我国休息权实现机制研究
发布时间：2018-08-22 14:36
【摘要】：在我国劳动领域中,为何休息权的实现状况不容乐观?人们通常将原因归结为:法律制度不健全、劳动行政部门执法不严、用人单位不遵守法律、劳动者权利意识薄弱等等。然而本文认为,以上解释进路与其说是对休息权实现困境的解释,不如说只是对困境的客观描述。本文提出,应当区分休息权实现困境的“病征”与“症结”,在权利实现的真实场域中,去发掘权利实现困境产生的深层原因。因此,本文的预期目标是:在把握休息权历史发展规律的基础上,发展一种新的、以权利的实现为主线的解释路径,用以解读休息权实现过程中所面临的困境,最终为促进休息权的实现寻求新的理论出路。受马克思“劳动异化”理论的启发,本文经过观念与概念分析后提出:休息权研究的根本问题,是社会时间如何通过规范的方式进行分配的问题;作为自然权利的休息权属于每一个自然人,而作为法律权利的休息权则属于特定法律关系中的特定主体;在劳动法律关系中,休息权的内在矛盾并非“休息与劳动”,而是“休息与异化劳动”,休息与异化劳动之间的矛盾构成了休息权所调整的社会关系的基础。因此,本文研究的对象将限定为:异化劳动中人们围绕劳动时间与自由时间如何分配而形成的制度化的权利义务关系。本文提出一个由两个主要变量构成的分析框架:基于时间利益而形成的利益博弈关系;以及围绕其产生的制度化的权利义务关系。两个变量对应着休息权实现的两个要素:时间利益分配平衡与制度规范形式合理。时间分配与制度规范二者相互作用,共同构成了动态的、真实的休息权实现机制。休息权实现机制的内在动因在于时间利益的分配博弈,其形式特征在于休息权规范的制度化与再制度化。休息权实现的困境来自多个方面,根据本文提出的分析框架,本文将从规范与经验两个层面入手,对休息权实现的困境展开分析。通过分析后发现:在规范层面中,制度在概念与逻辑等方面若存在瑕疵,便会导致规范体系出现逻辑断裂甚至是自相矛盾之处,进而在规范适用中引发权利实现的困境;在经验层面中,真实的权利实现过程不仅受制于制度规范的约束,权利活动参与者的客观情况与主观认识同样会对权利活动的结果产生影响。因此,本文从制度与观念两个层面来对机制障碍进行分析,进而提出:应当在制度上赋予劳动者平等的法律地位,消除狭义的劳动关系对休息权主体的约束,将公务员、律师、出租车司机等非劳动法主体重新纳入制度的保护范围。应当在观念上厘清休息权所保护的自由时间利益与自由时间的经济补偿利益之间的关联与差别,明确“自由时间为主、经济补偿为辅”的休息权观。克服机制障碍的两项基本原则在于:观念上应当以权利的方式对待休息,尊重并承认休息权所调整的各方主体的合法利益;制度上要打通休息权制度化与再制度化的交流路径,使制度能够及时的对民众需求做出反馈。综上所述,以时间利益分配平衡与制度规范形式合理两个要素来构建休息权的实现机制,是克服我国当下劳动领域中休息权实现困境的根本途径。新的分析框架有助于研究发现休息权实现中的真实困境,并为解释困境产生的深层原因提供可操作的分析工具,最终为改善休息权的实现状况贡献新的思路。
[Abstract]:In the labor field of our country, why is the realization of the right to rest not optimistic? People usually attribute the reasons to: the legal system is not sound, the labor administrative department law enforcement is not strict, employers do not abide by the law, weak awareness of workers'rights and so on. In this paper, we should distinguish the "symptoms" and "crux" of the dilemma of the realization of the right to rest, and explore the underlying causes of the dilemma of the realization of the right in the real field of the realization of the right. Inspired by Marx's theory of "labor alienation", this paper puts forward that the fundamental problem in the study of the right to rest is how social time is. The right to rest, as a natural right, belongs to every natural person, while the right to rest, as a legal right, belongs to a specific subject in a particular legal relationship. In labor legal relations, the inherent contradiction of the right to rest is not "rest and labor", but "rest and alienated labor", rest and rest and alienation. The contradiction between alienated labor forms the basis of social relations regulated by the right to rest. Therefore, the object of this study will be limited to: the institutionalized relationship of rights and obligations formed in alienated labor around the allocation of labor time and free time. The two variables correspond to the two elements of the realization of the right to rest: the balance of time benefit distribution and the rational form of institutional norms. The intrinsic motivation of the realization mechanism of the right to rest lies in the distribution game of time interests, and its formal characteristics lie in the institutionalization and re-institutionalization of the norms of the right to rest. Through the analysis, it is found that in the normative level, if there are flaws in the concept and logic of the system, it will lead to the logical breakage or even self-contradiction of the normative system, and then lead to the dilemma of the realization of rights in the application of the norms; in the empirical level, the process of the realization of real rights is not only subject to the constraints of the norms of the system. The objective and subjective conditions of the participants in the right activities will also have an impact on the results of the right activities. Therefore, this paper analyzes the mechanism obstacles from two aspects of system and concept, and then puts forward that laborers should be given equal legal status in the system, and the restriction of the narrow labor relations on the subject of the right to rest should be eliminated. Civil servants, lawyers, taxi drivers and other non-labor law subjects should be re-included in the protection of the system. The relationship and difference between the interests of free time protected by the right to rest and the interests of economic compensation for free time should be clarified in concept, and the concept of "free time is the main thing, economic compensation is the supplement" should be clarified. The two basic principles are as follows: conceptually, we should treat rest as a right, respect and recognize the legitimate interests of the parties adjusted by the right to rest; and institutionally, we should open the communication path between institutionalization and re-institutionalization of the right to rest so that the system can give timely feedback to the needs of the people. It is the fundamental way to overcome the predicament of the realization of the right to rest in the current labor field in our country to construct the mechanism of the realization of the right to rest by two elements of the rational form of institutional norms. The realization of the right to rest is a new way of thinking.
