| The primary problem of labor standard is the public and private law,or attribute.From the concept,labor standard can be divided into broad sense and narrow sense.Labor standard is labor protection law.Because the whole labor law is designed to specially protect workers in subordinate social status,labor law can also be regarded as a generalized labor standard.In a narrow sense,the labor standard refers to the compulsory intervention of state public power to provide protection for workers,which does not depend on the part of legal norms that the relevant workers actively require.The narrow sense labor standard has the obvious public law attribute,but the employer's public law obligation to the state due to the labor standard is also regarded as the subordinate obligation of the labor contract,and the labor standard also has the private law consequence.But this is not because the labor standard itself has the effect of private law,or from public law to private law.We must be clear to see that the consequences of public law in private law are not unique to labor standards.Based on the principles of honesty and trustworthiness and discipline,as well as the transitional provisions of private law,the provisions and mandatory requirements of public law are often implemented in all aspects of private law and civil activities.Whether the concept of labor standard in China should adopt a broad,medium or narrow sense,we should first clarify and refine the connotation characteristics of labor standard,especially strengthen its labor standard characteristics to narrow the extension;secondly,we should start from the analysis of the internal system structure of labor law to draw a clear boundary for labor standard.It needs to be emphasized that the concept and nature of labor standard are a pair of closely related basic categories.The nature of public law of labor standard corresponds to its narrow concept.The whole argument of this paper is based on the narrow concept.For legal norms,too broad concepts will lead to unclear function and value orientation,unclear effectiveness boundary,always in a swing and compromise,which can also be that ambiguous state,making the law lose authority,even affecting other legislation.Therefore,it is more appropriate to use the name of "labor standard" in order to convey the original meaning of legal concept accurately and avoid ambiguity and unnecessary discussion.In terms of the internal system structure of labor law,labor standard and labor contract law are independent and stand side by side;at the same time,we should pay attention to the division and connection between labor standard and social security law(involving pension,compensation for industrial accidents,etc.),Employment Promotion Law(involving anti employment discrimination,special employment security,etc.),so as to narrow the extension of labor standard to basic labor Dynamic condition protection.Through the review of the legislative process of China's labor standards and the sorting out of the relevant documents of China's current labor standards according to the classification of wages,working hours,vacation security,labor safety and health,and special labor protection,it is not difficult to find that China's current labor standards generally have scattered legislation and lack of the leading labor standards special laws;the effectiveness level of labor standards is not high,lacking Lack of authority and stability;part of the responsibility provisions of labor standards are not clear,and the standards are not strong;some provisions appear too old,only applicable to some units and workers and other issues.In the system design and practical operation,there are some problems,such as the lack of specific provisions in the system design,the unreasonable basis for the establishment of some labor standards,the lack of scientific nature,and the large differences in the applicable rules of law mastered by the local administrative and judicial departments.Throughout the above problems in the current legislation and practice of labor standards in China,in the final analysis,it is still the judgment and trade-off in the legislative thinking,and the fundamental crux is still the lack of a clear understanding of the nature and scope of the effectiveness of labor standards.On the issue of the scope of the effect of labor standard,this paper focuses on the labor standard in the current labor contract law.First of all,the compulsory operation rules of labor contract do not belong to the category of labor benchmark.On the one hand,the nature of the two is obviously different;on the other hand,although under the background of the big government,the current legislation has brought the operation rules of labor contracts,and even all the rules in the field of labor security into the scope of supervision,but in the face of such a wide range of supervision,the main function or main energy of administrative supervision must only be placed on the protection of the basic rights of workers,except for the basic Labor contract disputes other than the labor conditions guarantee are still mainly solved by labor dispute arbitration and litigation procedures.In other words,the compulsory operation rules of the labor contract law should be guaranteed by private law procedures and strict civil legal liability of the parties.Except for the contract rules involving the protection of the basic rights of workers,they do not need or rely on the intervention of administrative power.This is also the fundamental reason why the labor standard should be independent of the compulsory rules of labor contract.To clarify the boundary between labor contract rules and labor standards,in turn,is of great significance to distinguish the responsibilities of labor supervision and labor dispute arbitration.Secondly,through the analysis of specific systems such as the written form of labor contract,double wage,economic compensation,employment