Guo Jun: There Are Seven Problems In The Implementation Of The Labor Law.

This morning, the National Federation of trade unions held a press conference to promote the legalization of trade union work and strengthen labor union legal supervision. Guo Guojun, Secretary of the National Federation of trade unions and Minister of legal work, introduced the drafting of the implementation of the opinions of the all China Federation of trade unions on the implementation of the spirit of the party in the fourth Plenary Session of the 18th CPC Central Committee, vigorously promoting the rule of law in trade union work, and the general plan of the labor relations in the past 20 years.

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"Promulgated and implemented the overall situation of China's labor relations in the past 20 years, Guo believes that there are seven problems in the implementation of the labor law.

In recent years, with the further development of China's socialist market economy, labor relations have become increasingly diversified and complex, and deep-rooted contradictions have gradually emerged. The number of labor disputes has been running at a high level, and mass incidents of employees have occurred frequently.

Guo Jun believes that, first, the problem of employment discrimination is quite prominent, and has not aroused great concern from all walks of life, especially gender discrimination. Employers are very prominent in discriminating against female employment, and two is forced.

The problem of "five modernization" is still existing in formalization, short term and hollowing out; four, the problem of overtime work is quite serious; five, the problem of arrears of wages is constantly prohibited, and the problem of arrears and arrears of wages in some places is still serious. Six, the problem of labor safety is worrying, industrial accidents occur frequently, and occupational hazards are serious. Seven, there is a large number of social insurance problems. Some non-public enterprises and individual economic organizations do not participate in social insurance or fail to participate in insurance according to statutory standards. Guo Jun pointed out that there are many reasons for the above problems, but some unilateral pursuit of GDP, enterprises' quick success and instant benefits, unbalanced labor force and labor monitoring are important reasons. From time to time, there are still different forms of forced labor and illegal child labor in some areas and industries, some of which are rather bad in nature, and the three is the null and unilateralization of labor relations.

In addition, for the controversial issues, the existing labor dispute settlement system has many problems, such as complicated procedures, too many links, low efficiency, and too long cycle. Workers can not afford to fight lawsuits, or have no energy to fight lawsuits. Many labor disputes can not be solved in time, and directly affect the protection of workers' legitimate rights and interests.

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The concept of free wages constructed by the theory of valence embodies the value of modern liberalistic democratic industrial society, but it is not impeccable.

As far as methodology is concerned, the concept of abstract external system of conceptialism is rather hypothetical in theory or in practice.

The core of the establishment of an abstract concept, the elements of constructive fact, usually do not have an objective and necessary connotation. It requires the subjective activities such as human social experience, social concept evaluation or legal interpretation.

In the application of law, the proportion of strict meaning is quite small.

As a highly abstract conceptual element, "labor consideration" is very limited in the meaning and meaning of wage law and regulation.

Taking the "labor standard law" in Taiwan as an example, it limits the scope of wages to a very narrow scope. As long as we identify the source of wages from the essential characteristics of labor relations, we suddenly believe that the reason is not enough:

First, the purpose of termination is labor relations.

Taiwan scholars believe that "the labor conditions are based on the basis of the contract established by the two parties and have the same value relationship. Therefore, the pension and pfer fees obtained from the termination of the labor relations are not within the scope of wages".

However, in the light of fact, the laborers pay labor before retiring, and the social payment and compensatory payment after the termination of labor relations are rooted in the former labor payment, which is a kind of reward for their labor. Otherwise, such payment should be regarded as a gift to laborers.

In other words, if there is no job, how can he drop out? If he has not paid labor, how can he get such income? Therefore, scholars in Taiwan emphasize that wages are the consideration of on-the-job labor, which is actually a constriction of the "labor consideration".

As mentioned earlier, wages in Japan's Labor Standards Act include pensions and severance payments, while the mainland's legal provisions are basically in line with the "Labor Standards Law" in Taiwan.

Next is the bonus of non recurrent payment.

