论我国雇佣合同的法律调整模式

发布时间：2018-05-30 10:46

本文选题：雇佣合同 + 劳动合同　；参考：《西南政法大学》2013年硕士论文

【摘要】：本文结合比较法和实例分析法对我国雇佣合同的法律调整模式展开探讨。第一部分,雇佣合同的概念。该部分通过分析雇佣合同的定义，认为雇佣合同的主要内涵是劳务与报酬的交换，，我国劳动法方面的立法通过界定劳动合同的用工主体范围间接对我国雇佣合同的范围作出界定。在分析了有关雇佣合同和劳动合同的关系的三种学说后，认为三种学说之争论源于对雇佣关系和劳动关系的社会关系上的联系和法律关系上的联系这两种分析角度的不同，从社会关系的角度看，两者均有劳务与报酬交换的内涵，劳动合同因劳动法的调整而有了社会法的性质，是法律的调整使得劳动合同与雇佣合同有了不同的品性。劳动合同因劳动法的调整而有了社会法的性质，劳动合同作为特殊形态的雇佣合同，为广义的雇佣合同所包容。然后通过雇佣合同与劳动合同法律特征的比较，证明两者虽经法律调整有不同品性，但两者一致的劳务与报酬交换的内涵使得两者之法律特征有相同点，又因法律调整力度的不同而在法律特征上存在差异。第二部分，我国雇佣合同的法律调整模式。该部分通过对关于我国雇佣合同法律调整模式的学说的分析，认为民法对劳动合同和雇佣合同统一调整使得民法陷于不知以尊重当事人意思自治的私法性为重，还是以保护弱势群体的社会法性质为重的尴尬境地；劳动法统一调整则使得雇用人承担过重的责任而有失雇佣合同双方利益之平衡，且劳动法调整雇用人是家庭或者个人的雇佣合同存在监管上的缺陷；分别调整模式有利于避免对传统雇佣关系中的受雇人利益的过度偏袒，防止雇用人对雇佣合同避而远之，最终受雇人利益受损，同时可以使得劳动关系中的劳动者权益受到合理的法律保护；但值得思考的是，法律调整模式模式并非一成不变，而是会根据社会需要而有所改变。最高院公报案例陈维礼诉赖国发雇佣合同纠纷案揭示了我国采用分别调整模式，通过对劳动法最新立法的分析，认为我国有由民法和劳动法对雇佣合同综合调整的趋势，但目前司法实践中主要还是以民法为雇佣合同的调整依据。因为民法中缺乏对雇佣合同的系统规定，致使我国法院对雇佣纠纷的审理和现实生活雇佣合同的使用均面临困境，受雇人之利益亦缺乏法律的保护。第三部分，部分大陆法系国家雇佣合同调整模式的比较法考察。该部分通过我国雇佣合同的法律调整模式与法德模式的比较，认为我国对雇佣合同的调整模式与德国调整模式相似，都是以民法调整为主，另外德国在劳动法体系中有对雇佣合同的规定，最新的《工伤保险条例》看，我国有逐步扩大劳动法适用之范围，对部分雇佣合同加以调整的趋势。鉴于我国与德国模式的相似度，德国的法律规范对我国有一定的借鉴意义；法国的雇佣合同由劳动法典进行调整，劳动法典虽对部分雇佣合同有特别规定，但总体上说，都是注重于受雇人的利益保护。但是雇佣关系具有分散性的特征，劳动部门亦难以对其进行监管，根据我国的国情，尚未适宜效仿法国模式。第四部分，我国雇佣合同的法律调整模式的完善。该部分对完善我国雇佣合同的民法调整模式提出的建议中，认为应该在民法体系中加入雇佣合同专章，但雇佣合同的立法要注意雇佣合同相关规范的调整范围，顾全受雇人的基本权利及维持雇佣合同双方的利益平衡这些问题。另外，雇佣合同中雇用人往往是没有在国家有关部门进行登记或备案的，所以只有在雇佣纠纷诉至法院民法方能实现调整功能，为减少雇佣纠纷和维护弱势的受雇人之权利，并充分发挥民法对雇佣合同的调整功能，可以建立雇佣合同的备案制度，该制度的建立应注意备案主体，异议程序及有关部门的在备案制度中的协调这几个问题。
[Abstract]:This paper discusses the legal adjustment mode of employment contract in China through comparison and case analysis.
The first part is the concept of employment contract. Through the analysis of the definition of the employment contract, the main connotation of the employment contract is the exchange of labor and remuneration. The legislation of labor law in our country defines the scope of the contract of employment indirectly by defining the scope of the main body of labor contract, and analyzes the employment contract and labor. After the three doctrines of the relationship of dynamic contracts, the argument that the three doctrines originate from the differences between the two angles of analysis of the relationship between the employment relations and the social relations of labor relations and the relationship between the legal relations, and from the perspective of social relations, both have the connotation of the exchange of labor and remuneration, and the labor contract has been adjusted by the labor law. The nature of the social law is that the adjustment of the law makes the labor contract different from the employment contract. The labor contract has the nature of the social law because of the adjustment of the labor law. The labor contract is a special form of employment contract, which is inclusive of the employment contract in a broad sense. Then, it compares the legal characteristics of the employment contract with the labor contract, and proves that the labor contract is compared with the legal characteristics of the labor contract. Although the two are adjusted by law, there are different qualities, but the connotations of the labor and remuneration exchange between the two are the same, and there are differences in the legal characteristics because of the difference in the intensity of the legal adjustment.
