疫情期间劳动合同中止制度的检视与前瞻

Review and Prospect of the Labor Contract Suspension System During the Normalization of the Epidemic

疫情呼唤着劳动合同中止制度的适用,但这一制度的重新激活和实际运作倍受学者批判。出现学术争议的重要原因之一在于对于劳动合同中止制度的内涵外延没有形成理论共识。追本溯源,历史上狭义的劳动合同中止制度在劳动法律法规层面“昙花一现”,迫于现实需求和弥补制度漏洞的必要,部门性、地方性立法共同搭建起广义的劳动合同中止制度的框架。在这一框架下,疫情常态化现实中存在适用劳动合同中止的制度需求,一是不可抗力型劳动合同中止,二是依法隔离型劳动合同中止,但现有规定的合法性、合理性都存在商榷空间。劳动立法的固有贫瘠与劳动政策的单保护倾向共同塑造了疫情常态化下劳动合同中止制度的尴尬局面。为了减轻疫情期间的企业负担,从短期来看,中止制度应与失业保险机制相衔接,实现风险的社会共担;就长远而言,应当建立社会补偿制度,以应对重大突发事件。

Epidemic situation calls for the application of the labor contract suspension system, but the reactivation and actual operation of this system have been criticized by scholars. One of the important reasons for academic disputes is that there is no theoretical consensus on the connotation and extension of the labor contract suspension system. Tracing back to the source, the labor contract suspension system in the narrow sense in history was “flash-in-the-pan” at the level of labor laws and regulations. Due to practical needs and to make up for loopholes in the system, departmental and local legislation jointly built a broad framework for the labor contract suspension system. Under this framework, in the reality of the normalization of the epidemic, there are institutional requirements for the application of labor contract suspension. One is the suspension of force majeure labor contracts, and the other is the suspension of labor contracts that are legally isolated. However, there are doubts about the legality and rationality of the existing regulations and discussion space. The inherent poverty of labor legislation and the single-protection tendency of labor policies have jointly shaped the embarrassing situation of the labor contract suspension system under the normalization of the epidemic. In order to reduce the burden on enterprises during the epidemic, in the short term, the suspension system should be linked with the unemployment insurance mechanism to achieve social sharing of risks;in the long run, a social compensation system should be established to deal with major emergencies.