论用人单位的知情权

发布时间：2018-12-27 14:15

【摘要】：本文从六个部分论述用人单位的知情权。第一部分界定用人单位知情权的概念,在明确概念的基础上对其进行分类,进而展开论述。在明确本文研究对象的基础上,第二部分介绍劳动者的个人信息以及用人单位行使知情权的现状。用人单位为了追求本单位利益,对求职者与劳动者的个人信息有极强的知情欲,当欲与之或已与之建立劳动法律关系时,处于相对弱势的求职者、劳动者难免不自主的处理自己的个人信息。求职者与劳动者的个人信息包括方方面面,如果不对用人单位的知情权进行规范,求职者与劳动者的合法权益就有可能被侵犯。由此得出通过法律来规制用人单位知情权的必要性及现实意义。第三部分研究我国用人单位知情权的立法现状。我国关于此问题的立法,存在诸多问题。对于招聘阶段用人单位的知情权,《中华人民共和国劳动合同法》虽然明确作出了规定,但是规定得过于宽泛,不利于学界与立法机关形成统一认识,亦不利于法律的统一。对于劳动关系建立以后用人单位知情权的问题,我国劳动立法未作出规定,这不得不说是我国劳动立法的缺位。鉴于我国有关用人单位知情权的规定存在诸多问题,本文第四部分借鉴了其他国家和地区有关用人单位知情权的规定,希望对我国用人单位知情权的完善有所启发。法国与韩国劳动立法招聘阶段用人单位的知情权采“与工作直接相关”标准,既有利于保障用人单位的合法权益,又可以避免用人单位过多地刺探求职者的个人信息,这一规定对我国具有借鉴意义。劳动关系建立以后用人单位的知情权在法国、德国、日本等国家和我国澳门地区都有直接或间接的规定,鉴于劳动关系建立以后用人单位知情权的明确对用人单位及劳动者都具有重要意义,我国应该对此问题作出较明确的规定。第五部分对用人单位知情权的理论基础进行分析,得出结论:招聘阶段用人单位应当尽量少知,劳动关系建立以后用人单位可以相对多知。信息不对称理论、诚实信用原则、公平合理原则、效率原则都是用人单位应享有知情权的理论依据。所有的权利都不是无限制的,用人单位的知情权也不例外。劳动者隐私权、反就业歧视以及企业的社会责任等理论是用人单位的知情权应当受到限制的理论依据。在借鉴国外和其他地区有关用人单位知情权规定的基础上,坚持用人单位在招聘阶段应当尽量少知,劳动关系建立以后可以相对多知的原则,本文第六部分提出了我国用人单位知情权完善的相关措施。
[Abstract]:This article discusses the right to know from six parts of the unit of choose and employ persons. The first part defines the concept of employer's right to know, classifies it on the basis of clear concept, and then discusses it. On the basis of clarifying the object of this paper, the second part introduces the personal information of the laborer and the present situation of the employer's right to know. In order to pursue the interests of the unit, the employer has a strong desire to know the personal information of the job seeker and the laborer. When the employer wants or has established a labor legal relationship with the applicant, he is in a relatively weak position. Laborer unavoidably processing own personal information involuntarily. The personal information of job seekers and workers includes all aspects. If the right to know of employers is not regulated, the legitimate rights and interests of job seekers and workers may be infringed. From this, the necessity and practical significance of regulating the right to know of the employer by law are obtained. The third part studies the legislation status of the right to know in our country. China's legislation on this issue, there are many problems. As to the right to know of the employing units in the recruitment stage, although the Labor contract Law of the people's Republic of China has made clear provisions, the provisions are too broad, which is not conducive to the formation of a unified understanding between the academia and the legislature, and is also not conducive to the unification of the law. After the establishment of labor relations, the employer's right to know has not been stipulated in China's labor legislation, which has to be said to be the absence of Chinese labor legislation. In view of the many problems in the regulation of the right to know of the employing unit in our country, the fourth part of this paper draws lessons from the provisions of other countries and regions on the right to know of the unit of choose and employ persons, hoping to enlighten the perfection of the right to know of the unit of choose and employ persons in our country. In France and South Korea, the right to information of employers in the recruitment stage of labor legislation adopts the standard "directly related to work", which is not only conducive to protecting the legitimate rights and interests of employers, but also can prevent employers from spying too much on the personal information of job seekers. This regulation has reference significance to our country. After the establishment of labor relations, the employer's right to know has direct or indirect provisions in France, Germany, Japan, and the Macao region of China. In view of the fact that the right to know is of great significance to both employers and workers after the establishment of labor relations, China should make clear provisions on this issue. The fifth part analyzes the theoretical basis of the employer's right to know and draws a conclusion: the employer should know as little as possible in the recruitment stage and the employer can know more after the establishment of labor relationship. The theory of asymmetric information, the principle of good faith, the principle of fairness and rationality and the principle of efficiency are the theoretical basis of the right to know. All rights are not unlimited, the right to know the unit of choose and employ persons is no exception. The theories of workers' privacy, employment discrimination and corporate social responsibility are the theoretical basis for the restriction of employers' right to know. On the basis of drawing lessons from the provisions on the right to information of employers in foreign countries and other regions, they insist on the principle that employers should know as little as possible during the recruitment stage, and that after the establishment of labor relations, they can have relatively more knowledge. The sixth part of this paper puts forward the relevant measures to perfect the right to know of the unit of choose and employ persons in our country.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.5

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