论就业权的生成与演化

Study on the Occurrence and Evolvement of Employment-related Rights

法制史研究的结果,除了发现就业权产生的必然性外,更重要的是发现了就业权在其历史演进过程中经历了"宪法基本权形态的就业权"、"基本人权形态的就业权"、"劳动法权利形态的就业权"等不同的存在形态。不同的权利存在形态,对于就业权的保障和实现有着不同的意义和功能。总体说来,实证化程度越高,越有利于权利的保障和实现。因此,比较而言,还是劳动法权利形态最有利于就业权的行使和救济。

This paper studies on the legal history of employment-related rights to catch the idea,including how and why they have become rights and what are these rights about.As a result,the paper finds out inevitability and necessity of occurrence of employment-related rights as well as the change of existing forms of these rights from constitutional rights,to basic human rights and finally to rights of labor law during the evolvement course,and conducts a comparative analysis to the interest of employment -related rights in the forms of these three rights on the realization of employment-related rights.The result of this comparative analysis is that each has its own advantages and disadvantages.However,comparatively speaking,employment-related rights in the form of rights of labor law are the most beneficial for the realization of employment-related rights.