Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability

Bei Wang; Yibo Zhang

doi:10.47297/wspchrmWSP2040-800506.20201102

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Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability

11卷第2期

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Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability
Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability
Law School, Sichuan University, Chengdu, China
2020年11卷第2期页码：67-78
纸质出版日期： 2020 ，
DOI：10.47297/wspchrmWSP2040-800506.20201102
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Bei Wang & Yibo Zhang. (2020). Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability. 華夏人力資原管理學報, 11(2), 67-78.

BEI WANG & YIBO ZHANG. (2020). Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability. Journal of Chinese Human Resources Management, 11(2), 67-78..
Bei Wang & Yibo Zhang. (2020). Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability. 華夏人力資原管理學報, 11(2), 67-78. DOI： 10.47297/wspchrmWSP2040-800506.20201102.

BEI WANG & YIBO ZHANG. (2020). Are Dismissals Where Only Violations of Statutory Dismissal Procedures Occur Wrongful Dismissals in China? Defining the Nature and Reconstructing Legal Liability. Journal of Chinese Human Resources Management, 11(2), 67-78.. DOI： 10.47297/wspchrmWSP2040-800506.20201102.

摘要

Abstract

Purpose

This article aims to define the nature of dismissals when only violating statutory dismissal procedures and reconsider whether the legal liability of wrongful dismissal stipulated in Article 48 of the Labour Contract Law could remedy the situation.

Design/methodology/approach

The jurisprudential hermeneutic and comparative research methods were utilised in this article. The former method was employed to define the nature of the dismissal as only violating statutory dismissal procedures and re-establishing the legal liability of these dismissals by critically reviewing previous research and re-interpreting the relevant provisions of the Labour Contract Law and normative legal documents. The legal liability pertaining to these dismissals was ascertained by performing a comparative study between the Chinese labour law and French labour law.

Findings

This article ascertained that statutory dismissal procedures could be utilised to suppress dismissal rights abuses. Since it does not affect the legal establishment of dismissal rights

dismissals that only violate statutory dismissal procedures should be perceived as wrongful dismissals rather than invalid dismissals. Moreover

employers should not be held legally responsible for continuing the labour contract as stipulated in Article 48 of the Labour Contract Law. Instead

workers' losses can be remedied through compensation

but not twice the amount as stipulated in Article 87 of the Labour Contract Law.

Originality/value

This article provides a theoretical contribution to clarify the nature of dismissals only violating statutory dismissal procedures. Suggestions were proffered on improving the legal liability of such dismissals once the Labour Contract Law is amended.

关键词

Keywords

Wrongful DismissalStatutory Dismissal ProceduresReinstatementCompensation

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