Research On The Legal Regulation Of The Disciplinary Power Of The Employer

For a long time,most employers in China punish the workers in accordance with Regulations on Rewards and Punishments for Enterprise Staff(hereinafter referred to as Regulations on Rewards and Punishments).Since the Regulations on Rewards and Punishments was abolished on January 15,2008,no law or regulation has been formulated to explicitly stipulate that the employers have the disciplinary authority and only some relevant contents are specified dispersedly in the Labor Law of the People’s Republic of China(hereinafter referred to as the Labor Law)and the Labor Contract Law of the People’s Republic of China(hereinafter referred to as the Labor Contract Law).Although such a change has diluted the administrative effect of the disciplinary authority of employers,met the requirements of development of socialist market economy and conformed to the trend of the times,it has also brought about many problems.Firstly,the old law has been abolished but no new law has been enacted,showing serious lack of substantive regulations.In the disciplinary regulations,only the conditions and reasons for occurrence of disciplinary dismissal are defined and the basis of legal regulation is clarified;Apart from these,no explicit legal provisions on disciplinary measures,relevant disciplinary reasons and basis are provided.Secondly,there is a lack of detailed rules for exercise of disciplinary authority and nearly no relevant procedures and regulations.In the legislations,the execution and boundary of the disciplinary power of employing units have not been specified.Even to the disciplinary dismissal that has great effects on workers’ legal rights,it seems inattentive on legislation.Meanwhile,the current legislations have not fully incorporated the labor disputes into the scope of accepting cases,and many channels of relief for workers are still under the theoretical discussion.As a result of the above legislative defects,the boundary of disciplinary authority of Chinese employers is extremely vague,for which the disciplinary authority is prone to be abused by the employers in practice,whereas workers often cannot obtain effective relief.Based on this,while the employer’s disciplinary authority should be affirmed,the exercise of disciplinary authority should be regulated necessarily and effectively to ensure the legitimacy,effectiveness and rationality of disciplinary measures.From the perspective of legal basis,there is no regulation that can be directly used as the legal basis of disciplinary punishments in the current legislations.What is the basis for employers to exercise the disciplinary authority? Based on consolidation and analysis of the mainstream academic views and in consideration of relevant provisions of the current legislations,rules and regulations can serve as the legal basis for disciplinary punishments.However,the disciplinary authority of rules and regulations must be suitable.Since the exercise of disciplinary authority by the employers is closed linked with the vital interests of workers,hence seriously affecting the stable development of labor relations in the market economy,the severity of above principle is similar to that of criminal law.Therefore,the concept of quasi-criminal law principle has been adopted and the “principle of a legally prescribed punishment for a specified crime” is required,which means the explicit provisions on punishment of workers should be available.In the meantime,legality,proportionality,timeliness and other principles also have met.The reasons for the employers’ exercise of disciplinary authority by centering on the workers’ obligation and the subjective and objective conditions for the employers to exercise the disciplinary authority with respect to the workers have been defined.The means for employers’ exercise of disciplinary authority have been standardized.The open mode of setting is allowed,but several special measures have been explained.For the purpose of protecting the workers at the weak position,and preventing the abuse of disciplinary authority by employers,the subjects exercising the disciplinary authority have been restricted,and neutralization is required.A disciplinary committee is formed through election by employers and workers so as to exercise the disciplinary authority.Based on these,the general procedures for exercising the disciplinary authority have been established and the key links have been clarified.