Research On Legal Regulation Of Retaliatory Dismissal

With the rapid development of economic globalization,the market competition is becoming more and more fierce,and the social division of labor is becoming more and more refined and specialized.Labor relations have become one of the most basic social relations in social development.The survival guarantee and stable employment of workers are related to the long-term stability of the country,while the dismissal behavior directly affects the workers’ right to subsistence and development.Therefore,in order to stabilize employment and protect the legitimate rights and interests of workers,China has established a dismissal protection system within the framework of the labor law,which is mainly composed of the Labor Law and the Labor Contract Law,and has clarified several legal rescission rights of employers and the situation of prohibiting the termination of labor contract.However,at present,there is a kind of retaliatory dismissal in practice in our country,which infringes on the basic rights of workers and social public interests at the same time.It is because the workers exercise a certain basic right or perform a certain legal obligation during the existence of labor relations.Although it is beneficial to the social public interests,it is against the will of the employer,so the employer has the purpose of retaliation and unilaterally dismissing the laborer.China does not prohibit retaliatory dismissal in the legal level,and lacks substantive and procedural norms.In practice,the dispute settlement agency just mechanically apply the existing legal dismissal mode in our country,that is,they deal with retaliatory dismissal according to the substantive norms and procedural elements of illegal dismissal,while ignoring the particularity of retaliatory dismissal,thus failing to provide effective relief and protection for workers.Therefore,the legal regulation of retaliatory dismissal needs to be improved.Based on the definition of retaliatory dismissal,this paper analyzes the concept and characteristics of retaliatory dismissal in detail,and briefly discusses the necessity of legal regulation of retaliatory dismissal.Based on this,this paper focuses on the substantive and procedural elements of retaliatory dismissal.By analyzing and absorbing the legislative and judicial experiences of the United States,Britain,Japan and Taiwan Province,this paper focuses on the legal regulation of retaliatory dismissal in China,mainly in the types of behavior causes and the identification standards,the burden of proof,the legal responsibility and the protection system of workers’ accusation.Combined with our country’s reality,this paper puts forward some pertinent suggestions.First,identify the causes and criteria of retaliatory dismissal.Secondly,according to the particularity of retaliatory dismissal,we design reasonable rules for the distribution of burden of proof and specific standards of proof.Thirdly,to improve the legal liability of retaliatory dismissal,we should further strengthen the implementation of "continuing to perform the labor contract" and reconstruct the calculation method of "compensation" according to the actual damage of workers.Fourthly,a special system of workers’ report protection should be established in the field of labor law to provide timely and effective relief for workers.