南京国民政府时期劳动契约制度研究
发布时间：2018-08-30 16:13
【摘要】： 劳资问题,是西方国家在工业化过程中出现的社会现象。早期资本主义奉行“契约自由原则”,雇主与雇员之间是“自由的雇用关系”,聘任与解聘都是自由的,劳资之间是纯粹的债权债务关系。这种“雇用自由关系”的后果是,工人工作不稳,生活水平低下。因此,各国工人运动日渐兴起,劳资矛盾逐渐激化。为了化解这种矛盾,到了十九世纪末二十世纪初,西方国家纷纷制定劳工法保护劳工权益。这样,具有社会连带性质的劳动契约制度得以确立。 在中国,原本无劳资问题。自鸦片战争以后,随着外国资本的涌入、洋务运动的兴起和民族资本主义的发展,工业渐兴,劳资矛盾也由此显现。五四运动以后,中国工人阶级开始觉醒,工人运动也发生了从自发到自为的转变。自此,工人运动逐渐发展,各地工潮迭起。在这样的社会背景下,从20世纪20年代起,社会各界对劳动立法的要求日渐强烈。但是,直至南京国民政府成立,才真正开始了大规模的劳动立法。具有社会色彩的劳动契约制度才得以在中国建立。 本文意在分析南京国民政府时期劳动契约制度的形成、变化、主要内容和借鉴意义。 第一章主要内容是劳动契约制度的时代背景。近代工业的产生,导致中国的劳资阶级及其团体的产生,他们是劳动契约制度形成的阶级基础。劳资矛盾日渐尖锐,工人运动日益高涨,为劳动契约制度的建立奠定了政治基础。而域外劳动思潮的演变也对中国劳动思潮及劳工运动产生了重大影响,中国劳工也开始了争取劳动权利的立法斗争。而域外先进的契约制度为南京政府的劳动契约制度的建立提供了先进的法制文化经验,在早期苏俄劳动思潮对广州国民政府产生重大影响,而北伐胜利后,南京国民政府更多的受法德等国的影响。 第二章主要内容是劳动契约制度的萌芽及发展。民国早期的主客观原因推动了劳动立法的兴起。北洋政府进行了工会立法以应对工人要求权利的呼声,广州国民政府为了促进民主革命的发展,制订了一系列劳工政策,颁布了劳工法规,确认了工人的组织工会的权利,保护工人的合法权益。而中国劳动组合书记部也领导工人进行劳动立法运动。这些劳工立法活动促使了我国劳动契约制度的萌芽。但是,随着北伐战争的进展,国民党从最初推行比较激进的劳动政策逐渐转向和缓渐进的劳动政策。在蒋介石发动“四·一二”政变之后,以暴力镇压工人运动,改变了原有的劳资关系格局。民国劳动契约法制思想与法制模式也随之发生了变化。 第三章主要内容是劳动契约制度的法律渊源。南京国民政府为调整劳资关系,进行了一系列劳动立法活动,颁布了许多劳工法规,诸如《劳动契约法》、《工厂法》、《工会法》等等,其中规定了工时、工资、劳动卫生、特殊群体的保护以及劳动保险等实体权利方面的内容,这些规定为劳资的权利义务关系的建立提供了法律依据。这些规定构成了劳动契约制度的法律渊源。同时,国民党的劳工政策也包含大量的劳动契约制度方面的内容,也成为劳动契约制度法律渊源。另外,工厂规则、劳动协议等也作为确立劳资权利义务的依据。 第四章主要内容是分析了劳动契约关系的含义和性质,介绍南京国民政府劳动契约规定的当事人的权利义务,并分析了劳动契约与民事雇佣、承揽等民事劳务契约的区别。劳动契约关系是劳工与雇主之间缔结的、劳工提供劳动为雇主使用,而雇主给付报酬的协议。与民事合同相比,劳动契约具有从属性、社会性、劳动对象的特殊性等属性。 第五章主要内容是介绍南京国民政府劳动标准与劳动福利制度。工时制度包括工作时间、休息和休假的有关规定;工资标准规定了工资标准确立的基本制度、工资形式和工资水平;在劳动福利方面,分析了劳动福利制度产生的原因,南京国民政府劳动福利制度的规定及实施情况。总的来说,南京国民政府的工时、工资等规定得较为苛刻,福利待遇也很差。 第六章主要内容是介绍民国时期,中国特殊的劳动契约制度。近代中国特殊的社会背景,造成了社会上还存在大量的特殊用人方式,在旧中国资本家采用这些用人方式对工人进行残酷剥削。