高校科研项目吸纳毕业生就业政策的法律矫正研究
发布时间：2018-11-17 15:01
【摘要】：高校科研项目吸纳大学毕业生就业是我国政府在金融危机背景下推出的就业促进政策。在以个体为本位的民商法领域有雇佣(劳务)合同规定,在以社会为本位的劳动法领域有劳动合同的规定。但是该政策规定不能被上述法律完全包容,其与法律的矛盾显而易见。为避免这一新生事物流于应景之策或权宜之计,有必要用法律匡正偏倚的高校科研项目吸纳大学毕业生就业政策,以法律的稳定性和妥当性保证此项政策的统一性、稳定性、长效性和合法性,使高校科研项目吸纳大学毕业生就业成为一种历久可行的用人制度,为就业协议双方当事人合法权益提供有效的法律保障,进而推进该制度的良好和稳步运行。 本文以文本研究的方法为主。运用比较法,将科研项目吸纳毕业生就业相关政策资料进行罗列分析,从而准确地发现并提出问题；运用法解释学的方法,进一步梳理该政策中存在的问题及其与法律的关系,指出解决问题的框架性构想,即用民法抑或是劳动法对政策进行涵摄；运用法经济学的方法剖析民法体制下和劳动法体制下就业均衡实现的理想形态；运用法社会学的方法描摹现实中的法律实施状态,采用实质公平的理念实现对用人方和被聘毕业生之间的利益平衡；最后借鉴立法学的方法,以社会的“秩序化需求”为动因,在劳动法的框架下实现对政策本身的改良,以避免工具主义的“功利性”法律观。 文章分三章,第一章分析了高校科研项目吸纳毕业生就业系列政策,指出该政策的创新性和存在的主要问题,包括政策内部的冲突和与法律之间的冲突；第二章通过法学理论的探究,将高校科研项目吸纳大学毕业生就业的法律问题划归民法和社会法两个领域加以对比分析,确定以劳动法作为政策完善的基点；第三章提出了具体的政策建议,包括：科研项目范围的界定,缔约主体的明确,服务协议的性质的界定,权利义务的设置,解聘途径与经济补偿的确定几个方面。从而消弥政策之间的冲突,实现政策与法律的良性衔接,最终达到以法律为后盾,以政策为导向,准确确定毕业生和高校以及项目组之间的权利义务和责任关系,实现政策效果、法律效果和社会效果的统一。
[Abstract]:It is an employment promotion policy put forward by the government of our country under the background of the financial crisis. There are employment (labor) contracts in the field of individual-oriented civil and commercial law and labor contracts in the field of social-based labor laws. But the policy can not be completely contained by the above-mentioned laws, and its conflict with the law is obvious. In order to prevent this new thing from flowing into the immediate situation or expedient, it is necessary to absorb the employment policy of university graduates by the scientific research projects which are biased by the law, so as to ensure the unity and stability of this policy with the stability and appropriateness of the law. The long-term effect and legitimacy make the employment of university graduates in university scientific research projects become a long-lasting and feasible employment system, and provide effective legal protection for the legal rights and interests of both parties to the employment agreement. And then promote the good and steady operation of the system. This paper focuses on textual research. The comparative method is used to list and analyze the relevant policy data of the employment of scientific research projects, so as to find and raise the problems accurately. By using the method of legal hermeneutics, this paper further combs the problems existing in the policy and its relationship with the law, and points out the frame conception of solving the problem, that is, using civil law or labor law to absorb the policy; Using the method of law and economics to analyze the ideal form of the employment equilibrium under the civil law system and the labor law system; The method of sociology of law is used to describe the state of law implementation in reality and to balance the interests of employers and employed graduates with the concept of substantial fairness. Finally, using the method of legislation for reference, taking the "order demand" of the society as the motivation, we can improve the policy itself under the framework of labor law, so as to avoid the instrumentalism "utilitarian" legal view. This paper is divided into three chapters. The first chapter analyzes the employment policy of university scientific research projects, and points out the innovation and the main problems of the policy, including the conflict between the policy and the law. The second chapter, through the exploration of the theory of law, classifies the legal problems of university scientific research projects into the two fields of civil law and social law, and determines that the labor law is the base point of policy improvement. The third chapter puts forward specific policy recommendations, including: the definition of the scope of scientific research projects, the definition of the contracting body, the nature of the service agreement, the establishment of rights and obligations, the way of dismissal and the determination of economic compensation. In order to eliminate the conflict between the policies, realize the benign link between the policy and the law, and finally reach the goal of taking the law as the backing, taking the policy as the guide, and accurately determining the relationship between the rights, obligations and responsibilities of the graduates, the universities and the project teams, Realize the unity of policy effect, legal effect and social effect.