The second part is the legal adjustment model of the employment contract in China. Through the analysis of the theory of the legal adjustment mode of the employment contract in China, this part thinks that the civil law has made the civil law to the labor contract and the employment contract to adjust the civil law to the private law of the Party's autonomy, or to protect the disadvantaged group. It is an awkward situation with heavy nature; the unified adjustment of labor law makes the employer bear excessive responsibility and lose the balance of the interests of both parties in the employment contract, and the labor law adjusts the employer to be a regulatory defect in the employment contract of the family or individual; the adjustment model is beneficial to avoid the benefit of the employees in the traditional employment relationship. Excessive favoritism prevents the Employer from being far away from the employment contract, and is ultimately damaged by the interests of the employees. At the same time, it can make the workers' rights and interests in the labor relations reasonably protected by the law. However, it is worth thinking that the mode of the legal adjustment model is not the same, but it will change according to the social needs. The case of employment contract dispute between Chen Weili and Lai state reveals that our country adopts the mode of separate adjustment. Through the analysis of the latest legislation of labor law, it is believed that there is a trend of the comprehensive adjustment of employment contract by civil law and labor law in our country, but at present, civil law is mainly the basis for adjustment of employment contract in judicial practice. Because there is lack of employment in civil law. The system of domestic contract stipulates that the courts of our country face difficulties in the trial of employment disputes and the use of real life employment contracts, and the interests of the hired people are also lacking in the protection of the law.
The third part, a comparative study of the mode of employment contract adjustment in some continental legal system countries. Through the comparison of the legal adjustment mode of the employment contract in China and the French German model, this part thinks that the adjustment mode of the employment contract is similar to the German adjustment model, which is mainly in civil law adjustment, and the German is employed in the labor law system. According to the provisions of the domestic contract and the latest regulations on industrial injury insurance, China has gradually expanded the scope of the application of labor law and the tendency to adjust some of the employment contracts. In view of the similarity between our country and the German model, the German legal norms have a certain reference to our country; the employment contract in France is adjusted by the labor code and the labor code. Although there are special provisions on some of the employment contracts, in general, they all pay attention to the protection of the interests of the employees. However, the employment relationship has the characteristics of decentralization, and it is difficult for the labor department to supervise it. According to the national conditions of our country, it is not suitable to imitate the French model.
The fourth part is the perfection of the legal adjustment model of the employment contract in China. In this part, it is considered that the employment contract special chapter should be added to the civil law system, but the legislation of the employment contract should pay attention to the adjustment range of the relevant regulations of the employment contract and take into account the basic rights of the hired people. To maintain the balance of interests between the two parties in the employment contract. In addition, the employer in the employment contract is often not registered or recorded in the relevant state departments, so it is only in the employment dispute that the civil law of the court can realize the adjustment function, to reduce the employment disputes and to maintain the rights of the weak potential, and to give full play to the civil law to the employment. The filing system of the employment contract can be established by the adjustment function of the domestic contract. The establishment of the system should pay attention to the subject of the record, the dissenting procedure and the coordination of the relevant departments in the record system.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

【参考文献】