论“用工主体责任”的滥用趋势与规制路径

The Abuse Trend and Planning Path of“Employment Subject Responsibility”

“用工主体责任”一词最初在建筑施工、矿山领域使用,以此纾解农民工遭受工伤的救济难题,后来逐渐扩展至其他用工领域。随着数字经济的发展,用工主体责任业已被广泛用于平台用工等新型用工领域,在各省市规范性文件和工作文件中多有出现,而学界对于用工主体责任的概念内涵却少有研究。究其原因,理论上用工主体责任的内涵界定从未得到重视;实践中地方立法存在进度缓慢和用词粗糙的不足。为规范用工领域的用词表达,应当排除用工主体责任在标准用工、公益性岗位用工中的适用可能;同时在新型用工管理文件中,明确用工方的责任内容,逐步探索用工企业的权责边界。

The term“employer’s main responsibility”was first used in the fields of construction and mining to alleviate the relief problems of migrant workers suffering from work-related injuries,and then gradually expanded to other employment fields.With the development of the digital economy,the responsibility of the subject of employment has been abused in new employment fields such as platform employment,and it often appears in the normative documents and working documents of various provinces and cities,but there is little research on the concept and connotation of the subject of employment responsibility in the academic circle.The reason is that theoretically,the connotation of the main responsibility of workers has never been paid attention to;in practice,local legislation has the shortcomings of slow progress and rough wording.In order to standardize the expression of terms in the field of employment,the possibility of applying the responsibility of the main body of employment to standard employment and employment in public welfare positions should be excluded;at the same time,in the new employment management documents,the content of the responsibility of the employer should be clarified,and the boundaries of the rights and responsibilities of the employer should be gradually explored.