The Theory Of The Personality Subordination Of Labors

The subordination of the laborer’s personality is a core concept in research of labor law.In the existing theoretical research of labor law,the subordination of the laborer’s personality refers to the relation of subordination of personality of laborer to employer,and subordination of personality is key to judging whether a kind of labor service payment consideration relation is the labor relation,and if there is subordination of personality,then it means that it’s necessary to be included into the regulating system of labor law.It is just because there is subordination of personality of laborer to employer and the laborer is usually in an inferior economical and social position in comparison with the employer that the employer possibly tends to misuse the subordination of personality of laborer and further abuses the legitimate rights and interests of the laborer,thereby leading to social injustice.In order to correct the disadvantage possible caused due to subordination of personality of laborer to employer,the nation breaks the traditional civil law logistics dominated by liberalism ideology,to limit the unilateral behavior of the employer and guarantee the freedom of contract between the laborer and the employer with mandatory specifications through labor legislation on the one hand,thereby providing safeguard for the most basic survival benefits of laborers;to acknowledge the rights of unity of laborers and the legal position of labor union on the other hand,allowing the trade union to negotiate with the employer in group on behalf of laborers and to initiate the laborers to fight for disputed behaviors.Subordination of personality could be named as the logical starting point and the important footstone to construct labor law theories,and the current academic researchs mainly pay attention to generalize and categorize the performance characteristics of subordination of personality of laborer to employer starting from pragmatism,to direct the judgment standards of labor relation,and relevant rich research achievements have already been realized.However,few researchers have started from the concept of personality to elaborate on what the legal principle connotation of so-called subordination of personality is;especially after the modern legal thought is baptized with natural law and rationalism,the concept of equality of personality has enjoyed popular support,and few has explored the dialectical relationship between subordination of personality and equality of personality.In the opinion of the author of this article,it’s helpful to construct a balanced relationship among such four subjects as laborers,labor unions,employers and nation in the labor law system if the above two basic theoretical problems are solved.The introduction of this article is divided into two sections,and in the first section the existing concept of subordination of personality is traced to the source.This concept originated from German legist Gierke who brought forward that labor relationship is a kind of relationship of governance of personality law based upon the contract of loyalty and diligence in Germanic laws.There are distinct differences between the labor contractual relationship in the context of market economy and the contractual relationship of loyalty and diligence with master and servant identities,but there are also similarities between them.In Gierke’s opinion,the labor relationship is a relationship of governance of personality law which is of obvious progressiveness in comparison with the opinion that regards labor relationship as an ordinary property exchange relationship or labor rental relationship and which also provides theoretical basis for the generation of labor law.Gierke’s theory was dissimilated into the“common relation in personality” in the time of Nazi and became a tool for control in the extreme society,and after World War II,the German academic circles brought forward “payment exchange relationship theory with protection of personality” based upon reflection,which held that no matter how the view of theoretical explanationchanges,the subordination of personality of laborer to employer will be the unchanging content.The second section discusses the counter-check efficacy of subordination of personality in judging labor relationship,and concludes the feature description of subordination of personality of laborer in the existing researches of the academic circles,with the breakthrough point being that the labor service is conducted under guidance and supervision of employer and that the employer is entitled with certain rights of punishment.The first chapter is the “exposition of the concept of personality and the concept of subordination of personality” and is divided into four sections.The first section distinguishes the usage of the concept of personality,and brings forward that personality could be divided into such two levels as subject and object and such two orientations as the static and the dynamic.The second section observes the history of the contents of personality,and makes clear the evolution of the concept of personality from the personality of the identity in Roman law into modern rational personality,and the core connotation of famous modern personality is free will.The third section analyzes the dialectical relationship between the equality of personality and the subordination of personality,to explain what subordination of personality means by taking advantage of the ideology of absorption of personality,and brings forward that the value pursuit of equality of personality accepts and restricts the social reality of subordination of personality on the one hand and that the social reality of subordination of personality can’t overturn the theoretical basis of equality of personality on the other hand.The fourth section elaborates on the breakthrough made by the subordination of personality explained in the article comparative to the existing theory of subordination of personality of laborer,and brings forward the adjustment made by the nation and the labor union to the labor relationship,and actually,this article also innovatively sets up the subordination of laborer to the nation and the labor union which needs to maintain a balanced relationship with the subordination of laborer to the employer.The second chapter is the discussion of “the mechanism and limit of subordination of personality of laborer to the nation” and is divided into three sections.The first section elaborates on the necessity of subordination of personality of laborer to the nation,and tries to make clear the dialectical relationship between the national compulsion and the laborer’s own decision in the labor law by means of many theories.The second section discusses the specific ways for the state control to intervene into the labor relationship and limit the personality of laborer based upon the differentiation of absolutely compulsory regulations and relatively compulsory regulations and the exploration and analysis of the mechanism of efficacy of labor standards on labor contract.The third section points out that the degree of involvement of the nation into labor relationship is not a monolithic whole,because there are differences in the degree of restriction of such involvement on standard labor relationship and non-standard relationship,and besides,the range of coverage of state control and group self-governance needs to be separated in respect of social relationship whose subordination is thin but still couldn’t be totally denied.The third chapter is the discussion of “the generation and limit of subordination of personality of laborer to labor union” and is divided into three sections.The first second explores and analyzes the generation basis of subordination of personality of laborer to labor union,and the reason that the labor would like to demise some of his rights of personality to labor union is that the labor union has to do what the laborer can’t or is hard to do.In addition,the subordination of personality of laborer to labor union can only be built after certain democratic procedures.The second section explores and analyzes the mechanism and degree of limitation of collective contract over personality of laborer starting from the efficacy of regulation of and efficacy of law of obligation of collective contract.The third section elaborates on the theoretical basis and boundary of the internal governance power of the labor union as well as the way of relief of laborer from internal punishment of labor union.The fourth chapter is the discussion of “the balanced relationship of subordination of personality of laborer to the employer,the labor union and the nation” and is divided into three sections.The first section point out that to freely realize the personality of laborer to the largest extent should be the red line that goes through the subordination of laborer to the employer,the labor union and the nation inthe framework of labor law.The second section explains that there is supplement and gambling relationship in the legal efficacy of subordination of laborer to the nation and the labor union.The third section elaborates on the real problems need to be answered in the relationships of subordination of laborer to the employer,the labor union and the nation in order to achieve balance among such three relationships.