论我国劳动法领域人事保证的法律规制
发布时间：2018-09-06 10:17
【摘要】：“保证”前冠以“人事”二字,提示了人事保证相异于普通民商事保证。将民商事领域的保证制度引入劳动人事领域,既因二者的出发点均是为了降低交易风险故在大框架上应基本相同,又因二者所依从的主法律关系性质不同而在具体规制上还应有所区别。人事保证制度在我国历史上出现过,并存在了相当长一段时间,新中国成立后便长期处于沉寂状态,近年来随改革开放及劳动用工关系大量建立而再次得以广泛运用。自《劳动合同法》颁布施行后,人事保证制度再度处于争议端口,当下仍或明或暗地为用人单位所运用。与其他国家或地区有明确规定不同,我国劳动立法未对人事保证作出明确法律规制,态度模糊；审判实务中对其效力认定也不统一,同案不同判的现象时有发生。为廓清混乱状态,维护法律适用的统一性,为社会发展和经济建设更好发挥指引作用,有必要在前人的基础上作进一步的研究论证。 本文以民商事保证为对比,剖析了人事保证制度的内涵构成,对人事保证制度作了正负两方面的功能分析,从信用危机下的必要性、动机的正当性、现阶段不可替代的功能优势、法理基础上的契合性、对人事保证的理论与制度困境的再反思等方面对我国确立人事保证制度作了合理性分析,并提出了以“契约自由与国家干预相结合,实现三方利益平衡”为重构人事保证制度的指导思想,以期将人事保证制度的积极功能发挥至最大而将消极作用抑制至最小。以此指导思想为主线,运用比较分析法,借鉴他国经验,结合本国实际,从保证人资格、保证期间、保证范围、保证限额、保证方式、三个主体间的权利义务关系、对保证人利益的保护与救济等各方面对人事保证制度的法律规制作了具体设想。本文认为：保证人资格应以有代偿能力为应然条件而不是实然条件,原则上用人单位不得拒绝劳动者近亲属作为保证人；保证期间从用人单位知道或应当知道其权利受到劳动者侵害时起算,最高不超过一年；保证范围所涉职务范围应限于高风险职位、所涉行为范围应限于劳动者违反忠实义务的行为；保证限额为劳动者自入职以来至赔偿事故发生时的年平均工资之一至三倍；保证方式应限定为一般保证方式；用人单位应尽谨慎管理义务及通知义务,劳动者应尽善良注意义务,以防范、降低保证人承担保证责任的风险；同时应赋予保证人范围更为宽广的先诉抗辩权,不仅在劳动者责任未被追究前可拒绝用人单位的索赔请求外,用人单位还有其他求偿方式未用尽的,同样可拒绝其索赔请求。对于前人未充分关注的劳动者责任,本文认为违反诚信义务的劳动者还应向保证人承担惩罚性赔偿的加重后果。
[Abstract]:"guarantee" is preceded by "personnel", suggesting that personnel guarantee is different from ordinary civil and commercial guarantee. In order to reduce the transaction risk, the guarantee system in the civil and commercial fields should be basically the same in the large framework because the starting point of both is to reduce the transaction risk. Because of the different nature of the principal legal relationship between them, they should be different in specific regulation. The personnel guarantee system appeared in the history of our country and existed for a long time. After the founding of New China, it has been in a state of silence for a long time. In recent years, with the establishment of a large number of labor and employment relations, it has been widely used in recent years. Since the promulgation and implementation of the Labor contract Law, the personnel guarantee system is once again in the dispute port, and is still used by the employer explicitly or implicitly. Different from other countries or regions, the labor legislation of our country has not made clear legal regulation to personnel guarantee, the attitude is vague; the judicial practice is not uniform to its validity, the phenomenon of different judgment in the same case occurs from time to time. In order to clear up the confusion, maintain the unity of the application of the law, and play a guiding role in social development and economic construction, it is necessary to make further research and demonstration on the basis of the predecessors. Based on the comparison of civil and commercial guarantee, this paper analyzes the connotation of the personnel guarantee system, analyzes the positive and negative functions of the personnel guarantee system, and analyzes the necessity of the credit crisis and the legitimacy of the motive. At the present stage, the irreplaceable functional advantages, the conformity on the basis of legal theory, the reconsideration of the theory and system dilemma of personnel assurance, etc., have made a rational analysis on the establishment of personnel guarantee system in our country. It also puts forward the guiding ideology of reconstructing the personnel guarantee system by combining the freedom of contract with the state intervention and realizing the balance of interests among the three parties in order to exert the positive function of the personnel guarantee system to the maximum and restrain the negative function to the minimum. Taking this guiding ideology as the main line, using the comparative analysis method, drawing lessons from the experience of other countries, combining with the reality of our country, from the qualification of the guarantor, the guarantee period, the guarantee scope, the guarantee quota, the way of the guarantee, the relationship between the rights and obligations of the three subjects, This paper conceive the legal regulation of the personnel guarantee system in the aspects of the protection and relief of the guarantor's interests and so on. This paper holds that the surety's qualification should be based on the compensatory ability rather than the actual condition, and in principle, the employer should not refuse the close relatives of the laborer as the guarantor; The guarantee period shall not exceed one year from the time when the employing unit knows or should know that its rights have been infringed upon by the laborer; the scope of the job covered by the guarantee shall be limited to high-risk positions. The scope of the act shall be limited to the act of violating the duty of loyalty of the worker; the guarantee limit shall be one to three times the average annual wage of the worker from the beginning of his employment to the time of the accident of compensation; the mode of guarantee shall be limited to the general mode of guarantee; The unit of choose and employ persons shall exercise the duty of careful management and the obligation of notification, and the laborer shall do his duty of kindness and care in order to prevent and reduce the risk that the guarantor shall bear the responsibility of surety; at the same time, the guarantor shall be given the right to plead in the first suit in a wider scope, The employer may not only refuse the claim of the employer before the liability of the laborer is investigated, but also refuse the claim if the employer has not exhausted any other means of compensation. The author thinks that workers who violate the obligation of good faith should bear the aggravating consequences of punitive damages to the guarantor.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.52
