【作者】 杨彬；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 博士

【摘要】 劳动合同的效力是劳动合同的核心问题。我国劳动合同法中虽然确立了有效或无效两种效力类型,但劳动合同无效的刚性安排反而会损害劳动者的利益,迫使劳动者面临失业和重新就业的问题。因此,需要对劳动合同效力重新进行梳理。采用比较分析方法,将劳动合同的本质属性作为研究劳动合同效力的理论前提,以体现劳动合同效力不同于一般民事合同效力的特殊性;明确对劳动合同效力进行评价的价值追求,以体现在诸多价值冲突选择时的社会化属性;通过劳动合同效力评价的一般考量因素,明确劳动合同有效的标准;对不满足此类标准的“瑕疵”劳动合同的效力则确立效力评价的多元化体系,一方面审慎对待劳动合同无效的认定,明晰劳动合同无效的确认标准、确认机关及相应法律后果,特别提出劳动合同无效并不必然导致劳动关系无效的论点,得出劳动合同仅是劳动关系的触发机制之一的结论。作为劳动合同无效的后续处理方式,劳动者的利益仍可通过劳动事实关系获得保障。另一方面通过劳动合同可撤销制度赋予劳动合同当事人特别是劳动者对劳动合同存续状态的选择权,劳动者作为自身利益最佳判断者,不行使撤销权则劳动合同继续有效,行使撤销权则产生同无效相同的后果。对于因用人单位原因导致劳动合同无效的,还应满足劳动者对用人单位提出的强制缔约的要求。同时通过对劳动合同效力限制、补正及扩张的阐释,拓展了劳动契约代理、劳动合同效力补正方法及劳动合同效力在范围和内容上的扩张等内容,实现了劳动合同效力多元化体系研究的整体性目标。更多还原

【Abstract】 The labor contract is the essence of the labor law, and labor law enforcement is the core issue of labor contract. In the special period of government vigorously promoting the implementation of labor contract law, it is especially meaningful to make sure how to define clearly the enforcement of labor contract, and how to provide employees a strong platform, on which employees could be protected by law in any enforcement cases. The evaluation of different legal activity enforcement embodies the fundamental aim of legislation and the requirements of legal principles. Labor contract law is one of the legal activities. If its enforcement is only limited to validity or invalidity, it is still not sufficient to reflect the purposes of labor contract law, which is to protect the interests of employees, and to build and develop harmonious and stable labor relations. Therefore, in order to acknowledge the problems of labor contract enforcement, it requires deep analysis and rational thought to establish the construction and system of labor contract enforcement. Thus we could strengthen the effectiveness of labor laws and regulations, achieve the purposes of the labor law legislation, and also maintain the authority of labor laws and regulations.Chapter I is to found the theoretical basis for the research of labor contract enforcement. In Section I, the definition of labor contract enforcement is to make clear the meaning of the labor contract enforcement, and to analyze the root of labor contract enforcement should be the combination of willing enforcement and the legal enforcement. At the same time, the thesis cites the multi-regulations of China’s labor contract enforcement. In Section II, the nature of labor law is made as the theoretical precondition of labor contract enforcement in order to show that special attributes of the labor contract, which is different from other general contracts, should be thoroughly considered. The dependent attribute of labor contract is a special base in evaluating labor contract enforcement. The regulative attribute of labor contract makes the multi-relations of self-governed regulations and compulsory regulations as the basic standards in evaluating labor contract enforcement. The continual attribute of labor contract asks for the concern on the stability of labor relations in evaluating labor contract enforcement. In Section III, the thesis elaborates the values of labor contract enforcement. Through the judgments on freedom, efficiency, security, justice, and other values of labor contract enforcement, the thesis intends to solve the problem, in which the security and justice values should be put first when different values conflict.Chapter II is to clarify the consideration factors in evaluating labor contract enforcement. That is to establish clear standards including the subject, content, meaningful expression and form in a valid labor contract. Section I explains the standards of subject’s suitability. In addition to the suitability of employers and employees, the status of some special subjects such as managers and directors of the company, trainees and so on should be judged. Section II describes the legal standards of contents. The compulsory regulations shall not be broken. The labor standards law and the regulations of group compact shall not be violated. Also, the terms of labor contract should be flexible in order to resolve the uncertainties involved in the future. Section III puts forward the true and voluntary standards of meaning expression. The will and the external expression should be closely connected to cautiously judge the true meaning of the parties. Section IV describes flexible standard of forms, which should include not only written labor contracts and oral contracts, but also behavior implication. As a form of omission, the latter one could be understood as the legal meaning expression on certain occasions. At the same time, the special labor agreement and the internal labor rules should be an annex to evaluate its enforcement. As a form of labor contracts, labor contract format should pay special attention to justice and appropriateness. When all above-mentioned elements are satisfied, it is still necessary for both the employers and employees to sign or seal on the labor contract to put it into force.Chapter III is a negative assessment of the labor contract, which is the recognition and the consequences of invalid labor contracts. Section I first defines the concept of invalid labor contract, particularly compares the valid labor contract with valid contract, and indicates the specialty of invalid labor contract, which is the invalidity of labor contract does not necessarily lead to the invalidity of labor relations, because labor contract is only one of the trigger mechanisms for labor relations. Section II mentions the evaluation of invalid labor contract. In China, the idea of power-reduction should be adopted in deciding labor contract invalid. If employers or employees think that to carry on the labor contract is better than to make it invalid, the government need not intervene by force, only not to violate the public welfare. Section III puts forward the recognition of invalid labor contract. The standards of invalid labor contract in China now ought to be those who violates of the public interests, is lower than the collective contracts standard, or violates compulsory rules of laws and administrative regulations. The nature of application right for invalid labor contracts is a come-into-being right. The labor security department should be given application right for invalid labor contracts. The invalidity of labor contracts should be confirmed by the labor dispute arbitration institution or people’s court. The appeal of