Research On The Application Of Legal Methods In Hard Cases Of Labor Law

Hard cases are not only a core issue in legal theory,but also a practical problem faced by the judiciary of all countries in the world.It connects the general theory of law on one side and the legal method on the other side,which is the bridge between the two.Western legal philosophy generally pays attention to the theoretical study of difficult cases,and the controversy between Hart and Dworkin’s theory is to a large extent around the problem of hard cases.The general theory of hard cases and the hard cases of department law are the two approaches to the study of hard cases.The existing research mainly focuses on the general theory of difficult cases,while the research of hard cases of department law mainly focuses on the hard cases of criminal cases,civil cases and administrative cases.There are few research documents specifically for the hard cases of labor law.This paper takes the application of legal methods in hard cases of labor law as the research subject,mainly for two reasons:first,to explore the similarities and differences between the legal methods of labor law and other departments’ laws,mainly civil law;The second is to provide legal method guidance for the judicial practice of hard labor law cases.In this paper,the discussion is carried out according to the steps of judging hard cases,and is limited to the major premise of judging hard cases,namely,the discovery and confirmation of legal propositions.Therefore,the hard cases in this paper refer to the difficulties in the application of law,excluding the difficulties in fact.As far as the construction of the legal proposition of the major premise of adjudication is concerned,it is mainly divided into the following steps: legal discovery is the first step in the adjudication of hard cases,that is,the process of "finding the law".The legal norms found through legal discovery may be ambiguous,ambiguous and too abstract.At this time,it is necessary to interpret and specify the legal norms.Of course,there may also be conflicts between laws.This paper analyzes the conflicts of laws from the perspective of the proposition of rights and proposes the rules for measuring rights.Finally,it is necessary to fill and renew the possible legal loopholes.Summarize the types of hard cases of labor law,and find out the object of study.In order to fit the writing theme of the application of legal methods in hard cases,this chapter first analyzes why the case is hard from the perspective of the main legal methods.The value judgment of legal interpretation,the importance judgment of legal reasoning and the external proof in legal argumentation respectively clarify the "focus" of forming hard cases and find the "bull’s-eye" for solving harf cases.The second is to focus on the judicial practice in China,which cases are hard cases?Through sorting out the relevant legal provisions,the hard cases in China’s judicial practice mainly refer to the following four types of cases: first,cases with significant social impact;The second is the case that leads to moral evaluation;The third is the case of hard application of law;Fourth,new types of cases with guiding significance.The focus of this study is mainly on the third category of hard cases of law application.At the end of this chapter,hard cases are classified,mainly including "legal ambiguity type","legal conflict type" and "legal absence type" hard cases.This is the main content of the first chapter.The above three types of hard cases provide a logical connection for the structural arrangement of the following chapters,which respectively correspond to the legal interpretation of hard cases,the conflict and measurement of rights,and the filling of legal loopholes.The particularity of legal discovery in hard cases of labor law lies in the secondary origin status of the rules and regulations of the employing unit.Legal discovery,namely "finding the law",is the premise of law application.The field of legal discovery is the legal source,which constitutes the boundary of "finding the law".The theoretical difficulty lies in the limits of legal sources.Using the method of institutional analysis,this paper puts forward that the boundary of the legal source stops at "institutional law".The theory of sources of law mainly plays a dual role.One is to delimit the scope of the sources of judicial basis from the outside,and the other is to determine the application order of different sources of law from the inside.The defect of the traditional "dichotomy" of legal sources-formal sources and informal sources-is that it only pays attention to the external functions of the theory of legal sources,while ignoring the internal functions.The source of law constitutes the basis and reason for judicial decision.From the perspective of "form essence",the reasons for judicial adjudication can be divided into "authority reasons" and "substantive reasons".The former is typically represented by statutory law,while the latter can be represented by legal principles,legal principles,and the concept of fairness and justice.Between the typical "formal" legal sources and the typical "substantive" legal sources,there is a "transitional form" of legal sources.Based on the various types of legal sources,this paper adopts the "three division" of legal sources: basic sources,secondary sources and cognitive sources.The "trichotomy" can better play the dual function of the theory of legal sources.In the field of labor law,the rules and regulations of employers and collective contracts are typical secondary sources of labor law,and their effectiveness is lower than the basic source and higher than the cognitive source.This is the main content of the second chapter.The important significance of legal interpretation is to find the meta rules of legal interpretation methods.Legal interpretation and concretization is a legal method to solve the gap between the big premise and the small premise,or between the legal proposition and the fact proposition.The interpretation methods such as literal interpretation,system interpretation and purpose interpretation have general applicable rules,and have different characteristics in the field of labor law.This is mainly reflected in the fact that labor law