“应当订立”与“视为订立”无固定期限劳动合同比较分析

发布时间：2018-03-28 01:09

  本文选题：应当订立　切入点：视为订立　出处：《中国律师》2012年11期

【摘要】：正我国《劳动合同法》规定,建立劳动关系应当订立书面劳动合同,即订立书面劳动合同为强制性规定。劳动合同具体又分为三类,无固定期限劳动合同即为其中的一类。《劳动合同法》对订立无固定期限劳动合同情形分为三类,即"协商订立"、"应当订立"、"视为订立"。劳动法律作为一部社会法,其本质上有别于以"意思自治"为核心的合同法,其内容体现了强烈的国家干预,当然亦不乏意思自治的部分体现。实践中,对"应当订立"与"视为订立"二者之间的涵涉关系及法律后果有不同认识。有观点认为"应当订立",但因故未订立书面劳动合同和"视为订立"而未实际补订
[Abstract]:The Labor contract Law of China stipulates that a written labor contract should be concluded in order to establish a labor relationship, that is, the conclusion of a written labor contract is mandatory, and the labor contract is specifically divided into three categories. Non-fixed term labor contract is one of the categories. The Labor contract Law can be divided into three categories, that is, "concluded through consultation", "should be concluded", "deemed to be concluded", and "labor law" as a social law. In essence, it is different from the contract law with "will autonomy" as the core. Its content embodies the strong state intervention, of course, there is also some embodiment of the autonomy of will. In practice, There is a different understanding of the relationship and legal consequences between "ought to be concluded" and "deemed to be concluded"... there is a view that "should be concluded", but no written labour contract and "deemed to be concluded" are not actually completed for some reason
【作者单位】： 北京高文律师事务所;
【分类号】：D922.52
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本文编号：1674069