《劳动合同法》第85条引发的思考

《劳动合同法》85条规定了加付赔偿金,《劳动争议司法解释（三）》第3条将该赔偿金纳入了诉讼的受案范围,但理论上对该赔偿金的性质学界多有争论.性质上看,赔偿金的产生实乃劳动行政部门的责令之结果,劳动者选择私权利救济时需要先行向劳动行政部门投诉,将《劳动合同法》第85条的责任类型解释为行政责任更符合立法本意.我国劳动法律为劳动者提供了“公”、“私”两种救济方式,但救济体系之混乱使得其未能发挥应有的作用,为保持法规的统一以及相同问题得到相同处理的结果,两种救济方式应予以融合.

Some Thoughts Inspired from Article 85 of the Labor Contract Law

Article 85 of the Labor Contract Law provides for the payment of additional compensation, article three of The Third Judicial Interpretation On Several Problems About The Law Application To The Trial Of Labor Dispute Case bring this kind of compensation case into the range of litigation, nevertheless, as to the nature of the compensation, the points of the academic field are controversial. From the point of view of nature, the damages are indeed the result of the labor administrative department＇ s compel restitution, when the workers choose their private relief, they ought to advance to the administrative department for labor complaints, therefore, the type of the respon- sibility of the article 85 of the Labor Contract Law should be regarded as a kind of administrative responsibility is more in line with legislative intent. Our labor laws provide both ＂public＂ and ＂private＂ relief for our workers, but the chaos of the relief system failed to play its due role, in order to keep the unity of the laws and regulations and make sure that workers under the same circumstances should be able to get same and equal outcomes under the two kinds of relief, the two kinds of relief should be integrated.