后《民法典》时代雇佣合同与劳动合同的立法选择

The Legislative Choice between Employment Contract and Labor Contract in the Post-Civil Code Era

我国《民法典》编纂未将雇佣合同有名化,这表明对于雇佣(劳动)关系的法律调整,确立了“无名合同+劳动合同”的分别调整模式,此种分别调整模式存在较大的局限性。在后《民法典》时代,应当跳过分别调整模式而直接进入劳动法统一调整模式,这不仅是劳动交换规制价值理念革新的需要,也是加强对“类似劳动者型劳务提供人”权益保护的需要,更是进一步健全我国劳动法律规范体系的需要。劳动法统一调整模式可通过编纂劳动法典的方式予以实现:由劳动合同替代雇佣合同,以从属性为中心重新界定劳动合同的概念;专设“特殊劳动合同编”对家政工、平台工人等不同类型劳动者进行差异化处理;在“劳动合同编”设置与民法规范之间的“通道”条款,以修复劳动法规则自身的残缺性。

The compilation of the Civil Code of China does not stipulate the employment contract as the legally-named one, which indicates that the legal adjustment of employment(labor) relations has formed a respective-adjustment mode of "non-legally-named contract + labor contract", and such respective-adjustment mode has significant limitations. In the Post-Civil Code era, we should skip the respective-adjustment mode and directly adopt the mode of unified adjustment by the labor law, which is required not only by the innovation of the value concept of labor exchange regulation, but also for strengthening the protection of the rights and interests of "employee-like labor service provider" and also for further improve the system of legal norms on labor of China. The mode of unified adjustment by the labor law may be realized by means of compiling Labor Code, in which, the employment contract is replaced by the labor contract and the concept of the labor contract is re-defined by taking the subordination as the center;the "Section of Special Labor Contract" is specially set up to differently deal with various types of workers such as domestic workers and platform workers;the "passage" clauses connecting to the rules in Civil Code is set up in the "Section of Labor Contract" to make up the incompleteness of the existing rules of labor law.