劳动法律关系的“实体化”控制——以“用工”为研究基点

《劳动合同法》出台后确立的劳动关系"用工论",极大地增进了劳动关系的实体化意义。学界对于"用工"本体的认知即用工起点与用工本身的区分、用工的构成要件及其法律涵义的思考仍未达到应有的清晰度。从劳动关系的发生、运行和终结三个角度,解析现行劳动关系本身存在的三大逻辑乱象:有劳动合同却无劳动关系的劳动关系"割裂"问题、有劳动过程却无劳动关系的劳动关系"虚实"问题以及有劳动关系"不法"时的法律处置问题。劳动关系主体意思表示的主导因素在于"用工合意"而非书面合同,未来劳动关系的法律调整应当以"用工事实"为基础进行实体化控制。

On "Materialization" Controlling of Labor Legal Relations——Taking "Employment" as the Basis of Study

Since it was issued, the labor contract law has established ＂employment theory＂ of the labor rela-tionship, which has greatly enhanced the materialized significance of labor relations. The academic studies on the ＂employment＂ body has not yet reached the required clarity, including the distinction for the ＂employ-ment＂ and its starting point ,its constitutive requirements and legal meaning. This paper,from the three angles of labor relations occurring, running and ending, focuses on the analysis of three logic chaos in labor contract law, including the ＂fragmented＂ problem on having labor contract without labor relations;the ＂virtual and ac- tual＂ problem on having labor process but no labor relations and the legal disposal problem. The dominant fac-tor of labor relations lies in the ＂employment agreement＂ rather than a written contract, and the law of labor re- lations should be adjusted to the ＂employment facts＂ as the basis for a substantial controlling.