法社会学整体性思维视角下的劳动争议及其处理机制
发布时间：2019-03-16 20:51
【摘要】：整体性思维是法社会学的一种思维方式,即把研究对象看作一个有机联系的整体,通过对整体的研究来探索个体的内在规律和本质特征,或者即使只研究这个整体中的某个组成部分,也要把它放中整体中去,考察它在整体中的地位和功能。用整体性思维的视角研究劳动争议,即重点从社团、机构或社会的规模、劳动分工、权力或权威结构的类型、社会力量的对比等角度来展开对劳动争议的法社会学分析,以考察劳动争议的本质并在此基础上探索解决问题的途径。 本文分为5个部分,第一部分是论述法社会学理论研究劳动争议这一社会现象的适宜性。劳动争议是兼有法律特征和社会特征的的社会现象,用法学和社会学交叉学科的法社会学来研究劳动争议,具有天然的优势。 本文第二部分是用法社会学整体性思维的方式来考察劳动争议。用整体性思维来考察劳动争议就是将劳动争议的双方当事人放大为两个不同的社会阶层,通过研究争议内容的共性来探索劳动争议本质特征。就此层面上而言,劳动争议所体现的社会关系就是劳动者阶层与企业主阶层围绕着资本利润的占有和分配所发生的经济利益冲突关系。用法社会学整体性思维考察劳动争议,可发现劳动争议实质上劳动者和企业主这两个存在利益冲突的社会阶层之间的博弈。 本文的第三部分是以法社会学整体性思维的视角对我国劳动争议发展现状的分析。我国的劳动争议现状反映了劳资双方的矛盾已成为我国主要的社会矛盾,也已经尖锐到足以影响到改革成果和社会稳定的程度。现阶段劳动争议出现如下特点；作为劳动争议一方当事人的劳动者已沦为社会最底层的弱势群体,而另一方当事人企业主却成为当前中国权势最大的阶层,双方力量对比悬殊；部分企业主凭借其在博弈中的优势地位肆无忌惮地侵害劳动者的权利,是当前劳资矛盾激化的根本原因。 本文的第四部分试图在法社会学理论的指导下探索解决劳动争议的途径。用替代性纠纷解决机制处理劳动争议是社会发展的必然趋势,也是国际社会处理劳动争议的先进经验,但因为我国劳资双方力量的严重失衡,致使我国劳动调解和劳动仲裁这两种替代性纠纷解决机制发生病态的变化,以致我国现行劳动争议处理机制弊端重重。为此,我国的劳动者必须拥有团结权,通过自主组建工会状大自已的力量。只有劳资双方力量相对平衡,才能让替代性纠纷解决机制发挥应有的功能。 本文最后一部分结语对全文作了简单的回顾并得出结论：劳动争议实质上是劳动者和企业主这两个存在根本利益冲突阶层之间的斗争,现阶段劳资冲突剧烈的根源就是劳资双方力量严重失衡。劳动者只有通过拥有自主结社增强自己的力量,才有可能在与企业主博弈中实现正和博弈,促进劳资双方和谐共赢。
[Abstract]:Holistic thinking is a way of thinking in sociology of law, that is to say, the research object is regarded as an organic whole, and through the study of the whole, the inherent law and essential characteristics of the individual are explored. Or even if only one part of the whole is studied, put it in the whole and examine its position and function in the whole. To study labor disputes from the perspective of holistic thinking, that is to say, it focuses on the legal and sociological analysis of labor disputes from the angles of the scale of associations, institutions or societies, the division of labor, the types of power or authority structures, and the contrast of social forces, etc. In order to investigate the nature of labor disputes and on this basis to explore ways to solve the problem. This paper is divided into five parts. The first part is to discuss the appropriateness of studying the social phenomenon of labor dispute in the theory of sociology of law. Labor dispute is a social phenomenon with both legal and social characteristics. It has natural advantages to study labor dispute by law sociology, which is a cross-discipline of law and sociology. The second part of this paper is to examine labor disputes by the way of holistic thinking of sociology of law. To examine the labor dispute by holistic thinking is to enlarge the two parties to the labor dispute into two different social strata and explore the essential characteristics of the labor dispute by studying the commonness of the content of the dispute. On this level, the social relationship embodied in the labor dispute is the conflict of economic interests between the laborer class and the enterprise owner class around the possession and distribution of capital profits. On the basis of the holistic thinking of sociology of usages, we can find out the game between labourers and business owners, the two social strata in which there are conflicts of interest in labor disputes. The third part of this paper is to analyze the current situation of labor dispute development in China from the angle of holistic thinking of sociology of law. The present situation of labor dispute in our country reflects that the contradiction between labor and management has become the main social contradiction in our country, and it is sharp enough to affect the reform achievement and social stability. At present, labor disputes appear as follows: as one party to the labor dispute labourers have become the lowest social vulnerable group, while the other party business owners have become the largest class of power in China, the power gap between the two sides; By virtue of its dominant position in the game, some business owners infringe upon the rights of labourers unscrupulously, which is the root cause of the intensification of labor-capital conflicts. The fourth part of this paper attempts to explore ways to solve labor disputes under the guidance of sociology of law. It is an inevitable trend of social development and an advanced experience of the international community to deal with labor disputes by using alternative dispute resolution mechanism. However, because of the serious imbalance of labor and labor forces in our country, The two alternative dispute settlement mechanisms, labor mediation and labor arbitration, have been changed morbid, which leads to the disadvantages of the current labor dispute settlement mechanism in our country. To this end, our labourers must have the right to unite, through the independent formation of the strength of trade unions. Only the balance of labor and capital can make the alternative dispute resolution mechanism play its due role. The last part of this article makes a brief review of the full text and draws a conclusion: in essence, the labor dispute is the struggle between the workers and the business owners, the two classes in which there is a fundamental conflict of interest. At present, the root of labor-capital conflict is the serious imbalance between labor and capital. It is possible for labourers to realize positive sum game and promote harmonious and win-win between employers and employees only by possessing independent association to enhance their strength.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.5
