Study On The Legal Issues Of The Dismissal Of The Employer

It is a significant topic for enterprise and one of the important foundations for building a harmonious society and developing socialist market economy to reconcile labor relation, to prevent and resolve labor dispute. With the continuing increase of workers’ sense of right, so are the labor disputes arising from employer, strictly executing the nation’s family planning policy, dismissing workers who have children outside the state plan. There has not clearly stipulated that employers have the right to dismiss over-reproduce workers in Labor Law, Labor Contract Law, and Population and Family Planning Law of PRC. Academically, there is not enough study on this topic; politically, there is not uniformity in family planning policy from different cities; thus different courts give different judgments on the same kind of cases.The author of this article has collected and arranged 46 courts’ judgments and decisions and regulations from 31 provinces, and referred from several scholars. Apart from the introduction and conclusion, the article can be divided into three parts:The first part is the judicial practice and regulations on the issue of employers dismissing over-reproducing workers. Firstly, a brief introduction of two similar cases illuminates that the courts gave different judgments on whether the employer can dismiss over-reproducing workers. Then, to prove that these two cases are not individual and to fully grasp the true conditions of the judicial judgment, the author has searched and selected multiple cases from Judicial Opinions of China and Legal Documents with different combinations of key words, after classification and analysis, it is easy to conclude that more judgments on the same kind of cases are common in judicial practices. In addition, after arranging the regulations of population and family planning from the provinces, we found that there are many divergence in the aspect of over-reproducing workers’ liability.The second part is the analysis of the practice of dismissing over-reproducing workers with the reason that they have broke the labor laws and regulations. In the one hand, through the study of the character, content and the legality and rationality of labor laws and regulations, we know that it is disputable for employers to dissolute the labor contract with the over-reproducing workers; on the other hand, to distinguish whether the employers could use its right of instant dismissing scientifically and rationally, the author specifically analyzes whether the over reproduction is significantly breaking the regulations of employers and the restrictions on employers when using punishment rights and the principles to follow.The third part is the analysis on dismissing over-reproducing workers with the reason of breaking the law. Employers hold breaking the Population and Family Planning Law and local family planning regulations as the dismissing reason, which is a common practice in judicial practice. The parents shall pay social compensation fee for their outside children. The author analyzes the meaning of social compensation fee and the difference between imposing social compensation fee and pressing criminal responsibility, and analyzes whether employers can dismiss workers on the ground that the over-reproducing workers has criminal responsibility. After that, through the evaluation that the regulation of Population and Family Planning Law, the qualification of administrative execution body, and whether provincial regulations can restrict working rights, we have concluded our opinions of how to scientifically make laws to press the liability of over-reproducing workers. Lastly, we analyze whether legal protection for women can be divided with family planning.