Research On The Judicial Regulation Of Employing Units To Adjust Posts

In practice,there are a large number of cases in which employers adjust the jobs of the workers based on the production and operation needs,changes in the quality of the workers and changes in labor conditions.As a market entity,the employer is profit-seeking in nature,and the transfer is generally carried out in order to improve management efficiency and maximize economic benefits.The interests pursued by workers in the labor process include both economic and social interests,including good labor compensation,good working conditions,convenient commuting,stable family life,extensive social interaction and many other elements.A proper transfer can promote the common development of the employer and the workers,which can guarantee the employer’s flexibility in employing workers according to the market development and planning the allocation of human resources to maintain the competitive advantage in the market;it can also explore the potential of workers’ work and provide a broader platform for the realization of workers’ personal value.However,the improper transferring behavior of employers may lead to changes or even damage to the established interests of workers.When the conflict between employment autonomy and workers’ right to stable employment is difficult to reconcile,it will easily lead to labor disputes and affect the stable development of labor relations.China’s current law lacks special and direct regulations on transfer,and the current judicial practice mostly follows the combination of legality review and reasonableness review,and the adjudication idea of complementing legality with reasonableness.However,due to the lack of unified review standards,judges have a large discretion in the process of reasonableness review to weigh the employment autonomy and workers’ personal interests,which is prone to the phenomenon of inconsistent judgment.In view of this paper,it is of certain theoretical value and practical significance to study the judicial regulation of the transfer behavior of employers.In addition to the introduction and conclusion,this paper is divided into four parts.The first part examines the basic theory of transfer by employers and the sample of transfer disputes at present.By studying the concept,types and theoretical basis of transfer,the object of this paper is determined;by analyzing 151 cases of transfer disputes from Beijing,Shanghai,Guangdong,Zhejiang,Jiangsu,Shandong,etc.,which were concluded in 2022,it is found that the current transfer disputes have outstanding problems such as diversified causes,high proportion of labor contract termination cases due to transfer,and high appeal rate.The second part examines the current situation and dilemma of the judicial regulation of transferring behavior of employers.Through the analysis of the basis of the regulation of transfer and the effect of its implementation,it is found that the judicial practice presents the situation that the review standards of transfer are diversified and the courts’ views on adjudication are different,and the dilemma focuses on the inevitable conflict of interests between employers and workers and the difficulty of determining the nature of transfer.The third part analyzes the experiences of the UK,France,Germany,the United States and Japan in regulating the transfer of employees,and draw on the concept of contractual justice and benefit measurement in accordance with the actual situation in China,so as to seek a reference for the regulation of the transfer of employees in China.The fourth part puts forward optimization suggestions for the path of judicial regulation of transferring behavior of employers in China from the perspective of interest measurement.Firstly,we should establish the judicial concept of interest measurement and focus on resolving the conflict of interest in the transfer dispute by interest measurement;secondly,we should focus on the improvement of judicial discriminatory methods of transferring behavior by interest measurement,seeking the dynamic balance of interests of employers and workers through improving labor law norms,clarifying the review standards of transferring behavior and complementing judicial concepts,and practicing the concept of "double protection" in labor dispute trials.