疫情防控背景下劳动合同不能履行时的风险负担规则研究

Study on Risk-Bearing Rule by Performance Obstacle of Employment Contract under the Epidemic Prevention and Control

疫情引发的劳动合同无法履行主要涉及劳动关系存续和工资继续支付的风险承担,该问题的解决应回归劳动合同履行障碍的制度体系,坚持以市场法则为出发点同时根据社会保护思想和劳动关系的结构特色对其予以修正。劳动者因疫情患病应适用病假规则。劳动者因疫情需要照顾家人或发生路途延误应适用事假规则。用人单位能接受劳动却不安排劳动构成受领迟延,应支付全额工资。用人单位因疫情停产时,存在不同用人单位承担工资支付义务的模式和义务减轻事由。我国现行法的规则应进一步完善:基于经济风险停产,用人单位应继续支付工资;基于运营风险停产,应根据风险转嫁能力,由用人单位承担工资继续支付义务,但应考虑不同企业类型,维持较低水平,允许当事人合意安排风险,允许预告解除。疫情期间政府干预劳动关系的管制措施设计和解释应遵循措施中立、保持适度谦抑、穷尽劳动法已有制度等原则。在此,法定隔离时的工资支付规则应予以完善,交通管理和限制开工导致劳动合同不能履行时应区分情况进行风险分配。

Impossibility of performance under employment contract caused by pestilence mainly involves existence of labor relations and burden of risk brought by continuative payment.This problem should be resolved back to interference of performance system under employment contract.It should start from market rule,which is corrected later through social protection and structure character of labor relations.Employees,who gets infected by virus,should be seen as sick-leave;who needs to take care of infected family members or has to delay back to work,should be treated as casual-leave;employers of factories or enterprises,which are closed because of pestilence,have different model of payment obligations and release reasons.Our undergoing laws need to be further complete.If factories or enterprises are closed based on management risk,employees should be continuatively paid by employers;If thereon closed based on operation risk,employees should be continuatively paid in accordance with the theory of risk transfer ability.Furthermore,types of enterprises should be taken into consideration,under specific circumstance following measures could be taken,keeping lower standard,allowing employment contract suspension,allowing termination with advance notice.When the government has to interfere labor relations during pestilence,the regulation measures and explanations should be,in principle,neutral and modest after exhausting existing labor laws.Therefore,payment during legal locked down needs to be complete.When traffic control and production restriction lead to that,employment contract is impossible to perform,the referred risk should be distributed according to different situations.