《民法典》背景下劳动法与民法的关系

劳动交换关系法律调整中,劳动法与民法以劳动者保护为主题的分工合作,在我国迄今仍存缺口。劳动法与民法关系依托背景的中西差异表明,我国这种缺口的成因在于公法私法化/社会化过程中生成的劳动法与民法分立格局不足以应对劳动力市场灵活化。尽管背景不同,私法社会化理论对解释和解决我国这种缺口问题仍有参考意义。基于《民法典》的安排,立法上解决劳动者保护盲区不断扩大等问题,应当分类型、分层次地安排劳动法与民法分工合作,并完善与《民法典》相关规定对接的私法社会化立法。为弥补法律规范供给的不足,法律适用上应当对劳动争议案件适度补充适用民法规范,对非典型劳动关系适度从宽认定并有选择地参照适用劳动法规范,对民事雇用或准从属性劳务则作为无名合同参照适用最相类似的劳动法规范。

In the legal adjustment of labor exchange relations,there is still a gap in the coordination between labor law and civil law with the theme of worker protection.The differences in the background of labor law and civil law relationship between China and the West show that the cause of the gap in China is that the separation pattern of labor law and civil law generated in the process of privatization/socialization of public law is insufficient to cope with labor market flexibility.Although the background is different,the theory of socialization of private law can be used as juristic reference to explain and solve the gap in China.Based on the arrangement of the Civil Code,in terms of legislation,the coordination between labor law and civil law should be arranged according to different types and levels,to solve the problem of the continuous expansion of worker protecting blind spots,and the socialization legislation of private law which is compatible with the relevant provisions of the Civil Code should be improved.In terms of the application of law,in the face of an insufficient supply of legal norms,the application of civil law norms should be supplemented to labor dispute cases.The identification of atypical labor relations should be appropriately relaxed,and labor law norms should be selectively applied to them with reference.And for civil employment and quasi-subordinate labor services,as unnamed contracts,the most similar labor law norms should be applied with reference.