Research On Legislation Remedy Predicament And Solutions Of Chinese Civil Servant’s Dismissal

According to the Civil Servant Law,the dismissal of civil servant is an administrative act which refers to rescind the appointment relationship with the civil servant based on legal procedures.Under the Civil Servant Law,civil servants being dismissed are located in inferior position with administrative body.Traditional Theory of Special Power relationship supports that public servant’s disemployment is unactionable internal administrative act,thus civil servants being dismissed are not covered by judicial remedy.This theory witnesses slight progress in the enforce of new Civil Servant Law from June 1,2019 and in the revised edition of Civil Servants’Dismissal Provision from Dec 28,2020.Only two ways are available for unactionable judicial remedy at present,one way is to apply for re-check to original administrative body,and other way is to lodge the complaints against the competent authority at the same level or the higher authority who made the dismissal decision.Parties who refuse to accept the decision can apply for reconsideration when it comes to the dismissal made by organs below the provincial level.When the authority bodies have the rights to make final decisions,it will affect the credibility and authority of the remedy ways greatly.Apparently it goes against the rights protection of civil servants dismissed who seem to have bright jobs with ignored remedy rights for a long time.Although civil servants have special identity to perform public duties in accordance with the law,they have double identities as public servant and citizen.Inadequate remedy measures possessed by civil servants dismissed are inconsistent with principle of human rights protection stipulated by Constitution.The characteristics of remedy measures are both internal and administrative in the dispute caused by the civil servants’ dismissal.Therefore,solving the judicial remedy plight of the civil servants dismissed is a significant symbol of maturing law-based society for those who being dismissed to have diverse ways to get remedy measures.With the combination of relevant dismissal cases,this dissertation analyses legislation remedy plight of the civil servants dismissed.According to the current situation,based on full reason analyses and learning from the beneficial achievement of litigation remedy approaches from foreign counties,it proposes three aspects including improving administrative relief approaches of the civil servants dismissed and introducing litigation relief approaches as well as personnel dispute arbitration approaches.From these three aspects,countermeasure conception is put forward to solve the legislation remedy predicament of the civil servants dismissed.