农民工劳动权的法律保护探析

发布时间：2018-06-10 20:22

本文选题：农民工 + 劳动权　；参考：《中共中央党校》2006年硕士论文

【摘要】：农民工是自80年代以来涌现的农村剩余劳动力向城镇转移而形成的一个特殊的社会群体。据国家统计局调查，目前我国农民工人数已经超过2亿。由于我国长期以来形成的城乡二元分割体制，造成农民工职业与身份的不一致性。从职业上看，农民工已不再是从事农业生产的农民，而是在城市从事第二、三产业的工人，但从身份上看，他们仍然是农民，因为他们的户籍还在农村。这种不一致性导致农民工在工作以及工作以外的诸多方面遭受着不平等的待遇，使得他们的许多合法权益得不到真正的保障。如何解决农民工所面临的这一系列问题，近年来，社会学者对此论述较多，而法学界则关注不够。本文试从法学的角度对农民工权利保护中的一个突出问题——农民工的劳动权进行深入探讨。本文共分为三大部分：第一部分：农民工与劳动权概述。首先对农民工进行了界定。接下来从概念、性质和内容三方面对劳动权作了全面梳理。最后论述了保护农民工劳动权的意义，指出保护农民工的劳动权是人权的内在要求、是遵守国际劳工标准的要求、是构建社会主义和谐社会的应有之义。第二部分：农民工劳动权的现状及其法律原因分析。首先从农民工的就业权受到严重侵害、劳动报酬权严重受损、休息休假权得不到保障、劳动安全卫生权严重缺失、女职工和未成年工的特殊保护权未实现、职业培训权难得到保障、社会保险权严重缺失、劳动权受侵后得不到及时救济、维权组织缺失九个具体方面对农民工劳动权的现状作了描述。其间引用大量数据和调研资料作为实证。紧接着对农民工劳动权缺失的法律原因进行了理论分析，对其中的立法、执法和司法因素作了较深入的探讨。第三部分：加强农民工劳动权法律保护的思考。首先提出农民工劳动权保护的两个原则——法律平等保护原则和法律特殊保护原则。尝试从法理的高度论述农民工劳动权法律保护的理念。接着借鉴国外在解决相关问题上的经验做法，，进行了比较研究。最后提出加强农民工劳动权法律保护的五条具体思路：一是要完善立法；二是要转变政府职能，加强劳动执法；三是要改革和完善劳动争议处理机制：四是要提高农民工的组织化程度；最后要为农民工提供法律援助和普法宣传。
[Abstract]:Migrant workers are a special social group formed by the shift of rural surplus labor force to cities and towns since 1980's. According to the National Bureau of Statistics survey, the number of migrant workers in China has exceeded 200 million. Because of the dualistic system of urban-rural division, the occupation and identity of migrant workers are inconsistent. From a professional point of view, migrant workers are no longer farmers engaged in agricultural production, but workers in the second and third industries in cities, but they are still peasants in terms of status, because their household registration is still in the countryside. Such inconsistency results in unequal treatment of migrant workers in many aspects of their work as well as outside of work, which makes many of their legitimate rights and interests not truly protected. In recent years, many social scholars have discussed how to solve this series of problems faced by migrant workers, but not enough in the field of law. In this paper, a prominent problem in the protection of the rights of migrant workers is discussed from the perspective of jurisprudence. This paper is divided into three parts: the first part: an overview of migrant workers and labor rights. First of all, the definition of migrant workers. Then the concept, nature and content of the three aspects of the overall combing of labor rights. Finally, it discusses the significance of protecting migrant workers' labor rights, and points out that the protection of migrant workers' labor rights is the inherent requirement of human rights and the requirement of complying with international labor standards. The second part: the status quo of migrant workers' labor rights and their legal reasons. First of all, the right to employment of migrant workers has been seriously violated, the right to remuneration has been seriously damaged, the right to rest and leave has not been guaranteed, the right to work safety and health has been seriously lacking, and the special protection rights of female workers and underage workers have not been realized. The right to vocational training is difficult to be guaranteed, the right to social insurance is seriously lacking, the right to work is not available for immediate relief after being invaded, and the current situation of migrant workers' labor rights is described in nine specific aspects of the absence of rights organizations. A large number of data and research materials are cited as empirical evidence. Then, the author makes a theoretical analysis of the legal reasons for the lack of migrant workers' labor rights, and probes into the legislative, law enforcement and judicial factors among them. Part three: the reflection on strengthening the legal protection of migrant workers' labor rights. Firstly, it puts forward two principles of labor rights protection of migrant workers-equal protection of law and special protection of law. This paper tries to discuss the concept of legal protection of migrant workers' labor rights from the perspective of legal theory. Then draw lessons from the experience of foreign countries in solving related problems, comparative study. Finally, five specific ideas for strengthening the legal protection of migrant workers' labor rights are put forward: one is to perfect the legislation, the other is to change the functions of the government and strengthen the labor law enforcement. Third, it is necessary to reform and improve the mechanism of handling labor disputes: fourth, to improve the degree of organization of migrant workers; finally, to provide legal aid and publicity for migrant workers.
【学位授予单位】：中共中央党校
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.5

【引证文献】