The Judicial Cognizance Of "Sufficient Rationality" In The Argument Post Behavior

In the current Chinese laws and regulations such as rates of norms and behavior involved in the hills,the provisions of the "full rationality" in the absence of,many,local regulations and local court guidance of the idea of the "full rationality" failed to make a unified justice,and the problem that is involved in the work of the relevant dispute of labor dispute and the basis of the core,if the post to be justified,then the unit of choose and employ persons to the employee refuses to flare remove labor contract also has legal basis,unit of choose and employ persons subsequent behavior conversely also difficult to obtain in the absence of rationality has legitimacy.At the same time,to adjust the act of duty "full rationality" formed by the recognition of the guidance effect,and conducive to balance the interests of labor and capital,both users of the unit before making unilateral adjustable duty behavior,prior review this behavior is in line with the judicial cognizance of the components of the "full rationality",and make employees aware of what the employers for their own unilateral adjustable duty behavior will not be identified as a "full rationality",which avoids "could not be in accordance with the" and "settling",unable to maintain their own rights and interests.Therefore,from the perspective of judicial cognizance,unilateral to unit of choose and employ persons,any behavior of "full rationality",put forward that the constitutive requirements necessary for the "full rationality",how to allocate the burden of proof,as well as to the beyond reasonable limits the duty behavior advice on how to remedy,is to solve the related duty beneficial attempt to labor disputes.First of all,from the adjustable duty behavior of unit of choose and employ persons the standard of "full rationality",no high rates of norms and various places have different rules according to the situation of collecting related typical cases,found that the phenomenon of "different connection with the sentence",combining with the case of disputes,the results of the analysis of the written judgment and embodied in that unit of choose and employ persons unilaterally adjust duty behavior "full rationality" when the referee thought,points out that the current judicial practice,The court’s determination of the "sufficient rationality" of the unilateral job transfer by the employer during the performance of the labor contract has some difficulties,such as unclear definition of the category of the job transfer in judicial recognition,inconsistent standards for the determination of "sufficient rationality" and unreasonable distribution of the burden of proof.Secondly,in view of the difficulties and the existing related regulations in our country,by looking at overseas countries and regions on the duty behavior "full rationality" in the literature,and law cases,summarize Japan prohibit abuse of rights principle,Taiwan transfer five principles such as judicial practice experience,summarized overseas for a variety of "full rationality" justice into the road,and through the characterization of mining rules and cases are behind the results of the value orientation and the program design idea,which conforms to our country to its practical experience for reference,This paper lays a theoretical foundation for the judicial cognizance of the "full rationality" of post transfer in China and the treatment of post transfer beyond the reasonable limit.Finally,to put forward to perfect our country the duty behavior "full rationality" in the judicial cognizance of the valuable advice,in order to "full rationality" of constitutive requirements,distribution of burden of proof and improve beyond reasonable limit the treatment measures for the behavior of three aspects as the incision,demonstrated respectively,the first,the duty behavior need a reasonable reason,the result is reasonable and reasonable procedure three elements to be considered "rational" fully;Second,on the distribution of the burden of proof,the burden of proof of the laborer and the employer should be distributed according to the actual situation to ensure its substantive fairness.Third,for the post transfer behavior beyond the reasonable limit demonstrates that the restoration of the original job needs to consider the subjective will of both parties to the contract,the employer’s commercial interests,the compensation liability needs to be divided into two cases whether the labor contract is terminated after the post transfer behavior to determine.It tries to find a way to balance the use of people,units and workers,the employment autonomy and the legitimate rights and interests of workers at the level of judicial recognition,so as to achieve stable labor relations,improve the economic and employment environment,and achieve mutual benefit and win-win situation of labor and capital.