Date of Award

2018

Document Type

Dissertation

Degree Name

Doctor of Juridical Science (SJD)

Abstract

The Labor Law in China, enacted in 1994, was the first statute in China to stipulate dismissal protections. The Employment Contract Law, a more recent law that went into effect in January 2008, strengthened Chinese dismissal protections. For example, in the summary termination about the misconduct, this law only allows six instances for termination, and if a misconduct committed by an employee is not covered in these six instances, it is hard for an employer to discharge this employee legally.

In contrast, America has a more flexible employment law. In America, the doctrine of dismissal is dominated by the presumption of at will employment which means that, absent express contractual protection, an employer is free to discharge individuals whether for reasonable or unreasonable cause, or no cause at all. Over the past fifty years American legislatures have enacted some statutory protections, for example the Civil Rights Act that prohibits employers from discriminatory discharge, and courts have developed three important common law exceptions to the at will doctrine. Nevertheless, the employment at will doctrine still has big influence on American employment law.

Dismissal protection profoundly affects such areas as the creation of more jobs, job turnover, recruitment, and skills training. Excessive protection will limit a company’s autonomy to hire and fire, and can decrease the company’s efficiency as it increases adjustment costs. On the other hand, if protections are too weak, employees cannot have enough job security, which is economically and psychologically important for employees. Abuse of management discretion in arbitrary or discriminatory firings is also inefficient.

In this dissertation, I will introduce the current situation of dismissal protections in China first. I will argue the dismissal protections in China are very rigid, and I will analyze the reason for this rigidity and its consequences. Meanwhile, the protections against discrimination and whistle-blower retaliation are lacking in China. Then, I will survey the legal development of dismissal protections in America, and discuss the importance of these protections. In the end, I will offer a reform proposition for dismissal protections in China that keep a balance between protecting the right of workers and preserving the autonomy and flexibility of companies.

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