解雇权的程序控制

On Procedural Control of the Dismissal Right

解雇程序对解雇权的控制具有重要影响和独特价值,但应有一定的限度,需合理平衡劳资双方权益。我国司法机关对违反解雇程序的审查裁判标准不一,影响了解雇权程序控制的实效和法律的安定性。对解雇权应给予何种程度的程序控制,英国解雇权程序控制的历史变迁对我国不无启示。我国司法机关应坚持实体与程序并重、劳资权利平衡的原则,严格审查解雇程序,既要保障解雇程序公正,又要实现裁判结果公平。改革事先通知工会的程序,完善违反解雇程序的法律责任,会使我国解雇权的程序控制更趋合理。

The dismissal procedure has an important influence and unique value on the control of dismissal right, but there should be a certain limit to reasonably balance the rights and interests of both employers and employees.The judicial organs in China have different standards for examining and judging the violation of the dismissal procedure, which affects the understanding of the effectiveness of the control of the employment procedure and the stability of the law. The historical change of the procedural control of the dismissal right in Britain is not without enlightenment to China as to what degree of procedural control should be given to the dismissal right. The judicial organs in China should adhere to the principle of attaching equal importance to the entity and procedure and the balance of labor rights and strictly examine the dismissal procedure, not only ensuring the fairness of the dismissal procedure, but also realizing the fairness of the judgment result. Reforming the procedure of notifying the trade union in advance and perfecting the legal responsibility of breaching dismissal procedure will make procedural control of the dismissal right more reasonable in China.