Dismissal protection: Mainland China and Taiwan's comparative analysis

Keywords: dismissal / dismissal protection / labor contract

Summary: The employer or the employer to dismiss restrictions on the right called the dismissal protection, resulting in restrictions on the right of employers to dismiss the need for and the corresponding legal system. Taiwan, China for the fault of workers laid off due to the establishment of the scheduled period is very instructive, whether the fault of the worker's dismissal protection categories to divide the two sides of the consensus. Dismissal and dismissal of the right to prohibit the exercise of the right to limit the exercise of the right of employers to dismiss under the statutory prohibitions and restrictions. Dismissal protection notice period and compensation system is China's mainland and Taiwan are used, they have their own characteristics. Held employers liable for unLawful dismissal in the dismissal protection has an important significance.



By the employer or the employer to unilaterally terminate the performance of labor relations, labor contracts that act, commonly referred to dismissal. The employing unit or employer restrictions on the right called the dismissal of dismissal protection, such as Germany have a special << dismissal protection Law>> [1]

First, the dismissal of the knowledge and dismissal protection

Dismissal of workers have a significant impact on work and life in China mainland and Taiwan, the legal profession's consensus in Taiwan, China scholars cite the impact of three representative: "However, the dismissal may involve labor-based economic life loss or one by one in the next one has to reduce the unemployment relief system, workers can still find a new job in the case, will change labor has always been familiar with the working environment and conditions (and the home, if the unemployment or early retirement, the personal interests of the workers - by working to develop their personality eleven had a significant effect. "At the same time, dismissed the impact will be extended to the community:" they made on society as a whole, (especially in a large number of layoffs caused by the addition of unemployment lead to social Life anxiety, burden of social assistance expenditures, may also lead to related companies need to adjust the structure. "[2]

Dismissal is a direct relative of the employment rights of workers, direct legal consequences of unemployment of workers with the prevalence of the corresponding labor supply exceeds demand, is workers' hard to find a job post is no guarantee that "a common phenomenon in a highly labor-intensive society, a huge base of labor means that even a low unemployment rate also had a huge reserve army of unemployed. Unemployment is not only the unemployed themselves and their family incomes decline because decline in the quality of workers labor skills to stop work because of degradation or outdated, but also the unemployed and their family members suffered injuries in spirit, self-confidence and sense of accomplishment due to frustration and loss, and social communication as to leave the workplace and away. even family Stability is also facing a severe test, unemployed or laid off in the high divorce rates, among which males are unemployed or laid-off staggering one example. To put it bluntly: the impact of unemployment is the survival of the unemployed, unemployed family members survival and the survival of the family itself unemployed. [3]

It is based on the fact, also based on the fundamental properties and functions of Law, [4] for their own labor Law establishes a basic rule - easy to dismiss recruitment difficult, resulting in dismissal of the need for protection and the corresponding legal system. The rule functions to achieve the employer's commitment to a clear need, the resulting restrictions on the right of employers to dismiss the need for and the corresponding legal system [5]

Second, dismissal protection legislation in the form

Taiwan, China "Labor Standards Law," Article 11 and 12 respectively provide for the employer after notice and dismissed the case without notice, and a list of specific and clear manner. [6] China <

Listed in the legislation on the use of strength is specific and clear manner, both found in the application of appropriate legal rules, legislation can not exclude the matters listed in [7] that affect the employment rights of workers laid off, the latter of the more significant. cited the lack of methods cited is limited, difficult to meet the actual needs, pArticularly difficult to respond effectively to the many changes in practice this end, after some of the legislation to a more "law in other cases" reveal all and named "fallback provision." With this provision, the legislature but added easily, and also eliminates the "omissions" of concern, but the "fallback provision" is also "open terms" in eliminating the risk of omissions, they weave a large basket of law - What can the past, "other circumstances" in the installation, but also constructed a legal maze - and looking exhausted, "the law" uncertainty.

