【作者】 金哲；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 经济法学， 2010， 博士

【摘要】 休息权是劳动权的重要内涵,也是人权的重要内容。在当前社会资源极为有限以及劳动就业形势严峻的背景下,包括休息权在内的劳动者权利的维护就更显其现实性和紧迫性,但是针对休息权的理论研究却相对落后。很多负面社会现象的存在,折射出我国对于劳动者休息权维护与保障的欠缺。为了构建更为完善的休息权保障和救济制度以强化劳动者权利保障力度,应当从休息权的理论研究入手,对休息权进行充分的基础研究。进而通过制度分析,考察休息权保障与最高工时标准、延长工作时间法律规制以及休假制度之间的关系,从中梳理和提炼出制度保障的内在机理,提出完善相关制度的对策建议。最后,从事后维权的角度来讨论休息权救济机制的完善,以期促进劳动者权利的保护和劳动关系的和谐。更多还原

【Abstract】 The right to rest which is an important part of labor right is being paid less attention to compared with other contents of labor right, and it also lacks study. Based on the ontology of right to rest, this paper describes the attribute, legal features, content structure and value function of right to rest in detail, and it also conduct the study of development process and theoretical foundation of right to rest. Theory serves the reality, after the theoretical analysis is carried out for right to rest, firstly, it carries out demonstration analysis of right to rest in terms of maximum working hours standard, prolonging working hours and holiday system, thus clarifying the underlying internal logic of system, finding out the deficiencies of existing system, and then proposing targeted improvement recommendations. Then, this paper focuses on the development and improvement of right to rest relief system, so as to protect the right to rest of workers and facilitate the harmonious labor relations.Chapter 1 is“Ontology of the Right to rest”. This chapter starts with the concept of right to rest, and then analyzes its legal attribute and features. With regard to the attribute of right to rest, there is an internal logical relation between labor rights and right to rest, they are also inseparable. Right to rest is within the scope of labor right. In the meantime, right to rest is an important part of human rights and personality right; it is also an essential part of social security right. With regard to the legal features of right to rest, it has greater freedom of action, more obvious irreversibility, more distinct sociality and it needs more intervention from the nation and the society. And then the paper analyzes the content structure and value function of right to rest, it describes the ontology of right to rest in detail.Chapter 2 is“History evolution of Right to rest”, which is carried out in terms of ideological foundation and economic foundation. With regard to the social ideological foundation of its development, it includes socialist ideology and Social welfare ideology which advocate social welfare, natural law ideology which is from ancient Greek philosophy, stakeholder theory and enterprise’s social responsibility thinking, government intervention thinking and overall social interest theory. With regard to the foundation of its development, review from the national and international perspectives is conducted. With regard to the economic foundation of its development, along with the progress of industrial revolution, labor productivity is greatly improved, which causes comprehensive reform of social relations. The modernization of production and labor mode promote the development of right to rest system.Chapter 3 to Chapter 5 reviews the protection system of right to rest in terms of three detailed system aspects.Chapter 3 is“The maximum working hours standard”. Firstly, it discusses the relationship between protection system of right to rest and maximum working hours. Secondly, it analyzes the theoretical foundation of maximum working hours standard system in terms of economics, ethnics, labor movement science and government intervention. Thirdly, it reviews the historical evolution process of the system, especially the role of international labor organization and its impact on the national relevant systems. This chapter mainly discusses existing situation, problem and solutions for the national maximum working hours standard system. From the perspective of legal responsibility, the maximum working hours standard system in China lacks legality, from the perspective of exceptional regulation, it lacks technical supporting. The solution for national relevant system construction is to clearly define“working hours”standard and“maximum”standard, so as to avoid developing the unfeasible system due to its vague definition.Chapter 4 is“Regulation of the Prolonging Working Hours“. Firstly, it starts with the analysis of prolonging working hours and analyzes the deficiency of the system based on the review of national and international legislation, and then discusses the legal solution. Secondly, it analyzes existing situation and form of prolonging working hours, which includes intensively prolonging working hours, customarily delaying the closing time and placement of work. Prolonging working hours will have bad impact on the workers’health, spirit, work ability and leisure life. The base of prolonging working hours is mainly from the theory of national condition of developing countries, contractual working hours theory, theory of position of two labor parties and the principles of management-by-results to weaken the importance of working hours. Prolonging working hours must comply with a certain limit, so as to protect the right to rest of workers, and there should be flexible classification measure for the design of the system.Chapter 5 is“The establishment and operating of Holiday System”. It analyzes the existing situation and problems in the system in terms of legal holiday, paid holiday and welfare holiday, and it proposes the improvement recommendations respectively. The problem of legal holiday is that the workers cannot enjoy the treatment of paid holiday widely, and the regulation of legal holiday stated in the law is too obscure. The problem of paid holiday is that the salary standard is not clear for the paid holiday, the time for annual leave is too short and the regulation is unclear. The problem of welfare holiday is that the enforcement of the employer is ineffective and the infringement of right is serious.Chapter 6 is“Relief System of the Right to rest”. Firstly, this chapter starts with the analysis of logical origin of right to rest relief system, it discusses the types of right to rest and make a reflection on the right to rest system. Secondly, it investigates the situation, form and reasons for the Infringement of right to rest. Finally, it proposes the author’s improvement recommendations on the relief system, a full set of right to rest relief system should cover constitutional relief, legislative relief, administrative relief, judicial relief, social relief and other modes of relief, only by the comprehensive relief system, can the right to rest of workers be protected.更多还原