On The Legal Regulation Of Terminating Labor Contract With "Serious Violation Of Rules And Regulations"

In China’s labor contract legal system,in order to protect the legitimate rights and interests of workers and the stability of social employment,the dismissal of employers is strictly restricted by law.Paragraph 2 of Article 39 of China’s Labor Contract Law stipulates that if an employee seriously violates the rules and regulations of the employer,the employer may terminate the labor contract,and the original intention of the legislation is to restrict the employer’s labor management rights.The law’s overgeneralization of "serious violations of rules and regulations" can lead to difficulties in judicial application.In reality,serious violations exist in the provisions of the employer’s rules and regulations,which also causes the frequent occurrence of illegal dismissal by the employer.Therefore,in practice,the legal regulation of the termination of labor contracts in "serious violation of rules and regulations" urgently needs to be clearly guided,so as to ensure the harmonious and stable development of labor relations.This article mainly from the "labor contract law" in paragraph 2 of article 39 of understanding and applicable perspective,analyzes the current legal rules and regulations to unit of choose and employ persons the specification of the present situation and the "serious breach of regulations" terminate the labor contract law regulate the status quo,on the basis of the analysis of relative legal provisions in Germany,France,Finally,from the two aspects of content and procedure,the author puts forward suggestions to improve the legal regulation of labor contract termination for "serious violation of rules and regulations" : Firstly,the necessity of judicial review on the rationality of rules and regulations is discussed from the nature of rules and regulations.At the same time,the reasonableness of the judicial review of rules and regulations should be examined from three aspects: whether the content is clear and specific,related to labor and the behavior is equivalent to the punishment.Second,as for the subject of the determination of serious violations,the author proposes to give the trade union the right of democratic examination and the judicial organ the right of determination of serious violations.Thirdly,as for the determination standards of serious violations,it is proposed that the comprehensive measurement principle,the principle of last resort and the principle of prediction should be taken as the guide,and the subjective and objective factors and other factors should be combined to judge comprehensively whether the behaviors of workers are "serious violations of rules and regulations".Fourthly,regarding the legal consequences of illegal dismissal,it is suggested to increase the judgment standard that the labor contract cannot continue to perform,reconstruct the calculation method of compensation and the wage payment during the period of illegal dismissal.Fifthly,as for the lack of standardization of democratic procedures of rules and regulations and publicity procedures,it is proposed that the legal effect of rules and regulations without the participation of workers should be clarified,and the formal examination and substantive examination should be comprehensively used to review the publicity procedures of rules and regulations.Finally,increase the workers’ defense relief mechanism,in the unit of choose and employ persons to make a preliminary decision,the workers can make a dismissal decision to the superior unit of the organization,at the same time,in order to strengthen the supervision of the labor union in the dismissal process,it is suggested to delete the "notice of the labor union" correction procedure.