Research On Employment,Industrial Relationship And The Legal Regulating Mechanism

With the development of the economics and the diversity of the participants in economics and employment form, the disputes on employment are being arisen more and more. It is a real problem to be resolved immediately to legal practitioners and researchers that what the basic character of these disputes is and which law will be applied to them. Mr. Gide once said that, "we knew wind by the waving of the bulrushes, but the wind still is more important than the bulrushes."As to the argument on the relationship between employment and industrial relationship, this thesis tries to wipe off the impact which the different legal regulating mechanisms bring to the employment and industrial relationship, come back to the original social relations, and then describe the basic character of them. On the base of the theoretical research on the social relation level, the thesis analyses the differences between the two social relations based on the view of history, and disclosure the impact by the different legal regulating mechanisms to the two legal relations with different characters which are arisen from the two social relations. Furthermore, the thesis do a more thorough research to the two different legal regulating mechanisms, and discuss which one will be more adjust to the tow social relation, and finally it demonstrates whether this legal regulating mechanism is practicable by the law of countries over the world. The thesis is consisted of five chapters. The first chapter begins with the debate on the relationship between employment and industrial relationship within the circle of academe, distinguishing the different nature of social relation and legal relation and making the research by reverting employment and labor relationship to their original state. After reviewing the concepts and characters of employment and industrial relationship, the nature of employment and industrial relationship of their original state is thought to be the exchange of labor with remunerations. Such exchange has got dual nature due to its appearance in the field of exchange and realization in the field of circulation. The debate is brought by the fact that academicians standing in different areas have paid attention to its nature in various aspects. After the conclusion of the same nature between two relations of their original state, chapter II further analyzes the same nature of these two relations in the eye of historic development analysis. And these can be used to prove that labor law with the nature of socialization regulates employment that has developed to some history phases, which makes industrial relationship regulated by labor law and employment regulated by civil law hold different rank. Discussing by now, basing upon the legal relationship of different nature derived from the same social relationship in nature, the thesis will turn around its focus on two different legal regulating systems. Chapter IV has discussed how the civil law rules employment. The civil law regulates employment in the way of pure private law using the general regulations of general rules of Contract Law, which causes two popular concerned problems: responsibility of the employer and compensation duty of the employer to the employee with occupational injury. The former applies the principle of no fault and subjection to others'accountability, which makes it hard to be harmonized with civil law system. Meanwhile the latter is really difficult to be explained either from the angle of tort accountability or breach of contract accountability, which challenges the system of civil law. Chapter V introduces the regulating system of labor law on industrial relationship. The regulating system is consisted of three domains that are macro one, middle cosmic one and micro one. In the labor law system, compensation duty of the employer to the employee with occupational injuries is resolved by occupationalinjuries insurance that is built upon the basis of occupational risk theory and indicates decentralization of the risk. The accountability of the employer has to be discussed within the system of social law. The development of no fault accountability principle and that of accountability insurance have gone beyond the arena of traditional civil law based on personal accountability and that of others, and turn to the realm of social law. No fault accountability and accountability of others have smoothed the theoretical basis of employer's accountability within the system of social law. After the analysis of these two chapters, labor law should regulate employment that is of the same nature to industrial relationship, which can be more suitable in legal logic. Choosing the mode of legal regulating mechanism, in the present judicial system, has become a question about the realm of law application. Therefore, chapter V of the thesis is concerned on the application realm of labor law in various countries. Regarding to the flexibility of labor law's regulating mechanism in three areas, the unessential difference between employment and industrial relationship can be applied provided that they are the same in nature. While other countries'statutes have indicated the flexibility of labor law's regulating mechanism in three areas, labor law of our country presents a stark status which binds all the three areas with the mode of either applying labor relationship or no application of industrial relationship. On the basis of analyzing two different legislation of American independent form and unified regulation of French Labor Law, the author here suggest independent legislation be applied to construct flexible labor law regulating system of our country.