Study on the System of Constractive Dismisal in Our Country
|School||East China University of Political Science|
|Keywords||Constructive dismissal Layoff Resignation Therights and interests of workers|
Constractive dismisal,as a west import, is reformed from the system of terminatethe labor contract unilaterally by employees. The essence of constractive dismisal is acontradiction for emplyees to terminate the labor contract unilaterally when theemployer violating the labor contract radically. However the legislation of our countryenhances the unilateral and instant right to terminate the labor contract but neglectsthe presupposition of fundamental breach of contract.This artical analyses from the concept of constractive dismisal,the theoreticllevel of resignation and dismission first. Then teases the legislation evolution of theconstractive dismisal system in our country and shows the evolution of laborcode,local legeslation and labour contract law in our country by timesequence.According that,divides the situation of constractive dismisal into minorbreach,serious violations and other illegal and reads the circumstances of the threetypes concerned then expounds the labour code principle and defect about those.Atthe same time, this artical introduces the constractive dismisal system in common lawsystem countries, Hongkong and Taiwan for contrasting that in our country to detectthe defects in our country. Also gathers and lists the cases of constractive dismisal toillustrate the defect in our country’s judicature and legeslation for correcting.According to the analysis, carding, reading, comparison, discovery andillustration, the author raises four specific proposals: o complet and refine the situation of constractive dismisal. To consider the emplyers’ seriousness andunintention of default. To limit the time of resignation and set notice perioud ofresignation. To aggravate and punish the illegal in constractive dismisal jointly.Thenwe can look forward to enhance the right for emplyees to terminate the labor contractunilaterally and give consideration to the premise of fundamental breach of labourcontract by employers at the same time in stracturing the constractive dismisal systemof our labour legeslation. By which the defect of constractive dismisal system in ourcountry can be eliminated, the system can be improved and the material equalitybetween employers and employees will really achieve.