【作者】 董亚男；

【导师】 李德志；

【作者基本信息】 吉林大学 ， 行政管理， 2009， 博士

【副题名】基于非正规就业群体劳动权的制度化保障之考量

【摘要】 作为植根于人性深处的一种诉求,公正是古往今来最经久不衰的价值准则。政治基于社会共同体对权利公正的追求而生,政治公正的本质是国家通过订立规则对该社会所有成员的权利追求与正当行为予以维护和保证。公正原则表现为维系社会秩序的公共规则对自发秩序下公正本真的“复制”,即制度对权利分配、权利与义务界分的不偏不倚。劳动是人的基本社会活动方式,劳动权内涵的演进凝聚着人们对社会公正与文明秩序的不懈追求。劳动就业制度的真谛在于以国家强制力对劳动权加以确认、维护和保障,是劳动权由理念转向实现的媒介和劳动权的制度化形态,更为确切地说,劳动就业制度是劳动者面对的一种既定的制度安排或制度环境。劳动就业制度作为重要的社会制度,同样应以公正为元规则,劳动就业制度公正是制度公正的重要领域和社会公正的底线。劳动就业制度公正的实质是平等地保护全体劳动者的基本劳动权、正当合理地平衡劳动关系双方的权利和义务关系、实现不同劳动者群体之间权利配置的均衡化。旨在加强权利补偿、促进权利平衡。我国的社会转型是基于政府主导改革逻辑的渐进主义制度转型,政府角色的历史规定性及其在国家政治结构中的权能,决定了政府成为劳动就业制度公正的第一推动者和实践主体。本文以政治学和行政学的相关理论为根基,辅之以其他相关学科领域的理论成果,首先对若干基础性问题进行了理论阐释;其次,选取沉积于城市职业格局底部和市场活动末端的非正规就业群体作为研究劳动就业制度公正问题的薄弱环节与关键部位,论述了政府主导劳动就业制度公正的现实逻辑和时代意蕴,构建了“政府主导劳动就业制度公正的基本分析框架”。复次,追溯了政府主导型劳动就业制度变迁中非正规就业发展的时序脉络,深入探究不同时期劳动就业制度承载的政府公正价值维度及非正规就业群体对公正内涵的新诉求。再次,拉开赋权文本形式公正的“幕布”,以城市劳动力市场分割为背景,通过考察非正规就业群体的劳动权减损状况,阐明政府对劳动就业制度供给的落差。在此基础上,由政府对非正规就业领域的制度供给状况,窥见劳动就业制度的实质不公之处,进而立足于作为劳动就业制度供给实践主体的政府本身,考察其在劳动就业制度供给中的权力范畴、制度伦理价值取向与制度行为,分析出症结所在。最后,通过厘清政府主导劳动就业制度供给的范畴与权限、选定政府制度伦理之公正取向的立足点、对实现劳动就业制度公正进行总体规划与目标定位、按照递进目标对促进劳动就业制度公正的配套制度加以衔接(实现劳动就业制度的实质公正)、构建公正的操作程序(实现劳动就业制度的程序公正),实现政府主导劳动就业制度公正的预期。本文尽量避免学术研究的功利化、重复化倾向,力求拓展和创新行政学研究的内容与方法,并着眼于经济社会发展的现实问题,将关注与解答现实社会的民生问题作为理论研究追求的境界。更多还原

