Research On The Legal Regulation Of Disciplinary Right Of Employer

In order to maintain the business order of employers,the law gives employers the right to formulate labor regulations.When a worker violates labor discipline,the employer can punish him in accordance with the rules and regulations.However,since the abolition of the "Regulations on Rewards and Punishments for Enterprise Employees" in 2008,China’s labor legislation has not clearly stipulated the disciplinary system of employers,which has caused the abuse of disciplinary powers of employers,harmed the legitimate interests of workers.Therefore,it is necessary to study the legal regulation of the disciplinary power of the employer.As for the source of the disciplinary power of the employer,there are currently four viewpoints: the theory of inherent rights,the theory of contracts,the theory of legal norms,and the theory of maintaining corporate order.Through the analysis of the above theories,it is concluded that the right of punishment of the employer is to punish the workers who violate the labor discipline in the unit to achieve the purpose of maintaining the order of the unit.However,based on the principle of non-abuse of rights,the principle of guaranteeing the basic human rights of workers,and the principle of substantial equality,it is necessary for legislation to regulate the disciplinary power of the employer.In order to achieve the purpose of maintaining the normal order of employers,protecting the legitimate rights of workers,and promoting social harmony and stability.However,through combing the current status of the employer’s disciplinary power legislation,it is found that the legislation only regulates the formulation of the rules and regulations of employers and disciplinary dismissal.This has led to many problems in practice,such as the arbitrariness of the disciplinary power of the employer,the lack of uniform standards for disciplinary reasons and methods,the lack of operability of disciplinary procedures,and the imperfect disciplinary relief system.Through the investigation of the legislative experience of the legal regulation of disciplinary power in civil law countries such as France,Germany,Japan,and Italy,it is found that:countries generally stipulate that employers of a certain size have the obligation to formulate employment rules.The labor legislation will set prohibitive norms for some special disciplinary measures.The court also gave a limited interpretation of the scope of the disciplinary matter based on the employee’s obligations.Emphasize the democratic participation system,the public announcement system and the disciplinary statute of limitations in the disciplinary procedures,and fully respect the right of workers to defend their actions.Through administrative review and judicial review and other relief channels to protect the rights of workers.Finally,strengthen legislation to regulate the disciplinary powers of employers.First,establish the basic principles for the employer to exercise the power of punishment,including the principle of legality,the principle of appropriate punishment,the principle of due process,and the principle of timeliness.Secondly,clarify the reason for the punishment of the employer and the reasonable scope of the punishment method.Employers should set disciplinary grounds within the limits of the laborer’s obligations,and punish the employees’ private actions only if they establish a reasonable relationship with the economic interests of the unit.Punishment methods should meet the requirements of legality,rationality and necessity,and disciplinary measures such as reputation penalties,job transfers,fines,etc.shall be regulated.In terms of disciplinary procedures,in addition to the need to perform democratic procedures and publicity procedures,the disciplinary subject must be neutral,set disciplinary links,and create disciplinary evidence rules and disciplinary statutes of limitations.Finally,give full play to the functions of the administrative supervision organs and improve the pre-filing and post-appeal systems.Fully incorporate disciplinary sanctions into the scope of arbitration and litigation,and strengthen the review of the legality of disciplinary sanctions.