雇佣关系的法律调整

The Law Readjustments on the Employment Relationship

我国《劳动法》的调整对象是劳动关系,雇佣关系在我国现行法律中还没有明确的规定。但实践中雇佣关系在劳动争议却经常出现。目前,在我国理论上雇佣关系有民法调整模式,劳动法调整模式,民法与劳动法共同调整模式三种学说。而实践中我国《劳动法》调整范围以外的雇佣关系并不是完全意义上的民事关系,其在本质上应属于劳动关系范畴,雇佣关系可视为劳动关系的特殊存在状态。故对雇佣关系的法律调整不宜采用现阶段与劳动关系"分而治之"由民法加以调整的模式。现阶段司法实践用民法调整雇佣关系,仅可视为雇佣关系目前尚未由专项法律予以明确规范情况下的暂时性应急措施,但从长远来看,它应统一纳入作为独立法律部门的劳动法调整的对象体系,由劳动法予以全面规制。

Labor relations is the object of adjustment in China's 'Labor Law'.Employment relations in China's ex-isting laws have not been clearly defined.However,employment relations in the labor dispute are frequent in the practice.At present,there are three employment adjustment modes in China's civil law,the adjustment mode of labor law,civil law and labor law doctrine of adjustment mode.In practice,the employment relationship outside the scope of China's 'Labor Law' doesn't entirely belong to the civil relations.In essence,they are areas of labor relations.Employment relationship can be seen as labor relations of the special status.Therefore,the civil law model should not adjust the law of the employment relationship and labor relations with 'divide and rule' adjustment mode at this stage.At this stage the judicial practice of adjusting the employment relationship with civil law,can only be regarded as temporary emergency measures as the employment relationship are not regulated by special laws,but in the long run,it should be unified as an independent legal departments into the adjustment of labor law,having a comprehensive regulatory by the Labor Law.