应对灵活用工的劳动法制度重构

Reconstruction of the Labor Law System for Flexible Employment

经济发展与科技进步带来了生产组织方式和用工方式的变革,在工厂制下的全日制用工形式之外,出现了大量的"非全职、非全时、非典型"的灵活用工现象。灵活用工的各种形式对全日制用工形式的劳动法制产生了冲击和挑战,传统的劳动法体系应该进行制度重构:扩大劳动法的调整范围;对各类灵活用工形式分类规制;对劳动法中的强制性规范和自治性规范进行合理配置;进一步优化劳动法三层调整模式;重构劳动法与民法的功能分工。

The development of economy and the progress of science and technology have brought tremendous change of production organization approaches, and besides the full-time employment form under the factory system, a large number of ＂ not full-time, part-time, atypical＂ phenomena of flexible employment has emerged simultaneously. The various forms of flexible employment have great impacts and challenges to the labor law system which is always adapted to the full-time employment form, and thus the traditional labor and employment law system must be restructured as follows： the judicial scope of labor and employment law shall be expanded; various types of flexible employment shall be classified and regulated accordingly; the compulsory and self-governing norms in labor and employment law shall be rationally allocated; the three-layer adjustment mode of the labor and employment law shall be optimized ; and the functional division of labor and employment law and civil law shall be reconstructed.