of abnormal clauses,the principle of good public order,the principle of "no two punishment for one incident" and the principle of "equal punishment".In order to improve the judicial review procedure,we should take the legitimacy review as the premise and carry out the rationality review on the basis of the legitimacy review.At the same time,the judicial organs should also follow certain limits,respect the results of labor and capital autonomy,and respect the autonomy of employers.