本章分析了特殊劳动契约制度产生的原因,招工制、包工制等自由式的雇佣方式以及包身工、学徒工和养成工等特殊雇佣制度。这些特殊的劳动契约制度是半殖民地半封建社会的客观情况产生的。这些特殊的劳动契约制度是民国时期实践中客观存在的,是当时劳动契约制度必不可少的组成部分。 第七章主要内容是劳动契约制度的实施。劳动契约制度,作为一项法律,最终要通过实施,才能达到保护劳工,协调劳资关系的目的,才能实现劳动契约制度的价值。劳工法规中规定了劳动契约实施制度的一些内容,这些内容主要包括:劳动契约订立的方式,民国时期劳动契约订立的主要方式为口头方式;劳动契约订立的原则,为自由原则;劳动契约成立要件和生效要件;劳动契约的终了,包括劳动契约制度终止和解雇的原因、违法解雇的责任以及发给工人劳动证明书等问题。南京政府通过民国劳动契约制度实施的有关规定,从劳动契约的订立到劳动契约终了的整个运行过程中对双方进行制约,从而达到国民党的“劳资调协政策”的目的。 第八章主要内容是南京国民政府劳动契约制度的历史意义及影响。本章首先在总体上对南京国民政府劳动契约制度作出评价,例如,规定了职业发明归属原理、工作地点及其变动原理以及劳动契约终止后,雇主发放证明书之义务。这些制度在今天看来仍有其合理性。同时,在一个传统上以农业为主的国家里,劳动契约制度的建立,与一大批学识渊博而又熟悉国外劳动法的法学家的贡献密不可分。南京国民政府劳动契约制度正是在考察国外先进劳动法律制度的基础上,结合当时中国的实际情况而构建的。南京国民政府劳动契约制度中的许多内容具有相当的科学性,即使在今天看来还具有一定的借鉴意义。当前,我国台湾地区的劳动契约制度有了较大的变化,但是,从中也能看出对南京国民政府劳动契约制度的继受性。新中国劳动合同制度,是经济体制改革之后逐渐建立的,是在中国用工制度的实际情况下发展起来的,建立的历史不长,和南京国民政府劳动契约制度相比,有很大的差异性。但是,我国劳动合同制度也存在不足之处,例如定期劳动合同与不定期劳动合同问题方面,与国外以定期劳动合同为例外以不定期劳动合同为常态的制度相比,我国劳动合同制度由于将定期劳动合同制度作为常态,导致劳动合同的短期化,劳动者的就业处于不稳定状态;在劳动解雇保护方面,由于缺乏劳动解雇保护制度,用人单位解雇劳动合同几乎没有受到什么限制,承担的责任也极为有限等。这些都不利于保护劳动者。因此,建立劳动解雇保护制度的时机是否已经成熟,如何建立完善的劳动解雇保护制度已是摆在我们面前不容回避的问题。
[Abstract]:Labor and capital problems are social phenomena appearing in the process of industrialization in Western countries.Early capitalism pursued the principle of "freedom of contract". Employers and employees had a "free employment relationship". Employment and dismissal were both free. In order to resolve this contradiction, at the end of the nineteenth century and the beginning of the twentieth century, many western countries enacted labor laws to protect the rights and interests of workers. Thus, the labor contract system with the nature of social ties was established.
