平等就業(yè)權(quán)和用工自主權(quán)的合理邊界研究外文文獻(xiàn)翻譯

1、外文文獻(xiàn) 原文+譯文原文The study on reasonable boundary of equal employment rights and autonomy of employmentMartin GAbstractUnit of choose and employ persons labor autonomy is the objective requirement of the market rule, but in the context of labor supply exceeds demand and capital strength, on the one hand,

2、 unit of choose and employ persons is an infinite labor autonomy, in the practice of laborer equal employment rights violated the phenomenon is very common. Due to equal employment, on the other hand, the lack of culture and the rule of law, a lot of worker of unit of choose and employ persons labor

3、 abuse of autonomy behavior is taken for granted, even though I have objections, but often because of right remedy the gate was blocked, these voices will eventually die out gradually forgotten by people. Under the rule of law concept of social standard, both when unit of choose and employ persons i

4、n the equal employment rights of laborer and conflict, equal employment right is better than that of unit of choose and employ persons with right attribute management authority should belong to. But under this concept, the boundaries between equal employment rights and autonomy of employment when ho

5、w to grasp, it is a need to further discuss specific in theory and in practice is of great significanceKey words: Equal employment rights; Recruitment autonomy; Reasonable boundary1 IntroductionEqual employment rights protection idea comes from the idea of human rights and equality, the practice of

6、the path is mostly prohibit employment discrimination and promote equal employment policies. In mature rights under the background of the rule of law, equal employment rights as a kind of deep and basic human rights for granted, its positive declared and research seems to be superfluous, and damage

7、the rights of employment discrimination has received increasingly more attention and become the focus of theoretical research and system construction.The emergence of employment is not associated with right at the beginning, but merely a state of facts. But the rise in employment is a kind of right

8、is the development of human society is facing a new reality and has to make a kind of inevitable choice. From the 18th century British industrial revolution make social productivity gets unprecedented development, the capitalist system was established, the human into industrial society. With the dev

9、elopment of the industrial revolution and mass production, a large number of landless farmers into the city, can only rely on selling their labor to survive. The first time in human society of integrity the labor force and the complete separation of production data. Industrialization, urbanization w

10、hile promote the great development of the capitalist economy, but for loss of production workers, to some extent, it is a nightmare. Machine turns mass production once again let them separated from production, unemployment that they lost the only make a living. For most people, the social security s

11、ystem has not been before they establish and improve the employment has become almost the only survival guarantee. In front of such a cruel social reality, it is evolved into a kind of employment relationship survival major interests.Employment rights clear concept, the concept of the equal employme

12、nt rights to follow it. It seems to be the equal employment rights in the field of natural deduction. Equal employment rights are the value concept of equality in employment in the field of concrete application when there is no doubt. But this simple clear logical deduction can reduce to the difficu

13、lty of defining the right to equal employment, because equality itself is an extremely complex, the broad question. Equality begins with the study of Plato and Aristotle, they first pointed out that people should get similar treatment of similarity, and given equal status with law and moral. Equalit

14、y history proves that equality is a concept of multiple lines, rich connotations and the value of equality is to artwork and shown, accepted by all sorts of different civilizations, the essence of which is benefited from the connotation of it as a concept of ambiguous and vague. Not only that, some

15、scholars argue that even the equality is enduring, hollow stems from its contents. The principle of equality to meaning, some external value must be inclusive; to decide what and what treatment is similar, but once the external value get advice, the principle of equality itself will become redundant

16、. Despite the various disciplines to equal the value concept of scholars have their different perspective and dimension of interpretation, but it is the value of a thorough popular feeling.2 Principles of the limits of right to equal employmentAny right to have their own borders, it is of equal empl

17、oyment rights. Despite employment equality has become an international consensus, everybody understanding of equality is not yet deeply in our country, research on the front of the equal employment rights declared and cannot contain the case, we should also be soberly aware it should be limited, and

18、 its development without boundary can not be tolerated. But at the same time considering the survival guarantee equal employment rights conveys the basic functions, and so on the right to limit when we should be prudent and insist on some basic principles to ensure that the limitation on the rights

19、given by the beginning of design will not damage the rights to achieve the goals of the value of it.2.1 The principle of interests balanceCountries use public power to intervene to equal employment problem, due to the realization of the right to employment relationship to guarantee citizens right to

20、 life and protect the weak, reflect the lofty goal of real equality, involving social welfare and social stability. But the country on a certain rights is throughout society as a whole, even when the design of overall consideration. Is often a conflict between rights and rights, and the use of publi

