Conflict And Coordination Of Legal Application Issues In Dismissal Of Company Executive

Since the reform and opening up,with the rapid development of domestic economy,the number of economic subjects such as enterprises has shown an alarming rise.As the core competitiveness of enterprises,talents are also an indispensable factor for economic development.They are active in different professional fields in China.With the rapid growth of the number of Companies in the market,the number of senior managers of the company is also increasing.However,due to the particularity of the identity of senior managers,the differences or differences between them and ordinary workers in the application of labor law have always been controversial in the social and academic circles.The main core of the dispute lies in how to apply the labor law to senior executives,how to balance the conflict between the arbitrary dismissal of senior executives by the board of directors at the level of company law and the non arbitrary termination of labor contracts in the labor law system.If the company’s top managers are excluded from the protection object of the labor law due to the particularity of their identity,it is obviously unreasonable and legal.However,if the top managers and ordinary workers are equally applied to the preferential protection of the labor law without distinction,it is also inconsistent with the legislative purpose of the labor law to protect the weak.The current laws and regulations do not fundamentally solve the dilemma of the company’s executives applying relevant laws.Specifically,it is mainly reflected in whether the executives,as managers,can establish labor relations with the company?If senior executives are dismissed by the company,will their labor relations with the company be terminated accordingly? When the labor contract is terminated illegally,can you claim compensation for the illegal termination of the labor contract or double the salary due to the failure to sign a written labor contract? Whether they can claim to continue to perform the labor contract so as to continue to hold the original senior management position in the company.This paper discusses and studies the application of labor law for the main body of company executives.The full text is divided into the following four parts.The first part is mainly through reading a large number of relevant literature,judicial rules and cases,to generally expose the difficulties faced by the current judicial practice for the problems related to the dismissal of senior executives,mainly including the difficulties in the discrimination of legal relations,the applicability of the law in cross fields,and the identification of mutual agreement.The second part mainly analyzes the principles and legal principles of the conflict of laws applicable to the dismissal of senior executives.To analyze the relevant legal conflicts,we should first clarify the concept of executives and the legal status of the identity of executives.After reading a lot of literature,this paper analyzes the dual legal attributes of executive identity in company law and labor law,and clearly defines the scope of executive identity discussed in this paper.Secondly,it makes a specific analysis of the legal application of the dismissal of senior executives,and discusses it from the aspects of the establishment standard of labor relations,the theory of the law applicable to the dismissal of senior executives,and the experience of extraterritorial law,so as to clarify the direction and status of the legal application of matters related to the dismissal of senior executives.Furthermore,on the premise of establishing labor relations between employers and enterprise executives,this paper makes a comparative analysis of the dismissal of executives by the company and the termination of labor relations by executives in law,and makes it clear that the dismissal will not lead to the termination of labor relations,and the dismissal will not be the prerequisite for the termination of labor relations at the same time.The third part discusses the difficult unification of judicial disputes raised in the first part.First of all,it needs to be clear that the legislative premise and principle of labor law is based on the principle of preferential protection.However,the special identity attribute of senior executives will lead to the imbalance in the application of the principle of preferential protection.Secondly,in terms of specific relief methods,whether senior executives can claim to continue to perform the labor contract with the company after being dismissed by the company through a resolution,and what problems or difficulties will exist in claiming to continue to perform the labor contract with the company are worthy of in-depth discussion in this paper.Further,this paper makes a further analysis on whether executives who have not signed a written labor contract with the company at the time of entry can claim twice the salary to the company or the employer after they are illegally terminated by the company.Based on the demonstration of the first three parts,the fourth part puts forward the corresponding strategies respectively.Firstly,in view of what kind of law should be applied to regulate senior executives’ labor disputes,whether to establish labor relations with employers and whether to terminate the labor relations after being dismissed,the senior executives are further divided into "strong controlling senior executives","strong controlling senior executives" and "weak controlling senior executives" based on the labor stratification theory,At the same time,combined with the basis of the formation of senior management labor relations,and discuss the above problems differently.For the demands of continuing to perform the labor contract and doubling the salary put forward by senior executives after their labor contract is illegally terminated,it is further proposed to apply special rules.So as to form a oneto-one response to the above problems in structure.