劳动争议中公司高管的理论定位与实证考察

Theoretical Orientation and Empirical Investigation of Company Executives in Labor Disputes

公司与高管的理论定位存在"雇佣说"和"劳动说"之争。其根源在于高管本身的边界并不明晰,判断雇佣与劳动关系的从属性标准也不确定。因此,在实务中,法院的判定不一,存在"董事会决议说"与"劳动合同说"、"解除劳动关系"与"不解除劳动关系"、"支付赔偿或补偿金"和"不支付赔偿或补偿金"之分。而要正确定位高管与公司的关系,首先应解决高管边界界定和从属性标准确定的模糊性问题。

A dispute of the theory of "employment relationship" and the theory of "appointment relationship " exists between the relationship of company and its executives. The root cause of differences between two theories is that the boundaries of executives are not clear, and the criteria for judging the subordination of employment relationship and appointment relationship are uncertain. Therefore, different judgments are made by court and rulings of " board appointment " or " labor contract ", "continue " or " terminate the labor contract ", "pay " or "not pay compensation " are verdict in practice. In order to correctly locate the relationship between the executive and company, it is necessary to solve the ambiguity of the definition of the executives’ boundary and the attribute standard.