劳动法典何以可能与如何可能

Why and How Is the Labor Code Possible?

体系型法典是最高级的立法形式,应当成为劳动法典的奋斗目标。劳动法是现代工业和信息社会的一个法律领域,劳动分工带来了大量同质化的劳动关系,为大规模劳动立法构筑了社会基础,数字经济的兴起又带来了以平台用工和远程工作为代表的新型劳动关系类型。观察中外历史,劳动立法一直秉承着平衡理念,即在私人利益与公共利益之间、“劳资自治”与公权力“他治”之间寻求恰当的平衡,此价值理念决定了劳动法典的建构基础,也使适度体系型法典模式成为可能。以历史逻辑为鉴,我国应当在理论逻辑中区分建立在私人自治基础上的劳动私法关系和建立在公共利益上的劳动公法关系,以各自完备的价值理念实现规范的整合,同时在实践逻辑的指导下分别编入归属于公私法律部门的劳动法典条文。新就业形态难以进入传统劳动关系,因此可独立成章,形成规范传统劳动关系的“大劳动法典”之外的“小劳动法典”。

The systematic code is the most advanced legislative form and should become the goal of the labor code.Labor law is a legal field of modern Industrial society.The division of labor has brought many homogeneous labor relations,which has built a social foundation for large-scale labor legislation.The rise of the digital economy has also brought new types of labor relations represented by platform employment and remote work.According to historical observations from both China and foreign countries,labor legislation has always adhered to the concept of seeking an appropriate balance between private and public interests,as well as between"labor capital autonomy"and"other governance"of public power.This value concept determines the foundation for the construction of labor codes and makes it possible to adopt a moderate system-based code model.Taking historical logic as a guide,China should distinguish between labor private law relations based on private autonomy and labor public law relations based on public interests in theoretical logic and achieve the integration of norms with their respective complete value concepts.At the same time,under the guidance of practical logic,they should be separately incorporated into labor legal norms belonging to public and private legal departments.The new form of employment is difficult to enter traditional labor relations,so it can be independently formed into a"small labor code"in addition to the"big labor code"that regulates traditional labor relations.