Research On Dismissal Protection System

Enterprise is the most important party of the socialist market economy,as the employer,in the process of operation and management,it will have the need to dismiss employees,which is based on its managerial freedom.Dismissal is an action of terminating a labor contract,which is the hardest punishment that made by the employers.If the employees are dismissed,their survival interest and developmental interest will be damaged.If a company follows the principle of contractual freedom,it will take workers' rights and interests in a disadvantageous position,even lead to labor conflicts,which will affect the harmony and stability of the labor market.Therefore,it is imperative to build rational protection against dismissal system,balance the system with enterprise's managerial freedom and prevent enterprise from dismissal abuse.Only in this way can a harmonious labor relationship be formed between enterprises and workers,and then the development of the economy and the long-term stability of the country can be ensured.In conclusion,under the modern social background,the research on the balance between the protection against dismissal and the enterprise's managerial freedom has a great influence on our theory and judicial practice.Based on this,the thesis follows the following ideas step by step:After defining the motivation,significance,and research methods and contents of the topic,this thesis firstly analyzes the basic theory of the protection against dismissal and the enterprise's managerial freedom,clarifying the connotation,legal basis and the internal logic of them.Only we have a precise and comprehensive grasp of the above theory,can we carry out a more thorough study of this thesis.Then,in order to answer the question that weather the representative countries give the dismissal freedom or not,based on the theoretical backtracking and theory development of the protection against dismissal system,theoretical development and attitude change of the representative countries such as Germany,France,Japan have been fully demonstrated in this thesis.In conclusion,although dismissal is one form of enterprise's managerial freedom,it can not apply to the principle of contractual freedom completely,only by proper restriction can the healthy growth of labor and capital relations be promoted and the security and stability of the society be maintained.After defining this problem,from the multi-dimensions of the dismissal protection system,this paper try to find the reasonable limit of this limitation at the institutional level,so as to achieve the balance between the protection against dismissal and the enterprise's managerial freedom.Finally,based on the social background and legal system in China,this thesis starts from the practical difficulties of our dismissal protection system,and applies the advanced theory and institutional framework explored above to discuss the realization of balance between the protection against dismissal and the enterprise's managerial freedom in China.Based on the above ideas,in addition to the introduction,this thesis is divided into four chapters,each chapter are summarized below:In the first chapter,the thesis focuses on the study of the basic theories of the protection against dismissal and the enterprise's managerial freedom.As one form of forming right,dismissal is an action of terminating a labor contract,which is made by the employers.It has a variety of types according to different standards.The protection against dismissal is an important institutional tool for professional freedom,which could protect worker 's working rights,survival interests,developmental interests,personality interests,human dignity and is coordinated with the concept of justice,so it has been the choice of many nations.But as the requirement of employer's autonomy,the enterprise's managerial freedom also has its legitimacy.Liberty is its legal basis.In the internal.logic of the two,there is not only the opposite side,but also the side of the balance.Under the background of realizing a win-win between labor and capital,in term of the dismissal behavior,even though the protection against dismissal and the employer's managerial freedom are in the opposition,it is important to achieve a balance of the two.In the second chapter,on the basis of the history of the protection against dismissal system,the thesis makes a deep research on some relevant theories,hoping to answer whether we should restrict dismissal or not.The system of dismissal protection has gone through the process of derivation,establishment and perfection,and various theories have been formed in all countries of the world.The regulation of employers' improper dismissal in American Labor Law,German justifiable cause of dismissal protection and Japanese modified dismissal law are all have great research value and should be learned.The history indicates that the absolute dismissal freedom can not achieve the goal of achieving a win-win between labor and capital.Only when we adhere to the standards of rationality and justification in substance and procedure,can we respond to the requirements of the times and establish a system of balance between dismissal protection and employer's managerial freedom.In the third chapter,This thesis discusses the structure of dismissal protection from multiple dimensions,in order to find the reasonable limit of dismissal and realize the balance between the protection against dismissal and the employer's managerial freedom.As a whole system,the protection against dismissal system has many values to be studied.Therefore,by discussing fault and non-fault dismissal protection system,layoffs and procedural elements,this thesis studies the protection against dismissal system in detail.In the fourth chapter,based on the social and realistic context of our country,this thesis discusses the realization of the balance between the protection against dismissal and the enterprise's managerial freedom in China.First of all,based on the problem-solved consciousness,this thesis clarifies the current situation and difficulties that is faced by the protection against dismissal system in our country,and provides direction guidance for the follow-up research.Then,from the macro perspective and micro perspective,this thesis researches the resolution for the current difficulties in detail.Form the macro perspective,it is necessary to strengthen the application of the principle of reasonable legitimacy,the principle of good faith and the principle of final means of dismissal;From the micro perspective,it is necessary to improve the construction of specific rules in the aspects of dismissal cause,dismissal procedure,dismissal relief and so on.