本文编号：2226044
[Abstract]:"guarantee" is preceded by "personnel", suggesting that personnel guarantee is different from ordinary civil and commercial guarantee. In order to reduce the transaction risk, the guarantee system in the civil and commercial fields should be basically the same in the large framework because the starting point of both is to reduce the transaction risk. Because of the different nature of the principal legal relationship between them, they should be different in specific regulation. The personnel guarantee system appeared in the history of our country and existed for a long time. After the founding of New China, it has been in a state of silence for a long time. In recent years, with the establishment of a large number of labor and employment relations, it has been widely used in recent years. Since the promulgation and implementation of the Labor contract Law, the personnel guarantee system is once again in the dispute port, and is still used by the employer explicitly or implicitly. Different from other countries or regions, the labor legislation of our country has not made clear legal regulation to personnel guarantee, the attitude is vague; the judicial practice is not uniform to its validity, the phenomenon of different judgment in the same case occurs from time to time. In order to clear up the confusion, maintain the unity of the application of the law, and play a guiding role in social development and economic construction, it is necessary to make further research and demonstration on the basis of the predecessors. Based on the comparison of civil and commercial guarantee, this paper analyzes the connotation of the personnel guarantee system, analyzes the positive and negative functions of the personnel guarantee system, and analyzes the necessity of the credit crisis and the legitimacy of the motive. At the present stage, the irreplaceable functional advantages, the conformity on the basis of legal theory, the reconsideration of the theory and system dilemma of personnel assurance, etc., have made a rational analysis on the establishment of personnel guarantee system in our country. It also puts forward the guiding ideology of reconstructing the personnel guarantee system by combining the freedom of contract with the state intervention and realizing the balance of interests among the three parties in order to exert the positive function of the personnel guarantee system to the maximum and restrain the negative function to the minimum. Taking this guiding ideology as the main line, using the comparative analysis method, drawing lessons from the experience of other countries, combining with the reality of our country, from the qualification of the guarantor, the guarantee period, the guarantee scope, the guarantee quota, the way of the guarantee, the relationship between the rights and obligations of the three subjects, This paper conceive the legal regulation of the personnel guarantee system in the aspects of the protection and relief of the guarantor's interests and so on. This paper holds that the surety's qualification should be based on the compensatory ability rather than the actual condition, and in principle, the employer should not refuse the close relatives of the laborer as the guarantor; The guarantee period shall not exceed one year from the time when the employing unit knows or should know that its rights have been infringed upon by the laborer; the scope of the job covered by the guarantee shall be limited to high-risk positions. The scope of the act shall be limited to the act of violating the duty of loyalty of the worker; the guarantee limit shall be one to three times the average annual wage of the worker from the beginning of his employment to the time of the accident of compensation; the mode of guarantee shall be limited to the general mode of guarantee; The unit of choose and employ persons shall exercise the duty of careful management and the obligation of notification, and the laborer shall do his duty of kindness and care in order to prevent and reduce the risk that the guarantor shall bear the responsibility of surety; at the same time, the guarantor shall be given the right to plead in the first suit in a wider scope, The employer may not only refuse the claim of the employer before the liability of the laborer is investigated, but also refuse the claim if the employer has not exhausted any other means of compensation. The author thinks that workers who violate the obligation of good faith should bear the aggravating consequences of punitive damages to the guarantor.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.52
【参考文献】
相关期刊论文 前1条
1 方晓波;;雇员忠诚险推广存在的问题与对策[J];商业时代;2007年31期
相关硕士学位论文 前2条
1 张进锐;人事保证制度研究[D];西南政法大学;2007年
2 陈冬红;劳动合同保证之否定性研究[D];西南政法大学;2009年
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