Legal Regulation Of Transfer Behavior

According to the statistics, the labor disputes of transfer behavior currently account for 20% to 30%. Unfortunately, the legal regulating of transfer behavior was not perfect. Under certain circumstances,allowing enterprises’ transfer behavior is to maintain the autonomy of business employment of the practical needs. While the inappropriate transfer behavior will harm the rights of workers, intensify labor conflicts. Based on the current status of legal regulation of transfer behavior, the author attempt to improve the legal regulation of transfer behavior.The article analyzes the necessity of legal regulation of transfer behavior in the first part. Transfer behavior can greatly improve labor flexibility of enterprises.Faced with a drastic change in the market, enterprises need to optimize the structure of labor,from the positive angle affirminig the necessity of the existence of transfer behavior. Then analyzes the behavior may be adversely affect the autonomous right to choose jobs, the right to rest, the right to bring labor remuneration of workers, from the negative angle of the necessity of legal regulation of transfer behavior. Finally, in order to achieve the balance of interests of both employers and employees on legislative purpose, it is necessary to conduct transfer behavior, preventing interests of employers and employees imbalanced.The second part of the article based on the current situation, analyzes the current status of legal regulation. Since labor supervision departments holds that labor disputes shall be referred to arbitration and lawsuit proceedings, the author analyzes from the legislative and judicial perspectives. The author reviews the legislation on legal transfer,but there is no agreed transfer legislation.Agreed transfer can only refer to the law on labor contract changes, which generated a lot of controversy in the judicial practice. Judicial point of view, the author analyzed 40 copies of relevant cases, selected from a number of typical cases, summed up in the justice, the court found that the transfer behavior should meet some reasonable elements.By analyzing the current status of legal regulation,the author analyzes the problems to the current status of legal regulation in the third part. First, the legal regulation of agreed transfer is in a blank state, and there are conflicts in the hearing comments of different courts. Some believe that the agreed transfer clause is valid, while others holds that labor contract modification requires "consensus", the agreed transfer clause should be invalid. Our law do not specify the agreed transfer on this issue.Second, the transfer program is missing. Legal regulation of transfer behavior should not only on the entity, but also on procedural legal regulation. Third, when the justice account whether the transfer behavior is reasonable, the court did not form a referee system, so different co-determination are quite serious.The fourth part will provide some suggestions to improve the legal regulation of transfer behavior. First, the law is necessary to make specific provisions on the agreed transfer. Through analysis of relevant theory, and combined with China’s actual situation, the author consider the terms of the agreed transfer should be effective. The law should be clearly explained.Second, on regulation of transfer behavior of the procedure,the author think we should have at least three steps, making the program more persuasive. Third, because of the existence of rationality standards are not uniform, the author architecture a system on rationality referee.Hoping that the future can make provisions by way of judicial interpretation, uniform rationality referee standards.