【作者】 王皎皎；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 博士

【摘要】 在现实生活中,劳动关系的存续与否是劳动者生存权和发展权能否实现的决定性因素。劳动者依赖劳动关系的存续赚取生活费用,并通过劳动关系体现自己的社会价值,故而被解雇就意味着劳动者生活资料和自身尊严的丧失。因此,没有合理、正当的理由,用人单位不得将劳动者置于脱离劳动关系的状态。解雇保护制度便是针对用人单位作为劳动合同当事人一方的“劳动合同不当解除行为”进行的公法干预。解雇是用人单位单方面解除劳动合同、终止劳动关系的一种方式,但在我国现行劳动法律制度中,由于长久以来将“雇用”以及“解雇”等相关词语与资本主义剥削制度联系在一起,致使上述词语成为一种忌讳使用的术语。因此,本文首先对解雇的概念、类型以及解雇保护制度的特征进行阐释,并简要论述了伴随解雇实践而产生的解雇保护制度的发展历程。尽管我国已存在规范企业经济性裁员的相关规定,但是用人单位单方解除劳动合同的救济方式仍然是典型的私法范畴内的事后救济,属于事前救济的解雇保护的制度缺失难以使劳动者获得相应保护。本人认为劳资关系在实然上处于不平衡状态,而解雇保护制度正是实现实质正义的重要途径。基于此,本文通过对解雇保护法理的阐述,在比较分析、借鉴吸收英、法、德三国解雇保护制度理论与实践成果的基础上,紧紧围绕解雇的实质要件和程序要件展开论述。在此基础上,文章主要提出了以下观点:其一,我国应完善解雇预告期和合理适当的移植劳动保全机制,并提供了具体的设想;其二,我国解雇要件的法律规范不足,应对解雇保护制度进行完善,并针对实际情况,创建具有中国特色的解雇保护制度,从而形成劳动合同法与解雇保护法相互配合的劳动法律制度,使用人单位不当解雇行为的发生率降至最低,真正起到保护劳动者权益和稳定就业的作用。更多还原

【Abstract】 The essence of China’s social labor problems is the protection of labor rights within the labor relations.The most besic rights of labors are the rights to subsistence and work, and the realization of these labor’s rights depends heavily on the existence of the labor cntract relationship.Dismissal is a form of terminating a labor contract which determines the existence of the labor cntract relationship.If the employer can dismiss labors arbitrarily and put the labors in the situation out of the labor relations without rationable reason,whose actions are working against the right to work, the right to survival, individual dignity and the right to pursue one’s own happiness, and then the labor legislation needs to provide forceful relief and protection.Based on this,discussing the protection against disimissal system become an important and essential part of the labor law research.This thesis is divided into five chapters without the introduction:The introduction introduces the motivation and significance,the study current situation and range,and the research methods and train of thought.Chapter I clarifies the basic issues of the protection against dismissal mainly,such as concept and connotation etc..Alough the relevant provisions of China’s“Labor Law”and“Labor Contract Law”limit the employer’s firing practices,but did not form a complete protection against dismissal system which safeguarding the legitimate rights and interests of labors. At the same time, scholars of the dismissal and the protection against dismissal is also related to differences in understanding of the concept, and there are also differences in the use of the concept of the dismissal and the protection against dismissal. To this end, a clear connotation of dismissal and protection against dismissal, and froming a historical perspective on the protection against dismissal system, are the logical starting point to study China’protection against dismissal system. Dismissal is the employer for some reason unilaterally terminate the labor contract or the fact of termination, including the notice of dismissal, summary dismissal and redundancy. In addition, China still exists the fact that has the same elements but not identified as the dismissal. These facts does not apply the relevant legal institutions of protection against dismissal, with leaded to the legitimate rights and interests of labors are violated no lawless. Therefore, the dismissal should also includes two parts: be forced to resign and compensable terminate the labor contract.At last, through exploring the development process of protection against dismissal system,the chapter concludes that protection against dismissal system has the following two characteristics: public law adjustment combined with private law adjustment, procedural law combined with substantive.Chapter II expounds the legal theory of the protection against dismissal. First, the thesis analyzes and complies the three current academic theories of protection against dismissal,namely dismissal at-will, just cause and dismissal right abuse.And the thesis think that the protection against dismissal do not originate from the very limpid,very clear and logic rigorous logical legal principles,but is the reflection and answer for“fair and judstice”and“freedom and efficiency”which shoud be the priority protection in the socio-economic development. Second, the thesis analyzes the legal nature of the dismissal for redundancy from different angles. From the perspective of labors, the dismissal for redundancy belongs to dismissal category;judging from society angle, the dismissal for redundancy belongs to large-scale dismissals category; from the perspective of legal regulation, the dismissal for redundancy is regulated by the labor contract law and special law. At the same time, the thesis considers that in judicial practice, a growing number of employers to terminate the labor contract by the way of consultation to avoid legal regulation of their dismissal practices, in order to achieve the purpose of cutting down the staff. This consultation should be built to lift the parties on a voluntary basis of equality, however, the dismissal for redundancy is based on the employer side’s intention.And this condition leads to the procedural conflict between the employer involuntary and the employee involuntary. At last,the thesis concludes that the legal theories of dismissal should not be limited to the legal theory of dismissal for redundancy and the legal theory of dismissal of the abuse.We shoud identifies the relevance theories of the forced to resign as the theory of intending to dismissal. Based on the analysis of the meaning, the nature and behavior criterion standard of the intending to dismissal, the thesis points out that the intending to dismissal is the the labor’s resignation which is based on the employer’s subjective intent to dismiss, which has restrictive.Chapter III is the detailed analysis of the substantive elements of dismissal. Also known as