Abstract
This chapter analyzes and compares the laws of Japan and Taiwan regarding the substantive and procedural control of dismissal, legal effects of dismissal, and monetary settlement of dismissal, and proposes that monetary settlement of dismissal was hardly neglected in discussions about the appropriate dismissal regulations. The author holds the view that although the formation of the dismissal regulations of Japan has its own background, Japanese companies cannot ignore the transformation of the labor market and simply step away from monetary settlement of dismissal. In comparison, the regulation of monetary settlement of dismissal has existed in the Labor Standards Act in Taiwan. Referring to the features of the law in Taiwan, Japan may embrace a positive attitude to further review associated laws rather than avoiding monetary settlement of dismissal.
Keywords
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- 1.
Japan’s food quality salt manufacturing case, judgment by the second petty bench of the top court, April 25, Showa 50 (1975), Minshu-29-4-456.
- 2.
Kochi broadcasting case, judgment by the second petty bench of the top court, January 31, Showa 52 (1977), Labor precedent-268-17.
- 3.
Sugano, Kazuo (2016). Labor Law. Koubundou, 754.
- 4.
Ibid., 745.
- 5.
Araki, Takashi (2016). Labor Law . Yuhikaku Publishing, 303.
- 6.
Sugano, Kazuo (2016). Labor Law . Koubundou, 747.
- 7.
Ouchi, Shinya (2013). Dismissal Reform: Think about the Future of Japanese-type of Employment.Chuokeizai-Sha, 15.
- 8.
Liu, Chih-Peng (2000). On Workers Who Cannot Perform the Job. In Chih-Ping Liu (Ed.), Study of Labor Law Theory and Judgment 140. Angle Publishing.
- 9.
Huang, Cheng-Kuan (2014). Review the statutory reasons for the termination of labor contracts in Taiwan. In Cheng-Kuan Huang (Ed.), Proceedings of the 30th Anniversary of the Implementation of the Labor Standards Law 146–147. Ministry of Labor.
- 10.
Guo, Ling-Hui (2011). On the Labor Contract Law. San Min Book, 217.
- 11.
Supreme Court judgment 2006 Tai Shang Tzu No.2720.
- 12.
Huang, Yueh-Chin (2000). New Perspective on Labor Law. Hanlu, 218.
- 13.
Legislative Yuan (1984). The Legislative Yuan Gazette, 73(11), 30–32. Also, Secretarist of Legislative Yuan (1984). Special Issue on Law. Bill of Labor Law, 73 (1), 369–381.
- 14.
Huang, Cheng-Kuan (1997). Labor Law . National Open University, 492–493.
- 15.
Lin, Chia-Ho (2009). Interpretation of the Labor Standards Law – Review and Prospect after Twenty Years of the Enactment. In Taiwan Labor Law Society (Ed.) Selected Judgements on Labor Law, 337.
- 16.
Regarding the transition from the old to the new pension system, for workers who were covered by the Labor Standards Act before the implementation of the new pension system and still work for the same business entity after the implementation of the new system, they may choose to continue to be covered by the pension system of the Labor Standards Act in the next 5 years. If they resign from their current jobs and are re-employed, they will be covered by the new pension system (Paragraph 1, Article 8 of the Labor Pension Plan). In other words, if they report to a new job before the end of June 2005 and still serve in the same business entity by July 1, 2005, then they can choose to join the new pension system, the old pension system, or not to make any choice yet. If they decide not to make the choice yet, they will be subject to the old pension system. As for those who choose the new pension system, they will start to make contributions to the new pension system starting from July 1, 2005. As for those choosing the old pension system (including those making no choice yet), they can choose to join the new system before June 30, 2004. As for those newly employed or resigned and then re-employed workers after July 1, 2005, they shall be subject to the new pension system.
- 17.
Lin, Chia-Ho (2009). Interpretation of the Labor Standards Law - Review and Prospect after Twenty Years of the Enactment. In Taiwan Labor Law Society (Ed.) Selected Judgements on Labor Law, 338–339.
- 18.
The Legislative Yuan Gazette, 71(67), 42–43, comments made by Legislator Hsieh Shen-Shan (August, 1982).
- 19.
Liu, Chih-Peng (1986). On Labor Pension Claims (1). Lawyer Newsletter, 79, 25–26. Liu, Chih-Peng (1986). On Labor Pension Claims (2). Lawyer Newsletter, 80, 8–10. Liu, Chih-Peng (1986). On Labor Pension Claims (3). Lawyer Newsletter, 81, 11–14. Liu, Chih-Peng, (1986). On Labor Pension Claims (4). Lawyer Newsletter, 82, 12–14. Liu, Chih-Peng (1986). On Labor Pension Claims (5). Lawyer Newsletter, 83, 5–9. Liu, Chih-Peng (1986), On Labor Pension Claims (finish). Lawyer Newsletter, 84, 5–8.
- 20.
Liu, Chih-Peng (1987). On the Prohibition of Dismissal during Employment Period of Medical treatment Period, China Law Journal, 32(3), 49.
- 21.
Huang, Yueh-Chin (1991). Perspective on Labor Law. Institute for Labor Research, National Chengchi University, 215.
- 22.
Ibid., 231.
- 23.
Huang, Yueh-Chin (2000). New Perspective on Labor Law. Hanlu, 225.
- 24.
Huang, Cheng-Kuan (1997). Labor Law. National Open University, 489–490.
- 25.
Chiu, Chun-Yen (1998). A Review of the Legal Systems of Severance Pay and of Retirement Pensions: Taking the Japanese System as an Example. Fu Jen Law Review, 17, 239.
- 26.
Ibid.
- 27.
Lin, Keng-Sheng (2005). Interpretation of the Labor Standards Law – Review and Prospect after Twenty Years of the Enactment In Taiwan Labor Law Society (Ed.) Selected Judgements on Labor Law, 244–245.
- 28.
On the other hand, when a worker immediately terminates the contract on the basis of Subparagraph 6, Paragraph 1 of Article 14 of the Labor Standards Act , the worker still has to receive severance payment for non-disciplinary dismissal for the reason that it cannot be attributable to him/her. From this point of view, definitively, the severance payment received by the worker, immediately, upon the termination of his/her contract is quite similar to the exit payment in Japan.
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Li, YC. (2018). Law Review and Comparison of Dismissal Regulations. In: Hatta, T., Ouchi, S. (eds) Severance Payment and Labor Mobility. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-2149-8_5
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