经济补偿金制度探究
发布时间：2019-06-12 13:11
【摘要】： 用人单位与劳动者之间的劳动关系日益紧张影响和谐劳动关系的构建，没有和谐的劳动关系就没有整个社会的和谐，建立和谐稳定的劳动关系是我国劳动立法的侧重点。新出台的《劳动合同法》确立了倾斜保护劳动者的立法宗旨，以修正劳资双方的力量差异，进而形成实质平衡的利益格局，同时也注重用人单位合法权益的维护。包括经济补偿金在内的一系列制度是修正和平衡的工具与体现，经济补偿金是劳动法上特有的和独立的解约补偿制度，充分体现了倾斜保护劳动者的原则和目的。 本文研究主体为经济补偿金制度，在结构上除结语外分为五章。 第一章首先分析研究经济补偿金制度的背景及意义、主要文献综述、论文内容、研究方法以及关键词解说。在关键词解说中对经济补偿金适用时经常与赔偿金和违约金相混淆的问题阐述，在详细分析赔偿金与违约金基础上，阐述它们与经济补偿金的区别以及可否合并适用等问题。 第二章分析经济补偿金支付情形、标准等国家法律规定、地方提升和降低两个立法趋势以及港澳台规定，在挖掘国家规定存在问题并提出相应对策的同时，顺带讨论了经济补偿金的性质这一重要问题；用比较研究的方法详细分析了大陆法系、英美法系等国外规定，深入挖掘了隐含在法律规定之中的疑难问题，并与我国作比较。 第三章细致探讨了经济补偿金的支付情形，并用表格加以论证，以求清晰简洁。劳动合同终止有条件支付经济补偿金是《劳动合同法》的亮点之一，有助于解决劳动合同短期化问题；深究新增的约定竞业限制条款应支付经济补偿金的规定，并提出应设置竞业限制违约金的底线。经济补偿金支付溯及力关乎劳动者切身利益，应引起重视。 第四章阐述经济补偿金支付相关难题，，分析经济补偿金的计算公式、工作年限和月工资的计算基数以及是否征税等问题。 第五章主要解决经济补偿金支付争议问题，我国劳动争议处理机制是“一调一裁两审”，部分经济补偿金争议也适用这一机制。 最后，笔者认为，经济补偿金制度是保护广大劳动者的“利器”，《劳动合同法》出台确实解决了不少实践中一直存在的侵害劳动者权益的问题。为了加强倾斜保护的实效性，应当制定相关可操作性立法，完善经济补偿金制度，使其真正成为广大劳动者的“金箍棒”，用人单位的“紧箍咒”。
[Abstract]:The labor relations between employers and workers are becoming more and more tense, which affects the construction of harmonious labor relations. Without harmonious labor relations, there will be no harmony in the whole society. The establishment of harmonious and stable labor relations is the focus of labor legislation in our country. The new Labor contract Law establishes the legislative purpose of inclined protection of workers in order to correct the power differences between employers and employees, and then form a substantially balanced interest pattern, and at the same time pay attention to the protection of the legitimate rights and interests of employers. A series of systems, including economic compensation, are the tools and embodiment of revision and balance. Economic compensation is a unique and independent compensation system in labor law, which fully embodies the principle and purpose of inclined protection of workers. The main body of this paper is the economic compensation system, which is divided into five chapters in addition to the conclusion. The first chapter first analyzes the background and significance of the study of economic compensation system, the main literature review, the content of the paper, research methods and key words explanation. In the key words explanation, the application of economic compensation is often confused with compensation and liquidated damages. On the basis of detailed analysis of compensation and liquidated damages, this paper expounds the difference between them and economic compensation and whether they can be combined and applied. The second chapter analyzes the payment of economic compensation, standards and other national legal provisions, local promotion and reduction of the two legislative trends and Hong Kong, Macao and Taiwan provisions, while excavating the existing problems of the national provisions and put forward the corresponding countermeasures, the nature of economic compensation is discussed in turn. This paper analyzes in detail the foreign regulations of civil law system, common law system and so on by means of comparative study, and deeply excavates the difficult problems hidden in the legal provisions, and compares them with those of our country. The third chapter discusses the payment of economic compensation in detail, and demonstrates it with tables in order to be clear and concise. Conditional payment of economic compensation for termination of labor contract is one of the highlights of Labor contract Law, which is helpful to solve the problem of short-term labor contract, probes into the provisions that economic compensation should be paid in the new contractual competition restriction clause, and puts forward that the bottom line of breach of contract compensation should be set up. The retroactive effect of economic compensation payment is related to the vital interests of workers and should be paid attention to. The fourth chapter expounds the problems related to the payment of economic compensation, analyzes the calculation formula of economic compensation, the calculation base of working years and monthly wages, and whether to tax or not. The fifth chapter mainly solves the dispute of economic compensation payment. The labor dispute settlement mechanism of our country is "one adjustment, one cut and two trials", and some economic compensation disputes are also applicable to this mechanism. Finally, the author believes that the economic compensation system is a "sharp weapon" to protect the vast number of workers, and the introduction of the Labor contract Law has indeed solved many problems that have always infringed on the rights and interests of workers in practice. In order to strengthen the effectiveness of tilt protection, we should formulate relevant operable legislation and perfect the economic compensation system so that it can really become the "gold hoop rod" of the majority of workers and the "tight hoop spell" of employers.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.5