The difference is that China's Taiwan region will be dismissed after a notice of dismissal without notice on the front, using the worker's misconduct "light to heavy" arrangement. Mainland China uses a "severe to light" arrangement, highlighting the dismissal as a last resort, forced to whom the legislative intent the same time, Taiwan, China-style language to exclude the provisions of licensing cases, such as the beginning of Article 11 the term "non-a following circumstances, employers may not notice of termination of labor contract labor ", highlights the relevant content for limited legislative intent. mainland China in it is permissive language used, such as the beginning of the first 40 terms," ​​one of the following circumstances, may terminate the labor ... ... contract ", its effect is less context and language, especially the use of" no notice "and" Debu notice "(as the relevant provisions of Taiwan's guide to terminology, the case underlines the separation of two types of standards is that dismissal protection period, emphasized the importance of fire protection and worker misconduct, and corresponds to the severity of this legislation with mainland China is only provided for in Article 40 of the 30-day period of dismissal protection, in Article 39 does not mention the period, compared with the merits should be more.

Third, the way of dismissal protection

Taiwan, China dismissal protection legislation provides for the protection of four ways: First, limit the subject matter of dismissal, which occurs only when an employer subject to the statutory dismissal of the exercise of the right order to prevent employers from using free labor contract to achieve the purpose for dismissal, "Labor Standards Law, "Article 9 also specifically to have a fixed term labor contract was restrictive requirement that the" temporary, short-term, seasonal and sex-specific works for the fixed-term contract, there should continue to work for an indefinite contract. "Second, the provisions of the scheduled period, that is Article 12, paragraph 2 explicitly In addition to the 30-day exclusion period, the right to restrict the exercise of an employer to dismiss. Third, the notice period set for the workers find new work hours. Fourth, the dismissal was due to the reasons for employers, workers do not "may be attributable to" the causes and the subject, the employer has the obligation to pay severance pay.

In mainland China, the employer's obligation to pay severance pay to workers, employers expressed the grounds to pay economic compensation. Both legislation will be the fault of workers laid off due to circumstances out of the payment of financial compensation payment, but in for a fixed term labor contract expires dismissal is different. China's Taiwan region "of the Labor Standards Law" Article 11, paragraph 5, that "workers do the work for the incompetent as the time", Article 18, paragraph 2 expiry of fixed-term employment contract termination provisions, labor shall send notice to the employer requests additional wages and severance pay period. China's mainland will be terminated due to expiration of the contract labor provisions of labor contracts <> Article 44, paragraph 1 items, and article 46 of the Act, "the employer shall pay economic compensation to the workers' situation in the first (five states that the" addition to the employer to maintain or improve the working conditions of the contract to renew the labor contract, workers do not agree to renew the case, but in accordance with provisions of article 44, paragraph 1, provides that termination of fixed-term labor contracts. "In other words, the labor contract performance period expires, the employer should be equal to or better than the original contract conditions and workers under the premise renew the labor contract and only in the context of workers still do not agree to renew the lead to dismissal, the employer can be exempt from worker's obligation to pay economic compensation otherwise due to labor contract expires dismissal, the employer still must pay economic compensation to the workers. This provision for the employer's requirements are too strict, but is a last resort in the previous <> Article 23 provides that "labor contract expires or the parties agree to work termination conditions occur, the labor contract is terminated, "the employer do not bear responsibility for payment of financial compensation which the employer and the apparent benefit was fair and the terms of the employer is not made use, resulting in a large number of real-life short-term labor contracts in appearance, but also led to the development of <> had to go too far. [8]

Taiwan, China for the fault of workers laid off due to the establishment of the scheduled period is necessary. [9] there is no corresponding provision in mainland China, sometimes the fault of workers reflects the behavior of arbitrary punishment, and some wrongdoing has been a employer as a pretext for a long time dismissal of workers, and some repetitive behavior or even punished. These phenomena not only pose a threat to the stability of labor relations, labor enthusiasm of the workers and psychological adverse effects, but also due to the passage of time, the loss of relevant evidence, the personnel changes increase the difficulty of proof, which led to difficult decisions related cases, or difficult for the ruling party to accept the relevant fact, April 10, 1982 promulgated by the State Council , January 15, 2008 has abolished the <> Article 12 there is a similar provision: "the approval of workers disciplined time, confirmed that workers make mistakes from the date of sanction of expulsion shall not exceed five months, other penalties may not exceed three months. "State Council to repeal the ordinance because" <> was July 5, 1994 PRC Presidential Decree No. 28 published <> June 29, 2007 PRC Presidential Decree No. 65 published <> place. "[10] but whether it is <> or << Labor Contract Law>> are missing the scheduled period, or similar provisions.