Since the Opium War, with the influx of foreign capital, the rise of Westernization Movement and the development of national capitalism, the rise of industry and the emergence of labor-capital contradictions have also emerged. After the May 4th Movement, the Chinese working class began to wake up, and the workers'movement also changed from spontaneity to self-reliance. In this social background, from the 1920s, the demand for labor legislation from all walks of life has become increasingly strong. However, it was not until the founding of the Nanjing National Government that large-scale labor legislation really began. The labor contract system with social characteristics was established in China.
This paper intends to analyze the formation, changes, main contents and reference significance of the labor contract system in the period of Nanjing National Government.
The first chapter is mainly about the background of the labor contract system. The emergence of modern industry has led to the emergence of the labor class and its organizations in China, which are the class basis for the formation of the labor contract system. The evolution of the tide also exerted a great influence on the labor ideological trend and labor movement in China, and the Chinese laborers began to struggle for labor rights. The advanced contract system outside the country provided advanced legal and cultural experience for the establishment of the labor contract system of the Nanjing government, and the labor ideological trend of the Soviet Union and Russia produced the Guangzhou National Government in the early days. After the northern expedition, the Nanjing national government was more influenced by France and Germany.
The second chapter is mainly about the sprout and development of the labor contract system.The subjective and objective reasons in the early period of the Republic of China promoted the rise of labor legislation. The right of workers to organize trade unions was affirmed and the legitimate rights and interests of workers were protected. The Secretariat of the Chinese Labor Union also led the workers in the labor legislation movement. These labor legislation activities helped to germinate the labor contract system in China. However, with the progress of the Northern Expedition, the Kuomintang gradually implemented a more radical labor policy from the beginning. After Chiang Kai-shek launched the "April 12th" coup, the violent suppression of the workers'movement changed the original pattern of labor-capital relations, and the legal system of labor contracts and patterns of the Republic of China also changed.
In order to adjust the labor relations, the Nanjing National Government has carried out a series of labor legislation activities and promulgated many labor laws and regulations, such as Labor Contract Law, Factory Law, Trade Union Law and so on, which stipulate working hours, wages, labor hygiene, protection of special groups and labor insurance. These provisions constitute the legal origin of the labor contract system. At the same time, the Kuomintang's labor policy also contains a large number of labor contract system content, but also become the legal origin of the labor contract system. Labor agreements are also the basis for establishing labor rights and obligations.
The fourth chapter mainly analyzes the meaning and nature of labor contract relationship, introduces the rights and obligations of the parties stipulated in the labor contract of Nanjing National Government, and analyzes the differences between labor contract and civil service contracts such as employment and contracting. Compared with civil contracts, labor contracts have subordinate nature, sociality and particularity of labor objects.
The fifth chapter mainly introduces the labor standard and the labor welfare system of Nanjing National Government.The man-hour system includes the relevant provisions of working hours, rest and vacation.The wage standard stipulates the basic system of wage standard establishment, wage form and wage level.In the aspect of labor welfare, it analyzes the causes of the labor welfare system,Nanjing. Generally speaking, the working hours, wages and other provisions of the Nanjing National Government are more stringent, and the welfare benefits are also very poor.
The sixth chapter mainly introduces the special labor contract system of China in the period of the Republic of China. The special social background of modern China has caused a large number of special employment methods in society. In old China, capitalists used these employment methods to exploit workers cruelly. These special labor contract systems were produced by the objective conditions of the semi-colonial and semi-feudal society. These special labor contract systems existed objectively in the practice of the Republic of China and were indispensable to the labor contract system at that time. Fewer components.
The seventh chapter is mainly about the implementation of the labor contract system.The labor contract system, as a law, must be implemented eventually to achieve the purpose of protecting labor and coordinating labor relations, and to realize the value of the labor contract system. In the period of the Republic of China, the main way to conclude the movable contract was oral; the principle of the labor contract was free; the important conditions for the establishment and validity of the labor contract; the end of the labor contract, including the reasons for termination and dismissal of the labor contract system, the responsibility for illegal dismissal and the labor certificate issued to workers, etc. Question: The Nanjing government, through the relevant provisions of the labor contract system of the Republic of China, restricts both sides in the whole operation process from the conclusion of the labor contract to the end of the labor contract, so as to achieve the purpose of the Kuomintang's "policy of labor and capital coordination".
