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On improvement of the legal system of the labor contract is terminated by the employer.

Author: ZhaoGaoRong From: www.yourpaper.net Posted: 2010-06-01 10:15:33 Read:
Keywords thesis: labor relations; unilateral lifting of the labor contract; labor rights protection
Abstract: "labor contract law" provisions of the strict conditions for the employer terminates the labor contract, the employing unit discharge behavior for the restriction and supervision, has a positive significance of protecting workers' right to work.However, due to the elastic of legislation, to give the employer a lot of space.Based on the investigation, some shortcomings of the legal system on the employer unilaterally terminate the labor contract has carried on the preliminary analysis, combined with the need of the practice, and puts forward some suggestions of legislation, the legal system concerning the employer unilaterally terminate the labor contract to perfect.
Labor relation is the most basic social relations, the most important under the condition of market economy, the relationship between the association is the basis of constructing a harmonious society, but also for enterprises' development, society can be the key to stability.With the deepening of the reform and development of the social economy, some non-public nature of the enterprise for the pursuit of economic benefits of illegal remove labor contract with the laborer unilateral phenomenon occurs repeatedly, the legitimate rights and interests of workers can not be guaranteed, and the labor-capital contradictions and conflicts intensified, and seriously affected the stability and development of society and economy the.Some shortcomings of the legal system of the employer terminates the labor contract, has made the preliminary analysis in the research. Based on, and combining with the practical needs, proposed some suggestions on legislation.The effective implementation of the labor contract law, the protection of workers rights and interests according to law, building a harmonious society is of great practical significance.
1 to improve the labor laws and regulations system of
A serious dereliction of duty, engage in malpractices for selfish ends, causing significant damage to the employer, the employer may terminate the labor contract immediately.To work in the towel laborer employer caused damage to the original is in many aspects, what is the subjective fault dereliction of duty, still can not avoid the objective, it can only be identified by the employer, workers only feel helpless to accept.Is "small", or "significant" harm, dereliction of duty is sufficient to lead to the lifting of the labor contract, the provisions of the laws on no content, the ruler will be in Sichuan unit towel.The law of the empty, not be operated unilateral termination conditions, this essentially gave the right to terminate the without limits the employer unilaterally, workers at any time to endure being just employer threats, even if lawmakers legal system with no chink in one's armour, the most perfect without the same time limit of the labor contract, if the same the right to unilaterally terminate match is also the outcome.A unit to serious dereliction of duty on the grounds for termination of the labor contract, also do not have to pay economic compensation, the loopholes in the law to become the most effective tool for the employer violates the legal rights and interests of workers.
In order to make up for not normative employer unilaterally terminate the labor contract, from the perspective of the legislative do clear explanations and provisions for "serious" level, so that workers can know what kind of behavior will cause the labor contract is terminated by the employer, an employer terminates the labor contract at.This can be solved by the following two ways:
One is the association strength.In the market economy towel, although enterprises have their own characteristics, but in the same industry towel, similar enterprise's production operation, but there exist differences in management and product variety, the number and size.Association fully grasp the operation status of the industry and special circumstances, through the "labor law" authorized to association. South Association stipulated in detail on the "labor contract law" Article 30, fortieth, regulations of trade association is the lowest standard of enterprise implementation, the enterprise can make the termination conditions is higher than the industry Standard Association in combination with the actual situation.
The two is the industry no associations, by the provincial administrative department of labor to assume the role of the association.The labor administrative departments may related enterprises, the organization of the industry's labor law experts, workers and other personnel to participate in the development of specific provisions.The labor administrative departments may also authorize the province strong, powerful enterprises to formulate provisions of this industry, and then by the labor administrative department.
2 instant unilateral rescission shall have the aging
"Contract law" ninety-fifth article: "the provisions of the law or the parties prescribe a period for exercising the right to terminate the expiration of the time limit, the parties do not exercise the right to destroy.The law does not stipulate or the parties have not agreed to exercise the right to terminate the term, after being urged to exercise it within a reasonable time, the right to destroy."The exercise of any legal rights must be within a certain time limit, otherwise it will have the right to be detracted from the effectiveness of the legal effect.Right of rescission is right of formation, formation right must be scheduled during the period of limitation."No provisions scheduled period the right to terminate the labor contract law" unilateral, contrary to the basic theory of law.If the worker has seriously damage the interests of the employing unit, no matter how long the damage behavior, one year, two years......Even ten years, the employer may exercise the right to unilaterally terminate.This is contradictory with the basic theory of law."German Civil Code" 626th stipulation: the employment relationship can be composed of any contract a party based on serious grounds for termination, and do not have to comply with the termination of the period.Terminate only in two weeks, calculation of the period, starting from the right of termination are aware of and terminated the decisive fact moments.It fired two weeks must exercise rescission from the occurrence of the day, otherwise the right without legal effect.In order to avoid labor relationship between the unit and the laborer's in a state of towel agnostic, unstable, on the right to terminate the labor contract unilaterally should increase of aging: the parties to the labor contract unilaterally cancelling the event since that date, should be in two weeks to exercise the right to unilaterally terminate, or the right to unilaterally terminate the invalid.
3 refinement "trade union law"
Although the "labor contract law" clearly will be in the labor contract system in the position.But in the practice of China's absolute labor surplus, subject of labor relations is "strong capital, weak weak labor" characteristic as well as the function of the trade union, no formation mechanism and the employer match in the enterprise, and the main reason of this problem: one is the provisions of the law, the principle of vague, trade union rights mostly help, guidance right or claim, not only the strength, and the legal effect of unknown.For example, "labor law" provisions of the downsizing process, the trade union or all the workers to explain the situation, ask for a trade union or staff opinion, is an important content of democracy, justice of layoffs.But the legal representation, are "seeking" to "listen to" opinions, if the employer does not pass through this program, whether for breach of procedure and ineffective layoffs?If the employer fails to comply with procedures prescribed by law, the legal responsibility? Because these Provisions are not clear, the trade union rights largely only remain in the legal rights, it is difficult to really play a supervision and intervention of corporate behavior role in practice.The two is the actual status of the trade unions in enterprises in the restricted the hencoop play.At present, the grass-roots trade unions and the unit has too many dependencies, including set up trade union, the trade union and the cadre duty payment, labor relations and treatment, this dependence makes the union be often a subsidiary in the employing unit, it is difficult to work independently.
First of all to strict regulations and union leaders (Chairman) and union representative qualification and production procedure.For the trade union chairman, Ding will represent, enterprise management personnel at all levels should not have the right to vote. It is not right to vote.Trade union representatives can only be produced from the ordinary workers, the trade union chairman from Ding will represent towel, ordinary staff to management positions, should cancel all positions in organizations.Secondly, permission fine union activities.Union representatives from ordinary workers, has advantages in the basic technical skills, but in the areas of law, business management, but can't resist has rich human resources of enterprises.Through legislation, the chairman of the trade union, trade union representatives have the right to accept the legal training, in order to meet the job requirements and represents the interests of workers, the trade union organizations can outside lawyers, experts, really play the role of trade union organizations, and earnestly safeguard the legitimate rights and interests of workers.Once again, strengthening the legal responsibility of unfair labor practices.Practice of towel, enterprise Limited trade union activities, to suppress the rights event often occurs.We must strengthen the legal responsibility of unfair labor practices, or trade unions will fail.
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