Fourth, the dismissal of the subject of legal categories

Taiwan, China scholars, "Labor Standards Law" stipulates that the subject is divided into three categories of dismissal: "① derived from the employer side areas (Article 11 paragraph 1 to 4 persons, ② is derived from the labor field, but may be attributable to workers not The subject matter (Article 11, paragraph 5, ③ from the field of labor, and workers have to 'attribution' of the subject matter (article 12, paragraph 1. The former two are no different in legal effect (without the scheduled question period requirements to be notice, the employer must pay severance pay, but only derived from the different areas, the concept of clarity, still should be distinguished. The dismissal of the former two and the third subject, not only in the concept, and in have different legal effects (the latter with the provisions of the scheduled period, without notice, without payment of severance pay), the third since the dismissal of the subject and the former two should be differentiated. "[11]

In fact, "Labor Standards Law," only two provisions in the dismissal of the subject, that is, Article 11 and Article 12, which differentiate between two provisions of the standard is "not notice" and "have to notice." Provisions of such legislation legal representation for the three categories seems unclear, as the mainland of China <> and <> three terms are expressed in three kinds of events come to understand. "Labor Contract Law>> 39 of continuity is the <> Article 25, based on the premise of the fault of workers laid off provisions. which included money from the workers not only in the performance of labor contracts in the misconduct, and these irregularities or worker's conduct to the existence of subjective fault in mind. Thus, the employer does not require advance notice of dismissal pay, after the dismissal, without having to pay financial compensation to facilitate would be singled out this clause, and setting the first place, namely that the dismissal is the employer of last resort used, and stressed the workers implemented a subjective fault behavior in dismissal of the legal consequences which can distinguish the second case, the <> Article 40 (continuation of the <> Article 26 under the circumstances. which can be attributed to the subject matter is still in Taiwan, China scholars, "is derived from the labor field, but may be attributable to workers not the subject", but in mainland China but do not think so . the terms of China's mainland scholars to be interpreted as a result of the workers' objective is not "caused, as distinct from the former provided the worker has a" subjective fault ", and with 30 days notice and must pay economic compensation and terms with the previous real difference.

Next <> 41 is the continuation <> Article 27, provided the content for the economy of layoffs, or "no-fault dismissal," that which involved Content is neither subjective fault of workers, nor the objective can not. the workers, the Unbeatable performance in the labor contract, employers can not find any alternative to dismissal, but dismissal is still to happen. China mainland scholars such cases is not simply attributed to "sources from the employer side area", but rather to highlight their performance that has nothing to do with the workers, for workers in the labor contract rights constitute a fundamental impact on the situation, so Not only must give 30 days notice and pay economic compensation, but also must "to the trade union or all employees to explain the situation, listen to the views of trade unions or the employees, report to the labor administrative department, after such cuts. the employing unit staff reductions pursuant to this article within six months, hiring staff, should give preference to retrenched staff ."(<< Labor Law>> 27) "20 people need to cut staff or cut less than twenty people, but the total number of enterprise employees account for one hundred more than 10 parts per the employer 30 days prior to the trade union or all employees to explain the situation, listen to the views of trade unions or the employees, cuts solutions to the labor administrative departments, such cuts, "" cuts, the priority should be retained the following persons: (a) entered into a long period with the unit's fixed-term labor contracts, (b with the unit entered into a non-fixed term labor contract, (c family no other employment, there is need of support for the elderly or minors The. "And the employer" re seeking to hire workers within six months, it shall notify the laid off personnel, and under the same conditions to be laid off first recruit staff. "[12] the need for such provisions Taiwan, China scholar Huang Yueqin has argued: "The existing Labor Standards Law for redundancy dismissal, regardless of the number of British apply the same conditions and procedures, then a large number of layoffs, the owners concerned, easily lead to serious social problems, should have special specification and procedures to reduce the impact. "[13]

Fifth, the exercise of the right to prohibit and restrict fire

The right to prohibit the exercise of dismissal is dismissal of the employer the right to exercise the statutory conditions of success cases, except as provided by law to prohibit employers from exercising the right of dismissal. Dismiss the exercise of the right to limit refers to the dismissal of an employer in the exercise of statutory power, the law should follow the other statutory restrictions conditions.