The eighth chapter is mainly about the historical significance and influence of the labor contract system of Nanjing National Government.Firstly, this chapter evaluates the labor contract system of Nanjing National Government on the whole, for example, it stipulates the attribution principle of professional invention, the working place and its changing principle, and the employer's obligation to issue certificates after the termination of the labor contract. At the same time, in a country traditionally dominated by agriculture, the establishment of labor contract system is closely related to the contribution of a large number of jurists who are knowledgeable and familiar with foreign labor law. Many of the contents of the labor contract system of the Nanjing National Government are quite scientific and have some reference significance even today. At present, the labor contract system of Taiwan has changed greatly, but it can also be seen from it that the labor contract system of the Nanjing National Government has changed greatly. The labor contract system in New China was established gradually after the reform of the economic system and developed under the actual conditions of the employment system in China. The history of its establishment is not long. Compared with the labor contract system of Nanjing National Government, it is quite different. However, the labor contract system in China also has some shortcomings. For example, in terms of the problems of fixed-term labor contracts and non-fixed labor contracts, compared with the foreign system in which fixed-term labor contracts are the exception and non-fixed labor contracts are the norm, China's labor contract system takes the regular labor contract system as the norm, resulting in the short-term labor contract, and the employment of workers is in an unstable state. In the aspect of dismissal protection, due to the lack of labor dismissal protection system, the employer's dismissal of labor contract is hardly restricted, and its responsibilities are extremely limited. These are not conducive to the protection of workers. It is a problem that can not be avoided before us.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D929;D922.52
本文编号：2213599
[Abstract]:Labor and capital problems are social phenomena appearing in the process of industrialization in Western countries.Early capitalism pursued the principle of "freedom of contract". Employers and employees had a "free employment relationship". Employment and dismissal were both free. In order to resolve this contradiction, at the end of the nineteenth century and the beginning of the twentieth century, many western countries enacted labor laws to protect the rights and interests of workers. Thus, the labor contract system with the nature of social ties was established.
Since the Opium War, with the influx of foreign capital, the rise of Westernization Movement and the development of national capitalism, the rise of industry and the emergence of labor-capital contradictions have also emerged. After the May 4th Movement, the Chinese working class began to wake up, and the workers'movement also changed from spontaneity to self-reliance. In this social background, from the 1920s, the demand for labor legislation from all walks of life has become increasingly strong. However, it was not until the founding of the Nanjing National Government that large-scale labor legislation really began. The labor contract system with social characteristics was established in China.
This paper intends to analyze the formation, changes, main contents and reference significance of the labor contract system in the period of Nanjing National Government.
The first chapter is mainly about the background of the labor contract system. The emergence of modern industry has led to the emergence of the labor class and its organizations in China, which are the class basis for the formation of the labor contract system. The evolution of the tide also exerted a great influence on the labor ideological trend and labor movement in China, and the Chinese laborers began to struggle for labor rights. The advanced contract system outside the country provided advanced legal and cultural experience for the establishment of the labor contract system of the Nanjing government, and the labor ideological trend of the Soviet Union and Russia produced the Guangzhou National Government in the early days. After the northern expedition, the Nanjing national government was more influenced by France and Germany.
The second chapter is mainly about the sprout and development of the labor contract system.The subjective and objective reasons in the early period of the Republic of China promoted the rise of labor legislation. The right of workers to organize trade unions was affirmed and the legitimate rights and interests of workers were protected. The Secretariat of the Chinese Labor Union also led the workers in the labor legislation movement. These labor legislation activities helped to germinate the labor contract system in China. However, with the progress of the Northern Expedition, the Kuomintang gradually implemented a more radical labor policy from the beginning. After Chiang Kai-shek launched the "April 12th" coup, the violent suppression of the workers'movement changed the original pattern of labor-capital relations, and the legal system of labor contracts and patterns of the Republic of China also changed.
