报复性解雇认定标准及法律责任之构造——基于美国立法与司法经验的考察

The Design of Identification Standard and Legal Liabilities of Retaliatory Discharge:In View of US Experience of Legislation and Judicature

报复性解雇系指雇员在劳动关系存续期间因作出有利于社会公共利益的行为而惹怒雇主,导致后者产生报复的心理,以表面上符合劳动法上正当解雇的理由为借口而作出解雇,其与违法解雇、惩戒解雇、不当解雇等术语的外延存在明显差异。报复性解雇可类型化雇员因作出参与行为而被解雇与因作出反对行为而被解雇。我国现有解雇保护制度存在法律漏洞,造成司法机关在处理报复性解雇纠纷时不知如何认定以及怎样课责。借鉴美国立法与司法经验,对报复性解雇认定标准的构造,应分别对报复主体、报复对象、报复动机与因果关系四要素作出认定;而报复性解雇法律责任的构造,应建立以惩罚性赔偿金为中心的法律责任体系。欲将报复性解雇认定标准及法律责任规则嵌入我国解雇保护制度中,应通过立法来完善。

Recently,our judicial authorities have met with some cases of retaliatory discharge.However,it is difficult for judicial authorities to identify retaliatory discharge and how to grant proper legal responsibilities.Owing to the dismissal mode of statutory reasons,our judicial authorities tend simply to compare retaliatory discharge with wrongful discharge,ignoring the uniqueness of retaliatory discharge.As a result,employees who are discharged usually could not gain effective remedy.In other words,in China,the current system of dismissal protection has some defects.The action of retaliatory discharge not only violates the employees＇ right to work,but also encroaches employees＇ citizenship and social public interests.With the globalization,constantly rising civil right consciousness of new generations and the ruling by constitution to protect the basic rights of citizens,it is vital to protect employees＇ rights and social public interests.So we have to take retaliatory dismissal into the orbit of legalized governance.In terms of prohibiting retaliatory dismissal,there are two most important rules,namely identification and accountability rules.Before setting up the rules of identification and accountability,first of all,this paper defines the concept of retaliatory discharge and makes a typological analysis.Then according to the legislative and judicial experience in America,it constructs identification standard and legal responsibilities.These rules are the main innovation points of this paper.As for the construct of identification standard of retaliatory dismissal,we should respectively justify retaliatory subject,retaliatory target,retaliatory motive and causality.As for the construct of legal responsibilities of retaliatory dismissal,it is essential for us to build the system of legal responsibilities which revolves around punitive damages.These legal responsibilities contain reinstatement,compensatory damages and punitive damages.Compensatory damages are divided into the damages of actual benefit losses and the ones of expected benefit losses.The specific amount of punitive damages should be controlled by judicial activities.In other words,the judicial authorities should consider a lot of factors when determining specific amount of punitive damages.In the end,it is practical to refer to the rules of identification standard and legal responsibilities of retaliatory dismissal in USA,based on the condition that the basic framework of our current dismissal protection system is invariable.Taking the rules of identification standard and legal responsibilities into our system of dismissal protection,the legislators should note the following points.In particular,they have to pay attention to the provision of prohibitive regulations of retaliatory discharge,the protection of victims related to retaliatory discharge,the rebuilding of the system of legal responsibilities of retaliatory discharge and the formulation of the act of protecting public prosecution.