行政權(quán)力規(guī)制與勞動(dòng)關(guān)系自由化的互補(bǔ)與雙贏
發(fā)布時(shí)間：2018-07-18 12:11
【摘要】： 我國(guó)改革開(kāi)放以后經(jīng)濟(jì)環(huán)境的蓬勃發(fā)展,各種經(jīng)濟(jì)主體在追求發(fā)展的過(guò)程中,因?qū)Ｗ⑿б嬖鲩L(zhǎng)而忽略了勞資關(guān)系的穩(wěn)健和諧�！秳趧�(dòng)合同法》的適時(shí)出臺(tái),是我國(guó)勞動(dòng)關(guān)系新的里程碑。本文將自行政機(jī)關(guān)執(zhí)法、監(jiān)督暨勞雇雙方利益調(diào)和角度出發(fā),探討《勞動(dòng)合同法》出臺(tái)后,利益關(guān)系各方應(yīng)有的作為。 第一章從華為員工自愿離職事件,剖析《勞動(dòng)合同法》實(shí)施后企業(yè)面臨的主要挑戰(zhàn)及促進(jìn)合同法有效實(shí)施的關(guān)鍵。《勞動(dòng)合同法》規(guī)定,在一定條件之下,用人單位需接受勞方簽訂無(wú)固定期合同的要求,雖然該法立法目的不在保障鐵飯碗,但因經(jīng)濟(jì)補(bǔ)償責(zé)任,將影響企業(yè)內(nèi)人才的良性流動(dòng),造成人力資源制度的僵化,不利于企業(yè)永續(xù)發(fā)展。華為公司是我國(guó)具有全球知名度的企業(yè),冒然采取“買(mǎi)斷工齡1、重簽合同”方式來(lái)應(yīng)對(duì)《勞動(dòng)合同法》的要求,除影響企業(yè)本身的形象外,對(duì)社會(huì)也起到負(fù)面的示范作用。另,這樣的作法是否確實(shí)能夠達(dá)成公司所預(yù)期的目標(biāo)?本文將從該公司策略方案的角度與法律規(guī)定的內(nèi)涵,分析《勞動(dòng)合同法》立法實(shí)踐所面臨的挑戰(zhàn)。 第二章勞動(dòng)者基本生活及工作權(quán)的保障,是國(guó)家的憲法責(zé)任,而企業(yè)主應(yīng)在國(guó)家承擔(dān)基本義務(wù)之后履行補(bǔ)充責(zé)任。福利國(guó)家制度的實(shí)施,必須根據(jù)國(guó)家的經(jīng)濟(jì)發(fā)展情況采取有步驟的推進(jìn)。我國(guó)正處于經(jīng)濟(jì)起飛階段,法律制度的設(shè)計(jì)有必要保護(hù)經(jīng)濟(jì)上的弱者,但激勵(lì)經(jīng)濟(jì)發(fā)展、保障全民,更是憲法的精神。因此,立法或執(zhí)法的平衡,需審慎評(píng)估,避免傷害企業(yè)的活力。 勞動(dòng)合同是勞雇雙方合意而簽訂的雙務(wù)合同。雙方平等協(xié)商是契約自由原則的具體實(shí)踐。勞動(dòng)關(guān)系中存在資強(qiáng)勞弱的現(xiàn)實(shí),若貫徹契約自由,可能導(dǎo)致用人單位假自由之名而侵害了勞動(dòng)者的權(quán)益�；趧趧�(dòng)關(guān)系的社會(huì)性特質(zhì),國(guó)家公權(quán)力應(yīng)適度的平衡當(dāng)事人雙方的利益,而調(diào)整締約自由。本文擬從勞動(dòng)合同關(guān)系的特質(zhì),探索勞動(dòng)合同自由的限制,同時(shí)探索行政權(quán)力規(guī)制的有效方法。 第三章勞動(dòng)保障的執(zhí)法監(jiān)督與司法救濟(jì)�！秳趧�(dòng)合同法》的實(shí)施,重點(diǎn)在于法治理念的強(qiáng)化與執(zhí)法、維權(quán)制度的落實(shí)。各種經(jīng)濟(jì)組織在建立制度、規(guī)章的過(guò)程中,必需受到勞動(dòng)保障監(jiān)察機(jī)關(guān)的管理與監(jiān)督。行政部門(mén)除完善各項(xiàng)監(jiān)督法規(guī)外,應(yīng)加強(qiáng)監(jiān)督人才的培訓(xùn)與技術(shù)能力的提高,并對(duì)各企業(yè)的相關(guān)執(zhí)行人員納入法制意識(shí)的培訓(xùn)體系中,同時(shí)加強(qiáng)勞動(dòng)者教育,把各種違規(guī)、脫法行為防范于形成之前。