Research On The Period System Of Wrongful Dismissal Of Employees In My Country

Article 39 of the Labor Contract Law stipulates that the employer can exercise the unilateral right of termination to terminate the labor contract relationship when the employee meets the six statutory conditions.Such unilateral right of termination is called the wrongful termination right.As the name suggests,fault firing refers to "a situation where a worker violates the contract's legal provisions,contractual agreements,or unit rules and regulations leading to the termination of contract.Faulty stock ownership belongs to the right of formation.According to legal principles,there should be a period of exclusion during the exercise of that right.The exclusion period refers to the time limit for the employer to make a decision to terminate the labor contract relationship when the employer intends to dismiss the employee due to the employee's fault.Once the period is exceeded,the employer must not use this fault as an excuse.Advocate the termination of labor relations.The period of dismissal and dismissal of employees in China is the earliest to be found in Article 20,paragraph 1,of the "Regulations on Awards and Punishments for Enterprise Employees",Other sanctions shall not exceed three months."This regulation came into effect in 1982 and was abolished in 2008.Since then,neither the Labor Law nor the Labor Contract Law has provided for the exclusion period during which the employer has exercised the wrongful dismissal right.The problems of low restrictions on dismissal rights,damage to the authority of labor law,and insufficient protection of workers' rights and interests were addressed.In order to solve this problem,Chongqing and Shantou have issued local regulations,and Beijing and Tianjin have issued local government regulations,which have formed different opinions of dismissal during the dismissal period of one year,five months and six months in different regions The Zhejiang Provincial High People's Court and Ningbo Intermediate People's Court issued guidance on trial minutes documents,which respectively formed different opinions of 5 months and discretion based on the case.In judicial trial practice,Shandong Province and Guangdong Province have formed judgment cases with a period of one year based on legal principles and with reference to the Labor Dispute Mediation and Arbitration Law of the People's Republic of China.Of course,there are cases in which some courts did not support employees' defenses beyond the time period on the grounds that the law did not provide for them.Since the "Regulations on Rewards and Punishments for Enterprise Employees" in China,there is no law or administrative regulation that stipulates a system for the period of dismissal and exclusion of employees,but it does not mean that the system is not justified.In addition to the current problems in China due to the lack of employee dismissal during the period of dismissal,the employment stability included in the concept of the right to employment also needs to be achieved by prompting the employer to determine the labor relationship as soon as possible during the period of dismissal.In addition,China's false high and low level of dismissal limits is also one of the reasons for the need for faulty dismissal periods.At a lower level of faulty dismissal levels,the lack of an employee's faulty dismissal period system will also cause the public to labor.Concerns about the stability of the relationship.In the context of the economic downturn,programmers' "middle-age anxiety" is also the manifestation of such concerns.At the same time,the system of fault dismissal and exclusion period conforms to the theory of right invalidation derived from the principle of good faith.The theory of invalidation of rights is a system of prohibiting abuse of rights,developed by German doctrine and jurisprudence based on the principle of good faith.At the same time,the protection of the stability of the labor relationship and the protection of the rights and interests of the workers during the faulted dismissal period are also the fundamental purpose of the period of the faulted dismissal period.The subsequent analysis uses this as a starting point.By analyzing the theory of the exclusion period of civil law,the exclusion period focuses on the stability of the protection law and protects the interests of the obligor in conjunction with the special value orientation of labor law to maintain the stability of labor relations and protect the rights and interests of workers.In addition to the classification of subjective and objective exclusion periods,legal exclusion periods can be divided into strict exclusion periods and weakened exclusion periods,also known as pure exclusion periods and mixed exclusion periods.In general,the rules of suspension and interruption do not apply to the period of pure exclusion,while the provisions of limitation of action can be invoked during the period of weakened exclusion.The pure exclusion period is a strict period.Even if the opposite person does not know the relevant situation,it will still be completed,and the exclusion period will not be affected.This article considers that setting the subjective period and objective period of the fault dismissal period to reasonably limit the employer's fault dismissal right to maintain the stability of the labor relationship over a long period of time;allow the subjective dismissal period of the fault dismissal to be suspended and the agreement shortened to achieve Impair labor balance and labor rights balance under the premise of damaging labor rights and labor relations.Finally,this article combines the time situation of China 's labor law and the practice outside the country,and proposes the setting method and length of the period of fault dismissal: 30 days for subjective exclusion and 2 years for objective exclusion to make up for the “Labor Contract Law” Legislative loopholes in Article 39.In addition,this article will discuss the impact of the wrongful dismissal right after it is set,including the expiration time of the wrongful dismissal period.If the subjective period and the objective period of the wrongful dismissal period overlap,two One period of time first passes as the time for the expulsion of the wrongful dismissal,and the calculation of the end point shall be based on the time when the wrongful dismissal decision reaches the worker;at the same time,the procedure for the exercise of the wrongful dismissal also received the Restrictions,including the method of dismissal notice,objection,and revocation of the decision to dismiss.At the same time,the competition between the wrongful dismissal right and the right to resign immediately also requires special attention,including the following aspects: 1.The expiration time of the wrongful dismissal is subjective.In the case where the exclusion period and the objective exclusion period intersect,the expiration period shall be the expiration time,and the end of the exclusion period shall be based on the written notice of termination of service to the worker;Abandon expressly or implicitly,and lapse after dismissal after dismissal After the procedure,they are delivered to the workers in writing.These factors are important factors in the calculation of the period of dismissal by dismissal.4.The objection does not affect the calculation of the period of dismissal by dismissal.5.The employer may withdraw the dismissal after the employer makes a dismissal decision.If the two parties reach consensus after the service,it can be revoked,which is regarded as abandonment of the wrongful dismissal right,and it is not regarded as a re-establishment of the labor contract relationship.At the same time,the period of dismissal by fault will restrict the employer's right to dismiss at fault at this time,protecting the workers' right to resign.