个体工商户的用人单位资格研究

发布时间：2018-11-02 12:36

【摘要】：在劳动法领域,个体工商户被赋予用人单位资格,与其他典型用人单位(企业)同样承担着无差别的法律义务,这有一定依据但是却不充分：这在一定程度上反映了部分个体工商户已经发展到具备企业外观的现实,但却没有全面考察个体工商户的经济实力；这是对《私营企业暂行条例》的沿用,即将雇员八人以上的个体工商户视为企业,八人以下视为非企业组织体,但“七上八下”本身就存在诸多诟病,已被《个体工商户条例》抛弃；这无疑有利于保障劳动者,但却顾此失彼忽略了个体工商户的利益。个体工商户被纳入法定用人单位范围产生了一系列弊病：改变了个体工商户的自然人本质,理论上导致对其法律性质认定混乱；实践中个体工商户用人单位义务过重；尤其是用人单位这一主体资格从劳动法逐渐向其他法律领域渗透以后,导致个体工商户在行政、刑事领域也承担了很多不合理的义务,最终在多方面影响了个体工商户的发展乃至生存,不能发挥其应有的社会价值。通过综合分析可知个体工商户不适合作为用人单位。首先,个体工商户的综合发展状况在根本上决定了其不应承担过重的用人单位义务。通过分析得出：虽然数量上个体工商户在市场主体中占有绝对地位,但是资金额所占比重却很低,实力弱小；虽然存在一部分实力较强的个体工商户,但是“大户”与全体个体工商户相比,数量非常少,并且“大户”与私营企业相比仍存在很大差距,仍处于弱势地位。其次,个体工商户的自然人本质与用人单位组织性特征不相容。个人经营的个体工商户本质上是自然人,家庭经营的个体工商户是基于家庭关系形成的共同共有关系,“大户”虽有发展却并不足以影响个体工商户整体的性质定位。最后,个体工商户具备非现代性,营利性不完全,经营中家庭人身性强等特征,这些特性使其不适宜作为用人单位。尤其要说明的是,弱化甚至否认个体工商户的用人单位资格并不代表对劳动者利益放弃保护：虽不成立劳动关系,尚有雇佣关系存在,后者更有利于平衡个体工商户与其雇员之间的利益。由此,劳动法领域对个体工商户法律资格的认定需要做出以下调整：基础性前提是区分“大户”“小户”,进而促进“大户”转为组织体,赋予其用人单位资格；但“大户”转企后仍需与传统企业差别对待并要尊重其劳动关系的家庭性；“小户”不仅不宜作为用人单位反而要加强对“小户”的劳动权益保障。
[Abstract]:In the field of labor law, individual industrial and commercial households are given the status of employing units, and have the same legal obligations as other typical employers (enterprises). This has some basis but not enough: to some extent, it reflects that some individual industrial and commercial households have developed to the reality of having the appearance of enterprises, but they have not comprehensively investigated the economic strength of individual industrial and commercial households; This is a continuation of the "Provisional regulations on Private Enterprises," in which individual industrial and commercial households with more than eight employees are regarded as enterprises, and those below eight are regarded as non-enterprise organizations. Has been abandoned by the "individual Industrial and Commercial regulations"; This is undoubtedly conducive to the protection of workers, but ignore the interests of individual industrial and commercial households. The fact that individual industrial and commercial households have been brought into the scope of statutory employing units has a series of drawbacks: changing the nature of natural persons of individual industrial and commercial households, theoretically leading to confusion of their legal nature, excessive obligations of individual industrial and commercial households and employing units in practice; In particular, after the subject qualification of the employing unit gradually infiltrated into other legal fields from the labor law, the individual industrial and commercial households also assumed a lot of unreasonable obligations in the administrative and criminal fields. Finally, it affects the development and even survival of individual industrial and commercial households in many ways, and can not play its due social value. Comprehensive analysis shows that individual industrial and commercial households are not suitable as employers. First of all, the comprehensive development of individual industrial and commercial households fundamentally determines that they should not assume excessive employer obligations. Through the analysis, it is concluded that although the number of individual industrial and commercial households occupies an absolute position in the market, the proportion of the capital amount is very low and the strength is weak; Although there are some strong individual industrial and commercial households, compared with all individual industrial and commercial households, the number of "large households" is very small, and the "large households" are still in a weak position compared with the private enterprises. Secondly, the natural person nature of individual industrial and commercial households is incompatible with the organizational characteristics of the employing unit. In essence, the individual industrial and commercial households are natural persons, and the individual industrial and commercial households run by the family are based on the common relations formed by the family relations. Although the "large households" have developed, they are not sufficient to influence the overall nature orientation of the individual industrial and commercial households. Finally, individual industrial and commercial households have the characteristics of non-modernity, incomplete profitability, strong personal character of the family and so on, which make them unsuitable for employing units. In particular, weakening or even denying the employer's qualifications of individual industrial and commercial households does not mean giving up the protection of workers' interests: although there is no labor relationship, there are still employment relations. The latter is more conducive to balancing the interests of individual businesses and their employees. Therefore, the legal qualification of individual industrial and commercial households in the field of labor law needs to be adjusted as follows: the basic premise is to distinguish between "large households" and "small households", and then to promote the "large households" to become organizational bodies and to give them the qualifications of employing units; However, the "large households" should be treated differently from the traditional enterprises and the family nature of their labor relations should be respected, and the "small households" should not be regarded as employers but should strengthen the protection of the labor rights and interests of the "small households".
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.5

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