质疑劳动力租赁：《法国民法典》第1710条分析
发布时间：2018-07-22 16:58
【摘要】： 人类社会是一个历史悠久的社会,法律制度跟随着社会的发展在不断的变迁之中追寻进步,沿寻着“原始社会—奴隶社会—封建社会—资本主义社会、社会主义社会”的发展历程,我们能够探析到一定的发展规律:即劳动创造了社会。劳动使人与自然界的其他动物区别开来,劳动是人类得以生存的有效途径,因而,我们理应对其加以研究,取其精髓去其糟粕,使其进入合理化和合法化的高效轨道。 1804年的《法国民法典》第1710条在人类历史上第一次明确规定了劳动力租赁,即当事人约定,一方为他方完成一定的工作,他方约定支付报酬的契约。随着时代的变迁,劳动力租赁也逐渐刻上了时代的烙印,从最初的劳动力租赁,到现代的雇佣制度与劳动制度,其在我们人类发展史上都曾写下了辉煌的篇章,对人类社会的发展起到了不可估量的作用,但在看到其贡献的同时我们也不得不去考究一下其所存在的不足,这样才能更加有效的利用社会劳动力,推动社会的发展。劳动力租赁的出现造就了劳动力出租者(劳动者)与劳动力承租者(物质资本所有者),二者有所需有所求,各尽其能,各获其求,理应是一种公正平等的关系,然而,社会生产资料占有的不平衡使得劳动力出租者与承租者的关系失衡,拥有生产资料的劳动力承租者的优势地位得以保障和实现,而提供劳动力的出租者则只能获得维持生存的基本生活资料,很显然,劳动力出租者受制于劳动力承租者,其各方的权利也就得不到保障,对于劳动力出租者的权利维护在某种程度上还处于少法或脱法的状态。随着社会的发展,从一些社会现象中我们不难发现现代社会的用工结构所存在的问题,劳动者的主体地位被弱化,劳动者的积极性被打退,劳动者的剩余分享的权利得不到保障,劳动者失去了再发展的条件,从而也同样制约了资本和投资者的再发展,这就是阻碍我们现代社会发展进程的因素之一,可见对于劳动力租赁的研究有着深刻的社会意义。 本文以《法国民法典》为历史背景,沿着人类社会的发展阶段探寻劳动力租赁的根源和发展历程,论证其成立的可能性,指出其所存在的瑕疵,并提出创新性的理论以求冲破其局限性,对现代经济法律制度的发展作出微薄贡献。
[Abstract]:The human society is a society with a long history. The legal system follows the development of the society in pursuit of progress, along with the "primitive society-slave society-feudal society-capitalist society". The development course of socialist society, we can probe into certain development law: that is, labor creates society. Labor distinguishes man from other animals in nature. It is an effective way for human beings to survive. Therefore, we should study it and take its essence away from its dross. Article 1710 of the French Civil Code in 1804 clearly stipulated the lease of labor force in human history, that is, the agreement of the parties. One party completes certain work for the other party, the other party agrees to pay the contract. With the change of the times, the lease of labor force is gradually engraved with the brand of the times. From the original lease of labor force to the modern employment system and labor system, it has written a brilliant chapter in the history of human development. It has played an inestimable role in the development of human society, but at the same time, we also have to study its shortcomings in order to make more effective use of social labor force and promote the development of society. The emergence of labor leasing has created a fair and equal relationship between the labor renters (workers) and the labor tenants (owners of material capital). They have what they need, do their best, and get their own demands. The imbalance in the possession of social means of production makes the relationship between the renters of labor force and tenants out of balance, and the superior position of the tenants with the means of production can be guaranteed and realized. But the lessors who provide the labor force can only obtain the basic means of subsistence. Obviously, the workers are subject to the labor tenants, and the rights of all parties are not guaranteed. To a certain extent, the protection of the rights of the laborer is still in the state of law or abrogation. With the development of society, it is not difficult to find out from some social phenomena the problems existing in the structure of employment in modern society, the dominant position of the laborer has been weakened, and the enthusiasm of the laborer has been discouraged. The workers' rights to surplus and share are not guaranteed, and the workers have lost the conditions for re-development, thus also restricting the redevelopment of capital and investors. This is one of the factors hindering the development of our modern society. It can be seen that the study of labor leasing has profound social significance. Taking the French Civil Code as the historical background, this paper explores the root cause and development course of labor leasing along the development stage of human society, demonstrates the possibility of its establishment, and points out its defects. And put forward innovative theory in order to break through its limitations and make a meager contribution to the development of modern economic legal system.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：DD913;D956.5
本文编号：2138142
[Abstract]:The human society is a society with a long history. The legal system follows the development of the society in pursuit of progress, along with the "primitive society-slave society-feudal society-capitalist society". The development course of socialist society, we can probe into certain development law: that is, labor creates society. Labor distinguishes man from other animals in nature. It is an effective way for human beings to survive. Therefore, we should study it and take its essence away from its dross. Article 1710 of the French Civil Code in 1804 clearly stipulated the lease of labor force in human history, that is, the agreement of the parties. One party completes certain work for the other party, the other party agrees to pay the contract. With the change of the times, the lease of labor force is gradually engraved with the brand of the times. From the original lease of labor force to the modern employment system and labor system, it has written a brilliant chapter in the history of human development. It has played an inestimable role in the development of human society, but at the same time, we also have to study its shortcomings in order to make more effective use of social labor force and promote the development of society. The emergence of labor leasing has created a fair and equal relationship between the labor renters (workers) and the labor tenants (owners of material capital). They have what they need, do their best, and get their own demands. The imbalance in the possession of social means of production makes the relationship between the renters of labor force and tenants out of balance, and the superior position of the tenants with the means of production can be guaranteed and realized. But the lessors who provide the labor force can only obtain the basic means of subsistence. Obviously, the workers are subject to the labor tenants, and the rights of all parties are not guaranteed. To a certain extent, the protection of the rights of the laborer is still in the state of law or abrogation. With the development of society, it is not difficult to find out from some social phenomena the problems existing in the structure of employment in modern society, the dominant position of the laborer has been weakened, and the enthusiasm of the laborer has been discouraged. The workers' rights to surplus and share are not guaranteed, and the workers have lost the conditions for re-development, thus also restricting the redevelopment of capital and investors. This is one of the factors hindering the development of our modern society. It can be seen that the study of labor leasing has profound social significance. Taking the French Civil Code as the historical background, this paper explores the root cause and development course of labor leasing along the development stage of human society, demonstrates the possibility of its establishment, and points out its defects. And put forward innovative theory in order to break through its limitations and make a meager contribution to the development of modern economic legal system.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：DD913;D956.5
【参考文献】
相关期刊论文 前6条
1 蒋大兴;人力资本出资观念障碍检讨及其立法政策[J];法学;2001年03期
2 马忠法;从罗马法的影响看民法的世界性与民族性[J];中央政法管理干部学院学报;1997年06期
3 张友棠;知识经济时代人力资本的产权特征及核算方式创新[J];会计研究;1999年08期
4 李昌麒,单飞跃,甘强;经济法与社会法关系考辨——兼与董保华先生商榷[J];现代法学;2003年05期
5 种明钊,应飞虎;经济人与国家干预法[J];现代法学;2003年06期
6 刘燕;对我国企业注册资本制度的思考[J];中外法学;1997年03期
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