Legal Regulation System of Employment Relationship—Interaction between Labor Contract Law and Civil Code

ZHENG Xiaoshan

Jinan Journal ›› 2022, Vol. 44 ›› Issue (3) : 90-106.

PDF(1606 KB)
PDF(1606 KB)
Jinan Journal ›› 2022, Vol. 44 ›› Issue (3) : 90-106.

Legal Regulation System of Employment Relationship—Interaction between Labor Contract Law and Civil Code

  • ZHENG Xiaoshan
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Abstract

Since the reform and opening up, the regulation system of employment (labor) law in China has been in a long time of dilemma, because of the detour of civil law. The historical separation between Civil Law and Labor Contract Law often makes this most common social relationship (of employment) in the gray area of legislation, even in the gap. There are still a large number of loopholes and even blanks that need an urgent remedy. The academic circles once intended to complete this task through the Civil Code legislation, but failed at last. Now, we must find a new way, trying to achieve the integration by the way of the Labor Contract Law: first, we need to set up a “link” clause in it to clarify its “general-special” relation between the Civil Law; then, we must carefully define of the function scope of the Civil Law principle of autonomy and contract freedom in contract, in order to prevent its excessive invasion of labor law and its regulation rigidity. Finally, individual employment and many other transitional forms of employment, which have been omitted by civil law for a long time, can be legislated as supplementary forms of special forms of typical labor relationship, whether in independent chapters or in separate sections under the “special provisions” of Chapter Five, in order to remedy the loopholes and perfect the system.

Key words

civil code / labor contract Law / employment contract / legislative model / legislative system

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ZHENG Xiaoshan. Legal Regulation System of Employment Relationship—Interaction between Labor Contract Law and Civil Code. Jinan Journal. 2022, 44(3): 90-106
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