试论劳动法的社会法特质

劳动法与民法的关系,尤其是劳动合同法与民法的关系,一直是近二十年来法学界研究的热点问题。国内的社会法研究更多着眼于实在法层面,尤其是围绕法律部门之社会法,难以在社会法与强调自身已经实现社会化的现代民法之间划出明晰界线。社会法需要进行法理与法哲学思考,通过何为“社会法”之“社会”、何为“社会法”之“法”、“社会”之“法”与社会法是何种关系这三个问题揭示社会法的特质,继而论证劳动法作为典型的社会法,难以在民法体系内实现逻辑自洽。此外,社会法的核心是有机体内的伦理规则,但并不完全排斥契约,合意的“触发性作用”仍不可或缺,劳动争议可以在一定范围适用民法规则。

A Tentative Study on the Social Law's Features of Labor Law

The relationship between labor law and civil law, specifically that of the labor contract law and civil law, has been a topic frequently discussed in the legal field for the past two decades. Domestic studies on social law focus more on the level of substantive law, more specifically around the social law of legal departments. It is difficult to draw a clear line between social law and modern civil law that emphasizes its own socialization. The study of social law demands more reflective thinking on jurisprudence and legal philosophy, through the three issues of what is the "society" of "social law", what is the "law" of "social law", and what is the relationship of the "law" of "social law" and social law, we can reveal the features of the social law. Moreover, we can also expound that, as a typical example of social law, why the labor law is hard to achieve its logical self-consistency in the civil law system. In addition, though the core of social law is the internal ethical rules of its social organism, it does not completely exclude the contract. The "trigger effect" of agreement, thus, is still indispensable, and the rules of civil law can be applied to labor disputes within certain ranges.