the just cause of dismissal,the substantive elements of dismissal is“Under the specific conditions of cases and the interests of both the contract,any fact that make the employer can not by law, collective agreement, the contrct period or the notice period of special labor contract, continue to employ employees”.By comparing the relevant provisions of the substantive elements of the world, the thesis thinks that the cause of dismissal can be divided into the economy origin of an incident and the origin of an incident of people. Economic reasons can be divided into the crisis withdrawal type and the strategy rationalization type.The origin of an incident of people can be divided into person-related dismissal and conduct-related dismissal.The thesis examines the Germany’s unfair dismissal, French discharge immediately and American dismissal at-will,and founds that China’s labor legislation confused the matter of the origin of an incident of people between summary dismissal and notice dismissal. The origin of an incident of people of summary dismissal should be the labor’s fault or misconduct behavior, but the origin of an incident of people of notice dismissal including three kinds:inability, lack of capacity and lack of qualifications.At the same time,the thesis thinks that, in judicial practice,the judge should be deteminne labor’s subjective intent as the premise to judge whether the fault act is a cause of summary dismissal, and labor legislation shold requires employers to limit the time of exercise of the right of summary dismissal.Through analyzing the type of the origin of an incident of people of notice dismissal,there are some common can be summarized: the objective reasons can not attributable to both parties, after the processes of re-coordinating the interests of both parties and exploring the new interests balance point, various harmony of interests measures can not be effective.And the thesis suggests that employer should follow three principles when he exercises notice dismissal according to the origin of an incident of people:inverted burden of proof principle, predictability principle and benefit balances principle.Chapter IV discusses the procedure elements of dismissal.Dismissal should be a legal way.The protecton against dismissal ask for the notice dismissal and the redundancy should have both the substantive and procedural elements. The employers whether or not following the dismissal procedures determines how the effectiveness of dismissal behavior, and without adopting the reasonable and legitimate procedure the dismissal behavior is invalid. This chapter is divided into four parts.The first part is the general procedure elements of dismissal——dismissal advance notice scheduled time.This part discuses the value of the dismissal advance notice scheduled time, and thinks that dismissal advance notice scheduled time creats the preparatory period of the termination of labor relation,and gives labors the right to be a paid job seekers,and becomes the necessary mean to guarantee the labors’right to work totally.Comparing with the national legislative provisions of the well-developed comparatively protection against dismissal system, this part finds that there are many defects of our current dismissal advance notice scheduled time which is not conducive to protect labors.The second part is the special procedure elements of dismissal——the payment of“three financial award”.Basing on the respection of labors’personality and freedom,the payment of“three financial award”is the substantive protection of dismissed labor’s rights and interests, and violating this procedure will lead to dismissal invalid.The third part describes the other countries’worth learning and special provisions,such as Pink Slip,discuss face to face in advance, notify the competent administrative department of labor, Changing of the Job Agreement and Social Plan.Finally, this thesis analyzes China’s legislative defects of the procedure elements of the protection against dismissal,and suggests specific predictions.Chapter V is the reconstruction of the protection against dismissal system in China. With the evolution of the contractual labor relationship, the protection against dismissal generated from this process in which the relation between labors and employers is continued confrontation and cooperation, and it is the result of labor legislation’s seeking to protect labors’right to life and dignity. The protection against dismissal is rstrainted by market forces when safeguarding the public interests, in other words, it should take into account the reasonable and good causes for the employers to dismiss the employees, the employer’s lawful business interests and the decision-making right in operation and management. Meanwhile, the protection against dismissal system interweaves the procedural law and substantive law suitably. On the establishment of the protection against dismissal system, this thesis has two suggestions:audit program for the dismissal legitimacy, and stipulating specific penalties for unfair dismissal.At the same time,on the notice scheduled time which is regarded as one procedure element,the law shoud give to the labor contract both parties the right to ascertain the reasonable notice period by consensus;the law should set the notice period flexibly according to the labor’s job character and job fixed number of years; the law should regulate the labor’s option when the emloyer terminated the labor contract by violating the notice duty;the law ought to stipulate that the labor can leave to find a new job in the notice period.At last, this thesis considers that China should perfect the the procedure elements of dismissal by improve the proceedings,and transplant the action mechanism of preservating work into labor dispute lawsuit.更多还原