Research On Legislation Of Improper Dismissal Protection

Dismissal is related to workers' right to work and the most basic right to subsistence.Its important position in the labor relationship is self-evident.Abuse or improper exercise of the right to dismiss will make it inherently vulnerable in labor relations.It is difficult to protect the basic rights and interests of workers,and the loss of personal interests will affect the balance and harmony and stability of the entire society to a certain extent.Therefore,the theory of dismissal development follows the requirements of the times and has developed from the initial freedom of dismissal to the present.The justification is that countries are beginning to show in their legislation restrictions on improper dismissal and legal relief and protection of employees who have suffered improper dismissal.In contrast,China's "Labor Law" and "Labor Contract Law",due to the combined effect of various factors,have not only failed to adopt the term of inappropriate dismissal,but also unilaterally terminated the employment contract with fewer provisions in the legislation on unilateral termination of the employment contract by the employer.The right to a labor contract is less restricted and is different from the connotation of improper dismissal that is generally adopted internationally.China enumerates legally the cases in which an employer unilaterally terminates a labor contract.Therefore,the academic community has the right to dismiss an employer in China.The strength of restrictions has been debated.Therefore,this article starts with the definition of the concept of improper dismissal.While in-depth analysis of the legal basis for the protection of improper dismissal,it also draws lessons from countries with more comprehensive or advanced international legislation or practice in the protection of improper dismissal.Britain,France and Japan are the representatives.On the basis of this,we can compare and find the lack of identification and protection of improper dismissal in China's labor laws and regulations,and put forward suggestions to improve the protection of improper dismissal.Certain promotion effect.This article is divided into four parts:The first part is a theoretical analysis of the protection of improper dismissal.The first is the definition of the concept of improper dismissal.Since neither the "Labor Law" nor the "Labor Contract Law" adopted the term dismissal,it is necessary to define the concept of improper dismissal.Discuss some basic related concepts,such as "employer" and "employer","dismissal" and "unilateral termination of employment contract by the employer","dismissal" and "improper dismissal",etc.Here we will learn from domestic and foreign legislation on the Definition and academic views on it.In addition,the related doctrines of dismissal protection are analyzed to provide legal support for the improper dismissal protection system.Finally,the necessity of improper dismissal protection is discussed on this basis.This part focuses on the theoretical analysis of improper dismissal,because the concept and historical development of the doctrine are clarified.The research that traces back to the source can provide reference coordinates for the comparison of the development status of the system at home and abroad and the improvement of the system.The second part is a comparative law review of the protection of improper dismissal.It mainly analyzes the major industrialized countries(Germany,the United States,the United Kingdom,France,Japan)from two aspects,namely,the identification of improper dismissal and the protection measures or legal relief measures.And introduced and summarized the legislation of improper dismissal and protection of improper dismissal in each country and summarized their respective characteristics.For example,the representative of the United States and the United States and the United States and the United States and the United States and the United States and the United States and the United States and the United States and the United States and the United States and the United States and France,the United States and the United States,because of the pursuit of freedom of dismissal.It is regulated in judicial practice.However,whether it is to pursue freedom of dismissal in Germany or the United States,or Germany in pursuance of justification for dismissal,there are certain restrictions on improper dismissal of employers for reference in our country,such as a large number of more comprehensive legislation on improper dismissal protection and The systematic and clear procedural and substantive provisions of improper dismissal,especially the "reasonable","legitimate" and "socially justifiable" provisions of the law on the grounds for proper dismissal deserve careful comparison.The third part is the analysis and determination of the provisions of China'scurrent labor law on the protection of improper dismissal and its deficiencies.It also introduces the identification of improper dismissal and the provisions of protection or legal relief of improper dismissal."And the" Labor Contract Law "for the identification of improper dismissal,China's classification of employers unilateral termination of labor contracts into immediate termination,notice of termination and economic layoffs,different from the internationally accepted improper dismissal.It is deemed to be general and does not have a reasonable and reasonable ground for dismissal.In the case of unilateral termination of the employment contract by the employer in China,the scope of the exercise of the right to dismiss is limited by the statutory enumeration.As a result,the scope of the dismissal of the employer is too narrow.In addition,legislation lacks provisions for anti-social and retaliatory dismissals.In terms of protection against improper dismissal,China's "Labor Law"and "Labor Contract Law" only provide for two types of legal relief measures,"continuing to perform a labor contract" and "economic compensation",and do not distinguish between different types of improper dismissal.Applying it,there are no clear provisions on the applicable conditions for which labor contracts cannot continue to be performed,and the method of calculating economic compensation is also based on economic compensation and has no direct correlation with the actual loss of the fired worker.As a result,there is no legal remedy for the economic loss of the fired workers during this period before the improper dismissal is finally determined.In addition,the supervisory role played by the labor union and the labor administration in the improper dismissal relief is also limited.The fourth part is based on the third part,and puts forward suggestions to improve the protection of improper dismissal in China.This part also draws on the second part of the foreign legislative experience.In terms of the identification of improper dismissal,it is recommended that the meaning and For specific types,five suggestions are made for protection against improper dismissal.First,different types of improper dismissals are differentiated to apply targeted legal remedies,such as violations of the termination procedure and violations of the cause of termination.Due to the large gap,the actual damage should be given priority to apply the relief measures to continue to perform the labor contract or economic compensation;then the standards for continuing to perform the labor contract should be legislated and cleared,and the subjective willingness of both parties to reinstatement and dismissal in the case of improper dismissal.The laborer 's fault,whether the relationship of trustbetween the two parties can be maintained,and more practical factors such as the employer 's commercial interest and the measurement of the dismissed laborer 's benefits are taken as reference standards.In addition,it is recommended that the calculation method of economic compensation be restructured.The actual loss is a reference calculation standard instead of a single It is based on economic compensation;in addition,this article proposes to draw on foreign legislation on anti-social improper dismissal protection to make up for the current legal gap in China for improper dismissal.Finally,it is necessary to strengthen the countermeasures that trade unions and labor administrative institutions should have in improper dismissal protection.The protective role of laid-off workers is mainly to strengthen the exercise of their supervisory power.