【作者】 罗毓莉；

【导师】 孙学致；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 劳动合同单方解除是劳动法的重大课题,长期倍受当事人和劳动立法、司法机关的关注。现行《中华人民共和国劳动合同法》规定的劳动合同单方解除更趋完善,但仍存在待进一步解决的问题,如大多许可性条件的判断标准过于笼统,未引入除斥期间、预告期单一僵化、裁员标准缺乏科学合理性及劳动者预告辞职的限制性条件不具可操作性等。因此,需要通过比较和实证相结合的方法,进一步界定试用期不符合录用条件等许可性条件的判断标准,在即时解除中规定当事人应在知悉可解除事由之日起一定期限内行使解除权,用人单位对于被迫辞职的劳动者造成损害的应承担违约责任,应扩大服务期的适用范围,在竞业限制中应明确经济补偿标准、违约金数额核定标准及履行竞业限制义务以支付对价为前提,还应依劳动者年资、可替代性等设定不同期限的预告期,从而明确立法完善方向,寻求司法补救措施,推动实施细则的尽快出台。更多还原

【Abstract】 Discharging the contact of service unilaterally is the volition of the party who has the right to discharge the contract to terminate the labor relations, which is the most important link in the process of the management of the labor agreement and the key issue of labor law. The right of setting aside the contract influences the effectiveness of the contract of service as well as protection the rights of the parties.Comparing with the other countries and areas, the regulations of the labor law of P.R.C on the discharging the contract of service unilaterally still needs to be consummated. Its flaws result in the labor disputes flourish.According to the party discharging the contract of service, it could be classified in two categories: the contract discharged by worker or by the employer. The contract of service also may be sorted as the contract discharged promptly or the contract discharged in advance. Based on the regulations related in The Law of Labor Contract of P.R.C, the thesis studies roundly the subject that the party of the contract of service sets aside the contract unilaterally according to the categories mentioned above. Combining with the problems appearing in the judicial practice, the thesis discusses the following subjects: the employer discharges the contract of service promptly or discharges in advance, the employer reduces the staff trimmer for economic reason, the employee discharges the contract of service promptly or discharges in advance. The thesis puts forward the suggestion and opinion to perfect the related statutes.When the employer discharges the labor contract promptly, it should clearly specify the standard to determine the circumstance suitable for discharging of contract, such as incompliance with recruitment conditions, seriously violation of the employer’s rules and regulations as well as investigation of criminal liabilities according to law, that’s to say, it is necessary to make procedural and substantial limitations for recruitment conditions, when the employer’s rules and regulations are applicable, we should firstly examine whether such rules and regulations are valid and effective and determine whether the employee has violated the rules and regulations seriously from the subjective and objective aspects, while the employees being investigated for criminal liabilities should be distinguished between work-related criminals and non-work-related criminals for treatment. Meanwhile, the procedures of discharging the labor contract promptly by the employer should be further consummated; at time of dismissal, the employer should inform the employee of the dismissal reason by means of interviewing and the employee is allowed to make an explanation, which should be a necessary procedure for dismissal. Besides, the employer should inform the employee of the dismissal intention within a certain period from the date when the employer should have known the legal reason for prompt dismissal, otherwise, if such legal period expires, the employer’s right of prompt dismissal should be null and void, the labor contract should not be discharged for the same cause afterwards, i.e. the scheduled period will be introduced.In case of contract discharged by the employer in advance, the key concepts of unsuitability for job and material change in objective conditions are defined too widely, thus the objective factors, such as whether the employer has set up reasonable assessment system, any warning has been given to the employee before determination of unsuitability for job and any reasonable time has been provided to the employee for improvement, should be taken into full consideration to determine the unsuitability; while the material change in objective conditions represents the principle of circumstance change applied to the labor contract, the changes of legal representative and business scope should not be deemed as material change of objective conditions. During the period of notice in advance, there is still complete labor relation between the employer and the employee, and the employer should not withdraw the notice of dismissal randomly before the expiration of notice period. Besides, it should be provided that on basis of the minimum annual salary during the period of notice, the employer and the employee are allowed to agree on a notice period with priority in application based on the legal shortest notice period, the employee is also permitted to seek for a new job during the notice period.In the staff trimmer for economic reasons, the employer should establish a scientific and reasonable standard of staff trimmer focusing on the assessment of the employees, the employees of high production proficiency may stay for work with priority, while the employees of the same proficiency may be considered to stay for work according to Article 41 of the Labor Contract Law. Moreover, the importance of establishment of fair and reasonable staff trimmer procedures should be pointed out, and the staff trimmer in violation of such procedures should be deemed as invalid so as to protect the interests of the employees.In the contract discharged by the employee promptly, the standard to determine that the employee is entitled to resign promptly should be specified further, i.e. not only any illegal act or breach of contract committed by the employer but also the serious influence brought by the same to the normal life of the employee, which causes the failure in the purpose of the contract, should be taken into consideration. If the employee is forced to resign due to the fault of the employer, the employer should assume the liabilities for the breach of contract correspondingly for the loss suffered by the employee, including the remuneration anticipated to be acquired by the employee during the term of contract not performed and other actual loss, not limited to the economic indemnity. While the employee should propose to discharge the labor contract within a certain period from the date when he should have known the cause for prompt resign, otherwise he should be deemed to waive the right to investigate the employer’s fault.In the contract discharged by the employee in advance, the employee may exercise the right to resign in advance according to law, which should not constitute any breach of contract or tort, and he should not bear any liability for breach of contract or tort. The employer should not restrict the employee from exercising the right to resign in advance according to law by means of penalty, but the employee may waive such right voluntarily as per his true intention. The recruitment fee, training fee as paid by the employer during the probation period should fall into the category of venture investment, thus the employer should not require the employee who resigns in advance to assume the same. The employer may restrict the employee from exercising the right to resign in advance by means of service term and prohibition of trade competition, but the employer should enlarge the application scope of service term and fix up a maximum term of service, besides, the employer should specify the economic indemnity standard for the prohibition of trade competition and determine the amount of penalty according to the fair and reasonable principle, pointing out that the employee’s performance of prohibition of trade competition duty should base on the consideration paid by the employer. Moreover, the employer should fix up the notice period of different terms as per the substitution effect of the employee.更多还原