论劳动关系的建立时间

On the Time When Labor Relations Are Established

劳动关系产生的时间直接关系到劳动者和用人单位劳动权利义务的开始。我国《劳动合同法》规定劳动关系自用工之日起建立,不仅给该法的执行带来了许多困惑,还给劳动法理论造成了一系列冲击。劳动关系产生的依据是劳动合同。劳动合同作为一种诺成性的非要式合同,承诺达成,合同即成立。除了合同中有特别约定,劳动合同成立之时即生效,形成劳动关系。劳动关系不是自劳动合同履行之时起建立。

The time when labor relations are established is directly related to when employees and employers begin to enjoy their rights and bear their obligations.In accordance with the existing Labor Contract Act,labor relations are held to be set up from the date of employment,which leads to not only much confusion in respect of enforcement of the Act,but also a series of impacts on the logic of labor law.It is the labor contract that underlies the existence of labor relations,which,as a kind of consensual contracts,is entered into where a commitment is made.In the absence of special arrangements,a labor contract takes effect at the time when it is established,and thereby the labor relations form.As such,it is incorrect to say that labor relations are established from the moment when the labor contract is performed.