劳动者被迫辞职制度研究

发布时间：2018-03-18 20:40

本文选题：被迫辞职　切入点：推定解雇　出处：《西南政法大学》2016年硕士论文　论文类型：学位论文

【摘要】：协调劳资关系为劳动法的重要任务,劳动者被迫辞职制度就是劳动法倾斜保护劳动者理念下的一种制度安排。由于劳动者被迫辞职的实质与表象相分离,带来了认定“被迫性”的困扰。认定劳动者被迫辞职的直接效果就是用人单位将承担经济补偿金的责任,但是劳动者主动提交辞呈的表象又会成为用人单位拒绝担责的抗辩理由。因此如何认定劳动者辞职的被迫性甚为关键。司法实践中,既有明显属于法律规定的被迫辞职的情形而司法机关却不认定的案件,更有类似的“煮饭阿姨被调做数控机工获万元赔偿”“史上最昂贵的清洁工”等认定难度更大的案件。学界对劳动者被迫辞职的理论研究远未臻完美,甚至对其认定要件的探讨也尚无一致见解。因此,本文的研究具有重要的价值和意义。本文除引言和结语外,从以下四个部分进行论证。第一部分从劳动者被迫辞职的界定出发,阐释其与相关概念的关系,突出劳动者被迫辞职实质与表象分离特征,强调劳动者辞职的被迫性。通过立法沿革的考察,旨在从历史脉络中把握我国劳动者被迫辞职制度的演进及其经验,为后文做出铺垫。以2008年《劳动合同法》为分水岭,首先分析劳动法规定所存在的问题,其次归纳出北京、上海、浙江、江苏、广东等地方立法的突破,最后指出劳动合同法在内容上的扩展。第二部分介绍了美国、英国、法国、加拿大以及我国香港和台湾地区的劳动者被迫辞职制度的相关规定。首先着重阐述了美国、英国、法国、加拿大在认定劳动者被迫辞职时确立的构成要件,强调用人单位对合同约定的根本性违反这个前提,为后文完善我国劳动者被迫辞职制度一般条款提供借鉴意义。其次香港和台湾地区的规定强调用人单位侵犯劳动者权益的可能性,为完善第《劳动合同法》第38条第二款提供借鉴意义。第三部分为我国劳动者被迫辞职制度存在的缺陷。在前文分析的基础上,分析我国劳动者被迫辞职制度存在的缺陷,主要是未区分用人单位行为的严重性、主观的恶意、未界定劳动保护和劳动条件的范围等,导致实践中司法机关在认定用人单位“未及时足额支付工资报酬、未为劳动者缴纳社会保险费及调整工作岗位”等情形时出现认定标准混乱的现状。第四部分为完善我国劳动者被迫辞职制度的建议。此部分针对现行制度存在的缺陷提出相应的四点完善建议,第一是认定用人单位之主观过错,第二是认定用人单位违约行为之严重性,第三是界定劳动保护和劳动条件的范围,第四是修改《劳动合同法》第38条兜底条款为一般条款,并阐述提出这些建议的理由和具体内容。
[Abstract]:The coordination of labor relations is an important task of the labor law. The system of forced workers to resign is a kind of institutional arrangement under the idea that the labor law favors the protection of workers. Because the essence of the forced resignation of workers is separated from the appearance, The direct effect of the determination that workers are forced to resign is that the employer will bear the responsibility of financial compensation. However, the appearance of laborer's initiative to submit his resignation will become the defense of employer's refusal to take responsibility. Therefore, how to identify the forced nature of laborer's resignation is the key. In judicial practice, There are cases where forced resignation is clearly provided for by law and not recognized by the judiciary, There are more difficult cases such as "auntie of cooking has been transferred to work as a numerical control mechanic to receive 10,000 yuan compensation" and "the most expensive cleaner in history." academic research on the theory of workers being forced to resign is far from perfect. Therefore, the study of this paper has important value and significance. In addition to the introduction and conclusion, From the following four parts to demonstrate. The first part from the definition of forced workers to resign, explain its relationship with related concepts, highlight the essence of forced resignation of workers and the appearance of separation characteristics, Emphasis on the forced resignation of workers. Through the investigation of the legislative evolution, this paper aims to grasp the evolution and experience of the system of forced resignation of workers in China from the historical context, so as to pave the way for the following text. Taking the 2008 Labor contract Law as a watershed, First of all, it analyzes the problems existing in the labor law regulations, then sums up the breakthroughs in the legislation of Beijing, Shanghai, Zhejiang, Jiangsu and Guangdong, and finally points out the expansion of the labor contract law in content. The second part introduces the United States, the United Kingdom, France, etc. The relevant provisions of the forced resignation system of workers in Canada, Hong Kong and Taiwan. First of all, it focuses on the constitutive elements established by the United States, Britain, France, and Canada when determining that workers are forced to resign. Emphasizing the premise of the employer's fundamental violation of the contract agreement, It provides a reference for the following articles to perfect the general provisions of the forced resignation system of Chinese workers. Secondly, the regulations in Hong Kong and Taiwan emphasize the possibility of employers infringing on workers' rights and interests. In order to improve the second paragraph of Article 38 of the Labor contract Law, the third part is the defects of the system of forced resignation of workers in China. On the basis of the above analysis, this paper analyzes the defects of the system of forced resignation of workers in our country. It is mainly due to the failure to distinguish the seriousness of the employer's behavior, the subjective malice, the failure to define the scope of labor protection and working conditions, and so on, resulting in the judicial organs in practice determining that the employing unit "fails to pay its wages in full and on time," When not paying social insurance premium for the laborer and adjusting the working position, the status quo of the disordered identification standard appears. Part 4th is the suggestion of perfecting the system of forced resignation of the laborer in our country. This part is aimed at the existing system of the current system. The defects put forward four corresponding suggestions for perfection, The first is to determine the subjective fault of the employer, the second is to determine the seriousness of the employer's breach of contract, the third is to define the scope of labor protection and working conditions, and the 4th is to amend Article 38 of the Labor contract Law as a general clause. The reasons and concrete contents of these suggestions are expounded.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.52

【相似文献】