Legislative Choice Of Labor Contract And Employment Contract In Civil Code Compilation

In the course of compiling the civil code,how to stipulate the contract related to paid labor in the civil code and whether it should be included in the labor contract or the employment contract is an unavoidable topic of discussion.This is not only related to the legal position of labor contract and employment contract,but also related to the rules of labor dispute settlement in judicial practice.At present,China's laws and regulations on the regulation of paid labor contracts are not perfect,and they rely on the isolated labor contract rules to adjust.The employment contract has not been explicitly stipulated in the law.Although the labor contract has been stipulated,its scope is narrow and its content is vague and incomplete.The absence and isolation of the adjustment of the paid labor contract in legislation in China have caused a series of problems,such as the difficulty in distinguishing labor contract from employment contract in judicial practice,the infeasibility of the trial of cases concerning employment contract,and the uncertainty of whether civil law rules can be applied to labor contract disputes when the labor law rules cannot be solved.Based on the above problems in legislation and practice,this paper discusses the issue of paid labor contract in the compilation of civil code.The contract of paid labor includes labor contract and employment contract.By reflecting on the current situation of the legislation of labor contract and employment contract,and comparing the characteristics and essence of labor contract and employment contract,it is found that labor contract is not suitable to be included in the civil code,and employment contract is suitable to be included in the civil code.Labor contract law is actually a special law of civil law.Therefore,it is necessary to change the current mode that the paid labor contract is adjusted independently by the labor contract law,and form the pattern that the employment contract in the civil law and the labor contract in the labor law are adjusted together.This paper is divided into five parts.The first part is the background and significance of this paper and the current literature research.This paper discusses the background and significance of the topic,highlighting the problem and necessity orientation of the paper.The literature review mainly lists the current scholars'research on this paper,and divides the scholars' main views into three categories,namely supporting the incorporation of labor contract into the civil code,supporting the incorporation of employment contract into the civil code,and supporting the incorporation of both labor contract and employment contract into the civil code.The second part is the absence of employment contract legislation.Based on the basic theories such as the definition and characteristics of the employment contract and the historical investigation of the employment contract before the founding of the People's Republic of China,this part concludes the deficiencies of the employment contract in China:the employment contract is absent from the contract law,and there are only scattered provisions on "employment" in the current legislation.The third part is the isolation of labor contract legislation.This part discusses the basic theories such as the definition and characteristics of labor contract,the evolution of labor contract legislation,the discrimination between the nature of labor contract and employment contract.The fourth part is the legislation status of labor contract outside China.This part lists the legislation of labor contract and employment contract in France,Germany,Japan and other typical countries,and provides reference for the legislative choice of China's civil code by analyzing the legislative mode of the above countries.The fifth part is the orientation and choice of the two kinds of contracts in China's civil code codification.This part summarizes the academic debate on the legal adjustment mode of labor contract and employment contract,and analyzes the orientation and selection of the two types of contracts in the civil code according to the academic debate,and concludes that China should adopt the adjustment mode of separation of civil law and labor law,including employment contract in the civil code,and labor contract is still adjusted in the labor law.On this basis,it discusses the relationship between the employment contract and the labor contract.