基于文献分析的《劳动合同法》立法思路争论的研究

A Study on the Disputes over the Legislation Principle of The Labor Contract Law Based on Literature Analysis

《劳动合同法》对于保护劳动者的合法权益、构建和谐稳定的劳动关系发挥着重要的作用,然而自2008年颁布实施以来,关于《劳动合同法》本身的争论不断,经过2012年的修订,争论反而有增无减。通过研究发现,争论的焦点在于《劳动合同法》是否过度保护或过度倾斜于劳动者,损害了企业的利益。为了深入剖析《劳动合同法》的利弊以及导致争论的深层原因,本研究对近十年来公开发表的209篇相关文献进行分析,发现劳动者和用人单位面对同一部法律受到的影响并不对等,二者的利益未能很好地兼顾平衡。进一步研究发现其根本原因在于《劳动合同法》对劳动者提供倾斜性保护或单边保护的立法思路上。文章重点围绕《劳动合同法》的立法思路、劳动者与用人单位之间的权益不均衡等问题进行了深入的分析和讨论,最后针对性地就《劳动合同法》存在的问题提出了修法思路的建议。

The Labor Contract Law is of great significance to protect the legitimate rights and interests of employees and to build a harmonious and stable labor relationship. But since the implementation of The Labor Contract Law in 2008, it has been continuously controversial. It was revised in 2012, the disputes have not bee＇n stopped but increased. Through the research, it found that the focus of the disputes is whether The Labor Contract Law is over protecting or excessive sloping to the employees and the legitimate rights of employers are infringed. In order to deeply analyze the advantages and disadvantages of The Labor Contract Law, as well as the underlying causes of the disputes, this study has analyzed 209 literatures published in the last decade, and found that the impact of The Labor Contract Law on the employees and the employers is quite different, the interests of both sides are not balanced. The fundamental cause lies in the legislative principle of The Labor Contract Law which is to provide employees with inclining or unilateral protection. This article has focused on the following issues： the legislative principle of The Labor Contract Law, the unbalanced protection of the rights between employees and employers. Finally it puts forward specific suggestions on the revision of The Labor Contract Law.