论劳动合同解除制度对劳动者的保护

发布时间：2018-05-11 13:50

本文选题：劳动合同 + 劳动合同解除　；参考：《重庆大学》2009年硕士论文

【摘要】： 劳动合同,是劳动者与用人单位之间确立劳动关系,规范双方当事人的劳动权利和劳动义务的协议。劳动合同的显著特点是具有法定性和人身性,即劳动合同有关条款的规定,必须要服从国家的法律规定,不能由当事人任意约定。劳动合同与人身密切相关,区别于普通民事合同,受《劳动合同法》调整。劳动合同的解除,是劳动合同订立后,尚未全部履行以前,由于某种原因导致劳动合同当事人一方或双方提前消灭劳动关系的法律行为。劳动合同的解除关系到劳动者和用人单位双方的利益,是《劳动合同法》的重要内容之一。从劳动者的弱势地位出发,应本着“倾斜保护”劳动者的原则,对劳动合同的解除作出规定。但“倾斜保护”并不是牺牲用人单位的利益来保护劳动者的利益,我们在保护劳动者权益的过程中应注意平衡劳资双方的利益,寻求一个平衡点。尽管劳资双方在某些方面存在利益冲突,但我们不能简单地把保护劳动者权益理解为对资本的限制和剥夺。现阶段我国保护劳动者权益必须跳出“零和博弈”或“彼之所得必为我之所失”的思维逻辑,通过鼓励劳资合作,实现双赢。劳资双方应该从双方长远利益的大局出发,充分考虑和辨证看待双方的利益,各自承认、尊重对方的权利和利益,求同存异,真诚合作,只有这样,才能有效降低交易成本,提高企业赢利能力和竞争能力,真正使双方都能达到自身利益的最大化,从而真正有效保护劳动者权益。本文第一部分从劳动合同制度的发展,劳动合同解除制度在劳动法中的地位和意义以及劳动合同制度的构成三个方面介绍劳动合同解除与劳动者的保护关系,劳动合同制度的发展是一个从民法到劳动法的过程,从不自由到自由再到国家干预保护的过程。劳动合同制度是劳动法的主要内容,其中劳动合同解除又是劳动合同制度的核心内容之一,直接关系到劳动合同的效力、合同双方当事人的利益得失和权利保护,因此劳动合同解除制度在劳动法中占有重要地位,尤其倾斜保护劳动者的意义非常重大。劳动合同解除制度由三方面构成,即解除条件、解除程序、解除的法律后果。接着根据解除原因的不同分类,分别通过第二部分双方协商解除,第三部分劳动者单方解除及第四部分用人单位单方解除详细介绍关于劳动合同解除制度对劳动者的保护,第五部分通过分析不足之处,提出部分建议。
[Abstract]:Labor contract is an agreement between laborer and employer to establish labor relation and standardize the labor rights and obligations of both parties. The remarkable characteristic of the labor contract is that it has legal and personal character, that is, the provisions of the relevant clauses of the labor contract must be subject to the provisions of the law of the country, and can not be agreed upon arbitrarily by the parties. The labor contract is closely related to the person, is different from the ordinary civil contract, and is adjusted by the Labor contract Law. The rescission of labor contract is the legal act that one or both parties to the labor contract destroy labor relations ahead of time after the conclusion of the labor contract and not all of them have been fulfilled before the conclusion of the labor contract. The rescission of labor contract is one of the important contents of Labor contract Law, which is related to the interests of both laborer and employer. Starting from the weak position of the laborer, it is necessary to stipulate the termination of the labor contract according to the principle of "incline protection" for the laborer. But "inclined protection" is not to sacrifice the interests of employers to protect the interests of workers, we should pay attention to balance the interests of both employers and employees in the process of protecting workers' rights and interests, and seek a balance point. Although there are conflicts of interest between employers and employees in some respects, we cannot simply interpret the protection of workers' rights and interests as the restriction and deprivation of capital. At present, the protection of laborers' rights and interests in our country must jump out the logic of "zero-sum game" or "the gains must be lost by us", and we should encourage the cooperation between labor and capital to achieve a win-win situation. Employers and employees should proceed from the overall long-term interests of both sides, fully consider and dialectically view the interests of both sides, recognize each other's rights and interests, seek common ground while reserving differences, and cooperate in good faith. Only in this way can transaction costs be effectively reduced. To improve the profitability and competitiveness of enterprises, both sides can achieve the maximum of their own interests, so as to protect workers' rights and interests effectively. The first part of this paper introduces the protection relationship between labor contract rescission and laborer from three aspects: the development of labor contract system, the position and significance of labor contract rescission system in labor law and the constitution of labor contract system. The development of labor contract system is a process from civil law to labor law, from freedom to state intervention and protection. The labor contract system is the main content of the labor law, in which the termination of the labor contract is one of the core contents of the labor contract system, which is directly related to the effectiveness of the labor contract, the benefit of both parties to the contract and the protection of the right. Therefore, labor contract rescission system plays an important role in labor law, especially the protection of workers is very important. The system of rescission of labor contract consists of three aspects: lifting conditions, lifting procedures, and the legal consequences of rescission. Then, according to the different classification of the reasons for the termination, respectively through the second part of the two parties through consultation, the third part of the unilateral termination of the laborer and the fourth part of the unit of choose and employ persons unilateral rescission of the labor contract on the protection of workers, The fifth part puts forward some suggestions by analyzing the deficiency.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.5

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