In order to adjust the labor relations, the Nanjing National Government has carried out a series of labor legislation activities and promulgated many labor laws and regulations, such as Labor Contract Law, Factory Law, Trade Union Law and so on, which stipulate working hours, wages, labor hygiene, protection of special groups and labor insurance. These provisions constitute the legal origin of the labor contract system. At the same time, the Kuomintang's labor policy also contains a large number of labor contract system content, but also become the legal origin of the labor contract system. Labor agreements are also the basis for establishing labor rights and obligations.
The fourth chapter mainly analyzes the meaning and nature of labor contract relationship, introduces the rights and obligations of the parties stipulated in the labor contract of Nanjing National Government, and analyzes the differences between labor contract and civil service contracts such as employment and contracting. Compared with civil contracts, labor contracts have subordinate nature, sociality and particularity of labor objects.
The fifth chapter mainly introduces the labor standard and the labor welfare system of Nanjing National Government.The man-hour system includes the relevant provisions of working hours, rest and vacation.The wage standard stipulates the basic system of wage standard establishment, wage form and wage level.In the aspect of labor welfare, it analyzes the causes of the labor welfare system,Nanjing. Generally speaking, the working hours, wages and other provisions of the Nanjing National Government are more stringent, and the welfare benefits are also very poor.
The sixth chapter mainly introduces the special labor contract system of China in the period of the Republic of China. The special social background of modern China has caused a large number of special employment methods in society. In old China, capitalists used these employment methods to exploit workers cruelly. These special labor contract systems were produced by the objective conditions of the semi-colonial and semi-feudal society. These special labor contract systems existed objectively in the practice of the Republic of China and were indispensable to the labor contract system at that time. Fewer components.
The seventh chapter is mainly about the implementation of the labor contract system.The labor contract system, as a law, must be implemented eventually to achieve the purpose of protecting labor and coordinating labor relations, and to realize the value of the labor contract system. In the period of the Republic of China, the main way to conclude the movable contract was oral; the principle of the labor contract was free; the important conditions for the establishment and validity of the labor contract; the end of the labor contract, including the reasons for termination and dismissal of the labor contract system, the responsibility for illegal dismissal and the labor certificate issued to workers, etc. Question: The Nanjing government, through the relevant provisions of the labor contract system of the Republic of China, restricts both sides in the whole operation process from the conclusion of the labor contract to the end of the labor contract, so as to achieve the purpose of the Kuomintang's "policy of labor and capital coordination".
The eighth chapter is mainly about the historical significance and influence of the labor contract system of Nanjing National Government.Firstly, this chapter evaluates the labor contract system of Nanjing National Government on the whole, for example, it stipulates the attribution principle of professional invention, the working place and its changing principle, and the employer's obligation to issue certificates after the termination of the labor contract. At the same time, in a country traditionally dominated by agriculture, the establishment of labor contract system is closely related to the contribution of a large number of jurists who are knowledgeable and familiar with foreign labor law. Many of the contents of the labor contract system of the Nanjing National Government are quite scientific and have some reference significance even today. At present, the labor contract system of Taiwan has changed greatly, but it can also be seen from it that the labor contract system of the Nanjing National Government has changed greatly. The labor contract system in New China was established gradually after the reform of the economic system and developed under the actual conditions of the employment system in China. The history of its establishment is not long. Compared with the labor contract system of Nanjing National Government, it is quite different. However, the labor contract system in China also has some shortcomings. For example, in terms of the problems of fixed-term labor contracts and non-fixed labor contracts, compared with the foreign system in which fixed-term labor contracts are the exception and non-fixed labor contracts are the norm, China's labor contract system takes the regular labor contract system as the norm, resulting in the short-term labor contract, and the employment of workers is in an unstable state. In the aspect of dismissal protection, due to the lack of labor dismissal protection system, the employer's dismissal of labor contract is hardly restricted, and its responsibilities are extremely limited. These are not conducive to the protection of workers. It is a problem that can not be avoided before us.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D929;D922.52
【引证文献】
相关博士学位论文 前1条
1 李锦峰;国民党治下的国家与工人阶级，，1924-1949[D];复旦大学;2011年
本文编号：2213599
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