摘要

 

劳动合同是一个有用且必要的概念，它连接了两个不同的结构要素：一方面，它描述了劳动关系的实质内容——雇主的管理特权与保护劳动者这一社会利益。另一方面，它决定了是否属于法律适用范围的劳动关系类别，与劳动法的“认识论和主体生存”相联系。可以说，劳动合同是劳动关系的起点和核心。我国无效劳动合同制度肇始于劳动法，是法律对劳动合同效力评价的主体内容，承载着重要的规范功能与社会功能。但是无效劳动合同制度在制度设计方面一直饱受诟病。本文不再执拗于劳动合同效力制度的二分法与三分法之争，而是重新从劳动合同理论出发找到劳动合同的合同属性与法域属性，再从比较法视角对德、日、英三个国家进行立法比较与分析，以期得出现行无效劳动合同制度的完善建议。

 

关键词：无效劳动合同 相对无效 劳权保护 事实劳动关系

 

I

 

Abstract

 

The employment contract is a useful and necessary concept,which connects two different structural elements: On theone hand, it describes the essential content of the labor relationship-the employer's management privileges and the protection of the social interests of workers. On the other hand, it determines whether it belongs to the category of labor relations withinthe scope of the law, and is related to the "epistemology and subject survival" of labor law. It can be said that the employment contract is the starting point and core of labor relations.my country's invalid employment contract system originated from labor law.It is the main content of the legal evaluation of the effectiveness of employment contracts, and it carries important normative and social functions. However, the invalid employment contract system has been criticized for its system design.This article no longer insists on the dispute between the dichotomy and the rule of thirds of the employment contract validity system,but starts from the employment contract theory to find the contract attribute and the legal domain attribute of the employment contract, and then compares Germany, Japan, and Britain from the perspective of comparative law. The country conducts legislative comparison and analysis,with a view to deriving suggestions for improving the current invalid employment contract system.

 

The first chapter introduces the theoretical basis of invalid employment contract system.First, analyze the contract theory that should be appliedto employment contracts from the perspective of contract. This article believes that the relational contract theory is not perfect and cannot be fully applied to employment contracts, while the neoclassical contract theory is inclusive. Therefore, the innovative perspective of relational contract can be integrated intoneoclassical contract theory to realize the flexibility and diversity of contract law..Second, although the contract law can adapt to the development characteristics of employment contracts through the principle of good faith and fairness, it must not ignore the social law attributes of employment contracts. As an important tool for adjusting labor relations,employment contracts carry special social values,evolving from abstract personality to concrete personality, and undergoing a transformation from "contract to identity". The social nature of employment contracts lays the foundation for thediscussion of the employment contract effectiveness system,and it is necessary to pay attention to the particularity of the path of social law. Third, this article recognizes that the dichotomy framework of the current employment contract effectiveness system can be revoked. There are many disadvantages in its application.The concept of invalidity mitigation has applicable value in employment contracts.The two major technical tools of invalidity mitigation are relatively invalid and partially invalid. There is room for application in employment contracts.

 

Chapter Two can see the characteristics and shortcomings of the current invalid employment contract system by reviewing the legislative evolution. In terms of invalidation reasons, our country’s operations are too simple,failing to include as much as possible the reasons for contract defects. my country's invalid employment contract system has constructed three different processing paths: cancellation, invalidation confirmation and survival. These paths are either not perfect or there are unreasonable factors.

 

The third chapter looks at the employment contract effectiveness systems of Germany, Japan,and Britain from the perspective of comparative law,and elaborates on the three aspects of the legislation overview, the effectiveness system and the handling of invalid employment contracts. Although German employment contract legislation has both the characteristics of regulation and autonomy, there has been a trend of "returning to private law" in recent years. Therefore, in terms of the employment contract effectiveness system,the relevant provisions on the effectiveness of legal acts in the Civil Code are still the main legal basis. Japan’s employment contract legislation started late,and the Japanese employment contract law is mainly principled and declarative. The important basis of the employment contract validity system is the JapaneseLabor Standards Law and the Japanese Civil Code Legal Act Validity Regulations. The British employment contract theory is relatively rich.It not only drew the applicable subject content of employment contracts from thecommon law theory, but also made up for the shortcomings of the common law theorythrough protective legislation, and revised the common law non-interference policy. Therefore, the effectiveness system of various countries is basedon the contract effectiveness theory of private law or common law. Germany and Japan have followed the invalid, revocable,and effective three-point effectiveness system in civil law. The effectiveness of the British employment contract system is not too large.change.In the handling of employment contracts,Germany and Japan are different from those in the United Kingdom: Germany and Japan focus on theoretical discussions on de facto labor relations, and the interpretation of the legal and normative effectiveness of de facto labor relations is still through the contract path to promote labor relations to take effect. However, under the influence of pragmatism,the British courts have set up relevant technical variables around whether workers can get relief, and have developed a variety of methods such as separation of execution, relative fault, distinction of liability, and relief.

 

The fourth chapter is to propose personal suggestions forthe improvement of the invalid employment contract system. Civil law thinking is serious in the current system design,and it fails to fully reflect the inclined protection concept of social law. Abundant foreign legislative theories and the perfection of the operating system areinseparable from the close relationship between labor law and civil law (common law). However, the foundation of my country's labor law is relatively weak,and it has not experienced the evolution from employment contract toemployment contract, so there is a serious lack of civil theories that are linked to employment contracts. The legal source of the invalid employment contract system needs to be clarified.Regarding the reasons for invalidation,it may be better to learn from the regulations of Germany and Japan to improve it. The first is to add public order and good customs clauses,the second is to add malicious collusion and circumvention prohibition, and the third is to improve the internal control norms. At the same time, because of the severe consequences caused by invalid employment contracts, the British pragmatism is more advantageous in how todeal with de facto labor relations formed by invalid employment contracts. The court’s "two variables" operating techniques not only take into account the distinction between de facto labor relations ,Also takes into account the distinction between employment contract rights and legal labor rights. This practical approach makes us not obsessed with how to interpret the normative effect of factual labor relations, and helps to embody and implement the nature of labor rights protection.

 

In summary, the invalid employment contract system should be changed as follows: In the invalid employment contract system,it is necessary to implement the basic conceptof inclined protection, clarify the legal basis of the invalid employment contract system, and take priority over the constitution. At the same time, partial invalidity and relative invalidity areintroduced to alleviate the rigid effect of traditional invalidity. It is necessary to add public order and good customs,malicious collusion,and circumvention prohibitions in the invalidation, and it is also necessary to improve the internal control norms of the standard contract. In terms of the consequences of invalidation,it is necessary to distinguish between the retroactivity of the factual labor relationship,contract rights and obligations and statutory rights and obligations, and specify the provisions on damage compensation, in order to improve the consequences of the invalid employment contract system.

 

Keywords: Invalid Employment contract, Relatively Invalid,Labor Rights Protection, De Facto Labor Relations