《劳动合同法》立法思路存在的问题及变革路径——以三元法律结构为视角

The Legislative Question and Reform Route of Labor Contract Law: from the Perspective of the Ternary Legal Structure

我国《劳动合同法》的立法思路存在与社会需求不符的问题,"劳善、资恶"的立法假设使《劳动合同法》出现了"泛道德化"趋向,将正常的劳动关系视为侵权关系,使《劳动合同法》变得异常的抽象。"国家-个人"的二元法律结构严重忽略了团体契约的存在,导致劳工集体维权机制缺失。为此,立法者必须转变立法思路,以建立"国家-社会-个人"的三元法律结构为宗旨,通过发挥劳工组织的作用来实现劳资博弈的平衡。

The increasingly frequent, intense group labor disputes fully expose that the labor interest mechanism is unbalanced and the law cannot protect labour＇s rights and interests. The root cause is that the legislative idea of China＇s labor contract law is out of the needs of society. The legislative assumption of ＂labour is good and capital- ist is evil＂ that makes the labor contract law appear ＂pan-morality＂ trend, the normal working relationship is con- sidered as the tort relationship, which makes the labor contract law become abnormal abstract. The ＂Country-per- sonal＂ binary legal structure seriously neglects the group contract, which causes the deletion of protection mecha- nism of labour＇ s colleetive right. Therefore, legislators must change the idea of legislation, for the purpose of estab- lishing the ＂state-Society-personal＂ ternary legal structure and they must also achieve a balance between the la- bour and capitalist＇s interest by means of the Labour Organization and practically protect the labour＇s rights and interests.