file,etc.,it also proves the difference between the compulsory rules of labor contract and labor benchmark well,especially on the premise that China has formulated the labor contract law and social insurance law separately,it is not necessary to adopt a broad interpretation and comprehensive legislation on labor benchmark pattern.At the same time,the current "labor contract law" has also made supplementary provisions for some labor standards under special forms of employment such as dispatch employment and part-time employment.In terms of the scope of labor standard's effect on people,this paper focuses on the study of workers in labor standard law.It is of great significance for ordinary citizens whether it can be recognized that workers are protected by labor standards in the labor law.As the main body of labor relations,the judgment standard of laborers has always been bound with the judgment standard of labor relations.The current law faces the dilemma that a large number of workers are excluded from labor relations but need to be protected by labor standards;on the other hand,whether more and more "quasi subordinate" workers should be included in labor standards protection under the network economic environment has become a hot topic.The judgment of laborers should return to the standard of "subordination" and expand the scope of recognition of laborers in atypical labor relations.The standard of "subject" should be used as the judgment condition of the legality of the conclusion and termination of labor contracts,not the judgment basis of labor relations.Adhering to the theory of the unity of the concept of labor,including the workers who meet the standard of "subordination" into the labor relations as much as possible;or adopting the theory of relativity of the concept of labor,decoupling the concept of labor in the labor standard law from the labor relations,and expanding the scope of labor protection by the labor standard,can also be regarded as a solution to the current dilemma of labor relations recognition in China,which is based on the single labor relations The labor protection means brought about by the unified adjustment mode lack of effective ways to solve the problem of hierarchical classification.In order to define the scope of validity of labor standard scientifically and legislate it systematically,several basic principles should be established,namely,the principle of statutory standard,the principle of equal treatment,the principle of tripartite nature and the principle of hierarchical classification.At present,the choice of legislation mode of labor standard systematization in China should be based on the following aspects: first,it should be based on the scientific construction of China's labor law system.China already has a comprehensive parent law labor law,and labor contract law,the subordinate law of labor law,"one child is the only one",has issued a unified labor standard law,on the one hand,it can introduce the concept of labor standard and labor standard thinking method,break the existing situation that labor standard depends on labor contract management;on the other hand,it can re consolidate labor base The basic role of quasi protection in the labor law system is to promote the research on the basic theory and system logic of labor standards,form the boundary and system framework of labor standards in line with China's national conditions,end long-standing academic disputes,and promote the development of labor standards theory and practice.Secondly,it should be based on solving the problems existing in the legislation and implementation of labor standards.As far as labor standard is concerned,China is a situation of decentralized legislation.What is lacking is a leading law.What is lacking is a labor standard law whose status and function can be equal to that of labor contract law.Only a unified labor standard law can solve the problem of labor standard rigidity,poor implementation effect,law enforcement and judicial application Problems such as disunity.Thirdly,we should not overstate the difficulty of unified legislation and negate its function.Fourth,the establishment of a unified labor standard law does not exclude the auxiliary role of separate laws and regulations.We should not reverse the primary and secondary,and confuse the basic core role of the labor standard law with the auxiliary role of separate laws and regulations.Only to promote the legislation of single laws and regulations,the basic theory and system research of labor standards will be gradually ignored,the nature,principle,scope and other basic issues of labor standards will be in a state of controversy and uncertainty for a long time,the major premise is not unified,and single laws and regulations cannot form an organic whole with strong logic,mutual street and coordination.At the same time,to promote the legislation of labor standard system in China,we should also grasp the trend of internationalization of labor standard brought about by economic globalization,the trend of new type of labor relations brought about by information technology,and the trend of substitution of labor protection brought about by the full participation of social insurance.With the continuous development of China's economy and the increasing voice in international economic and trade activities,it is more important to look at the width and height of labor standards from the perspective of development;with the increase of the number of atypical workers,it is particularly urgent to start the Legislative Research on labor protection.When formulating the Labor Standards Law of China,we should carry out a special system for such workers The cross field of labor law and social security law on labor protection is showing a trend of "one retreat and one advance",so we should pay attention to avoid the phenomenon of repeated protection and two end failure. |
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