【作者】 程武龙；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 博士

【摘要】 公务员是一个见仁见智的概念,不同国度、不同法部门,涵义不同,范围不同,本文所指公务员为常任制的事务类公务员。此类公务员因处于被支配地位,须在上级的指挥监督下提供劳动,且工作目的是获取薪俸,实现生存权,因而具有劳动者地位。公务员同时具有为全体国民服务的公仆与国民的一份子双重身份,作为国民一份子,其应当享有国民的基本权利;而作为全体国民的服务者,其权利应当受到限制。从古代国家附庸到现代国家法律关系主体,公务员关系正以劳动关系为终极目标进行演进,随着传统“特别权力关系”理论的扬弃,公务员劳动基本权的享有获得了理论依据。然而,公务员毕竟与普通劳动者间存在差别,基于职务的公共性、国家的长治久安、民众的公共福祉考虑,公务员的劳动基本权必须要受到限制。这进而涉及到了国家利益与公务员个人利益的平衡与协调问题。公务员种类繁多,情形各异,因而应根据其职务公共性程度进行差别化限制,但任何限制都应当给予相应补偿,以实现法治国家的最高理念——公平与正义。以美国、日本及德国公务员制度为参照,结合我国国情,应移植“特别权力关系”理论作为我国公务员关系的理论基础。在构建公务员劳动基本权制度时,应以公务员具有劳动者地位为基点,明确公务员关系与劳动关系的相互关系及其与劳动关系和一般行政法律关系的差异性,在引入法律保留原则的同时,对公务员的劳动基本权做出差别限制。更多还原

【Abstract】 It is still a new topic in the present China to study the civil service system on Labor Law perspective, theory and practice are less involved, this article to the basic labor rights of civil servants, boldly carried out this issue trying to study. In order to enable works and employers be in the equal status, not only the basic labor rights become one of the basic human rights safeguarded by modern state, and many countries even in the Constitution expressly made its protection. Then, in addition to the common labors who work in the private enterprise, as the implementation of state affairs, should civil servants also enjoy the protection of the basic labor right? Generally when we discuss the Labor Law, the civil service system is not put at the same time, thereby indirectly causing the basic labor rights of civil servants be ignored. Civil servants are not only national servants for the public citizens, but also members of the National, as a member of the National, it should enjoy the right which all citizens have done, and as a service, it must be restricted. The enjoys and restrictions of civil servants basic labor rights are closely linked with the national life, and relate to the country’s long-term stability of the civil service and persona growth,and the related balance and coordination problems between the interests of the national and personal interests are a measure of a country’s civil system, a sign of scientific, democratization and modernization.The full text is divided into six chapters.Chapter 1 discusses the meaning of civil servants. It comprises three parts specifically, namely, the doctrine of civil servants, the law on civil servants and the civil servants in this paper. From an academic point of view, civil servants should have three elements, that is subject to examination and approval by the authorities of their specific qualifications; with state or local governments established a“public law office”; be faithful obligations to the country. From a legal point of view, different countries or regions of different form of governments, and therefore the scope of difference. Different categories of civil servants, different legal status. This article referred to the civil service does not include Judges, Prosecutors, Administrative officer, contract staff members, not fully applicable to the civil service law, as well teachers, medical personnel, and so on, actually refers specifically to the executive general of the permanent system in the civil service. As to our civil service law, this paper discusses all non-leadership positions in the civil service and some leadership positions in the civil service. Chapter 2 is the multi-angle analysis of the workers status of civil servants. The core content of this chapter lies in whether civil servants are workers, first through the analysis of the scholar view, pursuing the origin of the law, and practical jurisprudence to raise a question, then through on the concept of the workers and their determination, the civil service classification, as well as the historical evolution comparison between labor relations and civil service relations, labor relations, and other areas reviewed, the author ultimately concluded that civil servants belong to broad workers, and their work with subordinate propoties from personal, economic and orgnizations, the civil servants has obvious characteristics of workers of Labor Law, the relationship of civil servants attaches to that of workers, from historical evolution, being similar to the development context between the relationship of civil servants and that of workers, so civil servants should have the status of workers. Chapter 3 is on the legal theory basis of the basic labor right enjoyed by civil servants. It first introduces the concept, origin, characteristics of the traditional“special power relations”theory, which deprives the basic labor right civil servants should enjoy, then analyzes the defects and development prospects of that. Based on the progress of human society, especially the modern concepts of democracy and rule of law, it is time that the“special power relations”theory should be taken into the museum of history. Besides the theory, the French“autocratic power principles”, the United Stated“privilege theory”, the United Kingdom,“the British king privilege theory”, and so on are often used to explain the relationship between civil servants and state, regardless of the origin and development of those theories, they had followed exactly the same principle with the traditional“special power relations”theory. As a result, the production and development of the above-mentioned theories about the relationship of civil service commonly interprets the course of basic labor right of civil servants deprived completely and enjoyed step by step, final realization of the legitimate restrictions.Chapter 4 is the establishment and restriction of the basic labor right of civil servants. Although civil servants should enjoy basic labor rights, but because of their heavy responsibility to serve for all citizens, therefore the rights must be restricted. This chapter first introduces the difficult“footsteps”access to the basic labor right (this is the actual reason of the rights greatly reduced), and then analyzes the scholar view and jurisprudence about the basic labor right of civil servants, which focused on the restrictions of the rights to dispute by civil servants, and ultimately I believe that because of the balance and coordination between national interests and personal interests, it should be cautious to restrict the basic labor rights of civil servants, and should make difference restrictions to take into account the public extent of their difference types, but any restrictions should be given compensation in order to achieve the highest national concept of the rule of law—fairness and justice. Chapter 5 is on the comparison and reference of the system of the basic labor rights of civil servants among the United States, Japan and Germany. This part introduce briefly the enjoyment and restriction of three rights of civil servants, namely the right to solidarity, consultations, dispute, under the United States, Japan, Germany three countries system, although the different extent to enjoy and restrict these rights, but it is common that while civil servants were given the right, it would be restricted.Chapter 6 is the theory transplantation and system building of the basic labor rights of our civil servants in the future. This chapter first summarizes the full text, and then takes our current civil service system theory and practice as a template, passes through the author’s all last research results in this article, in order to explain the theory choice and principles which must be grasped while building on the basic labor right of civil servants, and at last analyzes briefly the reason that we lag behind in the basic labor right system of civil servants, and calls for those responsible for the relevant action to promote our civil service system to an early realization of democratization, scientific and rule of law.更多还原