在爭(zhēng)議事件發(fā)生的善后方面,則從制度面提供合理公平的爭(zhēng)議處理機(jī)制,包括爭(zhēng)議的調(diào)解、仲裁以及訴訟。 勞動(dòng)關(guān)系的行政訴訟應(yīng)有之意,在督促行政機(jī)關(guān)合法行政,其宗旨在穩(wěn)健與和諧,與民事訴訟并無(wú)不同。本文基于勞動(dòng)關(guān)系速審、速結(jié)之需要,對(duì)司法救濟(jì)制度提出改革建議。 第四章勞動(dòng)立法完善的過(guò)程中,國(guó)際經(jīng)驗(yàn)的借鑒足以調(diào)整過(guò)程中的弊病。德、法二國(guó)在經(jīng)濟(jì)發(fā)展上曾獨(dú)領(lǐng)風(fēng)騷,勞動(dòng)保護(hù)制度立法,則遲滯了國(guó)家的經(jīng)濟(jì)發(fā)展。但該二國(guó)為已開(kāi)發(fā)國(guó)家,人民生活水平已達(dá)一定的高度,提高勞動(dòng)者保護(hù)基點(diǎn),是邁向福利國(guó)家的必要過(guò)程。 我國(guó)經(jīng)過(guò)多年的實(shí)證檢驗(yàn),計(jì)劃經(jīng)濟(jì)體制已無(wú)法滿足現(xiàn)代化經(jīng)濟(jì)發(fā)展的潮流。改革開(kāi)放以來(lái),建立中國(guó)特有的社會(huì)主義市場(chǎng)經(jīng)濟(jì)體制,使國(guó)民生產(chǎn)能力提升、民眾生活水平提高,實(shí)現(xiàn)了我中華民族數(shù)千年來(lái)努力追求的小康社會(huì)。然而,經(jīng)濟(jì)發(fā)展造成的貧富差距,又造成新的貴族階層,剝削基層勞動(dòng)者的情況時(shí)有所聞。政府行政權(quán)力必需介入調(diào)整,以提升勞動(dòng)者的經(jīng)濟(jì)地位。同時(shí)督促企業(yè)以社會(huì)責(zé)任的承擔(dān),在實(shí)踐可持續(xù)發(fā)展的努力中,落實(shí)和諧勞動(dòng)關(guān)系,奠定立法、執(zhí)法與適法者多贏格局,使我國(guó)由小康社會(huì)邁入全面富足。 第五章“結(jié)語(yǔ)”。《勞動(dòng)合同法》的實(shí)施,為我國(guó)市場(chǎng)經(jīng)濟(jì)發(fā)展提供了轉(zhuǎn)轍器。在經(jīng)濟(jì)發(fā)展中與勞動(dòng)者共享成長(zhǎng)的果實(shí),是每一個(gè)企業(yè)家必須有的愿景。企業(yè)社會(huì)責(zé)任的實(shí)踐,是企業(yè)存在的核心價(jià)值;勞動(dòng)者則努力創(chuàng)造人力資本效益�！秳趧�(dòng)合同法》的立法宗旨與目標(biāo)在為企業(yè)創(chuàng)造好的經(jīng)營(yíng)環(huán)境,為勞動(dòng)者塑造安身立命的成長(zhǎng)空間。在互惠互利的法治環(huán)境之中,實(shí)踐社會(huì)利益相關(guān)者的多贏局面。
[Abstract]:After the vigorous development of the economic environment after China's reform and opening up, all kinds of economic subjects have ignored the steady and harmonious labor relations in the process of pursuing the development. The timely introduction of labor contract law is a new milestone in the labor relations of China. This article will be taken from the administrative organs, supervision and employment of both parties. Starting from the introduction of the labor contract law, the parties concerned should do what they should do.
