A Study On Problem And Countermeasure Of Unilateral Termination Of Labor Contract By Small And Micro Enterprises

With the further development of diversified economy forms,the degree of activity of small and micro enterprise in the economy continues improving.It is a new type of enterprise backbone that plays an important role in absorbing employment,promoting economic development,promoting entrepreneurship,innovation,maintaining social stability and so on.In order to create a good and sustainable development of the policy environment for small and micro enterprises,China has set up preferential conditions for it in the financial,taxation,financing and many other areas.However,there is no corresponding preferential condition in the field of labor law,and its legislation provision applies to all types of units and organizations within the territory of china which shows limitations of China’s labor legislation integration.From the perspective of the reasonable differentiate principle,comparing with large and medium enterprises,small and micro enterprise belongs to the vulnerable groups of the employer in the aspects of capital and scale and management.The integrative legislation provision of unilateral termination of employer is too harsh for small and micro enterprise,which ignores its special needs of flexible employment and development status,and to a certain extent,increases the implementation burden of it.There are corresponding problems of the integrated legislative model because of the frequent labor racketeering phenomenon in practice,the data showing the increased costs of small and micro enterprise employment and the high level of dismissal protection system in our country.Moreover,in order to avoid the restriction of legislation on the act of firing,a large number of small and micro enterprises fire employees freely by the way of not signing labor contracts with them,and the labor supervision departments fail to play its function of supervision,which cause the embarrassing situation that legislation and reality could not be effectively connected,and it is bad for realizing the interests of laborers and the continuing growth of small and micro enterprise.Thus,aiming at the problems of unilaterally terminate of small and micro enterprise,the author points out sticking-points in the provisions of labor law to offer advice and suggestions for improving unilateral termination of the labor contract system of small and micro enterprise.In this paper,the author discusses in turn according to ask questions,analyze and solve the problem.Besides the introduction and conclusion,this paper is divided into four parts,andthe second part and the fourth part is the focus of this paper:In the first part,the author introduces the legislation status of the unilateral termination right of the employer and analyzes the legislative provisions from the perspective of small and micro enterprise,which lays a foundation for the later discussion.In this part,the author makes a deep understanding of the legal provisions of the employer`s unilateral termination right,the purpose of legislation,the legislative situation and the evaluation of legislation included.Among them,The legislation purpose of the employer`s unilateral termination right is to standardize the employment behaviors of the employer,protect the interests of the laborers and construct the new type of labor relations.At the same time,the author points out the integration and legalization characteristic of configuration of the unilateral termination right,which initially introduces difficulties that small and micro enterprise unilaterally terminates labor contracts in the legislation model of one-size-fits-all,such as,restrictions of freedom,the difficulties and alienation of implementation,damage of the labors` interests and other problems.In the second part,the author mainly summarizes the current problems of rising labor costs faced by the small and micro enterprise,the general situation that courts deals with the disputes of terminating labor contracts of small and micro enterprise and the cases of labor racketeering,and then points out the main problems existing in the process of unilaterally terminating labor contracts of small and micro enterprise,mainly including the inadequate implementation of the reasonable differentiate principle,over-strict legislation requirements of labor,low strength of the law enforcement.The author discusses the reasonable differentiate principle from the aspects of legislation that is contrary to the concept of substantive equality and lack of pertinence,the performances of over-strict legislation requires of labor from the aspects of the harsh standard,the unscientific program and the overweight consequences of terminating,and low strength of the law enforcement from two aspects,including the common phenomenon that small and micro enterprise freely terminates labor contracts and the poor regulation of labor administration departments.The third part is about the adjustment mode and system investigation of unilaterally terminating labor contracts of small and micro enterprise.In this part,the author mainly introduces four kinds of adjustment modes of unilateral termination system in the current world and makes a research on exemption policies of small and micro enterprise in Germany,the United States and Japan in the protection system of firing,and then points out that China’sunilateral termination system should show our own characteristics and national conditions in the process of learning from foreign exemption experience,that is to say,should not entirely exempt the obligation of termination of small and micro enterprise,but should give a moderate discount.Aiming at the three problems mentioned above,in the fourth part,the author puts forward the countermeasures to perfect the system that small and micro enterprise unilaterally terminates labor contracts,mainly including three aspects: firstly,the author points out implementation of the reasonable differentiate principle,and Labor legislation should be used to construct a system of discriminatory treatment by combining with the principle of proportion,tilt protection and reasonable differentiate;secondly,it is necessary to relax the requirements of labor legislation from the perspective of standard,process and consequence,such as,implements termination standard of legitimate reasons,relaxes the notice of termination process and so on,informs the parent union or the local union before termination,reduces the compensation standard and optimizes the compensation scheme.Thirdly,the author points out that should improve the strength of the implementation of law provisions and promote the legitimate employment of small and micro enterprise by its own management construction and strengthening the regulation of it.The author hopes that can provide reform ideas for the construction of unilateral termination of labor contracts system of small and micro enterprise to make the system of unilateral termination of the labor contracts more scientific,and realize the benign development and reform of labor law and the joint development of small and micro enterprise and the economy,and achieve economic development all-roundly and enhance the flexibility of the Labor Contract Law.