An Empirical Study On The Termination Of Employment Contracts By Elimination Of The Least Competent By Competition

Article 29 of The Minutes of the 8th National Court Trial Work Conference on Civil and Commercial Cases-Part of Civil Cases(hereinafter referred to as the “Minutes of the 8th National Conference”)explicitly stipulates that an employer’s unilateral termination of an employment contract,in the name of “elimination of the least competent by competition”,is an illegal practice.Yet unfortunately,the Minutes of the8 th National Conference is neither a judicial interpretation in essence,nor can it be invoked in judgments;in addition,the verdict of current laws on“elimination of the least competent by competition” is far from being clear;not to mention the fact that the current labor laws in China are rather rigid in terms of the statutory termination of labor contracts,which cannot adapt to the current social development.All these factors have incurred great difficulties and disputes when judges hear cases on the practice of“elimination of the least competent by competition”.Despite the various controversies of such practice in our country,it is undeniable that it has brought a myriad of benefits to China’s economy,and we should by no means discard it simply because of its innate problems,instead,we should explore solutions to these problems in an active manner.In light of the fact,the primary purpose of this research is to explore a win-win situation for both employers and employees,which will protect the legitimate rights and interests of employees on the one hand,and maintain the employer’s autonomy to dismiss unqualified employees reasonably and legally to ensure company’s operational efficiency on the other.This research analyzed 90 cases of “elimination of the least competent by competition” in the year 2021,supplemented by typical cases in other years;by virtue of the empirical case study method,this research has come to the conclusion that in an effort to create a win-win situation for both parties,not only should the legislators localize the practice of“elimination of the least competent by competition” in China,but also the judiciary,administration,employers and workers should cooperate in multiple aspects.