论《劳动合同法》中的“劳动基准”

Labor Standard in Labor Contract Law

我国现行《劳动合同法》中包含了大量背离普通民事法律规则的劳动关系强行运行规则,但这些规则仍属于私法领域,与公法属性的劳动基准存在本质差别。由公权保障实施,是劳动基准的特征之一。将过多的单位义务纳入劳动监察的保障实施范围,分散了劳动基准的公权保护力度,因此,不宜将现行劳动监察事项作为劳动基准的判断依据。对劳动合同书面形式、二倍工资、经济补偿金、用工档案等具体制度规则的分析表明,我国《劳动合同法》中的大量强行规则并非劳动基准。虽然《劳动合同法》与劳动基准关系密切,但其中真正涉及劳动基准的规定并不多,仅在非典型劳动关系调整中略有提及,因此,制定单独的《劳动基准法》,仍有很大的制度空间。

China’s current Labor Contract Law contains a large number of forced operation rules of labor relations which deviate from the general rules of civil law,but these rules still belong to the field of private law,which are essentially different from the labor standards attributed to public law.The implementation of public rights protection is one of the characteristics of labor standards,but too many unit obligations are included in the implementation of labor supervision,which scatters the strength of public rights protection of labor standards.Therefore,it is not appropriate to take the current labor supervision matters as the judgment basis of labor standards.Through the analysis of the written form of labor contract,double salary,economic compensation,employment files and other specific system rules,it is also confirmed that the above-mentioned mandatory rules are not labor standards.Although the Labor Contract Law is closely related to labor standards,there are not many provisions that really involve labor standards.It is only mentioned slightly in the adjustment of atypical labor relations.There is still a lot of institutional space for the formulation of a separate Labor Standards Law.