社会老龄化背景下老年人再就业法律关系的思考

The Legal Relationship of Re-employment of the Elderly under the Background of Social Aging

我国对于老年人退休再就业法律关系的判断,以《劳动合同法》的颁布为界,形成了"两个阶段,两个标准"的局面,这也导致了司法实践中同案不同判现象非常严重。通过分析退休的属性和基本特征,提出退休是劳动者的一项基本权利,劳动者在退休之后仍然具有劳动者资格;老年人退休再就业所形成的法律关系在主体、客体、内容方面均符合劳动关系"从属性"的特征,因此老年人退休再就业应当认定为劳动关系。我国立法应当将老年人退休之后再就业法律关系的选择权利赋予当事人,由劳动者决定其是否受劳动法保护。

The judgment of the legal relationship of reemployment of the elderly after their retirement in China is based on the promulgation of labor contract law, which has formed a situation of "two stages and two standards",which also leads to the serious phenomenon of different judgments on the same case in judicial practice. Through the analysis of the attributes and basic characteristics of retirement, retirement is a basic right of workers, and workers still have the qualification of workers after retirement;the legal relationship formed by the retirement and reemployment of the elderly conforms to the "subordinate" characteristics of labor relations in terms of subject, object and content, so the retirement and reemployment of the elderly should be recognized as labor relations. China’s legislation should give the right to choose the legal relationship of reemployment of the elderly after retirement to the parties concerned, and it is up to the workers to decide whether they are protected by the labor law.