Research On Enterprise Economic Punishment Right

As far as the current status of legislation is concerned,the direct bases of the national legislation on the economic punishment of the enterprise are still insufficient;the provisions of the local legislation on the economic punishment of the enterprise are different.As far as the current status of justice is concerned,due to the omission of the legislation and the difference in cognition and understanding of the economic punishment,the judicial practice concerning the dispute on the economic punishment shows the following differences: whether the dispute on the economic punishment belongs to the scope of cases;whether the enterprise can implement the economic punishment;how to conduct the judicial review on the economic punishment.The current status reflects the necessity and practicability of the study.Accordingly,on the basis of the current status mentioned above,the questions that are necessary to be studied should be raised: whether the enterprise has the economic disciplinary right;how should the enterprise exercise the economic disciplinary right;how should the judicial supervision on the abuse of the right be carried out.In order to study the question whether the enterprise has the economic disciplinary right,the connotation and nature of the economic disciplinary right should be described and the related arguments in the academic circle should be introduced and summarized first.On this basis,the question should be discussed on the legal and practical level.The purpose of the study on the legal level is to determine the best theoretical basis of the economic disciplinary right.The theory of legal norms does not have the compatibility in interpretation.The theory of inherent right shows both the rationality and the drawback.In comparison,the contract theory is based on the contractual relationship between the parties and embodies the respect for the autonomy of the parties’ will,thus it should be adopted.From the perspective of the contract theory,the legitimacy that the enterprise has the economic disciplinary right can be established on the legal level.The study on the practical level aims to clarify the practical functions of the economic disciplinary right.The practical functions of this right are mainly to promote the performance of contractual obligations,maintain order and enhance efficiency,which also determine that it is completely legitimate and necessary for the enterprise to have this right.As for the question how should the enterprise exercise the economic disciplinary right,it should be studied from three aspects: the disciplinary ground,the disciplinary standard and the disciplinary procedure,so as to fully discuss the rules for the exercise of the economic disciplinary right.The disciplinary ground discusses what kind of behavior should be disciplined.The disciplinary ground should be related with the production and operation,and should be determined on the basis of workers’ obligations.In addition,special circumstances under which the determination of violating the discipline is made based on the disciplinary ground should be considered.The disciplinary standard discusses how to determine the amount of the economic punishment and how to coordinate different disciplinary measures.On the basis of setting the overall limit of the amount of the economic punishment,it should be clear that certain factors need to be considered in the determination of the specific amount.In addition,attention should be paid to the relationship between the fine and the compensation for losses when it comes to apply the disciplinary measure.The disciplinary procedure discusses how to design the procedure of exercising the right and the appeal procedures within the enterprise.The study on the question how should the judicial supervision on the abuse of the right be carried out includes three parts: the dispute acceptance,the judicial review and the judicial rule.In the part of the dispute acceptance,it is argued that the dispute on the economic punishment belongs to the scope of cases.Besides,the dispute on the economic punishment can resort to the external remedy,and the acceptance of the dispute meets the practical needs.The part of the judicial review explores macro principles and specific standards of the judicial review.Concretely speaking,the judicial review should ensure the comprehensiveness of the scope of review,and adhere to the parallel of legitimacy review and reasonable review.The court should review the economic punishment specifically according to the refined and detailed standards of identifying the abuse of the right.The judicial rule analyses the purview of the court.The court has the power to dispose the substantive rights and obligations of parties through the judgment.However,the judgment of the court shall not change or repeal the rules and regulations of the enterprise.