劳动法弹性规制中小企业之比较研究

The Comparative Study on the Flexible Regulation towards Small and Medium-sized Enterprises

我国劳动法不区分适用主体的类型,对各类型企业和各层次劳动者均适用统一的规则。此种调整方式的刚性及带来的某些领域的利益失衡,自《劳动合同法》颁行十年以来已引发了很多争议。有关劳动法区分企业类型与规模,弹性规制中小企业的意见亦逐步成为讨论的热点。大陆法系代表国家的法国和日本在劳动法弹性规制中小企业方面已形成成熟完整的理论基础和法律技术,宜通过比较分析的方法提炼合理内容,为我国劳动法改革所吸收借鉴。

Chinese labour law applies equal rules to all kinds of enterprises and all employees without any exception. Such regulatory scheme is too rigid and has brought unbalanced allocation of interest in different areas, which have been criticized much in the past ten years since the promulgation of Chinese Labour Contract Law. Differentiating the regulation on different forms and sizes of enterprises and providing small and medium-sized enterprises with more flexibility have become hot topics. France and Japan, representatives of continental law countries, have formed comprehensive and mature theoretical basis and legal techniques to flexibly regulate small and medium-sized enterprises. We could employ comparative study methods to learn from their experience for the labour law reform in China.