| In practice,the disciplinary power of employers is improperly used,but the current labor legal system is not perfect,and the legal regulation of the disciplinary power of employers is not discussed much in the academic circles.The imperfection of the system leads to the extremely disadvantageous situation of workers when employers punish workers on the grounds of enjoying the right of employment management.Compared with labor law,China’s civil code system is more sound and richer in content.Because there is a certain intersection between labor law and civil law,when there are deficiencies in the regulation of disciplinary power of employers in labor law,it is an optional path to introduce the relevant contents of civil code into the restriction of disciplinary power of employers.The introduction of this paper describes in detail the theoretical discussion and judicial implementation of the disciplinary power of employers at home and abroad.Through the collation of the literature,this paper puts forward that it is more appropriate to set the legal basis of the disciplinary power of the employer as "contract".At the same time,based on the positive attitude of scholars to introduce the relevant contents of civil law into labor law for supplementary application,at the beginning of the entry into force and implementation of the civil code,this paper puts forward a new perspective to restrict the disciplinary power of employers from the perspective of the civil code when there are deficiencies in the regulation of labor law.The first chapter briefly analyzes the current situation of the use of three disciplinary means: salary deduction,job transfer and dismissal;Then it analyzes the defects of the restriction of China’s labor legal system on the punishment right of employers at the present stage,such as the lack of relief channels for workers’ rights and the vague standard of the current labor legal system on the effectiveness of enterprise labor rules and regulations;In addition,the protection of the rights and interests of platform employees under the background of new employment relations also makes the current labor law unable to apply.Through the analysis of the deficiencies of the labor legal system in the regulation of the disciplinary power of the employer,it paves the way for the supplementary restriction of the disciplinary power of the Employer from the perspective of the civil code.The second chapter discusses the significance of introducing the relevant contents of the civil code into the restriction of the employer’s disciplinary power,including the necessity and feasibility.The shortcomings of the current labor legal regulation provide an opportunity for the supplementary application of the disciplinary power in the civil code;The "right standard" of the civil code is consistent with the value concept of "worker’s right standard" in the labor law.Some behaviors of workers themselves have the color of civil law system,which also shows the feasibility of restricting the disciplinary power of employers from the perspective of the civil code.It should be clear that the civil rules in the civil code are only supplementary application,that is,their application should have certain preconditions.When the labor law itself can solve labor disputes,the rules in the civil code should not be applied.The third chapter discusses the specific path of the restriction of the basic principles on the disciplinary power of the Employer from the perspective of the civil code.The common principles of civil code and labor law and often applied in labor disputes are the principle of good faith,the principle of fairness and the principle of public order and good customs.Therefore,this chapter expounds the specific path of their differential application.If the application of the above principles is involved in labor disputes,it should not violate the basic spirit of the labor law,take relevant factors into account in combination with the characteristics of labor disputes,and should not blindly expand the scope of application of the basic principles,All disputes between the employer and the laborer are defined as labor disputes,which can be applied in full accordance with the thinking of the basic principles of labor law.The fourth chapter puts forward the application of specific rules restricting the disciplinary power of employers from the perspective of civil code.As for the rules of civil conduct,by analyzing the differences between the two parts of civil conduct rules of breach of contract and infringement in the context of labor law,this paper clarifies the boundary of employers’ punishment to workers.The determination of workers’ breach of contract and the responsibility for breach of contract should be measured according to the spirit of labor law.The improper exercise of the employer’s disciplinary power may infringe on the worker’s personality right;For private relief,we should recognize the legitimacy of workers’ private relief,but it should also have a reasonable boundary.When the worker does have a fault,we should examine whether the employer also has a certain fault in the worker’s tort,so as to avoid the excessive disciplinary behavior of the employer. |
