Study On The System Of Employers’ Advance Notification To Cancel Labor Contract

The employer’s advance notification to cancel labor contract is an important part of the unilateral termination system of the labor contract.The system of employer’s advance notification to cancel labor has emerged and developed in the market economy.With the establishment of the market economy system,economic development pursues the rational allocation of resources.In order to ensure a certain degree of free movement of labor,it is clear that employers have the right to unilaterally terminate labor contracts.However,whether it is based on the nature of the continuity of the labor contract or the subordination theory of labor relations,to protect the labor rights of workers,the employer cannot be given the right to arbitrarily terminate the labor contract,and it is justified to restrict the employer’s unilateral right to terminate the labor contract.And necessary.Although the "Labor Law" and "Labor Contract Law" both provide legal provisions for employers to announce the termination of labor contracts.But in practice,there are not a few labor disputes arising from the employer’s advance announcement of the termination of the labor contract.In-depth study of the problems existing in the system of employer’s advance notification to cancel labor lies in the imbalance of the interests of laborers,employers,and social public interests.The three aspects of the legal provisions of the employer’s notice of termination of termination,termination procedures,and legal relief fail to reflect the basic principles of labor law that favor the protection of the interests of workers,and fail to implement the pre-announced termination system to maintain stable labor relations and protect a certain degree of labor Free movement,reasonable balance of the value function of workers,employers,and social public interests.In the practice of the rule of law with complex labor and employment conditions,combined with comparative studies of advanced industrialized countries in the world,to improve the employer’s advance notice termination of labor contract system requires specific system design from the three aspects of termination reasons,termination procedures and legal relief.The legislative model that adopts the combination of enumeration and generalization of the pre-announcement dismissal is more in line with my country’s national conditions.The employer’s exercise of the pre-announcement dismissal power must satisfy the statutory enumerated reasons,and it is in "allocation of work","training",or "job transfer",etc.The termination of the labor contract can be announced only after the last resort has been exhausted.At the same time,other "legitimate reasons" are added as a bottom line clause.When there are serious objective reasons other than the statutory list of pre-announced terminations,the employer is allowed to pre-announce the termination of the labor contract.In addition,the establishment of the principle of prohibition of dismissal discrimination and retaliation can make up for the lack of social and public interests in the labor contract for prohibiting dismissal.The employer’s advance notification to cancel labor must not only meet the statutory reasons,but also must strictly follow the statutory procedures.The original intention of the forecast period system is to give workers a certain amount of time buffer,during which labor relations are in an unstable state.Starting from the protection of the rights of workers,to achieve the legislative purpose of the advance notice period,a flexible notice period is stipulated based on the working age and type of work of the worker,allowing workers to freely choose the "payment in lieu of notice" or the "announcement period".At the same time,it is necessary to stipulate that during the notice period,workers can enjoy the leave for seeking work.Trade unions play an important role in the advance announcement of termination of labor contracts.In the advance announcement of termination procedures,the obligation to notify the union cannot be a mere formality,and the role of trade unions in consultation and supervision must be effectively brought into play.The employees themselves must also have specific legal provisions to notify the employees of the cancellation of advance notice,and use due process to protect the employees’ right to know,object to,and appeal.The economic compensation paid by the employer to the worker after the cancellation of the notice has the functions of compensating for losses,guaranteeing life and dismissal protection,and correctly positioning the financial compensation for the cancellation of the notice,distinguishing it from unemployment insurance,so as to reduce the economic burden of the employer.The employer shall bear the corresponding consequences,pay compensation or continue to perform the labor contract if the illegal notice is terminated.Link the compensation to the "loss/damage" of the worker,and at the same time enhance the operability of the employer to continue to perform the labor contract.