has the nature of both public law and private law,so when applying the method of legal interpretation,we should first distinguish the specific situations of the public law field,private law field and the field of both public and private law of labor law,and apply different interpretation rules.When the interpretation of the text is applied in the field of industrial injury identification with the nature of public law,it should follow the principle that the interpretation results should not exceed the scope of "everyday language".The systematic interpretation of labor law should mainly deal with the relationship between civil law and labor law.On the one hand,they are two independent departmental laws.The provisions,systems and principles in civil law cannot be directly applied to labor law;On the other hand,in the field of private law of labor law,labor law is the embodiment of civil law,and civil law and labor law should maintain the consistency of legal order.As far as the purpose interpretation is concerned,the preferential protection principle of protecting the legitimate rights and interests of workers is the basic principle stipulated by the labor law,which has a high weight and weight in the interpretation of the labor law.Compared with a single interpretation method,the meta-rule of legal interpretation method has more important significance.It can provide guidance for the application of various interpretation methods,including priority rules,presumption rules and burden of proof rules.The general provisions and the concept of uncertainty law in the labor law are also the reasons for the difficulty of labor law cases,which can be concreted through legislative provisions,judicial interpretations,administrative rules,rules and regulations of employers and case comparison law.This part is mainly reflected in the third chapter of this article.The proposition of rights is the best choice to solve the hard cases of conflict labor law.This chapter takes the conflict of rights as the perspective of analyzing conflict-type hard cases,which is mainly based on the following considerations: First,the proposition of rights put forward by Dworkin to solve the problem of hard cases,confirms that the basis of rights is legal principles,and the relationship between rights and norms is the relationship between content and form.The two can change perspectives;Second,in judicial practice,both parties to the dispute in hard cases of labor law must have a claim basis for their claims,and labor disputes are intuitively manifested as rights conflicts;The third is the inequality of the subjects of both parties in the labor dispute.Employers are very easy to use their rights to infringe the rights of workers.Based on the theory of Dworkin’s right proposition,this paper divides the rights in labor law into background rights,institutional rights and legal rights.There is a priority relationship between the three rights,that is,at the abstract level,legal rights have priority over institutional rights,and institutional rights have priority over background rights.Among the rights of the same rank,it is necessary to use the measurement rules for case comparison.At the same time,the basic constitutional rights,as institutional rights,have the direct effect of the third party,which is only applicable to groups with social power,such as employers.In this field,it is still necessary to distinguish between the labor law relationship and the constitutional relationship.The former does not apply to the direct effect of the third party of basic rights,while the latter applies.This part is mainly reflected in the fourth chapter of this article.The type thinking method can more intuitively find the legal loopholes in the employment relationship of the new employment form and continue to build.When the judge cannot find the appropriate premise that can be directly applied to the case,there will be a legal loophole.The legal loophole is the "incompleteness of violating the plan" of the law.According to different standards,legal loopholes can be classified accordingly,such as obvious loopholes and hidden loopholes,normative loopholes and regular loopholes,expressive loopholes and lack of evaluation loopholes.Different filling methods or legal renewal should be applied for different loopholes.For example,purposive restriction is applicable to hidden vulnerabilities and evaluation deficiencies,and analogy is mainly used to fill in regular and obvious vulnerabilities.The rise of new forms of employment,represented by takeaway riders,online riders and online marketing,has created an "incomplete labor relationship" between "labor relationship" and "civil relationship",which is differentiated by the strength of subordinate attributes.From the perspective of type thinking,we can more intuitively understand the strong and weak relationship and evolution process of subordinate attributes,including the horizontal "brother type" type sequence(strong subordinate attribute-weak subordinate attribute-quasi subordinate attribute-non subordinate attribute)and the vertical "mother child type" type sequence(personality subordinate attribute,organizational subordinate attribute,economic subordinate attribute,technical subordinate attribute,data subordinate attribute).The horizontal type sequence determines the nature of the relationship,The vertical type sequence is an element of the relationship.The legislation has not yet made provisions on the legal application of incomplete labor relations,which constitutes a legal loophole.The legal renewal based on the existing legal provisions and principles,as well as the typology theory,can provide legal basis and theoretical support for workers with incomplete labor relations to obtain partial labor law protection.This part is mainly reflected in the fifth chapter of this article.There are three main innovations in this paper: First,the "three division" of legal sources is adopted,and the rules and regulations of the employing unit and the collective contract have the secondary source status;The second is to reconstruct Dworkin’s right proposition and put forward the measuring rules of the conflict of rights in labor law;Third,use type thinking to identify and reconstruct the legal loopholes of "incomplete labor relations".