Research On Compensation Of Wrongful Dismissal

As an important part in operation of labor relation, termination of the labor contractinvolves the balance of employer’s dismissal right and employee’s survival right. On one hand,dismissal right is given to the employers in order to pursue the legitimacy of economicefficiency. On the other hand, in case of abusing the right and in order to protect the employeethoroughly who is in weak position, labor law also set limitation for it, in other words, if theemployee goes beyond the boundaries, he will be judged illegal. In recent years, based on theconcession between employer’s employment freedom right and employee ’s survivalright,dismissal protection is a hot topic in academics, which should be based on the variousarrangement of the labor contract to build the overall framework. And among it, thecompensation, having been used as remedies for wrongful dismissal, as one part of dismissalprotection,which reflects the ideology of emphasizing on favoring employees,should focus onthe all aspects of declaration of illicit dismissal and compensation payment in order to givemore reasonable protection for labors. But how to identify the wrongful dismissal action,whether the violation of entitle causes and procedure causes for wrongful dismissal areequally apply to compensation, and the existing compensation is reasonable or not, all theseproblems will be resolved in the compensation of wrongful dismissal. That defining thewrongful dismissal and compensation clearly will have immeasurable practical significancefor the construction of harmonious labor relations and the improvement of economicefficiency.Although "labor contract law “in China imposes employer’s responsibility for wrongfuldismissal compensation payment,aimed to punish illicit action of employer and protectemployee’s right,in perspective of operation of compensation, then it also do not take fullconsideration of the immediate interests of the labors according to the process of the judicialpractice,besides,the supporting system,including dismissal procedure, is needed to be furtherimproved. Hence after analyzing the deficiency of compensation for wrongful dismissal, thisarticle will be based on the legislative and judicial practice to give advice of compensation for wrongful dismissal and relevant matching systems.The structure of the article as follows:The introduction part mainly starting with practical cases analyze the problems in thejudicial practice to lead to the field of research, from which it will explore how to define thewrongful dismissal and necessity of protect labors’ rights in wrongful dismissal.So thearrangement of compensation for wrongful dismissal should strive to balance the interest ofemployer and employee, maintaining the harmonious labor relationship and promoting theconstruction of relevant theories about wrongful dismissal compensation.The first part, first of all, focusing on definition of wrongful dismissal and the literaturereference both at home and abroad, identify the understanding of wrongful dismissal in thecontext of China labor law.Meanwhile, by comparing with foreign definition, it will help toestablish the base for compensation at home and broad below.Base on our own correspondingsystem in labor law,in the mean time,though the academics has an argument on whetherviolations of different causes are equally identified wrongful dismissal, the article willanalyzing different academic views and affirm it.The second part mainly discusses the related theory of wrongful dismissal compensation.First, it will define the liability nature of the wrongful dismissal and make it clear whether thecompensation is designed to make up for the loss of labor or the punishment for the employer.In a word the discussion of the liability nature is based on theory. Secondly, it is about theaffirmation of the function of the wrongful dismissal compensation. The operation ofcompensation for dismissal takes the interests of employee existing jobs and employer’semployment right as point,providing rational thinking of harmonious labor relations.The third part is combing our country labor law regulation about the system ofcompensation for wrongful dismissal so as to analyze the shortcomings of the existing systemto grasp the direction to perfect this system. It will illustrate the practical necessityrespectively from the calculation for the system, the protection on the rights of labor duringthe wrongful dismissal and the selection of reinstatement and compensation system andextension of the forecast period,then to grasp the direction of the system. The fourth part is to identify the different legislative system at home and abroad from theperspective of the comparative method.In many countries the labor law is complicated,ofwhich,the United States, Britain, Germany and France are typical on wrongful dismissalcompensation.Varies types of compensation system embody the special law of differentcountries on its own restrictions against dismissal right,construction of legalsystem,development of labor law market and level of social security.The fifth part is the foothold of the article, on the basis of above analysis the theory andpractice, aiming at the shortcomings of the system to put forward the related legislationsuggestion. Reconsideration on the calculation of damages and the fact that trust relationshiphas been damaged, the law would balance the interests between the employer and the laborwho requires reinstatement, then to leave room for both of them to negotiate, to guide theparties to choose the reasonable relief way.Besides,to refine the system of the forecast periodof employers according to different standard and to reduce the unfavorable state in the processof dismissal.