用人单位告知义务研究
发布时间：2019-03-28 10:36
【摘要】：用人单位告知义务,是指用人单位应当通过一定的程序将法律规定的事项以及劳动者希望了解的事项如实地告知劳动者,以保障劳动者的知情权。该义务贯穿于每一段劳动关系始终,从劳动合同缔结开始直到解除或终止后的一段时间内,劳动者在信息掌握上都处于弱势地位,因此劳动法有必要对用人单位的告知义务作出强制性规定,更好地保护劳动者的权益。本文将通过四个部分展开讨论。第一部分是用人单位告知义务的基本理论,具体包括该义务的法律性质和分类,以及该义务的理论依据,希望能为义务的证成提供依据。用人单位告知义务来源于民法中的诚实信用原则,是否可以基于劳动法和民法之间的突破发展关系在劳动法中适用民法的基本原则,以及应该如何适用成为值得讨论的话题。除此之外,笔者也将分析督促用人单位履行告知义务的意义,既切合劳动法立法价值取向的要求,也可以真正缓解司法压力。接下来,笔者将根据劳动合同从缔约到终止的不同阶段用人单位告知义务不同的履行方式分别展开论述。具体而言,在第二部分中,介绍了该阶段用人单位履行告知义务的具体内容,并且以《劳动合同法》第八条为基础分析了目前立法中存在的问题,即关于告知的具体内容、时间、形式以及法律责任的规定尚不明晰,实践中该义务也难以有效履行。基于此,笔者提出了可以根据招聘的不同阶段、行业特点来完善相关法律法规、确定劳动者知情权的边界、以及明确用人单位违反告知义务的法律后果等建议;第三部分本文阐述了劳动合同履行中用人单位应当告知劳动者的内容,包括规章制度告知义务等。在分析立法和实践问题的基础上,提出明确规章制度告知义务的告知形式和生效时间、明确解除合同事项的告知对象和内容等建议;第四部分主要阐述了劳动合同终止后用人单位的告知义务,该阶段的法律规定较少,实践中也未引起重视。针对这些问题,笔者提出了增加用人单位的强制告知义务、完善其它主体的替代告知义务等建议。总结而言,构建完整的用人单位告知义务体系对于平衡双方地位、维护劳资关系的和谐稳定至关重要。该义务使得用人单位和劳动者可以真正建立一种信赖关系,是构建我国诚信社会的重要一环。但是,我们也要清醒的认识到,解决用人单位告知义务在立法和实践中的问题,不能盲目照搬域外的立法经验,也不能为了保护劳动者过度侵害用人单位的利益,必须充分考虑我国劳动形势,有目的地建立起一个科学合理并且行之有效的用人单位告知义务体系。
[Abstract]:The obligation to inform the employing unit means that the employing unit shall, through certain procedures, inform the laborer of the matters prescribed by the law and the matters that the laborer wishes to know truthfully, in order to protect the laborer's right to know. This obligation runs through every period of labor relations, from the beginning of the conclusion of a labor contract to the termination or termination of the labor contract, workers are in a weak position in the possession of information. Therefore, labor law is necessary to the employer's obligation to inform mandatory provisions, better protection of the rights and interests of workers. This paper will be discussed in four parts. The first part is the basic theory of the employer's obligation to inform, including the legal nature and classification of the obligation, as well as the theoretical basis of the obligation, hoping to provide a basis for the proof of the obligation. The obligation of employer to inform comes from the principle of good faith in civil law. Whether the relationship between labor law and civil law can be developed to apply the basic principles of civil law in labor law and how to apply it has become a topic worthy of discussion. In addition, the author will also analyze the significance of urging employers to fulfill the obligation of notification, which not only conforms to the requirements of the value orientation of labor law legislation, but also can really alleviate the judicial pressure. Then, according to the different stages of labor contract from contracting to terminating, the author will discuss the different ways of performance of the employer's obligation to inform. Specifically, in the second part, the author introduces the specific contents of the employer's obligation to inform at this stage, and analyzes the problems existing in the current legislation, namely, the specific content of notification, based on Article 8 of the Labor contract Law. The rules of time, form and legal liability are not clear, and it is difficult to carry out this obligation effectively in practice. Based on this, the author puts forward some suggestions, such as perfecting the relevant laws and regulations, determining the boundary of the laborer's right to know, and clarifying the legal consequences of the employer's breach of the obligation of notification, according to the different stages of recruitment and the characteristics of the industry. The third part expounds the contents that the employer should inform the labourers in the performance of labor contract, including the obligation of notifying by rules and regulations. On the basis of analyzing the legislative and practical problems, this paper puts forward some suggestions such as making clear the form and effective time of notifying obligations under rules and regulations, and making clear the object and content of the notice of the termination of the contract. The fourth part mainly expounds the obligation to inform the employer after the termination of the labor contract, the legal provisions in this stage are less, and no attention has been paid to it in practice. In order to solve these problems, the author puts forward some suggestions such as increasing the obligation of compulsory notification of employers and perfecting the alternative obligation of disclosure of other subjects. To sum up, it is very important to construct a complete notification obligation system for balancing the status of both sides and maintaining the harmony and stability of labor-capital relations. This obligation enables employers and labourers to establish a trusting relationship, which is an important link in the construction of a good faith society in China. However, we must also be soberly aware that to solve the problem of the employer's obligation to inform in legislation and practice, we must not blindly copy the legislative experience outside the territory, nor can we over-infringe the interests of the employing unit in order to protect the labourers. We must give full consideration to the labor situation of our country and set up a scientific, reasonable and effective system of the employer's obligation to inform.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.52