【学位授予单位】：武汉理工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：G647.38
本文编号：2338199
[Abstract]:It is an employment promotion policy put forward by the government of our country under the background of the financial crisis. There are employment (labor) contracts in the field of individual-oriented civil and commercial law and labor contracts in the field of social-based labor laws. But the policy can not be completely contained by the above-mentioned laws, and its conflict with the law is obvious. In order to prevent this new thing from flowing into the immediate situation or expedient, it is necessary to absorb the employment policy of university graduates by the scientific research projects which are biased by the law, so as to ensure the unity and stability of this policy with the stability and appropriateness of the law. The long-term effect and legitimacy make the employment of university graduates in university scientific research projects become a long-lasting and feasible employment system, and provide effective legal protection for the legal rights and interests of both parties to the employment agreement. And then promote the good and steady operation of the system. This paper focuses on textual research. The comparative method is used to list and analyze the relevant policy data of the employment of scientific research projects, so as to find and raise the problems accurately. By using the method of legal hermeneutics, this paper further combs the problems existing in the policy and its relationship with the law, and points out the frame conception of solving the problem, that is, using civil law or labor law to absorb the policy; Using the method of law and economics to analyze the ideal form of the employment equilibrium under the civil law system and the labor law system; The method of sociology of law is used to describe the state of law implementation in reality and to balance the interests of employers and employed graduates with the concept of substantial fairness. Finally, using the method of legislation for reference, taking the "order demand" of the society as the motivation, we can improve the policy itself under the framework of labor law, so as to avoid the instrumentalism "utilitarian" legal view. This paper is divided into three chapters. The first chapter analyzes the employment policy of university scientific research projects, and points out the innovation and the main problems of the policy, including the conflict between the policy and the law. The second chapter, through the exploration of the theory of law, classifies the legal problems of university scientific research projects into the two fields of civil law and social law, and determines that the labor law is the base point of policy improvement. The third chapter puts forward specific policy recommendations, including: the definition of the scope of scientific research projects, the definition of the contracting body, the nature of the service agreement, the establishment of rights and obligations, the way of dismissal and the determination of economic compensation. In order to eliminate the conflict between the policies, realize the benign link between the policy and the law, and finally reach the goal of taking the law as the backing, taking the policy as the guide, and accurately determining the relationship between the rights, obligations and responsibilities of the graduates, the universities and the project teams, Realize the unity of policy effect, legal effect and social effect.
【学位授予单位】：武汉理工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：G647.38
【参考文献】
相关期刊论文 前8条
1 王勇飞;西方的社会法学派与中国的法律社会学[J];比较法研究;1987年03期
2 沈同仙;;我国劳动基准的实施现状及对策[J];当代法学;2007年04期
3 方世荣;孙才华;;关于政策与法律关系的再思考——从集中和反映人民意志的视角[J];湖北社会科学;2006年05期
4 董保华;;中国劳动基准法的目标选择[J];法学;2007年01期
5 杨署东;;我国转承责任立法现状审视与完善[J];甘肃社会科学;2007年01期
6 李金龙;邓春生;谢小明;;金融危机下政府化解就业问题的路径选择[J];社会科学家;2009年04期
7 黄莉萍;张军荣;;消费者权益保护法功能的反思与再发现[J];商业时代;2009年21期
8 朱时敏;关于劳动关系的法社会学分析[J];太原理工大学学报(社会科学版);2005年02期
，本文编号：2338199
本文链接：https://www.wllwen.com/falvlunwen/sflw/2338199.html