本文编号：2441949
[Abstract]:Holistic thinking is a way of thinking in sociology of law, that is to say, the research object is regarded as an organic whole, and through the study of the whole, the inherent law and essential characteristics of the individual are explored. Or even if only one part of the whole is studied, put it in the whole and examine its position and function in the whole. To study labor disputes from the perspective of holistic thinking, that is to say, it focuses on the legal and sociological analysis of labor disputes from the angles of the scale of associations, institutions or societies, the division of labor, the types of power or authority structures, and the contrast of social forces, etc. In order to investigate the nature of labor disputes and on this basis to explore ways to solve the problem. This paper is divided into five parts. The first part is to discuss the appropriateness of studying the social phenomenon of labor dispute in the theory of sociology of law. Labor dispute is a social phenomenon with both legal and social characteristics. It has natural advantages to study labor dispute by law sociology, which is a cross-discipline of law and sociology. The second part of this paper is to examine labor disputes by the way of holistic thinking of sociology of law. To examine the labor dispute by holistic thinking is to enlarge the two parties to the labor dispute into two different social strata and explore the essential characteristics of the labor dispute by studying the commonness of the content of the dispute. On this level, the social relationship embodied in the labor dispute is the conflict of economic interests between the laborer class and the enterprise owner class around the possession and distribution of capital profits. On the basis of the holistic thinking of sociology of usages, we can find out the game between labourers and business owners, the two social strata in which there are conflicts of interest in labor disputes. The third part of this paper is to analyze the current situation of labor dispute development in China from the angle of holistic thinking of sociology of law. The present situation of labor dispute in our country reflects that the contradiction between labor and management has become the main social contradiction in our country, and it is sharp enough to affect the reform achievement and social stability. At present, labor disputes appear as follows: as one party to the labor dispute labourers have become the lowest social vulnerable group, while the other party business owners have become the largest class of power in China, the power gap between the two sides; By virtue of its dominant position in the game, some business owners infringe upon the rights of labourers unscrupulously, which is the root cause of the intensification of labor-capital conflicts. The fourth part of this paper attempts to explore ways to solve labor disputes under the guidance of sociology of law. It is an inevitable trend of social development and an advanced experience of the international community to deal with labor disputes by using alternative dispute resolution mechanism. However, because of the serious imbalance of labor and labor forces in our country, The two alternative dispute settlement mechanisms, labor mediation and labor arbitration, have been changed morbid, which leads to the disadvantages of the current labor dispute settlement mechanism in our country. To this end, our labourers must have the right to unite, through the independent formation of the strength of trade unions. Only the balance of labor and capital can make the alternative dispute resolution mechanism play its due role. The last part of this article makes a brief review of the full text and draws a conclusion: in essence, the labor dispute is the struggle between the workers and the business owners, the two classes in which there is a fundamental conflict of interest. At present, the root of labor-capital conflict is the serious imbalance between labor and capital. It is possible for labourers to realize positive sum game and promote harmonious and win-win between employers and employees only by possessing independent association to enhance their strength.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.5
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