罢工权研究

发布时间：2019-06-19 02:53

【摘要】： 改革开放以来,我国社会主义市场经济得以初步确立。随着经济体制改革,我国逐步形成了以公有制经济为主体、多种所有制经济共同发展的基本经济制度。与此对应,企业劳动关系变得越来越复杂和多样。劳资双方的利益冲突日渐增多。我国已经开始进入“劳资纠纷的高发期”。由于劳资双方在利益追求上的差别,劳动者与用人单位双方在工作报酬、社会保险和社会福利、工作项目、工作条件、工作时间等问题上的矛盾都非常突出,罢工事件频频发生。但由于目前我国法律并没有确认劳动者的罢工权,因此我国的罢工运动一直无法可依,处于非常尴尬的局面,对我国经济社会的发展也产生了消极的影响。正是基于以上的原因,本文从立法研究的角度出发,首先阐述了“罢工权”的基本概念以及罢工权在国外与国内法律法规上的历史演进。同时,对我国现有罢工权理论争鸣进行了分析。在此基础上,提出我国应该恢复“罢工权”的观点,同时摆出了我国恢复罢工权的必要性和可行性。最后对相关制度设计提出了建议:首先通过宪法明确赋予劳动者以罢工权,宣示罢工权的正当性;其次,以宪法的原则规定为基础,制定配套法律法规,并对罢工权的具体实施细则做出明确规定;最后,为了防止劳动者滥用罢工权,可以借鉴其他国家的先进立法经验,设定相关措施,对罢工目的、罢工主体、罢工行为、罢工程序等各个方面进行限制,确保罢工权能够最大程度的发挥作用,避免罢工行为可能对社会造成的不利影响。
[Abstract]:Since the reform and opening up, China's socialist market economy has been initially established. With the reform of economic system, China has gradually formed a basic economic system with the public economy as the main body and the common development of various ownership economies. Corresponding to this, the labor relations of enterprises become more and more complex and diverse. Conflicts of interest between employers and employees are increasing day by day. Our country has begun to enter the period of high incidence of labor disputes. Due to the difference in the pursuit of interests between employers and employees, the contradictions between workers and employers in terms of work remuneration, social insurance and social welfare, work items, working conditions, working hours and so on are very prominent, and strikes occur frequently. However, because the law of our country does not confirm the workers' right to strike, the strike movement in our country has always had no law to follow, is in a very awkward situation, and has also had a negative impact on the economic and social development of our country. It is for the above reasons that from the perspective of legislative research, this paper first expounds the basic concept of the right to strike and the historical evolution of the right to strike in foreign and domestic laws and regulations. At the same time, this paper analyzes the existing theory of strike right in our country. On this basis, this paper puts forward the viewpoint that our country should restore the right to strike, and puts forward the necessity and feasibility of restoring the right to strike in our country at the same time. Finally, some suggestions are put forward for the design of the relevant system: first, through the Constitution, workers are clearly given the right to strike and declare the legitimacy of the right to strike; secondly, on the basis of the principles and provisions of the Constitution, the supporting laws and regulations are formulated, and the detailed rules for the implementation of the right to strike are clearly stipulated. Finally, in order to prevent workers from abusing the right to strike, we can draw lessons from the advanced legislative experience of other countries, set up relevant measures, restrict the purpose of strike, the main body of strike, strike behavior, strike procedure and so on, so as to ensure that the right to strike can play a maximum role and avoid the possible adverse effects of strike behavior on society.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D921;D922.5

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