21、c power is to coordinate the conflict between the right. When the other social and public interests needs (such as the reproduction of the population), national security needs, special groups, the need of employment protection and unit of choose and employ persons labor independent need when conflic

22、t with equal employment rights, the state should take public managers to the identity of the laborer equal employment rights to the entire society and other various interests analysis, comparison, coordination and balance, to seek the interests of the laborer equal employment and other social benefi

23、t maximization as the goal. In addition, in the process of balancing of interests to deal with the relationship is between fairness and efficiency. Efficiency on behalf of the factors of social development, the fair is the social stability.2.2 Principle of relevanceRelevance principle was applied in

24、 many other areas, but in a reasonable limit for equal employment rights, refers to the laborers to limit must be completely because of the needs of the work itself. The international labor organization, the discrimination (employment and occupation) convention has made that clear. Relevance is labo

25、r law areas commonly referred to as real professional qualification (a genuine occupational qualification, GOQ).Real professional qualification refers to the employers requirements (such as an employer to applicant or servant of religion, gender, or national origin, etc. As a condition of employment

26、) to the institutions normal operation (normal operation) is reasonable and necessary (German Russian co-operation necessary).Need a female model, for example, unit of choose and employ persons, the limitation on the male at this time is the need of the principle of relevance, because the profession

27、 requires some physiological characteristics of women. Unit of choose and employ persons shall not arbitrarily to real professional qualifications meet the conditions as an excuse to not admit originally hired laborers or dismiss workers have accepted and to be able to do work. Relevance principle i

28、s not absolute, of course, when it and social and public interests conflict, should give priority to meet the needs of social and public interests. For example, Chinas laws and regulations on ethnic minority people, for the disabled veterans of the employment of special rules, is the principle of re

29、levance principle of balancing of interests to make a concession and compromise. In addition, when is unit of choose and employ persons to make a career limiting the question of whether or not to conform to the principle of relevance, divergent shall, according to labor law exercised standard though

30、t, make a better explanation for workers party.2.3 ProportionalityAlso known as suitability or balance principle, proportion principle is an important principle of public law, mainly considering the balance between means and purpose, to prevent excessive to achieve a certain purpose and damage the i

31、nterests of a. Specifically, the proportion principle is refers to the administrative organs to implement administrative behavior should be to achieve the goal of the administrative implementation and protection of the rights and interests of the other party, if in order to is to realize the adminis

32、trative goals may be some adverse effects on the relative person rights and interests, spoke and limit the adverse impact is as small as possible and limit, make the modest proportions. To restrict follow the purpose is to have the right to equal employment, limit the effects achieved by adopting th

33、e means and must have a reasonable, any excessive and inappropriate will make this limitation lose its rationality basis, resulting in the illegal infringement of right to equal employment.3 Autonomous right of labor useLaborer equal employment rights infringement mainly from government and unit of

34、choose and employ persons. The government in violation of the equal employment rights mainly for discrimination legislation. Both are the important of enterprise autonomy, so the author attempts to base on the analysis of enterprise autonomy discusses recruitment autonomy. Enterprises as market econ

35、omy important participation main body, which is the essence of natural person based on the autonomy of production or service to meet social needs, the independent operation, independent accounting, a for-profit economic organization established in accordance with the law. As a kind of autonomy of pr

36、ivate law subject depended on the natural reason, according to the need of the society and their own interests maximization of a kind of self management. In this sense, autonomy is enterprises (including companies and the companies) as the main body of private law autonomy enjoyed by, according to l

37、aw and articles of association or agreement between investors, balance the investors the rights and interests of workers, managers and other stakeholders, and deal with related to its business activities of self management rights of corporate affairs, its essence is a kind of economic autonomy. Auto

38、nomy is a principal relationship with external other subject category, it is a self decision without being dominant status. Enterprise management is the enterprise assets of the enterprise in the process of business management, investment, and other matters enjoyed by control and management; it is t

39、he main content of the enterprise autonomy, and autonomy. The essential content of private law autonomy lies in the improper intervention of liberty is not affected by others, the body of the traditional private law autonomy is a person, and the principle of autonomy of private law is established on

40、 the basis of individualism and liberalism, but as the changes of the social economy life subject scope has changed, except in the single state of a natural person, natural person according to certain rules and group as the main body of private law autonomy. So we can not help but ask, and as a grou