本文编号：2448785
[Abstract]:The obligation to inform the employing unit means that the employing unit shall, through certain procedures, inform the laborer of the matters prescribed by the law and the matters that the laborer wishes to know truthfully, in order to protect the laborer's right to know. This obligation runs through every period of labor relations, from the beginning of the conclusion of a labor contract to the termination or termination of the labor contract, workers are in a weak position in the possession of information. Therefore, labor law is necessary to the employer's obligation to inform mandatory provisions, better protection of the rights and interests of workers. This paper will be discussed in four parts. The first part is the basic theory of the employer's obligation to inform, including the legal nature and classification of the obligation, as well as the theoretical basis of the obligation, hoping to provide a basis for the proof of the obligation. The obligation of employer to inform comes from the principle of good faith in civil law. Whether the relationship between labor law and civil law can be developed to apply the basic principles of civil law in labor law and how to apply it has become a topic worthy of discussion. In addition, the author will also analyze the significance of urging employers to fulfill the obligation of notification, which not only conforms to the requirements of the value orientation of labor law legislation, but also can really alleviate the judicial pressure. Then, according to the different stages of labor contract from contracting to terminating, the author will discuss the different ways of performance of the employer's obligation to inform. Specifically, in the second part, the author introduces the specific contents of the employer's obligation to inform at this stage, and analyzes the problems existing in the current legislation, namely, the specific content of notification, based on Article 8 of the Labor contract Law. The rules of time, form and legal liability are not clear, and it is difficult to carry out this obligation effectively in practice. Based on this, the author puts forward some suggestions, such as perfecting the relevant laws and regulations, determining the boundary of the laborer's right to know, and clarifying the legal consequences of the employer's breach of the obligation of notification, according to the different stages of recruitment and the characteristics of the industry. The third part expounds the contents that the employer should inform the labourers in the performance of labor contract, including the obligation of notifying by rules and regulations. On the basis of analyzing the legislative and practical problems, this paper puts forward some suggestions such as making clear the form and effective time of notifying obligations under rules and regulations, and making clear the object and content of the notice of the termination of the contract. The fourth part mainly expounds the obligation to inform the employer after the termination of the labor contract, the legal provisions in this stage are less, and no attention has been paid to it in practice. In order to solve these problems, the author puts forward some suggestions such as increasing the obligation of compulsory notification of employers and perfecting the alternative obligation of disclosure of other subjects. To sum up, it is very important to construct a complete notification obligation system for balancing the status of both sides and maintaining the harmony and stability of labor-capital relations. This obligation enables employers and labourers to establish a trusting relationship, which is an important link in the construction of a good faith society in China. However, we must also be soberly aware that to solve the problem of the employer's obligation to inform in legislation and practice, we must not blindly copy the legislative experience outside the territory, nor can we over-infringe the interests of the employing unit in order to protect the labourers. We must give full consideration to the labor situation of our country and set up a scientific, reasonable and effective system of the employer's obligation to inform.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.52
【参考文献】
相关期刊论文 前10条
1 邓峰;;劳动争议仲裁时效制度存在的问题及其完善对策[J];特区经济;2015年09期
2 覃曼卿;;劳动争议仲裁前置的理性反思与完善[J];济南职业学院学报;2015年04期
3 陈传法;秦天雄;;论用人单位规章制度的公示与告知义务[J];北京化工大学学报(社会科学版);2014年04期
4 杜宁宁;;权利冲突视野下的劳动者知情权问题研究[J];当代法学;2014年05期
5 丁启明;杨铁军;;我国《劳动合同法》中的告知义务研究[J];法学杂志;2012年04期
6 王荻帆;;浅谈我国劳动仲裁制度的发展与完善[J];法制与社会;2012年11期
7 郑祝君;;劳动争议的二元结构与我国劳动争议处理制度的重构[J];法学;2012年01期
8 邢勇;;应在劳动法中增加用人单位的强制告知义务条款[J];中国审判;2011年10期
9 黄蕾;;高校毕业生就业中的知情权保护研究[J];行政与法;2010年09期
10 秦铁铮;;论用人单位之告知义务[J];中国人力资源开发;2009年02期
相关硕士学位论文 前1条
1 周小龙;论劳动法上用人单位的告知义务[D];广东财经大学;2015年
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