The first chapter, from the HUAWEI employees' voluntary turnover, analyzes the key challenges faced by the enterprises after the implementation of the labor contract law and the key to promote the effective implementation of the contract law. < Labor Contract Law > stipulates that under certain conditions, the employers are required to accept the requirements of the non fixed term contract by the employers, although the legislation is not intended to guarantee the iron rice bowl, but Because of the responsibility of economic compensation, it will affect the good flow of talents in the enterprise, and cause the rigid human resources system, which is not conducive to the sustainable development of the enterprise. The HUAWEI company is an enterprise with global popularity in our country. It takes the way of "buying the 1, resigning the contract" to cope with the requirements of "labor cooperation and same law", in addition to affecting the image of the enterprise itself. Society also plays a negative demonstration role. In addition, does this practice really be able to target the expected goal of the Achieve Inc? This article will analyze the challenges faced by the labor contract law and legislative practice from the point of view of the company's strategic plan and the connotation of the law.
The second chapter is the guarantee of the basic living and working rights of the workers, which is the constitutional responsibility of the state, and the owner of the enterprise should fulfill the supplementary responsibility after the state bears the basic obligations. The implementation of the welfare state system must be carried out step by step according to the state's economic development. To protect the weak of the economy, it is the spirit of the constitution to encourage economic development and guarantee the whole people. Therefore, the balance of legislation or law enforcement should be carefully evaluated and avoid the vitality of the enterprise.
The labor contract is a double contract signed by both employers and employees. The equal consultation between the two parties is the concrete practice of the principle of freedom of contract. There is a reality in the labor relations in the labor relations. If we carry out the freedom of contract, it may lead to the infringement of the rights and interests of the workers by the name of the false freedom of the employer. In order to balance the interests of both parties and adjust the freedom of the parties, this paper tries to explore the restrictions on the freedom of labor contract from the characteristics of labor contract relations and explore the effective methods of administrative power regulation.
The third chapter is the law enforcement supervision and judicial relief of labor security. The implementation of the labor contract law focuses on the strengthening and enforcement of the concept of the rule of law and the implementation of the rights system. In the process of establishing the system and regulations, the various economic organizations must be managed and supervised by the labor security supervision organs. To strengthen the training and technical ability of the supervision personnel, and to bring the related executors into the training system of the legal consciousness, and to strengthen the education of the workers, and to prevent all kinds of violations and the act of removing the law before it is formed. Conciliation, arbitration, and litigation involving disputes.
The administrative litigation of labor relations should be intended, in the supervision of the legal administration of the administrative organs, its purpose is not different from that of civil litigation. This article puts forward some suggestions on the reform of the judicial relief system on the basis of the quick review of labor relations and the need for quick conclusion.
In the fourth chapter, in the process of perfecting the labor legislation, the reference of international experience is enough to adjust the maladies in the process. The two countries of Germany and France have led the economic development, and the legislation of the labor protection system has delayed the economic development of the country. However, the two country is the developed country, the people's life has reached a certain height, and the base point of protecting the workers is raised, It is a necessary process to move towards a welfare state.