41、p of companies is based on what reason has not affected by improper intervention of liberty? American economist Galbraith believed that property itself is the source of power, the authority of certain aspects of the property or wealth caused by certain purpose, and can also cause conditional propert

42、y subject. However, is very obvious that power and reward power. The combination of property, income, provides the necessary money to buy other peoples obedience. Russell believes that the power of the industrialists is based on the ownership of objects. Power base American scholars Dennis said, loo

43、k at a ruler, though does not focus on the cause of his exercise of power and motivation, and looked at him into power relations make him to exercise the power of all kinds of resources.文獻(xiàn)出處：Martin G. The study on reasonable boundary of equal employment rights and autonomy of employment J. Internati

44、onal Journal of Service Industry Management, 2016, 4(3): 61-71.譯文平等就業(yè)權(quán)和用工自主權(quán)的合理邊界研究Martin G摘要用人單位用工自主是市場(chǎng)規(guī)律的客觀要求，但在勞動(dòng)力供過于求和資本強(qiáng)勢(shì)的背景下，一方面，用人單位的用工自主權(quán)被無限放大，實(shí)踐中勞動(dòng)者平等就業(yè)權(quán)被侵犯的現(xiàn)象很常見。另一方面，由于平等就業(yè)文化和法制的缺失，許多勞動(dòng)者對(duì)用人單位濫用用工自主權(quán)的行為甚至認(rèn)為是理所當(dāng)然的了，雖然偶有反對(duì)意見，但往往因?yàn)闄?quán)利救濟(jì)的大門被牢牢封鎖，這些聲音最終也消逝殆盡漸漸被人們遺忘了。在社會(huì)本位的法治理念下，當(dāng)用人單位的用工自主權(quán)遭遇勞動(dòng)者的

45、平等就業(yè)權(quán)并且發(fā)生沖突的時(shí)候，具有生存權(quán)屬性的平等就業(yè)權(quán)優(yōu)于用人單位的經(jīng)營(yíng)權(quán)當(dāng)屬無疑。但是在這種理念之下，平等就業(yè)權(quán)與用工自主權(quán)之間的界限當(dāng)如何把握，這是一個(gè)在理論上需要進(jìn)一步具體探討而在實(shí)踐中意義重大的問題。關(guān)鍵詞：平等就業(yè)權(quán)；用工自主權(quán)；合理邊界1 引言平等就業(yè)權(quán)保護(hù)的思想源于“人權(quán)”和“平等”的理念，其實(shí)踐的路徑也主要是禁止就業(yè)歧視和推行平等就業(yè)政策。在成熟的權(quán)利法治背景下，平等就業(yè)權(quán)作為一種根深蒂固和天經(jīng)地義的基本人權(quán)，它的正面宣示和研究似乎是多余的，而損害權(quán)利本身的就業(yè)歧視則得到了日益漸多的關(guān)注，成為理論研究和制度構(gòu)建的焦點(diǎn)。就業(yè)的出現(xiàn)一開始并不與權(quán)利關(guān)聯(lián)，而僅僅是一種事實(shí)狀態(tài)。但就

46、業(yè)上升為一種權(quán)利則是人類社會(huì)的發(fā)展面臨新的現(xiàn)實(shí)而不得不作出的一種必然的抉擇。 18 世紀(jì)源于英國(guó)的工業(yè)革命使社會(huì)生產(chǎn)力得到空前發(fā)展，資本主義制度得以確立，人類進(jìn)入工業(yè)化社會(huì)。隨著產(chǎn)業(yè)革命和社會(huì)化大生產(chǎn)的發(fā)展，大量失去土地的農(nóng)民涌入城市，只能依靠出賣自己的勞動(dòng)力維持生存?！叭祟惿鐣?huì)第一次出現(xiàn)了整體性的勞動(dòng)力與生產(chǎn)資料的徹底分離”。工業(yè)化、城市化雖然促進(jìn)了資本主義經(jīng)濟(jì)的極大發(fā)展，但于失去生產(chǎn)資料的勞動(dòng)者而言，在某種程度上這卻是一場(chǎng)噩夢(mèng)。機(jī)器化大生產(chǎn)再一次讓他們與生產(chǎn)資料分離，失業(yè)讓他們失去了唯一的謀生手段。對(duì)于多數(shù)人而言，社會(huì)保障制度尚未建立、健全之前就業(yè)幾乎成了他們唯一的生存保障。在如此殘酷的社