Taiwan, China, some scholars the "difference of discrimination dismissed" as the first fire restrictions, but also admitted that "we in the labor law, there is no requirement for the principle of equal treatment, so based on origin, gender, politics, religion, social status ... ... the validity of the grounds of dismissal, lack of clear basis. "[14] Mainland China <> Article 12 states that the" employment of workers, not because of nationality, race, gender, religious belief discrimination. " Di 13 of a proceeding under special protection for female workers of the spirit of the legislation provides that "women enjoy equality with men in employment. while recruiting employees, in addition to state regulations not suitable for women of Gongzhong or positions, is not allowed to refuse to employ women or raise recruitment standards for women. "Article 14 specifically provides for special groups," the disabled, ethnic minorities, the employment of military personnel discharged from active service, laws and regulations have special provisions shall prevail. "and has developed a Some specific laws, rules and regulations.

"Occupational Health hazards during fire restrictions," China's Taiwan region, "Labor Standards Law" Article 13 and Article 59 provisions in the occupational Health of workers, employers may not terminate the contract, which in our continent <> dismissal protection provisions of section 42, respectively, as three banned Subject: "(a job involving exposure to occupational hazards before workers are not to undergo occupational Health screening, or diagnosis of patients suspected of occupational disease or medical observation, ( two in the unit and is recognized occupational disease or injury totally or partially lost the ability to work, (c illness or non-work related injury, the prescribed period of medical treatment, which was based on survival of special protection. "In particular, is the first one, did not extend protection to be undergo Health checks before engaging in occupational exposure to occupational hazards of workers and jobs in the diagnosis or medical observation of patients with suspected occupational diseases, suffered not only effectively protect the occupational injury workers, but also to curb the employment of the employer to replace the way to continue to create potential occupational diseases, but also continue their bad behavior to the society. The content is original <> that are not say that it is <> one of the highlights.

"During the women to stop working before and after birth limits dismissal" is China's Taiwan region "of the Labor Standards Law" Article 13 and Article 50 of the content of scholars known as the "right to life is based on the protection of labor" [15] which in our Continental <> Article 42 provides that for the first 4 "female workers during pregnancy, childbirth, breast-feeding," and its protection time than China's Taiwan region "of the Labor Standards Law" longer. "Labor Standards Law "Article 13, but there is a proviso," but the employer, natural disaster, incident or other cause of force majeure can not continue to cause, by the competent authority for approval, unless. "thus narrowing the scope of protection even <> does not recognize employers for their own reasons, to comply with exemption female workers during pregnancy, childbirth, breast-feeding prohibition of dismissal protection obligations, but because of the limits of Article 42 and Article 40 of the 41 case, which is limited to workers 'objective can not "and" economic layoffs "are two cases, did not involve Article 39 of the Act are set out in workers' subjective fault" situation. This is a continuation of the terms <> Article 29 and consistent with fact, in the "Labor Law>> the implementation process, not related to the different justice rare. [16] Indeed, in particular women workers during the period of special protection, the modern society should be more humane, more human and more tolerant, because the period of special protection for women is a fundamental protection of human society, protect mothers and babies is fundamental safeguard the future of human beings, so the author claims that the above is: unless the loss of personal liberty in breach of criminal law to prohibit female workers during pregnancy, childbirth, breast-feeding during their dismissal.

