从排斥到促进:中国高龄劳动者就业规制的反思与转型

From Exclusion to Promotion: Reflections on the Transformation of Employment Regulations for Elderly Workers in China

由于传统"孝老"文化的老龄观、劳动力市场和社会保险体制的二元化、计划经济时代国家强制退休制度的影响,我国立法和司法层面排斥高龄劳动者就业,否定他们的劳动者主体资格,存在就业年龄歧视,并违反劳动法的实质正义价值。美国、韩国和日本等国家制定了高龄劳动者就业保障的法律法规,以促进高龄劳动者就业。但由于不同国家人口结构和雇佣体制的差异,导致规制路径和制度设计存在较大差异。随着人口老龄化的加剧以及积极老龄化国家战略的确立,中国对高龄劳动者就业规制应该由排斥向促进转型。研究认为,可以采取将高龄劳动者纳入劳动法保护的范围之内、通过立法允许雇主在劳动条件方面对高龄劳动者进行合理的差别对待、建立高龄劳动者基准就业比例、修改《失业保险条例》以覆盖高龄劳动者等措施来促进中国高龄劳动者就业。

Due to the influence of traditional "filial piety" culture, the dualistic labor market and social insurance system, and the impact of compulsory retirement in the planned economy era, China ’s legislative and judicial level excludes older workers from employment and denies them subjective qualifications, age discrimination, and violations of the substantive justice value of labor laws. To promote employment for elderly workers, countries such as the United States, South Korea, and Japan have enacted employment protection legislation for older workers. However, due to discrepancies in population structure and employment systems in different countries, there are major differences in regulatory pathways and the system design. With the acceleration of China’s population aging and the establishment of a national strategy for active aging, China’s employment regulation for elderly workers should shift from exclusion to promotion. Research shows that a number of measures should be made to promote China’s employment for elderly workers, such as taking elderly workers into the scope of labor law protection, allowing employers to discriminate reasonably against elderly workers in terms of employment conditions, establishing a benchmark employment ratio for older workers, revising the "Unemployment Insurance Regulations" and other methods.