劳动法适用新就业形态多阶证成之反思

Reflection on the Multi-stage Argumentation of the Applicability of Labor Law to New Forms of Having Jobs

多阶递进式的三段论证成是解答新就业形态的劳动法适用问题的主要方式:首先需要结合新就业形态在从属性方面的特征论证是否存在劳动关系;如果存在劳动关系,随后论证劳动法具体制度整体适用于新就业形态;最后再论证劳动法具体制度适用于新就业形态的具体场景。然而,在看似严密的论证逻辑中,多阶论证逐步打磨掉了具体新就业形态与具体劳动法制度各自的特征性棱角,凭借对抽象概念进行比对得出理论上的适用关系,却无法提升二者之间适用的耦合度。为了更恰当地保护新就业形态劳动者的权益,应减少劳动保护规则适用的论证层次,将劳动法具体制度的法益特点与新就业形态在具体场景下的从属性特征进行直接呼应,通过单阶证成解决具体制度对具体场景的适用妥当性问题。

The syllogism-based argumentation featuring multi-stage progression is the main mode of addressing the issue of the applicability of labor law to new forms of having jobs:the first stage is to argue whether there is a labor relationship by considering the subordination-oriented characteristics of the new form of having a job;the next stage is to argue the overall applicability of specific systems of labor law to the new form of having a job if there is a labor relationship;the last stage is to argue the applicability of specific systems of labor law to specific circumstances of a new form of having a job.However,in the seemingly rigorous logic of argumentation,the multi-stage argumentation gradually erases the distinct features of both specific new forms of having jobs and specific systems of labor law,the applicability in theoretical sense concluded by comparison between abstract concepts cannot enhance the coupling of application between them.To ensure a more tailored protection of the rights and interests of workers engaged in new forms of having jobs,it is advisable to minimize argumentation layers for the applicability of labor law for protection,and draw a direct correlation between the the characteristics of legal benefits inherent in specific systems of labor law and the characteristics of subordination in the specific scenarios of new forms of employment,and address the issue of applicability of specific systems to specific scenarios through a single-stage ar gumentation.