雇工人例的变迁与明清的雇佣劳动

发布时间：2018-06-06 07:57

本文选题：身份进化 + 主仆名分　；参考：《中南财经政法大学》2017年硕士论文

【摘要】：奴婢体系在唐代发生了重要的变化,一方面,在使用贱口奴婢之外,契约雇佣的奴婢开始出现,另一方面,唐代的典身开始出现计佣折值的现象,这些现象表明奴婢制度开始呈现出雇佣化的特征。奴婢制度的这种变化趋势不断发展,在宋代时,雇佣奴婢已经成为奴婢的主体。奴婢的雇佣化和法律体系的滞后,给奴婢、雇佣劳动者以及受雇服役者的身份认定带来了很多问题。为了解决这些问题,明初的立法一方面在民间废除了奴婢制,另一方面创设了雇工人制度,将受雇劳动者全部纳入其调整范围。雇工人制度的设立与奴婢制在民间的废除,与社会的实际需求存在着巨大的矛盾,家庭服役劳动在事实上一直存在,只不过改换了名目,而且改由雇工人制度调整。雇工人制度在表面上似乎消除了几种劳动者此前身份认定上的模糊状态,事实上,此种规定反而使雇工人的身份认定变得更加复杂。为了解决雇工人制度带来的一系列问题,立法者开始对雇工人制度进行修正,这一尝试始于万历十六年制定奴婢殴家长新题例,终于嘉庆六年雇工人例最终定型。过去学界普遍认为,万历十六年新题例一直沿用到乾隆二十四年,事实上,清初的几十年间,这则条例在立法上消失了,只在司法上还继续参照适用。此后,这一条例经历过一次删改,又重新进入法典之中,到乾隆二十四年,这一条例开始有了重大变动,直到嘉庆六年定型。万历十六年新题例确定以书面契约和雇佣年限作为雇工人身份的认定标准,在乾隆二十四年以后,条例的结构变得极为复杂,认定标准也变得多元且相互冲突。直至乾隆五十一年,条例的结构再次变得简单,最终确立了主仆名分和是否服役的认定标准。雇工人条例的变迁可以概括为契约性认定标准不断减弱,身份性认定标准不断强化的过程。伴随着这一过程,雇工人群体也不断分化,其中一部分进入自由劳动领域,另一部分向奴婢靠拢,而雇工人本身,也越来越体现出身份性特征。总体而言,条例的此种变化,使得雇工人中归于身份的更加身份,归于自由的更加自由。事实上,契约性的文契、年限标准,也可以看做对身份性的主仆名分标准的客观化尝试,只是这种尝试并不成功,条例的认定标准最终从强调雇佣形式的契约标准,变成了强调劳动实质的身份标准。这种标准称不上明确,在同等条件下,雇主的社会地位以及社会观念对职业的看法,均会对最终的身份认定产生重要的影响。雇工人条例将契约劳动和奴役劳动糅合在一起,使雇工人兼具二者的特征,这反映了奴役劳动向契约劳动进化的社会进程,雇工人例中多种身份的存在就是此种进化的产物。雇工人制度将这种进化的中间状态固定下来,同时固定了许多过渡身份,这使得身份的进化到此中止。此后的雇工人条例虽然不断修正了这一制度,但并没有从根本上解决这一问题。这一问题的存在,正是研习这一制度的意义所在。
[Abstract]:On the one hand, in the Tang Dynasty, the slave and maidservant system took place in the Tang Dynasty. On the one hand, the servant and maidservant of the contract employment began to appear. On the other hand, the custom of the maidservant began to appear in the Tang Dynasty. These phenomena showed that the Slave Slave system began to show the characteristics of the mercenary system. The employment of slaves and maidservants has become the main body of slaves. The employment of slaves and the lag of the legal system have brought many problems to the identity of slaves, workers and employed servants. In order to solve these problems, the legislation on the one hand in the early Ming Dynasty abolished the Slave Slave System on the one hand, on the other hand, it created the employment system and will be employed. There is a huge contradiction between the abolition of the workers' system and the abolition of the slave system in the folk and the actual needs of the society. The family service labor has been in fact all the time, but it has only changed the name and the employment system has been changed. The employee system seems to have eliminated several laborers on the surface. In fact, such a rule makes the identity of the employee more complicated. In order to solve a series of problems brought about by the employment worker system, the legislator began to amend the workers' system. This attempt began in the sixteen year of Wanli's establishment of a new example of the slave and battered parents, and finally a six year hired worker in Jiaqing. In the past, it was generally believed that the new theme of Wanli sixteen years has been used for twenty-four years in Qianlong. In fact, this rule has disappeared in the legislature for several decades in the early Qing Dynasty, and it is still applicable in the judicature. Since then, this regulation has been revised and reentered into the code of the Emperor Qianlong for twenty-four years. There was a major change in the regulations until the six year pattern of Jiaqing. The new theme of the Wanli sixteen year was determined by the written contract and employment age as a standard for the identity of the employee. After the Qianlong twenty-four years, the structure of the Regulations became very complex, and the identification standards became pluralistic and conflicting. Until the Qianlong fifty-one years, the structure of the regulations It became simple again and finally established the criteria for the name and service of the master and servant. The changes in the employee's regulations can be summarized as the process of the weakening of the contract identification standard and the continuous strengthening of the identification standards. With this process, the employee group has also been divided, some of which enter the free labor field and the other part. As a whole, this change of the regulations makes the hired workers more identity and free. In fact, the contractual quality of work, the standard of life, can also be regarded as an objective attempt at the standard of the identity of the master and servant, only this It is not successful. The standards of the regulations eventually become the standard of identity emphasizing the form of employment. This standard is not clearly defined. Under the same conditions, the social status of the employer and the view of the society on the profession will have an important impact on the final identification. The combination of contractual labor and servitude, which makes the employed workers concurrently with the characteristics of the two, reflects the social process of evolution of the slave labor to the contract labor, and the existence of many identities in the hired labor is the product of this evolution. The employment system fixed the intermediate state of this evolution and fixed many transitional identities at the same time. This makes the evolution of identity stop. Since then, the employer's regulations, although constantly revising the system, do not fundamentally solve the problem. The existence of this problem is the significance of the study of the system.
【学位授予单位】：中南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

【参考文献】