On The Recognized Standard Of "Incompetent Work" In The Termination Of Labor Contract

What is the recognized standard of “incompetent work” to terminate the labor contract? In recent years,in the judicial and theoretical circles,this issue has been controversial.Article 40,paragraph 2,of the “Labor Contract Law” and Article 26,paragraph 2,of the “Labor Law” do not clearly stipulate.However,there is no specific explanation as to what is the recognized standard when workers incompetent work.It is only briefly defined in the “Explanation on Certain Articles of the Labor Law”(Lao Ban Fa [1994] No.289).In judicial judgments,there is still no uniform standard for judging to terminate the labor contracts for“incompetent work”,which has caused the phenomenon of different judgments based on different courts.Although the academic circle gives some discussions for this question,in practice,it may be due to the lack of a comprehensive analysis of the various situations existing.The relevant suggestions given are not comprehensive enough,and there is still no unified standard for identifying this issue.Therefore,this article puts forward the question that how to determine the criteria for “incompetent work” in the termination of labor contracts in practice,based on the focus of discussion in the legislative,judicial,and academic circles.What are the criteria for adjudicating “incompetent work” in my country’s judicial practice? On the judicial and academic circles,incompetent work is still the focus of disputes and it is also the issue to be studied in this article.The author analyzes the related disputes of “incompetent work” through comparative research methods,proportional research methods and standardized research methods.At the same time,this article uses 208 cases as research samples.After analyzing the selected cases,it is found that in judicial practice,the standards for identifying workers as “incompetent work” are relatively strict.By analyzing specific cases and categorizing the cases,this article summarized the reasons why the employer was found to be illegally released by the court,and put forward constructive suggestions in this regard.In this way,it helps the employer to better manage the“incompetent work” workers,and also provides suggestions for the judicial and management difficulties faced by the adjudication agency in practice.This article has five parts.In the circle,the introduction is the first part.Firstly,the author puts forward the problem according to the studied in this article in the form of a case analysis.From this case,the author discusses the authenticity and universality of the research problem.The author also discusses the value and significance of the research.Then,the author summarized the controversy in the theoretical circle on the criteria for determining “incompetent work” when reviewing the existing research literature.And the author also found that although there are many controversies in the academic circle,they can be summarized into two different theories of objective standards.It is divided objective and subjective standards.Finally,the author elaborated on the research design of this article.The second part is the legislative evolution and related explanations of“incompetent work”.Reading relevant laws and regulations,the author analyzes the legislative evolution of “incompetent work” and the relevant interpretation of“incompetent work” in the judicial and theoretical circles.At the same time,this article analyzed the legal concepts related to “incompetent work” in practice,such as the relationship between correct understanding and “non-conforming employment” and “lower elimination”.The third part is the investigation of judicial confirmation of “incompetent job”termination of labor contract.With the help of China Judgment Documents Network,the author used the 208 judgments selected from the analysis as a research sample.After analyzing the selected cases,the author found that in judicial practice,the standards for recognized standard of “incompetent for work”are relatively strict.Among 208 cases,183 cases were ruled by the court as illegally dismissed,accounting for about 88%,and only 25 cases determined that the employer won the case,accounting for about 12%.Why are workers not considered “incompetent work”? After a detailed analysis of 183 cases,the author found that the court’s opinions were not uniform,and the recognized standard of“workers incompetent for work” were diversified.The author made classifications from the two aspects of factual basis and the rationality of the procedure of proof.For the judgment of “incompetent work”,a total of 8 different types of judgement basis were analyzed.The fourth part is the rethinking of the legislative flaws of “incompetent work”termination of labor contracts.After reading the literature and analyzing specific cases,the author has reconsidered the recognized standard of “incompetent work”.The issues that have been discussed a lot in the judicial and theoretical circles are the single subject of “incompetent work”,the unclear burden of proof,and the lack of identification standards.The fifth part gives relevant suggestions for the recognized standards of“incompetent work” in the termination of the labor contract,according to the analysis of academic circles and judicial practice.Judging from the author’s empirical results,if the criteria for determining “incompetent work” are not clear,more and more disputes will adversely affect the employer’s employment autonomy and workers’ right to employment.It may cause the employer to abuse the right of dismissal.Therefore,the author gives constructive suggestions in terms of expanding the main body of identification of “incompetent work”,implementing the rationality of the pre-procedures for “incompetent work”,and clarifying the factual standards for identifying “incompetent work”.