摘要：尽管当前中国在校大学生是否属于劳动法资格主体存在不同地区不同判决的现状，经过雇佣理论和司法实践分析，在校大学生应当具备劳动法主体资格是不可阻挡的趋势；中国政府应该借鉴西方的雇佣理论和体制。
关键词：劳动法主体资格；在校大学生；雇用理论
中图分类号：G640 文献标志码：A 文章编号：1673-291X（2012）31-0290-03
The Chinese College Students about the Subject Qualification of National Labor Law in China is not only limited to study areas of Labor Law but also is a strongly practical issues at work by college students.Nowadays,There is obviously different judgments in different Chinese areas or different judges.
The judges In Beijing, Jiangsu province and other developed regions in China tend to deem that the college students is the subject qualification of National Labor Law according to recently several judicial case.However, the judges in Hunan province and other inland regions believe that the college students is not the subject qualification of National Labor Law according to recently the author"s judicial case.
Why not were there such a unanimous verdicts in Judgments on the Subject Qualification of National Labor Law of Chinese College Students?The root cause Lies in the different understanding on this provision—the Article 12th of “On the Implementation of the "The People’s Republic of China Labor Act" Opinions on Some Issues”promulgated by the former Labor Ministry of P.R.C. Government in 1995.—”It is not start a career or is not regarded as a job,on the work-study college students in their spare time, if not establish labor relations, they could not sign labor contracts.”
Somebody believe that “the Article 12th” means that the Chinese College Students is NOT the Subject Qualification of National Labor Law in China for college students in work-study program is not labor law subject,just like through the provision are provided that can be seen directly:it is not start a career or is not regarded as a job.
However,I deem that this kind of understanding is a basic error.Why they made a subjective mistake by acting illogical notions according to their own literal comprehension?How to accurately understand “the Article 12th”?Firstly,”the Subject Qualification of National Labor Law” is not equal to “start a career or be regarded as a job”—these are two concepts,the former belongs to the exclusive concept of labor law,however,the latter is only a general concept.Secondly,”if not establish labor relations, they could not sign labor contracts.”—this sentence means that this law act “establish labor relations or sign labor contracts”are several kinds of selection,probability and uncertainty.—furthermore there are three probably selective cases,the first case is the college students establish labor relations,they sign labor contracts;the second case is the college students establish labor relations,they do not sign labor contracts;the third case is the college students do not establish labor relations,and they do not sign labor contracts.It is due to the existence of the possibility of this three kinds of cases,we could draw a correct and legitimate conclusion:the college students is the Subject Qualification of National Labor Law in China,or they could not have several selective chances to decide whether to sign labor contract.Liang Zhi lawyer,who is a Labor Law Expert and the Vice Director of Labor and Social Security Law Professional Committee of All China Lawyers Association,analyzed and thought so too. In additional,on another provision —the Article 4th of “On the Implementation of the "The People’s Republic of China Labor Act" Opinions on Some Issues”promulgated by the former Labor Ministry of P.R.C. Government in 1995.—It is clear to put 5 types of Chinese citizens outside by the protection ruled by the Chinese national Labor Act:（1）the government civil servants or state officials.（2）the staffs of social institutions,social association and so on that compare to the government civil servants relevant regulations.（3）the housemaids.（4）the active duty military.（5）the pure farmers（not include:as the rural labors who enter the rural enterprises and the rural migrant workers or businessmen which move into the city from countrysides）.Obviously from this provision, the China Labor Act do not remove the Chinese college students,so that the Chinese college students is the Subject Qualification of National Labor Law!
From the value orientation of labor law judging by the Subject Qualification of National Labor Law,I deem that college students general be at the age of 18 years or above, belonging to a person with full capacity for civil conduct.On the normal premise of their health, intelligence and spiritual status, college students complete with a constitutional right to work and have normal labor ability—with the 4 legal principles supported by theory of law:Age, health, intelligence and freedom of action.
In additional,college students are green or inexperienced,do not fully understand and adapt to the complicated society,and their economic capacity, social status and so on are in weak stratum.In view of the above,it is beneficial to reflect the basic value of our labor legislation which is rescuing the weak, promoting fairness,justice and so on,beneficial to form a status of social stability and social harmony if the Chinese college students is the Subject Qualification of National Labor Law and were protected by our national labor law.
Let us to study Simply the link between“The Theory of Employment”and“The Subject Qualification of National Labor Law Judging by College Students”.Firstly,begin with British Employment Law or UK Labor Law for “The Theory of Employment”,what means of employment?Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:“A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed”.）[1] I feel“The Theory of Employment”is simple and complicated,its importance is deeply influence western,east including China and to the whole world within the scope of the labor law, corporate law, commercial law, economic law, and even the basic principles of economics.what means of employment relationship or contracts?A contract of employment is an agreement entered into by an employer and an employee under which they have certain mutual obligations[2].
The employment relationship is based on the employment contracts,the both sides of employment contracts are employer and employee.The employee provide services for employer with their occupation skills according to the employer’s instructions, conditions and so on,the same situation,employer pay labor remuneration for employee′s work.
Sometimes,scholars conceptualize the employment relationship in various ways[3]. In which,a key assumption is the extent to which the employment relationship necessarily includes conflicts of interests between employers and employees, and the form of such conflicts[4]. In my opinion, these theory is not important and let us focus following contrast.
In China,the employer is usually known as the Boss,General Manager,President,Chief Executive Officer,the Chairman of The Board and so on.Generally do not include Government,School and other Institutions and Social groups for there is remarkable difference compared with western countries between “Inside system” and “Outside system”ruling by Chinese Characteristic Socialism Legal System.
However,in western countries,according to The Employment Theory and The Equality Spirit,all the social work role could be incorporated into the employment relationship or contracts,especially, between the government and the civil servants,between the state and the army.The most worthy and valuable advice is that the China government should draw lessons from this western countries′labor or employment system.
There is a little hopeful,promising and optimistic Open is that Shenzhen city in China have begun to reform civil servant or official system.Wang Yukai,who is the Professor and Doctoral Tutor of The National Administration College,and the General Secretary of Reform Research Association of Chinese Administrative System,said that employee system is civil servant or official system reform trend in future.
Finally,we must learn some lessons from employment theory or employment system of Britain or other western countries.Chinese Government including Labor Department and Education Department should promulgate new regulations on that The Subject Qualification of National Labor Law Judging by Chinese College Students and at the same time abolish the Article 12th of “On the Implementation of the "The People"s Republic of China Labor Act" Opinions on Some Issues”promulgated by the former Labor Ministry of P.R.C. Government in 1995.
References and Bibliography：
[1] Black’s Law Dictionary(5th ed.1979),471.
[2] Tom Harrison.Employment Law. Harrison Law Publishing,1997:45.
[3] Kaufman,Bruce E.Theoretical Perspectives on Work and the Employment Relationship: Industrial Relations Research Association,2004.
[4] Fox, Alan.Beyond Contract: Work, Power and Trust Relations:Farber and Farber,1974.
[责任编辑 陈 鹤]