After years of empirical test, the planned economic system has been unable to meet the trend of the development of modern economy. Since the reform and opening up, China's unique socialist market economy system has been established to improve the national production capacity and improve the living standard of the people. However, the economy of the Chinese people has been pursuing a well-off society for thousands of years. The gap between the rich and the poor caused by the development has caused the new aristocracy and the exploitation of the workers at the grass-roots level. The administrative power of the government must be adjusted to improve the economic status of the workers. At the same time, the enterprises are urged to take the responsibility of social responsibility, to implement the harmonious labor relations in the efforts of the practice of sustainable development, to establish the legislation, to enforce the law and to enforce the law. The win win pattern of the lawless people has brought China into a well-off society from a well-off society.
The fifth chapter "conclusion". The implementation of the labor contract law provides a switch for the development of the market economy in China. The fruit of sharing and growing up with the workers in the economic development is the vision of every entrepreneur. The practice of corporate social responsibility is the core value of the existence of the enterprise; the laborers strive to create the benefit of human capital. The legislative purpose and goal of the same law is to create a good operating environment for the enterprise, to create a living space for the workers and to practice the multi win situation of the social stakeholders in the mutually beneficial and mutually beneficial environment of the rule of law.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D922.5
本文編號(hào)：2131862
[Abstract]:After the vigorous development of the economic environment after China's reform and opening up, all kinds of economic subjects have ignored the steady and harmonious labor relations in the process of pursuing the development. The timely introduction of labor contract law is a new milestone in the labor relations of China. This article will be taken from the administrative organs, supervision and employment of both parties. Starting from the introduction of the labor contract law, the parties concerned should do what they should do.
The first chapter, from the HUAWEI employees' voluntary turnover, analyzes the key challenges faced by the enterprises after the implementation of the labor contract law and the key to promote the effective implementation of the contract law. < Labor Contract Law > stipulates that under certain conditions, the employers are required to accept the requirements of the non fixed term contract by the employers, although the legislation is not intended to guarantee the iron rice bowl, but Because of the responsibility of economic compensation, it will affect the good flow of talents in the enterprise, and cause the rigid human resources system, which is not conducive to the sustainable development of the enterprise. The HUAWEI company is an enterprise with global popularity in our country. It takes the way of "buying the 1, resigning the contract" to cope with the requirements of "labor cooperation and same law", in addition to affecting the image of the enterprise itself. Society also plays a negative demonstration role. In addition, does this practice really be able to target the expected goal of the Achieve Inc? This article will analyze the challenges faced by the labor contract law and legislative practice from the point of view of the company's strategic plan and the connotation of the law.
The second chapter is the guarantee of the basic living and working rights of the workers, which is the constitutional responsibility of the state, and the owner of the enterprise should fulfill the supplementary responsibility after the state bears the basic obligations. The implementation of the welfare state system must be carried out step by step according to the state's economic development. To protect the weak of the economy, it is the spirit of the constitution to encourage economic development and guarantee the whole people. Therefore, the balance of legislation or law enforcement should be carefully evaluated and avoid the vitality of the enterprise.
The labor contract is a double contract signed by both employers and employees. The equal consultation between the two parties is the concrete practice of the principle of freedom of contract. There is a reality in the labor relations in the labor relations. If we carry out the freedom of contract, it may lead to the infringement of the rights and interests of the workers by the name of the false freedom of the employer. In order to balance the interests of both parties and adjust the freedom of the parties, this paper tries to explore the restrictions on the freedom of labor contract from the characteristics of labor contract relations and explore the effective methods of administrative power regulation.
The third chapter is the law enforcement supervision and judicial relief of labor security. The implementation of the labor contract law focuses on the strengthening and enforcement of the concept of the rule of law and the implementation of the rights system. In the process of establishing the system and regulations, the various economic organizations must be managed and supervised by the labor security supervision organs. To strengthen the training and technical ability of the supervision personnel, and to bring the related executors into the training system of the legal consciousness, and to strengthen the education of the workers, and to prevent all kinds of violations and the act of removing the law before it is formed. Conciliation, arbitration, and litigation involving disputes.
