劳动法与民法关系新论

A New Study on the Relationship between Labor Law and Civil Law

《民法典》的颁布对劳动法造成了巨大冲击,也掩盖了民法本身的困境。实际上,民法早已陷入困境,突出表现在传统民法平等主体假设的坍塌和私法自治原则的动摇。劳动法也已陷入困境,突出表现在与民法关系模糊、基础理论研究停滞不前、法律原则与具体规则脱节。为此,有必要重新审视劳动法与民法的概念及其关系,总结经验教训。通过概念分析细化劳动法与民法的概念,区分法规范与法规范性文件、社会法域与社会法部门、传统民法与现代民法,实现概念的确定性。在此基础上,厘定劳动法规范与民法规范的独立关系、劳动法规范性文件与民法规范性文件的独立关系,以及劳动法规范性文件与民法规范的交叉关系、民法规范性文件与劳动法规范的交叉关系;让社会法规范帮助现代民法实现平等主体假设,从而为其建立运行传统民法理论和原则的平台,也为劳动法乃至整个社会法部门运用民法理论、原则和规则提供依据。只有这样,劳动法与民法才能走出困境,并实现共同发展。

The promulgation of the Civil Code has caused a great impact on labor law and concealed the predicament of civil law itself.In fact,civil law has already fallen into difficulties,highlighted by the collapse of the assumption of equal subjects in traditional civil law and the shaking of the principle of private law autonomy.Labor law has also fallen into a dilemma,which is highlighted by the blurred relationship with civil law,the stagnation of basic theoretical research,and the disconnection between legal principles and specific rules.For this reason,it is necessary to re-examine the concepts of labor law and civil law and their relationship,and summarize the lessons learned.The concepts of labor law and civil law are refined through conceptual analysis,and a distinction is made between legal norms and legal normative documents,social law domains and social law sectors,and traditional civil law and modern civil law,so as to achieve conceptual certainty.On this basis,the independent relationship between labor law and civil law norms,the independent relationship between labor law and civil law normative documents,and the cross-relationship between labor law normative documents and civil law norms,and the cross-relationship between civil law normative documents and labor law norms are clarified.Then social law norms can help modern civil law realize the assumption of equal subjects which helps to establish a platform to run traditional civil law theories and principles,and also provide a platform for labor law and even the whole social law sector to apply civil law theories,principles and rules.Only in this way can labor law and civil law get out of the dilemma and achieve common development.