Study On The Principle Of Inclined Protection Of Labor Law

The principle of tilt protection is the basic principle and core principle of labor law.When we examine the origin of labor law,we can find that the labor relations regulated by labor law have the characteristics of subordination,which is a typical relationship of formal equality and substantive inequality,that is,the employer is the "strong subject",and the laborer is the "weak subject".The contrast between the strong and the weak shows that there is no reciprocal bargaining position between the two sides,and that,in turn,the situation of substantive inliberty and inequality faced by the disadvantaged workers must be overcome,and that this overcoming,on the historical ground fell on the Labor Law "the inclined protection principle".In essence,labor law is right-based,based on the real situation of strong and weak people in reality,remolding the legal personality in Labor Relations with "unequal people",and inclining to weak people in the form of law through the remedy of acquired nature to rectify and make up the substantive meaning of inequality,regulation,reconciliation and mediation of all kinds of mixed conflict of labor interests,in order to achieve the care and protection of workers.Although the principle of tilt protection has long been embodied in China’s labor legislation,there are still some problems such as theoretical ambiguity and lack of standardization.In recent years,it can be heard all the time,whether labor law is "double protection" or "single protection",labor legislation,whether the law should be "control" or "deregulation" and other disputes.Especially at the present stage,China is in the critical period of transformation,with the development of "Internet + ",it has aroused many problems in the field of labor relations.The prominent manifestation is the imbalance between Labor and capital,and the status quo of the protection of workers’ rights is worrying.In this regard,this paper will try to answer the following four questions on the basis of combing the above-mentioned questions: First,how should the principle of labor law tilt protection in the Labor Law Position? Second,how does the Labor Law System be guided by the principle of Labor Law tilt protection? Thirdly,what is the legislative embodiment and actual effect of the principle of labor law tilt protection? Fourthly,how to set up the correct thinking of the application of the principle of labor law tilt protection,so that it can be realized in the Labor legislation,justice and law enforcement.To sum up,the research goal of this paper will be devoted to: clarifying the basic theory of the principle of slope protection,including the concept,status,legal value,legislative representation,etc;comparing and analysing of the application of the principle of tilt protection to establish the principle of "moderate" tilt protection and its application standard,in order to provide theoretical support for the future revision of China’s labor legislation and the application of labor law in judicial practice.Therefore,this article follows the train of thought of putting forward questions,analyzing problems and solving problems,starting with the basic theory of Labor Law’s slanting protection principle,and finally settling down to the legislative and judicial perfection.First of all,on the basis of the analysis and introduction of the research background,research significance and current research situation at home and abroad,and by investigating the changes of the adjustment mode of labor relations at home and abroad,the origin,occurrence mechanism and basic connotation of the principle of tilt protection are sorted out.Secondly,within the framework of the whole basic principles of labor law,the relationship between the principle of inclined protection and other principles is analyzed,the position of the principle of tilt protection in labor law is clarified,and the idea and legal value of the principle of tilt protection are explored.Thirdly,this paper will select the existing labor laws and regulations and actual cases as samples to study and comb the embodiment and practical application of the principle of tilted protection in our country’s current legislation and judicial practice.This paper classifies and describes the patterns of "excessive tilt","insufficient tilt" and "moderate tilt",and analyzes the problems existing in implementing the principle of tilt protection in the current legislation and their causes.Finally,on the basis of the above-mentioned research,referring to the relevant research results,the author puts forward the applicable thinking of the principle of labor law’s slanting protection,and improves the current legislation selectively under the guidance of the basic principle of "moderate slanting".In addition,this paper will continue to explore in the context of information,aging and post-epidemic times,how China’s labor legislation under the guidance of the principle of tilt protection of the relevant system design.Specifically speaking,The structure of this article is divided into seven parts.The main contents of the research include:First,introduction part.This paper mainly introduces the background and important effect of the topic,the present situation of research both here and abroad,the research ideas and methods of the paper,and the possible innovation of the paper.Second,explain the concept,origin,development and basic connotation of the principle of tilt protection.Firstly,the concept of inclined protection principle and the connotation of inclined protection principle are introduced.Secondly,the paper discusses the logical starting point of the inclined protection principle,analyzes the representation of the unequal bargaining position between the laborer and the employer,and analyzes the logical starting point of the inclined protection principle from the dimensions of economic inequality,identity dependency and organizational dependence.Finally,from the perspective of historical evolution,the paper examines the changes of labor relations adjustment patterns in European and American countries,and sorts out the emergence and development of the principle of inclined protection.Then,from the perspective of the development process of China’s labor law,through a comparative study of the "Labor Law" and "Labor Contract Law" legislative purposes and background,to explore the formation and development of the inclined protection principle in China’s labor legislation.Thirdly,it summarizes the status of the principle of inclined protection in the labor law and discusses why it has become the basic and core principle of the labor law.This paper interprets the concept of inclined protection principle,and further demonstrates the rationality and necessity of its becoming the basic principle of labor law.Fourthly,it reviews and summarizes the problems and the reasons behind the inclined protection principle in the application of China’s labor law.The defects of "unclear application boundary" and "unclear measurement standard" in the application of tilt protection principle are discussed respectively,which are summarized as tilt "miscalculation",and then the causes of "miscalculation" are analyzed.Fifthly,the author sorts out the specific manifestations of the "misapplication" of the principle of inclined protection in the current legislation and judicature.Taking labor standard law,collective labor law,labor contract law and labor dispute settlement law as samples,this paper summarizes two kinds of "deviations" in the current legislation application of the tilt protection principle,including "insufficient tilt" and "excessive tilt",and analyzes the reasons.Sixth,return to system perfection from theoretical discussion.First of all,the application concept of the principle of "moderate" inclined protection is clearly established,and how to "moderate" inclined protection is analyzed,and the specific judgment standard of "moderate" inclined protection is proposed.In labor legislation perfect pertinently the laborer stratification theory is introduced to verify the principle of "moderate" slope protection,finally,put forward under the guidance of the principles of tilt protection,design more conducive to protecting workers’ rights and properly balance the interests of unit of choose and employ persons the rule of law and system,the current labor legislation(both substantive law and procedural law)for system improvement.At the same time,the improvement of labor law is a systematic project,this part of the author also put forward other complementary measures to improve.Seventh,it discusses the new situation facing the improvement and reform of labor legislation at present.Taking the changes in China’s labor relations adjustment during the COVID-19 period in 2020 as an example,it suggests how the principle of tilted protection should respond to the new situation in the future application of laws.