The Research Of Subordination Of Labor Relations

In recent years,the development of China’s labor law demonstrates that the legal and regulatory system that is suitable for the new market labor relations is continually being improved.But with the deepening of the reform,the growing impact of globalization,the adjustment of industrial structure and the development of technology,people have gradually realized that the labor law of our country still lacks in-depth reflection on some basic problems on the legal adjustment of labor relations,namely,qualification of labor relations always falls into difficulties;in the labor relations,the inclined protection towards workers is still questioned;few great solutions for the configuration of Labor relations protection measures.In a summary,the three fundamental questions that who the labor law protects,why it protects them and how to protect them need scientific answers eagerly,the crux of the matter is falling on a study of subordination of labor relations.On the contrary,by the continuous construction of the theory of subordination,the western developed countries with more mature cultures and systems of labor law essentially are continuously reflecting the three questions above,and finally made the labor law system will adapt to the historical changes of the production organization mode from Pre-Fordism,Fordism to Post-Fordism.Throughout the development of the theory of subordination in western countries such as Italy,Germany,the logic behind it can be summarized as follows:first from the establishment or change of the regulatory function of category of subordination,then the adjustment of its interpretation programs,finally cause the changes of the labor law protection system.In the late 19 th century,in order to establish the basis of private law for the early fragmental labor legislation rooted in public law,un ideale riformatore in senso lato in Italy put forward the issue of legal construction of labor contract and took the lead in using the subordination category.However,the early labor jurist didn’t define the labor contract from the subordination as the constitutive requirements and then decide to the boundary of the labor law tilt protection.Instead,they simply interpreted the subordination as the economic disadvantage of a specific subject(such as worker,manual worker,proletarian),therefore explained the reasons of the tilt protection of labor law.In general,though the subordination category has been put forward,it didn’t change the characteristicsof the workers’ law of the early or the original labor law.Until the beginning of twentieth century,by Lodovico Barassi(Italy),Philipp Lotmar(Germany)as the representative of the civil law experts,they advocated that the legal construction of labor contract should be analyzed by transforming from the perspective of sociology to jurisprudence,then the subordination category became the constitutive requirement.“subordination and autonomy” not only began to replace“activities and results” as the distinction principle of labor debt,but also docked the demarcation of the boundary of the tilt protection of the labor law dominated by the "Protection and non protection".Since then,the labor law has gradually got rid of the characteristics of the early workers’ law and moved towards the "subordinate labor protection law" which people are familiar with.From 1930 s to 1980 s,on the one hand,defined as the boundary of the tilt protection of the labor law,the interpretation of subordination experienced a shift from the technical subordination to the elastic expansion theory,which directly led to the expansion of the labor law;on the other hand,it is also found that when research the legal basis of subordination,the different interpretations will directly affect the rights and obligations of labor relations,in other words,except defining the boundary of the tilt protection of the labor law,the regulatory function of category of subordination also includes the analysis of the rights and obligations of the parties.By the end of the 1960 s,the interpretation of the legal basis of subordination has experienced the change from the traditional contractualism to the institutionalism,and then to the new contractualism.Since1980 s,with the arrival of the post-fordism,the elastic expansion theory is more and more exposed to be unstable and less rigorous,then the leadership of others theory began to dominate the qualification of subordination.Since the 1990 s,western labor law has undergone dramatic changes,it precisely reflects the new changes of concepts of subordination theory.Subordinate labor can be further divided into“typical and atypical”,autonomic labor may also work with some of the characteristics from subordinate labor(so-called "para-subordination ").This study shows that in recent years the development of Italian labor law follows these two innovative ideas,on the one hand,the internal differentiation of protection measures of subordinate labor,on the other hand,the external expansion of protection measures.Referring to the experience of the western labor law,the subordination of labor relations in our country can be reconstructed from the three aspects.The first aspectattributes the qualification of labor relations,the second and the third aspects are related to the normative structure of labor relations.In the nature of the qualification of labor relations,the paper argued that in order to functional typology as a methodological basis,the subordination can be interpreted as instrumentalization of labor by others.Relating to the reason of tilt protection,this paper argues that it should be certified by the labor personality principle.Finally,in view of the complex diversity of the labor market in China,this paper argues that on the one hand the labor relations should be further typed according to the degree of subordination;on the other hand,the tilt protection should implement on the part of autonomic labor.