意思自治原则在劳动法领域的适用

发布时间：2018-05-08 19:32

本文选题：劳动法领域 + 意思自治　；参考：《吉林大学》2016年硕士论文

【摘要】：意思自治原则曾被早期劳动法广泛适用。现代劳动法兼具公法和私法属性,意思自治与国家管制并存,在现有劳动法律未明确规定意思自治原则适用条件和范围的前提下,在多大程度上尊重用人单位与劳动者的意思自治是个有争议的问题。人民法院在审理劳动争议案件的过程中无可避免地要对用人单位与劳动者签订的各种协议的效力进行评判,现有劳动法律法规以大量“不得”、“应当”等强制性用语约束用人单位与劳动者的“自治”行为,对于用人单位与劳动者可自由协商的事项和内容却未予以概括和明确,使各地劳动仲裁机构和法院在审查协议效力时缺乏全国性的原则标准。各地对于同种协议的效力认定存在不同的做法,用人单位和劳动者在不同地域遇到的裁判结果可能截然相反,这种现象的存在会损害司法权威,也妨碍劳动市场的良性运转。《劳动合同法》实施八年以来,经济环境和用工环境已经发生了极大的变化。随着全国范围内各地域经济总体发展水平的提高和人口老龄化的提前到来,原来供大于求的劳动力市场已经逐渐向供需平衡转变,对外来工需求较大的某些经济发达地区甚至经常出现“用工荒”的现象,劳动者享有比原先更多的择业自由。经过《劳动合同法》出台之初几年劳动争议诉讼爆炸的洗礼,再加上多年来的法治建设和法制宣传取得的卓越成果,劳动者的维权能力也得到了普遍的提高。考虑到这些背景因素的出现,国家在劳动关系领域干预的范围和程度也有必要随之调整。任何法律都有其保护的利益和限制权利行使的边界,有必要确定意思自治原则在劳动法领域的适用范围。在劳动争议案件中要避免破坏用人单位与劳动者的契约自由,就必须对法律条文进行准确解读,把握立法原意,将法律规定、双方协议涉及的事项、利益的分配三者结合起来分析。笔者以自己审判实践中的众多典型案例来阐释哪些情形的协议仅因违反管理性强制性规定而有效,哪些情形的协议会因违反效力性强制性规定而无效,哪些情形的协议因未损害国家利益、社会公共利益、劳动者基本权益和未违反公序良俗而有效,以此来说明意思自治原则在劳动法领域的广泛适用。通过对大量相关案例进行分析,笔者认为,从劳动法律保护的利益和劳动争议处理的事项范围考虑,对于用人单位与劳动者“自治”协议的有效情形,可明确规定:用人单位与劳动者以订立、履行、终止或解除劳动合同为目的,基于双方真实意思表示达成的未损害国家利益、社会公共利益、劳动者基本权益和未违反公序良俗的协议有效。
[Abstract]:The principle of will autonomy was widely applied in early labor laws. The modern labor law has the attributes of public law and private law, and the autonomy of will coexists with the control of the state. Under the premise that the principle of autonomy of will is not clearly stipulated in the existing labor law, The degree of respect for the autonomy of employers and workers is a controversial issue. In the process of handling labor dispute cases, the people's courts inevitably have to judge the effectiveness of various agreements signed between the employing units and the laborer, and the existing labor laws and regulations are "not allowed" in a large number of cases. Compulsory terms such as "shall" restrict the act of "autonomy" between the employer and the laborer, but the matters and contents of which the employer and the laborer can freely negotiate have not been summarized and made clear. Causes the local labor arbitration institution and the court to examine the agreement validity lacks the national principle standard. There are different practices in different places regarding the validity of the same agreement. The judicial results encountered by employers and workers in different regions may be quite the opposite, and the existence of this phenomenon will undermine the judicial authority. It also hinders the healthy operation of the labor market. Since the implementation of the Labor contract Law eight years ago, the economic environment and the employment environment have undergone great changes. With the improvement of the overall level of economic development in various regions throughout the country and the early arrival of an aging population, the labor market, which was oversupplied and oversupplied, has gradually shifted to a balance between supply and demand. In some economically developed areas where the demand for foreign workers is greater, the phenomenon of "shortage of employment" often occurs, and workers enjoy more freedom to choose their jobs than before. After the baptism of labor dispute litigation explosion in the early years of the "Labor contract Law", plus the remarkable achievements in the construction of the rule of law and the legal propaganda over the years, the workers' ability to safeguard their rights has also been generally improved. Considering the emergence of these background factors, the scope and extent of state intervention in the field of labor relations should be adjusted accordingly. Any law has its protected interests and limits on the exercise of rights. It is necessary to determine the scope of application of the principle of autonomy of will in the field of labor law. In order to avoid undermining the freedom of contract between the employer and the laborer in labor dispute cases, we must accurately interpret the legal provisions, grasp the legislative intent, and stipulate the law and the matters involved in the agreement between the two sides. The distribution of benefits is combined with analysis. The author uses many typical cases in his own trial practice to explain which cases the agreement is valid only because of the violation of the mandatory regulations of management, and which cases of the agreement will be invalid because of the breach of the mandatory provisions of validity. In which cases the agreement is effective because it does not harm the national interest, the social public interest, the basic rights and interests of the laborer, and does not violate the public order and good custom, so as to explain the extensive application of the principle of autonomy of will in the field of labor law. Through the analysis of a large number of relevant cases, the author believes that considering the interests of labor law protection and the scope of labor dispute settlement, the effective situation of the agreement between employer and laborer is "autonomy". It may be clearly stipulated that the employer and the laborer, for the purpose of concluding, fulfilling, terminating or terminating a labor contract, have reached without prejudice to the interests of the state and the public interest on the basis of the expression of the true will of both parties, The basic rights and interests of the laborer and the agreement which does not violate the public order and good custom are valid.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.52

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