Legal Status And Specific Application Of Corporate Rules And Regulations

As the accelerating of urbanization in China, the number of job seekers composed of migrant workers and university graduates grow explosively. Under this situation, the majority of laborers in China would like to lower their requirements for job, and usually passively accept the corporate rules and regulations. This kind of attitude is based on their absolutely disadvantageous position. Protecting laborers is the inherent mission of the labor law. In order to protect laborers and give them dignity, it is very significant to improve corporate rules and regulations. Two links, the starting and ending points for the coordination of labor relations are hiring and firing. This article is mainly related to the specific application of corporate rules and regulations, especially in the hiring and firing links. Anyhow, we have to clear the legal status of corporate rules and regulations first.The first chapter of this article summarizes the legal status of corporate rules and regulations, which is the theoretical basis of the whole article.Firstly, there are numbers of formulations about the subjects, content, and effects of corporate rules and regulations. Although the employers majorly enact the corporate rules and regulations, the laborers'rights should be ensured to fully express their views and at the same time granting autonomy to employers. The core content of corporate rules and regulations is the regulations of group behaviors within the enterprise and the rules of working conditions. There are two standards for judging whether the content of corporate rules and regulations is integrity or not. Firstly, the content of corporate rules and regulations provided for all workers should include all the rights and obligations of the labor law; secondly, the content of corporate rules and regulations should be routine, so that enterprises could achieve rule-based in all aspects of personnel management. There are four effects of corporate rules and regulations in total:corporate rules and regulations is a major means of model management; corporate rules and regulations can prevent the employer's arbitrary abuse of management right; When laborers dispute, corporate rules and regulations can be used as the basis for People's Courts disputing the cases; Company rules and regulations is the requirement for simplify the process of signing the labor contract.Then, the article elaborates and evaluates many doctrines about the nature of corporate rules and regulations. In jurisprudential circle, there are four mainly theories about the nature of corporate rules and regulations. This article views that, in some sense, the nature of corporate rules and regulations is a kind of extension for the labor contract.Finally, the article analyses the effectiveness of corporate rules and regulations. In the first side, the article investigates the origin of law force of corporate rules and regulations, viewing that the effectiveness of corporate rules and regulations is mainly dependent on a fair, open process. Then the article analyzes the effectiveness of corporate rules and regulations and force elements, viewing that the main factors affecting the effectiveness of corporate rules and regulations are:proper subject, legitimate content, democratic process, and shall not conflict with labor contracts. The effective elements of corporate rules and regulations include general and special effect elements. General effect elements need publish to the laborers; special effect ones have two main elements:reasonable content and appropriate procedures. Next, this article clears the rank of effectiveness among labor discipline, corporate rules and regulations, labor contracts, collective contracts, labor laws and regulations. The article views that the effect of corporate rules and regulations is higher than labor discipline, lower than the labor contract, collective contract and labor laws.The second part of this article discusses the specific application of corporate rules and regulations in recruiting. Based on the fact in China, when signing labor contracts, most of the laborers can only passively accept the corporate rules and regulations, this article suggests that the employers should be aware of the following five aspects while hiring laborers. Firstly, clearly understand the disadvantage position of laborers. If employers want to give every newly hired laborer full acquisition right, participating right and expressing right, laws can do more design in the recruitment aspect. Secondly, employers should correctly handle the relationship between regulations and labor contracts. This article suggests that when establishing the rights and obligations between the employers and laborers, in addition to making sure that it is in accordance labor contract, it should usually refer to the corporate rules and regulations which should become the follow-up standard to regulate labor contract. Thirdly, the balancing role of labor union should be played fully. For the common interests of workers, it is impossible to let an individual worker fight for their personal interest by fully autonomy and equally consultation. Labor union can play an important role in developing and modifying the corporate rules and regulations. Fourthly, the relevant experiences of other countries should be drawn on. Some national laws state that in the process of formulating rules and regulations, the employer must perform the procedure of soliciting opinions, and then the opinions should be submitted to the labor union or the labor administration department. Fifthly, the opinions of laborers should be fully solicited. In order to protect the rights of laborers, the mechanisms should be improved and making it mandatory for the employer to solicit the opinions of laborers at the time of contracting. This mechanism should establish the expressing rights of laborers, as well as play a role of indirect publicity. In addition, labor union should file the opinions of laborers which will be unified sorted when accumulated to a certain extent. It is also the duty of unity labor to negotiate on a regular basis with the employers, amend and improve the content of corporate rules and regulations.In part three, the article discusses specific application of corporate rules and regulations in the firing links. With the development of the market economy, China should fully affirm the firing provision and formulate specific standard, instead of protecting labors too strictly in the hiring links. The law is too simple in links of hiring labors according to corporate rules and regulation, lacking provisions which define qualification and specific standards. In the first side, the article views that the standards of the severe circumstances is the point in judging if the employers laying off the labors according the corporate rules and regulations, comparing with relevant provisions in the law of French. Even if the corporate rules and regulations determine hiring conditions and severe circumstances standards in detail, the employers should not decide whether lying off laborers only according with corporate rules and regulations. We should consider all the specific facts and measure the interests of both sides to decide if there are severe circumstances. Firstly, considering the degree of the fault; secondly, considering the mode, frequency, means and occasions of the violation; thirdly, considering the consequence of the violation; fourthly, considering the subjective of the violation. Then, for protecting laborers, the article views that it is necessary to strength effect of the firing protection. In short words, firstly, giving full play to the role of trade labor unions; secondly, determining the severe circumstances accurately; thirdly, strengthening the legal responsibility of the employers. At last, for against the situation that the employers' abuse of corporate rules and regulations to lay off laborers, the article views that the hiring provisions should respect the following principles:the first one is rationality principle. The employers should consider if it is serious enough to lay off labors from all sides, in other words, if the reasons are severe; the second one is appropriate process principles. According to the Labor Contract Law, when the employers fire the laborers violating the law seriously according to the unilateral right to rescind contract, the employers shall inform the labor union the reasons in advance, if the labor union gives proposal,the employs shall study the proposal and inform the labor union the results.The article definitely elaborates in conclusion that corporate rules and regulations are formulated by corporate one-side, if we want to insure the effect of the corporate rules and regulations, we must fully protect the labors'rights to Participate and express. In the hiring links, we should give employers an additional obligation to seek the laborers'views; employers should request new laborers' views about the corporate rules and regulations. In the firing links, we should make sure the specific application be included in the corporate rules and regulations, especially about criterion of severe circumstances, on the other hand, we shall insure the reasons of firing to be reported to the labor union to prevent employers from firing laborers arbitrary.