違法解雇法律責任論：從違法行為懲戒論到違約責任論

解雇保護規範分為強制性權能規範、行為規範與程序規範三種類型。違法解雇行為不具有法律拘束力，勞動合同有效存續。違法解雇行為屬持續性違約行為，拒絕履行是初始違約形態，遲延履行與履行不能是轉化違約形態。用人單位承擔雙階替代違約責任。在遲延履行違約形態下，勞動者請求繼續履行勞動合同的，用人單位應當在確認違法解雇期間與恢復履行期間繼續履行，支付正常勞動報酬;勞動者不要求繼續履行或者未在法定期限內請求繼續履行的，用人單位承擔損害賠償責任，替代確認違法解雇期間和恢復履行期間的繼續履行，賠償金按照用工之日至違法解雇行為發生之日這段時間經濟補償標準的二倍來計算。在履行不能違約形態下，用人單位在確認不能履行期間應當承擔繼續履行違約責任，支付正常勞動報酬;用人單位在不能履行期間應當承擔損害賠償責任，替代不能履行期間的繼續履行，賠償金按照用工之日至裁審確認勞動合同不能履行之日這段時間經濟補償標準的二倍來計算。

Dismissal-protection norms may be categorized into three types: mandatory power-conferring norms, conduct norms, and procedural norms. An unlawful dismissal lacks legal binding force, and the labor contract therefore remains valid and continuously in effect. An unlawful dismissal constitutes a continuing breach of contract. Refusal to perform constitutes the initial form of breach, while delayed performance and impossibility of performance constitute transformed forms of breach. The employer bears two-tier substitute contractual liability. Under the breach form of delayed performance, where the employee requests continued performance of the labor contract, the employer shall continue to perform both during the period for determination of unlawful dismissal and during the period of resumed performance, and shall pay normal wages accordingly. Where the employee does not request continued performance or fails to do so within the statutory time limit, the employer shall bear liability for damages, which substitutes for specific performance during both the period for determination of unlawful dismissal and the period of resumed performance. In such cases, compensation shall be calculated at twice the statutory economic compensation standard, based on the period from the commencement of employment to the occurrence of the unlawful dismissal. Under the breach form of impossibility of performance, the employer shall bear liability for specific performance during the period in which performance is determined to be impossible, including the payment of normal wages. The employer shall further bear liability for damages for the period of impossibility of performance, substituting for specific performance during that period. The amount of compensation shall be calculated at twice the statutory economic compensation standard, based on the period from the commencement of employment to the date on which adjudication or arbitration confirms that continued performance of the labor contract has become impossible.