【Abstract】 As human beings exploring the essence and defending the noble ideal through the ages, justice existed in the ethics field as a form of pure individual virtues initially and regularities the social interaction activities. In order to avoid damaging the natural order, People build country and conferred power upon it to summed up the“fixed law of rights distribution”in the spontaneous order as the system form through the intervention of political forces, and divided each other’s rights border. Justice provides the possibility of the premise and the future shape to political activities and constitutes the ethics base and assessment standards of the institution. Legitimate reason of the state creating the institution exists in providing society members with the right space and in requiring the basic behavior patterns in order to put social order under control. The nature of the system justice is that the state reasonably allocates the basic rights to individual.In modern society, as a series of rights closely related to social labor, labor rights have an attribute of human rights and need to be upgraded from conceptual morphological to statutory morphological through creating the labor and employment institution by the state, and achieved the actual morphological through implementing the institution. As an important social institution, the labor and employment institution is a materialization of the state will and determines the degree of realization of the labor rights. As a basic social institution, the labor and employment institution should regard the justice as the element rules. The essence of the justice of the labor and employment institution is allocating the basic rights and obligations among the different labor groups, and between the two sides of labor relations. As a profound political language expressing a profound proposition of historical materialism,“conc- -erning for people’s livelihood highly”essentially involves the most fundamental interests of the people, the weak link of which exists in the society bottom, the basic problem of which is employment and labor rights protection. Therefore, as for the informal employment group, the labor and employment institution is exactly the necessary rules which are most in need, the best means to safeguard their rights, but most indispensable. Selecting the informal employment group, who deposited in the bottom of the occupational structure as the research basis, shows the meaning in the title of the labor and employment system.China’s social transformation is based on the government-led gradualism’s reform. Government’s role in the historic provisions and the status in the country’s political structure determine that it must become the first promoter and the main practice subject of institutional changes. As a public power organization which is the nearest to the labor market, an authority who implements the labor and employment institution, an assistance of the legislature, chief labor legislator and labor decision-maker, the government assumes the mission of supplying and changing the labor and employment institution as ever. On behalf of the public power organization, the government overrides all the interest groups and is responsible to seek benefits for all workers, maintain the social justice. Justice of the labor and employment institution led by the government intrinsically ask the government to follow the value of justice, to carry out the reasonable layout and planning of the future changes of the labor and employment institution, to formulate and implement a series of specific labor and employment institution through labor legislating, labor decision-making and specific implementation of the institution, to balance the rights and obligations among the different labor groups, between the two sides of labor relations, ultimately to promote the realization of market fairness and social justice. Justice is not only the continuous political ideals but the continuous political practice. The labor and employment institution in different period is always bearing the government’s justice connotation adapted to the times background.Existing labor laws and regulations have built a general framework of labor rights to protect the labors initially, which endows the equal labor rights to all the labors. But judging the justice of the labor and employment institution hardly convinces everyone merely through studying on the text. It is because social injustice exists, the demand of justice arises. During the process of the market factors infiltrating all the society areas gradually, urban labor market was divided into the traditional formal, the emerging formal, the informal plate by the institution factors and market factors. Through studying on the field of informal employment, we can find that the false lies with the labor rights of the informal employment group in the absence of the public power which maintains a minimum justice. Through the comparison the informal employment group and the informal employment group, we can find that there are different aspects between two groups in their industries, career level and availability of career opportunities, labor standards, labor relations, social security, career development, which are incidental in respective occupational areas.The legitimacy of a right lies not only in the institutional legitimacy of the rights, but in the legitimacy of the institution itself which the rights resort to. China’s reform of the labor and employment institution has been under the guidance of the government, which bases on the traditional framework of plan period and aims to the benchmark of primary labor market. The changes pace of the labor and employment institution lags behind the economic reform process, so institution factors still exist in the traditional formal sector to some extent, but the informal employment market beyond the traditional sector lack of specific laws and regulations and manpower planning measures. The rights and freedoms provided by the existing labor and employment institution can not be enjoyed by all the labors. Compared with the groups regulated and protected by the institution,the informal employment group is only given a“right display”.At a specified period, the government’s leading changes in labor and employment institution has its historical rationality, but the rationality of government intervention in labor and employment institution arrangement doesn’t mean the justice of the institution itself, or the justice of the ethical value orientation in the government institution, or the justice of the government’s institution behavior. Through investing the status of the government’s institution supply in the informal employment field, we could find the substantive injustice of the labor and employment institution, which maps out that the government neglect the impartiality during the intervention in the supply of the labor and employment institution. Specifically, government’s“Totalitarian”complex still exists; the ethical value judgments in the government institution deviates from the justice; the government’s labor legislation behavior, labor decision- making behavior, implementation behavior violate the principle of procedural justice.The Labor and employment issues must resort to the state force and be solved through the institution provided by the government. Firstly, the power scope and permissions of the government who leads the justice of the labor and employment institution should be clarified. Secondly, a justice-oriented foothold of the ethical value orientation in the government institution should be selected. Thirdly, the government should put the informal employment to a strategic position, regard the informal employment as a base, overall planning and integrate current institution with a view to realize the justice of the labor and employment institution. Fourthly, the government should dovetails the supporting institution to the labor and employment institution in order to effectively promote the substantive justice of the labor and employment institution according to a hierarchical goal which consists of solving livelihood, endowing rights and benefits, optimizing vocational structure. Finally, the government should promote the procedural justice of the labor and employment institution through regulating the behavior of labor administrative legislation, optimizing the behavior of decision-making and improving the behavior of institution implementation. Furthermore, realizing the justice of the labor and employment institution is a systematic engineering. In addition to the government, the implementation of the justice of the labor and employment institution also depends on the related factors in the economic, political, social and cultural field, which promote the justice of the labor and employment Institution smoothly and effectively.更多还原