本文编号：2498053
[Abstract]:The labor relations between employers and workers are becoming more and more tense, which affects the construction of harmonious labor relations. Without harmonious labor relations, there will be no harmony in the whole society. The establishment of harmonious and stable labor relations is the focus of labor legislation in our country. The new Labor contract Law establishes the legislative purpose of inclined protection of workers in order to correct the power differences between employers and employees, and then form a substantially balanced interest pattern, and at the same time pay attention to the protection of the legitimate rights and interests of employers. A series of systems, including economic compensation, are the tools and embodiment of revision and balance. Economic compensation is a unique and independent compensation system in labor law, which fully embodies the principle and purpose of inclined protection of workers. The main body of this paper is the economic compensation system, which is divided into five chapters in addition to the conclusion. The first chapter first analyzes the background and significance of the study of economic compensation system, the main literature review, the content of the paper, research methods and key words explanation. In the key words explanation, the application of economic compensation is often confused with compensation and liquidated damages. On the basis of detailed analysis of compensation and liquidated damages, this paper expounds the difference between them and economic compensation and whether they can be combined and applied. The second chapter analyzes the payment of economic compensation, standards and other national legal provisions, local promotion and reduction of the two legislative trends and Hong Kong, Macao and Taiwan provisions, while excavating the existing problems of the national provisions and put forward the corresponding countermeasures, the nature of economic compensation is discussed in turn. This paper analyzes in detail the foreign regulations of civil law system, common law system and so on by means of comparative study, and deeply excavates the difficult problems hidden in the legal provisions, and compares them with those of our country. The third chapter discusses the payment of economic compensation in detail, and demonstrates it with tables in order to be clear and concise. Conditional payment of economic compensation for termination of labor contract is one of the highlights of Labor contract Law, which is helpful to solve the problem of short-term labor contract, probes into the provisions that economic compensation should be paid in the new contractual competition restriction clause, and puts forward that the bottom line of breach of contract compensation should be set up. The retroactive effect of economic compensation payment is related to the vital interests of workers and should be paid attention to. The fourth chapter expounds the problems related to the payment of economic compensation, analyzes the calculation formula of economic compensation, the calculation base of working years and monthly wages, and whether to tax or not. The fifth chapter mainly solves the dispute of economic compensation payment. The labor dispute settlement mechanism of our country is "one adjustment, one cut and two trials", and some economic compensation disputes are also applicable to this mechanism. Finally, the author believes that the economic compensation system is a "sharp weapon" to protect the vast number of workers, and the introduction of the Labor contract Law has indeed solved many problems that have always infringed on the rights and interests of workers in practice. In order to strengthen the effectiveness of tilt protection, we should formulate relevant operable legislation and perfect the economic compensation system so that it can really become the "gold hoop rod" of the majority of workers and the "tight hoop spell" of employers.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.5
【引证文献】
相关硕士学位论文 前4条
1 杨丹;南昌市高科技企业《劳动合同法》实施中的问题及对策研究[D];南昌大学;2010年
2 焦伟;《劳动合同法》初步探讨[D];北京交通大学;2010年
3 刘赛刚;劳动合同解除或终止后经济补偿制度研究[D];中南大学;2011年
4 乔书;劳动法对企业高管的规制研究[D];华中科技大学;2010年
本文编号：2498053
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