论人事保证制度的禁止——兼评《劳动合同法(草案)》相关规定

Argumentation on the Forbidden of Personal Guarantee——And Comment on the Related Provision of Labor Contract Law(Draft)

人事保证有违意思自治之公平和责任自负的原则,破坏了缔约的认知基础,模糊了侵权与合同法律制度二者相对独立的界限,更为立法精神所不容。该制度既不利于平等和促进就业,也不利于管理水平提高和企业文化建设,故立法宜禁止而非简单限制。《劳动合同法(草案)》相关规定对此有所体现,但尚需作更进一步的完善。

The personnel guarantee is against intention equity and self-responsible principle. It also undermines the cognize foundation of contract and obscured the relatively independent boundaries of the infringement and contract. Further more, it is not allowed by the legislation spirit. The system is not favorable to promote employment and equal employment. Moreover, it is also disadvantageous in the construction of corporate culture and improvement of management level. Therefore, the legislation should forbid rather than simply restrict. Law of Labor contract （draft） has reflected to some extent in the related provision. But it needs further modification.