Research On Differentiated Application Of Labor Law For Company Senior Executives

With the development of China's market economy and internal corporate governance system,the number of senior management personnel(hereinafter referred to as company senior executives)who exercise part of the employer's command power is increasing.However,China's labor law still includes company senior executives into the scope of its protection without distinction,and they are equally protected as ordinary workers.This is not consistent with the concept of preferential labor protection in labor law and is not conducive to the improvement of internal corporate governance mechanism.Not only that,the fuzzy treatment of the identity attribute of the company's senior executives leads to different degrees of application obstacles when dealing with the labor dispute cases of the company's senior executives in judicial practice.In reality,there is no agreement on the identity of the company's senior executives and how to apply the labor law.The research on how the company senior executives should apply the labor law is based on the research on the identity of the company senior executives.Some judicial decisions on the application of the labor law for company senior executives in our country have quoted the enumerated provisions of the company law for company senior executives and regarded them as different groups from ordinary laborers.However,in the labor law,all natural persons corresponding to the employing units are included in the workers for integrated protection,and the company senior executives are no exception.In fact,some extraterritorial labor laws define the company's senior executives differently from ordinary workers,and adopt an application mode excluding some labor laws.It is indeed necessary to perfect the relevant provisions applicable to the company's senior executives' labor laws in our country.Under the current labor law system in our country,the mainly application problems of company senior executives in the judicial practice of labor law include: company senior executives apply "double salary",overtime salary,"double" economic compensation and the term of "restoration of labor relations".In fact,the differentiated application of the company's senior management labor law,as a perfect way to apply the company's senior management labor law,is legitimate and reasonable.On the one hand,labor law was created to protect ordinary workers in a weak position,so it has a lot of protection for workers and less restriction.However,due to the fact that China's labor law came into being during the transition from a planned economy to a market economy,the main emphasis is on the distinction between employers and workers,and the lack of consideration of the internal differences and diversity of types of workers groups,resulting in practical problems in the application of the company's senior management labor law.On the other hand,the company's top management and ordinary workers do have different subject attributes and rights.While the company's top management has extensive labor rights,it also has part of the company's "employment" rights.Therefore,the unclear positioning of the application of the company's senior management labor law and the resulting practical difficulties make the differentiated application of the company's senior management labor law necessary and imperative.The reshaping of the differentiated application system of the company's senior executives' labor law includes the differentiation of subject classification and specific matters.In the subject typology study,the companies senior executives are divided into subjects that completely apply the labor law,partially exclude the application of the labor law and completely exclude the application of the labor law,and the specific and differentiated application matters that partially exclude the application of the labor law are explained.Among them,the coordination between the company's senior management labor law and the company law mainly downplays the formal requirements of written labor contracts when establishing labor relations,without strictly requiring the conclusion of complete written labor contracts.When "dismissing" and adjusting jobs and dissolving labor relations,it is to set special applicable conditions for senior executives of the company in cases of "adjustment of jobs" and "inability to continue to perform labor contracts".As for the perfection of the labor law applicable to company senior executives,in the differential application of "double salary",the company can exempt the application of "double salary" if it mainly provides evidence to prove that the company senior executives' command right is related to the conclusion of written labor contracts;In the differential application of overtime pay and economic compensation,the company and its senior management are mainly given greater autonomy.The company and its senior management may make corresponding written agreement on whether to apply,and the company shall bear the corresponding burden of proof.A reasonable solution to the problem of the application of the company's senior executives' labor law and effective protection of the legitimate rights and interests of workers are conducive to the construction of a more harmonious labor relation.