In the Taiwan area, the implementation rules of the Labor Standards Act (promulgated in February 25, 1985) exclude the incentive bonus from non recurrent payments to the tenth salary range. However, both mainland and Japanese legislation have included such income in wages.

Japanese scholars believe that bonus has multiple implications. First, it is a supplement to basic wages and a reward for laboring laborers. It aims at competitive evaluation of the labor of different workers, so it has the nature of encouragement.

Accordingly, the bonus is a reward for the outstanding workers, not an extra payment which is irrelevant to labor.

Although the relevant legislation in our country puts bonuses in the category of wages, there is still a case which is contrary to the legislation in our judicial practice.

Finally, it is arbitrary benefit payment.

Most scholars in Japan and Taiwan hold negative opinions about the payment of arbitrary benefits, such as he Jin, Li Jin, Dian Ji, Jin Jie Jin and so on.

However, some scholars believe that the judgement of the nature of grace benefits should be based on objective facts, such as the labor contract or the condition of express payment under collective agreement, which is the obligation of contract and the nature of loss of grace is also regarded as wages.

It is not a contract based obligation that negates the nature of giving, rather it is a distortion of grace to habitus in labor relations.

It attempts to give kindness to the conduct in a written contract, but it can not explain the grace given to the written evidence and the difference between the gift and the proof. What is the fairness?

All kinds of disputes about wage category in theory and practice can be attributed to the methodological defects of abstract concept construction: complex wage phenomenon, only a very limited part can absorb the wage concept in labor law through "labor consideration".

In a word, it can be regarded as the object of labor contract and the object of labor supervision, which is dwarfed by the wage range of labor disputes and the complexity of laborers' income in labor relations, which will damage the protection function of labor law to the wage rights and interests of laborers.

At the same time, the achievements of conceptual conceptions are often based on practical consequences.

The divergence of legislation in the wage category and the entanglement of the legal profession community reflect the legal technical defects of abstract concepts.

The concept of free wages by conceptions is not only full of loopholes in technology, but also fails to express clearly the concept of wage in the labor law system.

Labor relations adjusted by labor law can be divided into collective labor relations and individual labor relations according to the main body.

In the collective labor relations law, workers' right to unite, collective disputes and collective bargaining is essentially a laborer's power to check and balance the employer, rather than a simple creditor's right.

It is hard to see the relevance of wage as the object of creditor's rights and the law of collective labor relations from the perspective of the theory of consideration, which makes the concept of meaning broken down in the legal system and loses the function of constructing the external legal system.

It is no wonder that Japanese scholars divide wage in labor law into wage in the labor standard law and collective labor relations law, and do not intend to construct a wage concept that can integrate the whole labor law system.

From the perspective of epistemology, the understanding of the nature of wages by classical liberal economics is the root of the ill conceived concept of wages.

Marx once pointed out sharply that "labor is the entity and intrinsic measure of value, but it has no value in itself".

He further refutes "wage is the price of labor": because the value of goods is determined by the amount of labor that produces the goods. If labor itself is valuable, then there will be a "synonymous" logical error of "the value of commodity is determined by its value".

The so-called labor value in classical political economics is actually the value of labor force.

Therefore, the concept of free wages mistakenly confuses the labor force with its function - labor in epistemology, and it is faced with various difficulties because of the legal conception of its concept which can not measure the value of labor.

Marx clearly pointed out that wage is the monetary manifestation of labor value, and it is determined by labor time.

The value of all products created by labor is divided into three parts under the capitalist legal relationship, namely profit, land rent and wages. The former two are part of the value created by labor, but they do not belong to the laborers, but they are attributable to the capitalists and the landowners as surplus value.

Wages are only part of the labor generated by the laborers, not all.

Therefore, wages and labor can not exist at the same time.

After reviewing the epistemology of the concept of free wages from the standpoint of Marx doctrine, the idea of wage contract is constrained by the "labor consideration" - the dilemma faced by this false proposition.