远程工作形态下新型劳动关系的法律保护
发布时间：2018-08-22 17:55
【摘要】：远程工作是伴随第二次现代化的社会变革而发展出的区别于传统的、特定的劳动关系而存在的一种新型劳动力供给方式。随着我国互联网及通讯技术的发展和普及,借助互联网资源与通信工具进行工作的人数不断增多,这种新型工作形态的出现加剧了劳动法法律适用与法律解释的复杂性,在司法实践中增大了法官对案件裁判的难度。我国现行劳动法在调整远程工作形态下新型劳动关系时存在性质界定不清、劳动标准无法直接适用等不足。远程工作是否适用劳动法予以调整,应回归于劳动基准法中对劳动关系的判定标准即从属性判定标准。对具有劳动关系性质的远程工作者,应在现有劳动法框架内,运用下位法进行调整,赋予远程工作劳动者自由选择工作地点的权利,并在劳动合同确认的工作时间总额内,允许劳动者享有灵活安排的权利。
[Abstract]:Remote work is a new type of labor supply mode, which is different from the traditional, specific labor relationship and developed with the second modern social change. With the development and popularization of the Internet and communication technology in China, the number of people working with Internet resources and communication tools is increasing. The emergence of this new work pattern has increased the complexity of the application and interpretation of labor laws. In the judicial practice, it increases the difficulty of the judge to judge the case. The current labor law of our country has some shortcomings in adjusting the new type of labor relation under the form of remote work, such as unclear definition of nature and inapplicability of labor standard. It is necessary to return to the standard of judging labor relations in the labor standard law, that is, the criterion of subordinate attribute, whether the labor law is applicable to the adjustment of the labor law. For remote workers with the nature of labor relations, adjustment should be made within the framework of the existing labour laws, with the application of the lower law, giving remote workers the right to freely choose their place of work, and within the total amount of working hours recognized by the labour contract, Workers are allowed the right to flexible arrangements.
【作者单位】： 华东师范大学法学院;
【分类号】：D922.5
，
本文编号：2197867
[Abstract]:Remote work is a new type of labor supply mode, which is different from the traditional, specific labor relationship and developed with the second modern social change. With the development and popularization of the Internet and communication technology in China, the number of people working with Internet resources and communication tools is increasing. The emergence of this new work pattern has increased the complexity of the application and interpretation of labor laws. In the judicial practice, it increases the difficulty of the judge to judge the case. The current labor law of our country has some shortcomings in adjusting the new type of labor relation under the form of remote work, such as unclear definition of nature and inapplicability of labor standard. It is necessary to return to the standard of judging labor relations in the labor standard law, that is, the criterion of subordinate attribute, whether the labor law is applicable to the adjustment of the labor law. For remote workers with the nature of labor relations, adjustment should be made within the framework of the existing labour laws, with the application of the lower law, giving remote workers the right to freely choose their place of work, and within the total amount of working hours recognized by the labour contract, Workers are allowed the right to flexible arrangements.
【作者单位】： 华东师范大学法学院;
【分类号】：D922.5
，
本文编号：2197867
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