confirming labor contract enforcement does not have time limitation, but the time limitation of the return of property or payment of damages should be counted from the date of judging the labor contract invalid. Section IV describes the legal consequences of invalid labor contract. The guilty party, who is responsible for the invalidity of labor contracts, should be given appropriate punishment or sanctions. At the same time, to protect the innocent party’s interests, the existed working result should be recognized. The principle of attributing civil liability for invalid labor contract lies in the principle of separated responsibility. That is, employers bear the no-fault liability; employees bear the responsibility for mistakes. When the labor contract was confirmed invalid, the employers should pay employees for what they have worked. The party at fault should be held liable when the harm is caused to the other party, The party who discriminate employment opportunity, violate obligations of information and protection, deliberately conceal important facts concerning labor contract or providing false information, cover up the illegal purpose in legal form, violate employer’s business secrets, invade job-seekers’privacy, lose psychological understanding of behavior, and violate the tripartite agreement should bear the responsibility in the false contract. In a follow-up dealing with invalid labor contracts, the thesis analyses the consequences of relieving invalid labor contract. In labor contract law and implementation regulations, the regulation of relieving invalid labor contract mixes up the concepts of labor contract invalidity and labor contract relief. It is theoretically contradictory to take the evaluation factors of labor contract enforcement as the reason for relieving the labor contract. At the same time the employees should be given the right to sign compulsory treaty in the case of the employers’mistakes. The thesis clarifies the factual labor as the nature of employment. Factual labor relations and labor contract relations could be put side by side, together constituting legal labor relations. Thus, the legitimacy of factual labor relations is identified in order to provide sufficient legal basis in protecting it.Chapter IV describes the recognition and consequences of rescinding labor contracts. In section I, the thesis inspects the labor contract rescinding system, defines the concept of the labor contract rescinding system, and clarifies the feasibility of instituting the system, since labor contract could not be rescinded in labor law. The thesis also indicates the necessity of the labor contract rescinding system through the multi-perceptions of the system. Combined with the rescindable labor contact types in draft of labor contract law, the thesis provides supplement to it to realize the diversity of rescindable labor contact types. Section II analyzes the exercise and prescription of the labor contract rescinding right. Section III is to organize the legal consequences of rescinding labor contract. If the rescinding right holder chooses not to exercise the right, the labor contract would be still valid. If the right holder exercises the rescinding right, the consequences would be equal to that of invalid contract. At the same time, considered the possibility of competing labor contract invalidity and rescindability, the contract could be proved invalid or rescindable by easier-proved evidences. Also, through analyzing the relation between rescinding and relieving labor contract, the thesis puts forward an idea of the co-existence of labor contract rescinding right and relieving right.Chapter V is about the extensive consideration of labor contract enforcement including restrictions, corrections, expansion of labor contract enforcement and building a diversified enforcement system. Section I puts forward the problem of restrictions of labor contract enforcement, clarifies the effecting time point of labor contracts which are attached with limited period and conditions; labor contract agency is a creative point; the thesis also makes clear the labor contract agency types and their corresponding enforcement. Section II provides a variety of corrections of labor contracts enforcement. First of all, the thesis defines the criteria in confirming part of the labor contract terms invalid that is the invalidity of part of the labor contract does not influence other parts’validity. Then the thesis puts forward that the explanation of labor contract terms applies to the rules of beneficial explanation, and provides ratification, amendment, conversion, and other methods to the correction of labor contract terms. Section III studies the expansion of the scope and the content of labor contract enforcement. The scope of the labor contract enforcement could be expanded by preservation of the labor contract system and by confining a third party’s violating labor contract. The content of the labor contract enforcement could be expanded by attendant obligations, before contractual obligations, and after contractual obligations in the implementation of labor contracts. Finally, the thesis proposes to set up a multi-system in evaluating labor contract enforcement. First, makes clear the confirmation standards of invalid labor contract. Second, builds a labor contract rescinding system. If the labor contract is the result of deceit, force, improper influence, major misunderstanding, taking advantage of others’ difficulties, and lost of justice, the contract could be treated as rescindable labor contract. This could provide labor contract rescinding system with strong comprehensive functions. This system not only makes up the defects of invalid labor contract system, which could not reflect autonomy, or protect the deceived party’s interest, but also softens the rigidity of invalid labor contract system without losing its restraining functions to violations. Third, sets up a to-be-determined system of labor contract enforcement. The labor contract could be put into force by realizing objective conditions or subjectively ratification of the parties. Forth, puts forward the theory of compulsory contract conclusion, which restricts its application subjects.In addition, the realization of the labor contract enforcement needs to be guaranteed by improving the labor contract management system in internal enterprises and mending labor contract monitoring mechanism in external enterprises.更多还原