The administrative litigation of labor relations should be intended, in the supervision of the legal administration of the administrative organs, its purpose is not different from that of civil litigation. This article puts forward some suggestions on the reform of the judicial relief system on the basis of the quick review of labor relations and the need for quick conclusion.
In the fourth chapter, in the process of perfecting the labor legislation, the reference of international experience is enough to adjust the maladies in the process. The two countries of Germany and France have led the economic development, and the legislation of the labor protection system has delayed the economic development of the country. However, the two country is the developed country, the people's life has reached a certain height, and the base point of protecting the workers is raised, It is a necessary process to move towards a welfare state.
After years of empirical test, the planned economic system has been unable to meet the trend of the development of modern economy. Since the reform and opening up, China's unique socialist market economy system has been established to improve the national production capacity and improve the living standard of the people. However, the economy of the Chinese people has been pursuing a well-off society for thousands of years. The gap between the rich and the poor caused by the development has caused the new aristocracy and the exploitation of the workers at the grass-roots level. The administrative power of the government must be adjusted to improve the economic status of the workers. At the same time, the enterprises are urged to take the responsibility of social responsibility, to implement the harmonious labor relations in the efforts of the practice of sustainable development, to establish the legislation, to enforce the law and to enforce the law. The win win pattern of the lawless people has brought China into a well-off society from a well-off society.
The fifth chapter "conclusion". The implementation of the labor contract law provides a switch for the development of the market economy in China. The fruit of sharing and growing up with the workers in the economic development is the vision of every entrepreneur. The practice of corporate social responsibility is the core value of the existence of the enterprise; the laborers strive to create the benefit of human capital. The legislative purpose and goal of the same law is to create a good operating environment for the enterprise, to create a living space for the workers and to practice the multi win situation of the social stakeholders in the mutually beneficial and mutually beneficial environment of the rule of law.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D922.5
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 李永軍;從契約自由原則的基礎(chǔ)看其在現(xiàn)代合同法上的地位[J];比較法研究;2002年04期
2 張素華;誠(chéng)實(shí)信用原則對(duì)契約自由原則的限制[J];法學(xué)雜志;1999年04期
3 吳凌;劉東汶;;經(jīng)濟(jì)法基本原則及其在和諧社會(huì)建設(shè)中的作用[J];廣東行政學(xué)院學(xué)報(bào);2007年05期
4 蔣月;;我國(guó)人民法院應(yīng)當(dāng)設(shè)立勞動(dòng)法庭[J];河北法學(xué);2007年11期
5 吳建國(guó);;華為萬(wàn)人辭職外熱內(nèi)冷[J];IT經(jīng)理世界;2007年22期
6 鐘曉敏;;法國(guó)新版勞工法,躁動(dòng)后的選擇[J];就業(yè)與保障;2008年05期
7 解志勇;基層社會(huì)自我管理與依法治理[J];國(guó)家行政學(xué)院學(xué)報(bào);2002年03期
8 解志勇,侯曉光;行政訴訟中的平等保護(hù)研究[J];國(guó)家行政學(xué)院學(xué)報(bào);2004年04期
9 ;中華人民共和國(guó)勞動(dòng)爭(zhēng)議調(diào)解仲裁法[J];內(nèi)蒙古政報(bào);2008年04期
10 粟丹;論契約自由原則的演變和發(fā)展[J];黔東南民族師范高等�？茖W(xué)校學(xué)報(bào);2003年05期
相關(guān)會(huì)議論文 前1條
1 任玉月;;談合同自由原則的限制及其正當(dāng)性[A];中國(guó)民商法實(shí)務(wù)論壇論文集[C];2005年
相關(guān)重要報(bào)紙文章 前2條
1 本報(bào)記者 劉溜;[N];經(jīng)濟(jì)觀察報(bào);2008年
2 林毅夫;[N];中華工商時(shí)報(bào);2006年
，本文編號(hào)：2131862
本文鏈接：http://sikaile.net/falvlunwen/laodongfa/2131862.html
最近更新
教材專著