"Labour dismissed because of illegal employer complaint limit" in Taiwan, China "Labor Standards Law," 74 and "Safety and Health Law," the provisions of Article 30 are the former clear "violation of labor found that this law and other institutions When the labor laws and regulations may apply to the employer, the competent authority or inspection body complaints. The employer shall not labor for the complaint to be dismissed before the entry, transfer or other disadvantage points. "The latter is more specific in six months time limit:" Labour institutions found violating this Act or the provisions on safety and health may apply to the employer, the competent authority or inspection body complaints. employer within six months of absence of sufficient reason, the preceding paragraph shall not be dismissed complaints of labor, transfer or Other disadvantages of points. "necessity and importance of such provisions, meaning to say the least. mainland China in the relevant provisions of special legislation does not specifically, but it seems to include the <> referred to in Article 48" Employers who violate this law dissolution or termination of labor contracts ", it also seems to be attributable to section 42 of the Act," (six laws and administrative regulations of the other cases "provisions into such an open course, in the future legislation, special provisions have to be a separate type is necessary.

"The dismissal of anti-union conduct restrictions" from Taiwan, China, "Trade Union Law" Article 35 and Article 37, expressed as an employer or his agent shall not workers in trade union offices, refusing to hire or dismissal and other adverse treatment In labor disputes, employers to workers or their agents shall not participate in the labor dispute as the reason for dismissal. Taiwan, China scholars call "namely the so-called 'lawless behavior of the labor ban', but also an important part of the Department of dismissal protection." [17] Mainland China, not only in the "Labor Contract Law>> Article 30 gives the unions an important function in dismissal protection, but also in the" Trade Union Law "clearly provides for the union office to provide special protection provisions that Article 18 of the Act provides: "grass-roots trade union full-time chairman, deputy chairman or member from the office of the date of its labor contract automatically extended for a period equal to his tenure, part-time Chairman, Deputy Chairman or members from office the day since it has not been fulfilled in the short term labor contract, labor contract period automatically extended until their term expires, but during his tenure of serious negligence or personal, except statutory retirement age. "In other words, unless there because of" subjective fault "and the subject matter of the statutory retirement dismissal, the employer can not dismiss workers as trade union duties December 30, .2003 of Labor and Social Security Ministry under the <> and <> to develop" collective contract> > section 28 will be expanded to protect the objects of staff representatives to participate in collective bargaining, unless there are serious "subjective fault," the three cases, "workers' party negotiators in the performance of its duties during the consultation on behalf of the labor contract expires, labor contract automatically extended to the completion of negotiations on behalf of duties to perform when "the employer shall not terminate the labor contract with." party to negotiate on behalf of employees to perform duties during the consultation on behalf of, the employer shall adjust its work without justification. "

In mainland China, "the labor contract>> 42 at the <> on the basis of Article 29 adds," (five in this unit for over fifteen years, and the statutory retirement age from less than five years, "the situation. The new workers for the employer confirms the long-term contribution to employment is relatively difficult for elderly workers to provide a special dismissal protection, labor relations for a long period of stability and harmony is of particular importance significance.

Sixth, dismissal protection notice period

In China, Taiwan, dismissal protection provisions of the notice period, "Labor Standards Law" Article 16: the employer under the Act 11 and 13, but the book provides dismissal, notice period: (i continue to work for more than three months less than a year who, ten days notice of. (two to three years less than those who work more than a year, on the 20th of notice. (three continue to work for more than three years, at 30, notice of. workers access to the dismissal notice, in order to find a new job can work in this period of time leave out. leave time shall not exceed 2 per week of work time, leave full pay period [18]

Taiwan, China scholars, the meaning and purpose of the notice period is stated as: "an indefinite period, the continuance of the relationship between debt, eliminated in the form of contractual relationship, often with notice to terminate the contract of system design, in order to make the legal relationship of the contracting parties about to destroy, can be prepared in order to reconcile the solution may be due to the relationship between debt cancellation and the interests of the state changes that may occur in the typical labor contract to continue sexual relations cases, based on the 'employer of labor in the production organization to provide services', by the by students' employers' business interests of the organization 'and' dependent on wage labor for economic survival and family reproduction swing-based 'double feature, notice of the contractual relationship as the labor necessary to eliminate the usual procedure, the more its importance, especially in the employer terminates the labor party contract of the case, due to the loss of labor means work, which may form a major impact on economic life, is in the system, in addition to labor relations to eliminate the transitional stage of economic security outside - such as wage replacement function of unemployment benefits, etc. labor relations still exist even in the last renewal period to ask, for the sake of protection of labor, still a transition time to prepare the embedded system and the so-called notice of dismissal of the problem. "" rather more character to its name of 'dismissal protection' Moreover, he eliminate the labor contract system, when fully focused on the workers, rather than to protect the interests of employers. "[19]

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Dismissal notice from the "attributable to one occurrence of statutory subject matter, that the other party may terminate without notice" and "terminated by either party, regardless of whether it was attributable to one's own (including voluntary, as long as not attributable to the other party, it must be notice," the Contract extended to the principle of the labor contract in [20] the dismissal, as long as no person can be attributed to the other party shall be in a certain period of advance notice. More directly, if not because of the reasons for dismissal of workers, employers required notice.

