企业并购中的劳动合同承继问题研究

On Labor Contract Inheritance in Mergers and Acquisitions

劳动合同承继实质上是劳动合同的主体变更,由并购后存续或新设的企业继续履行原劳动合同的权利和义务。大陆法系国家和地区的劳动合同承继制度存在三种不同的模式。我国《劳动合同法》第34条确立了企业合并、分立情形下的劳动合同承继规则,调整范围有限,且完全排斥了劳资自治的空间。未来立法应区分企业合并与营业转让分别适用不同的承继规则,赋予劳动者拒绝留用权,规范用人单位对劳动关系变动信息的告知义务,并明确规定原用人单位对并购前所发生的劳动债务承担连带责任。

Labor contract inheritance means that the subject of labor contract changes. The labor contract continues to be performed by the enterprise which succeeded to the former employer’s rights and obligations.There are three different modes in civil law countries.Though Article 34 of Labor Contract Law provides for the system of labor contract inheritance in merger and division,the regulation is too simple and lacks autonomy between employers and workers.In order to improve the labor contract inherits system,we need to perfect the different rules under the different situation of merger or transfer,empower workers the right to refuse,strengthen the obligation of employer to disclosure.The former employer should jointly assume the obligations of labor contract before mergers and acquisitions.