47、會(huì)現(xiàn)實(shí)面前，就業(yè)演化成了一種關(guān)系存亡的重大利益。就業(yè)權(quán)的概念清晰之后，平等就業(yè)權(quán)的概念便是水到渠成之事了。因?yàn)樗坪蹙褪蔷蜆I(yè)權(quán)在平等領(lǐng)域的自然推演而已，無需其他。平等就業(yè)權(quán)乃平等之價(jià)值理念在就業(yè)領(lǐng)域的具體運(yùn)用當(dāng)屬無疑。但是這種邏輯推演的簡(jiǎn)單清晰絲毫無法降低對(duì)平等就業(yè)權(quán)進(jìn)行界定的難度，因?yàn)槠降缺旧砭褪且粋€(gè)極為復(fù)雜、寬泛的問題。平等之學(xué)始于柏拉圖和亞里士多德，他們最先指出相似之人應(yīng)獲得相似對(duì)待，并賦予平等以法律和道德上的顯著地位?！捌降鹊臍v史證明了平等是一個(gè)內(nèi)涵及其豐富的多行概念，平等的價(jià)值之所以得以傳之久遠(yuǎn)并播及四海，為各種不同的文明所接納，其實(shí)質(zhì)是得益于它作為一種理念的內(nèi)涵的含糊和空泛”。不僅

48、如此，有學(xué)者甚至主張，平等之所以經(jīng)久不衰，是源于其內(nèi)容的空洞。平等原則要獲得意義，必須包容某些外部?jī)r(jià)值，以決定哪些人和哪些對(duì)待是相似的，然而一旦這些外部?jī)r(jià)值得到開示，平等原則本身也就成為多余。盡管對(duì)平等這一價(jià)值理念各個(gè)不同學(xué)科領(lǐng)域的學(xué)者有著自己不同視角和維度的解讀，但它已然是一種深入人心的價(jià)值。2平等就業(yè)權(quán)的限制原則任何權(quán)利都有自身的邊界，平等就業(yè)權(quán)亦是如此。盡管就業(yè)平等已經(jīng)形成一種國(guó)際共識(shí)，在大家對(duì)平等權(quán)的認(rèn)識(shí)尚未深入，對(duì)平等就業(yè)權(quán)的正面宣示和研究尚且不足的情況下，我們也要清醒地意識(shí)到它應(yīng)當(dāng)受到限制，而不能縱容其毫無邊界地發(fā)展下去。但同時(shí)考慮到平等就業(yè)權(quán)所承載的生存保障的基本功能，所以在對(duì)這

49、種權(quán)利進(jìn)行限制的時(shí)候我們要格外審慎并且堅(jiān)持一些基本的原則從而確保對(duì)權(quán)利的限制不會(huì)損害權(quán)利設(shè)計(jì)之初所賦予它的價(jià)值目標(biāo)的實(shí)現(xiàn)。2.1利益平衡原則國(guó)家采用公權(quán)力對(duì)平等就業(yè)問題加以干預(yù)，緣于就業(yè)權(quán)的實(shí)現(xiàn)關(guān)系到保障公民生存權(quán)及保護(hù)弱者、體現(xiàn)實(shí)質(zhì)平等的崇高目標(biāo)，牽涉社會(huì)福祉和社會(huì)安定。但是，國(guó)家在對(duì)某個(gè)權(quán)利進(jìn)行設(shè)計(jì)時(shí)還要綜觀社會(huì)整體，進(jìn)行全盤考慮。權(quán)利和權(quán)利之間往往是沖突的，而公權(quán)力的運(yùn)用則在于協(xié)調(diào)權(quán)利之間的沖突。當(dāng)其他的社會(huì)公共利益需要（如人口的再生產(chǎn)）、國(guó)家安全的需要、特殊群體就業(yè)保護(hù)的需要和用人單位用工自主的需要等與平等就業(yè)權(quán)產(chǎn)生沖突時(shí)，國(guó)家應(yīng)當(dāng)以社會(huì)公共管理者的身份對(duì)全社會(huì)勞動(dòng)者的平等就業(yè)權(quán)與其他各種利益進(jìn)行分析、比較、協(xié)調(diào)和平衡，以謀求勞動(dòng)者平等就業(yè)利益和其他社會(huì)利益的最大化實(shí)現(xiàn)為目標(biāo)。此外，在進(jìn)行利益平衡的過程中還要處理好公平和效率的關(guān)系。效率代表社會(huì)發(fā)展的因