Mainland China <> the relevant provision is "the employer 30 days advance written notice to the workers themselves" and "employing unit 30 days prior to the trade union or all employees to explain the situation." The scope encompasses in addition to because of workers' subjective fault "termination other cases, including" objective can not "and" economic layoffs. "in conditions, is still a place of accountability for the dismissal of distinction; in time, have the same standard of 30 days be seen that China's mainland dismissal protection notice for more protection.

It is noteworthy that an employer on the dismissal notice period to protect the wages of vicarious liability. "Labor Standards Law," Article 16, paragraph 3, "finishing touch like a special set of provisions": "Employers Weiyi Phase 1 provides that notice to ask termination of contract, should pay notice period salary. "This so-called reality of working life in Taiwan often dubbed the" buy notice pay. "[21] many scholars have criticized. Huangqin more stressed:" This requirement is on to be reviewed, in practice employers often cover the use of this provision, deliberately not be given notice and the notice period only wages, interest in the results of damage to workers, wages tend to not notice period can make up. "[22] Lin best and more direct criticism: "From the empirical point of view, with which provides that if a considerable degree of qualitative change 'notice to law enforcement during the same period as' the original intention of the policy, did not affect the employer notice of the obligation to pay wages during the under the premise of the anti indirectly encourage employers to comply with notice period without restrictions, and thus deprived of notice of the system is theoretically possible to play the function of protection of labor? "[23] and the German scholars of the same opinion as the support to China on Taiwan scholar Chen Jinquan "In practice, employers often cover the use of this provision, the intent is not to be notice to the notice period of only wages, the result of damage to labor rights, wages tend to not notice period can make up" the blame for the argument. [24] Lin Jia, and based on the theory "If notice of termination period is mandatory under the law in effect means that the deferred later, the employer who were not notice, because of force in the labor relations provisions within a period not to eliminate a logical result of the notice period must be second to the legal side was eliminated, in theory, an employer might be considered runoff delay in carrying out their assigned state workers when to follow the provisions of Civil Code section 487, without paying compensation requests derived from the labor service. "[25]

Mainland China's dismissal of the notice period starts at <working for one year in accordance with the employer to pay workers a month of economic compensation, and this so-called "1", it is the employer, "thirty days' notice" should also be paid workers 'wages. This is entirely China's Taiwan scholars' notice pay to buy "a portrayal of reality. Thanks to" N +1 ", the worker continues to work in the notice period, almost extinct.

However, life is always unsatisfactory, "N +1" there are "N +1" trouble. First, workers in labor arbitration and litigation claims rights on the grounds that the labor rights of workers, because employers may not payment of wages on labor rights of workers deprived Secondly, it seems more trouble: working in the "thirty days' notice of any day within the employing unit: I was sick! Even worse is the report of the employers: I had suffered a work-related injuries! While employers in shock, but the statutory period of medical special protection provisions and injuries, but who also can not contrary to the.

As a result, employers in the <> comments expressed during the strong demand, "Labor Contract Law>> also" Labor Law>> added to Article 26 of the "N plus 1" provision to Article 40 in its entirety is defined as: "the employer 30 days advance written notice to the workers themselves or pay an additional one month's wages of workers, you can terminate the labor contract." Here, "a worker or pay an additional After the monthly wage "to" buy notice pay, "legalized, statutory body, the employer's demands have been full of legal protection.

