The Legal Issues On The Exercise Of The Disciplinary Right Of Employing Units

The disciplinary right of the employing units refers to the right of the employing units to impose sanctions on the worker when the worker violates the rules and regulations of the employing units in the work,which is characterized by the attribution of rights,punitive nature,relative uncertainty.The existing theories of disciplinary right mainly include "inherent right theory","contract theory","dichotomy theory","order maintenance theory","rules and regulations theory",etc.There is both consensus and disagreement among these theories,among which "rules and regulations theory" is more suitable as the theoretical basis for the exercise of the disciplinary right of employing units.In order to protect the legitimate rights and interests of workers,promote standardized and democratic management within employing units,and foster the coordinated and healthy development of labor relations,it is necessary to standardize the exercise of disciplinary right of employing units.In terms of legislation,the exercise of disciplinary right is mainly based on the "Labor Law" and the "Labor Contract Law",which stipulates that the employing unit should establish and improve labor rules and regulations in accordance with the law,and stipulates the legal situation of negligent dismissal of laborer.Local legislation such as the ’Shanxi Province Employing Units Wage Payment Regulations’ and the ’Guangdong Province Labor Security Supervision Regulations’ have also made certain provisions regarding the right to impose economic penalties;In the aspect of law enforcement,the labor administrative department has the authority to oversee the formulation of labor rules and regulations within employing units;In the judicial aspect,the court can review the legality of the substantive and procedural requirements when employing units exercise their disciplinary rights.At the same time,there are still some practical problems in the exercise of disciplinary right,such as lack of basis and conflict of legislative examples,lack of substantive elements and lack of procedural elements.By comparing the legislative basis,legal content and procedural provisions of the exercise of the disciplinary right of employing units in foreign countries such as Germany,Japan and Chinese Taiwan,it is concluded that the content of the disciplinary right can be stipulated in the Labor Benchmark Law,the substantive elements of the disciplinary right can be clearly defined and the democratic participation of workers can be strengthened to ensure fairness in the exercise of disciplinary rights.In conclusion,for the improvement of laws regarding the exercise of disciplinary rights in Chinese employing units,the first thing should be the systematic construction of the rules for the exercise of disciplinary right in units,such as making clear the rules of the exercise of disciplinary right in central legislation and unifying the differences on economic punishments in local legislation.Secondly,in the part of entity rules,the necessity of punishment and the obligation of workers are taken as the elements to establish the legal reasons for the exercise of rights,restrict the types and ranges of punishment means and the degree of punishment,and clarify the legal consequences caused by the improper exercise of punishment right.Finally,in the part of procedural rules,the disciplinary rules of the employing units should go through the necessary democratic and public procedures,the disciplinary behavior should conform to the necessary internal process,and the disciplinary behavior should also accept special supervision.