反就业歧视若干问题研究
发布时间：2018-09-18 17:56
【摘要】： 就业是谋生的手段,谋生乃民众生存之道。关注就业就是关注民生,反就业歧视就是维护民众的生存之道。目前我国就业领域的歧视问题还很普遍和严重,立法亟待完善。该领域的深入研究可以为我国制定反就业歧视方面的立法提供重要的理论和研究的基础。2005年8月,全国人大常委会审议通过了国际劳工组织核心公约之一的《歧视(就业和职业)公约》(第111号公约),这彰显了我国在未来将会以积极的态度应对就业歧视这一重大社会问题。 关注我国目前的反就业歧视法律体制,可以说存在严重的不足。比如被明确禁止的歧视种类太少,无法调整和应对现有劳动力市场上最新出现的一些歧视种类,如身高歧视、年龄歧视、健康歧视;法律只关注直接歧视,而忽视间接歧视;禁止就业歧视的法律适用范围过窄。另外,即使上述具有局限性的法律也因缺乏具体操作性而无法充分有效地发挥作用。比如,没有从法律上定义就业歧视、有关就业歧视的举证责任以及承担的法律责任,其直接后果是劳动者的权利主张无法获得真正的救济。针对上述问题,文章建设性地提出了制定专门的就业歧视法的建议,以便更突出地体现反就业歧视的基本理念、落实就业平等观点;并对反就业歧视法的立法内容及相关制度的完善提出了具体见解。 本文的目的就是希望通过对就业歧视的研究,为中国制定反歧视方面的立法提供重要的理论和法律研究基础。研究就业歧视,除了规范人们的行为外,还在于强化公民的平等意识和观念,唤起人们对平等、不歧视权利的认识方面发挥积极作用。 除引言与结语外,全文的重要内容共分为五大部分: 第一部分阐述了国际劳工标准在消除就业歧视过程中的重大指导意义。 第二部分则是从国际劳工标准和我国法律的双重角度对就业歧视进行了界定。并在国内学者对“就业歧视”的界定的争论基础上,提出自己的观点。 第三部分着眼中国现实就业领域存在的形形色色的歧视现象和歧视行为,并进行了原因分析。 第四部分参考美国、加拿大、荷兰、爱尔兰、挪威等欧美国家和我国香港、台湾地区在反就业歧视方面采取的措施和可提供参考援引之处,提出对我国建立反就业歧视法制有借鉴意义的建议。 第五部分是针对我国反就业歧视的制度构建,提出在立法、行政、司法等方面应该采取的措施,也一并加以论及。
[Abstract]:Employment is the means of earning a living, and earning a living is the way for the people to survive. Pay attention to employment is to pay attention to people's livelihood, anti-employment discrimination is to maintain the survival of the people. At present, the problem of discrimination in the field of employment in our country is very common and serious, and the legislation needs to be improved urgently. An in-depth study in this field can provide an important theoretical and research basis for the enactment of legislation against discrimination in employment in our country. In August 2005, The standing Committee of the National people's Congress (NPC) deliberated and adopted the Discrimination (Employment and occupation) Convention (No. 111), one of the core conventions of the International Labour Organization, which shows that China will deal with the major social problem of employment discrimination with a positive attitude in the future. Attention to our country's current anti-employment discrimination legal system, can be said that there are serious deficiencies. For example, the types of discrimination that are explicitly prohibited are too few to adjust to and respond to the newly emerging types of discrimination in the existing labour market, such as height discrimination, age discrimination, health discrimination; the law focuses only on direct discrimination and neglects indirect discrimination; The scope of application of the law prohibiting discrimination in employment is too narrow. In addition, even the above-mentioned limited laws are not fully effective due to the lack of specific operation. For example, there is no legal definition of employment discrimination, the burden of proof about employment discrimination and the legal liability, the direct result of which is that workers' claims cannot obtain real relief. In view of the above problems, the article constructively puts forward the suggestion of making a special employment discrimination law, so as to embody the basic idea of anti-employment discrimination more prominently and implement the employment equality viewpoint. And put forward the concrete opinion to the legislation content and the related system consummation of the anti-employment discrimination law. The purpose of this paper is to provide an important theoretical and legal basis for China to formulate anti-discrimination legislation through the study of employment discrimination. In addition to standardizing people's behavior, the study of employment discrimination also plays an active role in strengthening citizens' awareness of equality and awareness and arousing people's understanding of the right to equality and non-discrimination. In addition to the introduction and conclusion, the main contents of this paper are divided into five parts: the first part expounds the important guiding significance of international labor standards in the process of eliminating discrimination in employment. The second part defines employment discrimination from the angle of international labor standard and Chinese law. On the basis of the domestic scholars' controversy about the definition of "employment discrimination", the author puts forward his own viewpoint. The third part focuses on the phenomenon and behavior of discrimination in the field of real employment in China, and analyzes the reasons. The fourth part refers to the measures taken by the United States, Canada, the Netherlands, Ireland, Norway and other European and American countries and China's Hong Kong and Taiwan in the area of employment discrimination. The paper puts forward some suggestions for establishing anti-employment discrimination law in our country. The fifth part is to set up the system of anti-employment discrimination in our country, and put forward the measures in legislation, administration and judicature, which are also discussed.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.5