【学位授予单位】：华南理工大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D922.5
，
本文编号：2197391
[Abstract]:In the labor field of our country, why is the realization of the right to rest not optimistic? People usually attribute the reasons to: the legal system is not sound, the labor administrative department law enforcement is not strict, employers do not abide by the law, weak awareness of workers'rights and so on. In this paper, we should distinguish the "symptoms" and "crux" of the dilemma of the realization of the right to rest, and explore the underlying causes of the dilemma of the realization of the right in the real field of the realization of the right. Inspired by Marx's theory of "labor alienation", this paper puts forward that the fundamental problem in the study of the right to rest is how social time is. The right to rest, as a natural right, belongs to every natural person, while the right to rest, as a legal right, belongs to a specific subject in a particular legal relationship. In labor legal relations, the inherent contradiction of the right to rest is not "rest and labor", but "rest and alienated labor", rest and rest and alienation. The contradiction between alienated labor forms the basis of social relations regulated by the right to rest. Therefore, the object of this study will be limited to: the institutionalized relationship of rights and obligations formed in alienated labor around the allocation of labor time and free time. The two variables correspond to the two elements of the realization of the right to rest: the balance of time benefit distribution and the rational form of institutional norms. The intrinsic motivation of the realization mechanism of the right to rest lies in the distribution game of time interests, and its formal characteristics lie in the institutionalization and re-institutionalization of the norms of the right to rest. Through the analysis, it is found that in the normative level, if there are flaws in the concept and logic of the system, it will lead to the logical breakage or even self-contradiction of the normative system, and then lead to the dilemma of the realization of rights in the application of the norms; in the empirical level, the process of the realization of real rights is not only subject to the constraints of the norms of the system. The objective and subjective conditions of the participants in the right activities will also have an impact on the results of the right activities. Therefore, this paper analyzes the mechanism obstacles from two aspects of system and concept, and then puts forward that laborers should be given equal legal status in the system, and the restriction of the narrow labor relations on the subject of the right to rest should be eliminated. Civil servants, lawyers, taxi drivers and other non-labor law subjects should be re-included in the protection of the system. The relationship and difference between the interests of free time protected by the right to rest and the interests of economic compensation for free time should be clarified in concept, and the concept of "free time is the main thing, economic compensation is the supplement" should be clarified. The two basic principles are as follows: conceptually, we should treat rest as a right, respect and recognize the legitimate interests of the parties adjusted by the right to rest; and institutionally, we should open the communication path between institutionalization and re-institutionalization of the right to rest so that the system can give timely feedback to the needs of the people. It is the fundamental way to overcome the predicament of the realization of the right to rest in the current labor field in our country to construct the mechanism of the realization of the right to rest by two elements of the rational form of institutional norms. The realization of the right to rest is a new way of thinking.
【学位授予单位】：华南理工大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D922.5
，
本文编号：2197391
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