Seven, dismissal protection compensation

Taiwan, China called "severance pay" is based on the "Labor Standards Law," Article 17 and Article 16, paragraph 2. Taiwan, China scholars believe that the dismissal of severance pay "is the obligation of employers to protect the effectiveness of care derived from an obligation, by its legal nature of the dismissal of workers 'retirement subsidy' has the ethical function of the labor contract. "aimed at making the workers were laid off when not surprise, but can also be found before a new post degree of protection [26] The prerequisite is still "in the labor was not at fault, and terminate the labor contract by the employer or the employer may be attributable to the legal recognition or take a risk by its very subject matter of the legal, caused by the termination of labor contract of the occasion. "[27] to the amount of severance pay and seniority as the basis of calculation of the average wage, the employer's business in the same unit for one year, workers receive the equivalent of one month's average wage of severance pay, the remaining months or years with less than one year, calculated in proportion, less than a month to month were calculated.

Mainland China is called "economic compensation." In the <>, the economic compensation provisions and near Taiwan, China. The scope encompasses Apart from the workers' subjective fault "dismissal of the other cases, including" objective can not "and" economic layoffs. "In the conditions, is still a fire occurred in the attribution of responsibility for the distinction, in the amount on by the December 23, 1994 issued by the Ministry of Labor <> Article 11 provides for "economic compensation wage standard is the company to terminate the contract workers under normal production conditions the top ten months the average monthly wage. ... ... the average monthly wage of workers below the corporate average monthly wage, according to company standards of the average monthly wage payments. "

These provisions in the <> have on the demands of employers and workers have considered the new changes. Article 46 of the Act made clear on the scope of application by the employer "made to terminate the labor contract workers and with the consensus of workers labor contracts, "and should pay economic compensation to the workers. Article 47, paragraph 1, provides that" financial compensation by workers in the unit's work life, to pay one month's wages for each year the standard paid to the workers. more than six months less than one year, according to a yearly basis, less than six months, pay half wages to workers in financial compensation. "altered <> "work for less than a year by year the standard issue of economic compensation" requirement, to solve the practice of workers at work the day after one year of dismissal, the employer is also required to pay two months salary situation. and in Article 47, paragraph 2, of the monthly wage of workers employing unit area than last year's average monthly wages in the case of three times the maximum amount provided for payment, that payment of financial compensation standard according to average monthly three times the amount of wages paid, the payment of financial compensation not exceeding 12 years of age. These two restrictions are clearly favor the employer, and is also in line with the establishment of economic compensation legislative intent. allow workers to economic compensation form of access to high amount of labor law is neither the intention nor in line with legislation should promote economic development and social progress.

Eight, the legal responsibility of the illegal dismissal

Taiwan, China scholar Huang Yueqin pointed out: "We dismiss for employers of illegal workers, there are two points worthy of discussion. The first point, the employer for the dismissal of workers regardless of the legal meaning of that law, shall be effective immediately, and the raw form of the effect," he that such a rule to discard modern industrial countries, and holds that the legal mechanism should review its procedures mean that legitimate or not, legitimate or not before the employment relationship remains undetermined. "The second point was, there is no current law punishment provisions, causing some employers abuse of rights, wrongful termination of labor contracts, lack of administrative authority to deal with the basis for making labor can only be resolved through legal channels, often dragged on for a long time, affecting the workers of the right to work to the giant. "proposition stipulates that the employer unlawful termination of labor contract is invalid, and gives workers the right to request to continue working, while giving employers the right to choose to workers returned to work or pay compensation. [28]

In Taiwan, China lawyers Wu Xinkui <Civil liability. they were as follows: ① for mediation. the legal basis for the "Labor Standards Law" under Article 74 right to appeal, "but in such a way to resolve disputes between employers and employees, not the most effective way, unless the labor that through a coordinated manner, there are ways to solve the problem, or if employers insist, do not accept the mediation, even if the employer company under an administrative penalty, but still can not labor rights are protected. "[29] ② bring a Civil action . workers can claim the right to have two: a request to confirm the existence and termination of labor relations and labor contract request to the severance pay. and that "illegal employers to dismiss workers if the labor court to sue in Civil court, is the ultimate, most effective way of protection. "[30] The second is held criminally responsible. Held by the legal basis for the "Labor Standards Law," in violation of section 78 of article 13 at the 30,000 yuan fine provisions.