本文编号：2248675
[Abstract]:Employment is the means of earning a living, and earning a living is the way for the people to survive. Pay attention to employment is to pay attention to people's livelihood, anti-employment discrimination is to maintain the survival of the people. At present, the problem of discrimination in the field of employment in our country is very common and serious, and the legislation needs to be improved urgently. An in-depth study in this field can provide an important theoretical and research basis for the enactment of legislation against discrimination in employment in our country. In August 2005, The standing Committee of the National people's Congress (NPC) deliberated and adopted the Discrimination (Employment and occupation) Convention (No. 111), one of the core conventions of the International Labour Organization, which shows that China will deal with the major social problem of employment discrimination with a positive attitude in the future. Attention to our country's current anti-employment discrimination legal system, can be said that there are serious deficiencies. For example, the types of discrimination that are explicitly prohibited are too few to adjust to and respond to the newly emerging types of discrimination in the existing labour market, such as height discrimination, age discrimination, health discrimination; the law focuses only on direct discrimination and neglects indirect discrimination; The scope of application of the law prohibiting discrimination in employment is too narrow. In addition, even the above-mentioned limited laws are not fully effective due to the lack of specific operation. For example, there is no legal definition of employment discrimination, the burden of proof about employment discrimination and the legal liability, the direct result of which is that workers' claims cannot obtain real relief. In view of the above problems, the article constructively puts forward the suggestion of making a special employment discrimination law, so as to embody the basic idea of anti-employment discrimination more prominently and implement the employment equality viewpoint. And put forward the concrete opinion to the legislation content and the related system consummation of the anti-employment discrimination law. The purpose of this paper is to provide an important theoretical and legal basis for China to formulate anti-discrimination legislation through the study of employment discrimination. In addition to standardizing people's behavior, the study of employment discrimination also plays an active role in strengthening citizens' awareness of equality and awareness and arousing people's understanding of the right to equality and non-discrimination. In addition to the introduction and conclusion, the main contents of this paper are divided into five parts: the first part expounds the important guiding significance of international labor standards in the process of eliminating discrimination in employment. The second part defines employment discrimination from the angle of international labor standard and Chinese law. On the basis of the domestic scholars' controversy about the definition of "employment discrimination", the author puts forward his own viewpoint. The third part focuses on the phenomenon and behavior of discrimination in the field of real employment in China, and analyzes the reasons. The fourth part refers to the measures taken by the United States, Canada, the Netherlands, Ireland, Norway and other European and American countries and China's Hong Kong and Taiwan in the area of employment discrimination. The paper puts forward some suggestions for establishing anti-employment discrimination law in our country. The fifth part is to set up the system of anti-employment discrimination in our country, and put forward the measures in legislation, administration and judicature, which are also discussed.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.5
【引证文献】
相关硕士学位论文 前6条
1 李静思;就业歧视争议解决机制研究[D];武汉科技大学;2011年
2 郭建辉;反就业歧视与平等就业权之保障研究[D];山东大学;2011年
3 肖瑶;非“211”高校毕业生就业平等权的保护[D];湘潭大学;2011年
4 王全平;大学毕业生平等就业权的实现问题研究[D];华中科技大学;2010年
5 盛宏观;反就业歧视法研究[D];复旦大学;2010年
6 王荷芳;劳动者就业中存在的基因歧视相关法律问题研究[D];兰州大学;2013年
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