The Empirical Analysis On The Identification Of "Serious Violation Of Rules And Regulations Of The Employing Unit"

After China's economic and social development has entered a new normal,increasingly fierce market competition,The optimization measures of human resources taken by market players to enhance their competitiveness are also increasingly obvious,unit of choose and employ persons in order to control the human cost,usually take the way of job cuts to rein in spending,but because of the limitation of the labor contract,in the process of layoffs to the laborers to the corresponding economic compensation.Unit of choose and employ persons in order to reduce expenditure,often can violate system of unit of choose and employ persons seriously this "hat" buckle on the behavior of laborer general disobey discipline,remove labor contract for this reason,the relevant compensation that maximally reduced and circumvented unit of choose and employ persons and laborer and obligation.Reflects in the field of justice,this kind of case is directly the referee basis "labor contract law" article 39 item 2,namely "referred to in this article the" serious breach of regulations of unit of choose and employ persons "clause,because the rules and regulations of unit of choose and employ persons leading to develop environment,the terms and conditions as the unit of choose and employ persons fault resistance to fire the assassin's mace is used frequently in practice,the resulting frequent labor dispute cases,the cognizance of" serious breach of regulations of unit of choose and employ persons "is particularly important,but it exists in the legislation the provisions in the regret and the application of the judicial predicament,leads to the contradiction between unit of choose and employ persons and laborer disputes are not reasonable and fair.Therefore,this paper intends to find out the specific crux of the problem through the analysis of the legislative and judicial status quo of "serious violation of the rules and regulations of the employing unit",and put forward Suggestions to solve the problem by combining with relevant theoretical reflection.This paper is divided into two parts: introduction and text to comprehensively discuss the identification of "serious violation of rules and regulations of the employing unit".In the introduction,three points are used to explain the background and significance of the empirical research,the status quo,methods and innovations of the research in and out of the field,for the body part of the creation of a solid foundation for research.In the body part,the identification of "serious violation of employer rules and regulations" is studied and analyzed comprehensively and deeply with four key points,as follows:The first part,"serious violation of the rules and regulations of the employing unit" to identify the theoretical basis.This part mainly considers the effectiveness of rules and regulations and the theory of balancing the employer's autonomy in employment with the employee's right to employment.The second part,"serious violation of rules and regulations of the employing unit" identified the legislative status and problems.This part analyzes the legislative status quo of "serious violation of employer rules and regulations" from the perspective of national norms and some local norms,and finds that the legislative system is incomplete,inclined to procedural legislation and legislation is too abstract.The third part,"serious violations of rules and regulations of the employing unit" identified the judicial status and problems.In this part,through the method of empirical research,the author USES the statistical analysis of the judgment documents to reveal the inconsistency of the judgment standards of the effective elements of rules and regulations in the judicial identification process from the perspective of judicial practice.Avoiding substantive review of "severity";The criteria for substantive review of "severity" vary and there are three aspects of excessive discretionary power.The fourth part,"serious violation of rules and regulations of the employing unit" to identify the improvement of recommendations.This part combines the theory,current situation and problem exploration of the first three parts,and puts forward Suggestions from the legislative and judicial levels respectively,aiming at solving two problems: first,what kind of rules and regulations can be used as the standard for employers to dismiss workers,that is,to determine the effectiveness of rules and regulations;Second,the extent to which violations of rules and regulations by workers need to be serious to be considered grounds for dismissal.In view of the first question,this paper puts forward the suggestion of amending the judicial interpretation of the supreme people's court on the effective elements of rules and regulations in legislation and clearly introducing the reasonable elements of rules and regulations.In judicature,the judicial organ should establish the basic idea of the review of the effectiveness of rules and regulations,and positively respond to the confirmation of the effectiveness of democratic formulation procedures of rules and regulations.In response to the second question,this paper puts forward the basic principle of clearly granting judicial organs the right of substantive review of "serious" degree and establishing the determination of "serious" degree in legislation.In the aspect of judicature,a "comprehensive multi-factor" measurement model is set up to measure the degree of "severity" recognized by judicial organs,which positively responds to the recognition of "severity".