劳动权的位阶与权利(力)冲突

劳动权作为公民的基本人权(生存权)和宪法性权利,是一项在权利体系中具有上位效力层次的重要权利,当它与其他权利(力)发生冲突时,应受到法律的优先保障.对于劳动权与公权、私权、其他社会权之间的位阶关系及权利(力)冲突,应本着基本人权(生存权)优位保障、社会公共利益最大化、利益衡量、社会正义等原则予以协调和化解.特别是在劳动权与经营权的冲突解决中,我们应遵循生存权优于经营权的法理.

The Position of Working Rights and their Conflicts with Other Rights (Powers)

Working rights enjoyed by laborers or other entities, with the right to get hired and the right to join a union as their core, refer to the rights which originate from or are closely related to working. The position of working rights refers to the position or level at which the working rights are locate in the system of rights in a country. The working rights of the citizens, the basic human rights empowered by the Constitution, are in the upper position in the whole system of rights, and when they conflict with other rights or powers, they should be protected with priority by the law.Regarding the relationship between public rights and working rights, it should be reasonably established as guaranteeing and guaranteed, servicing and serviced, enhancing and enhanced, compulsive and free (in terms of labor standards and contracts). On the one hand, the enforcement of working rights should not violate labor standards and other compulsive legal regulations. And on the other hand, it has become an undisputed fact that the enforcement of public rights is more and more restricted and controlled and gradually compromising with and giving way to working rights. Regarding the relationship between the working rights and the private rights, except very specific situations, the position of working rights should be put in a higher position than common private rights such as real rights, creditor's rights and intellectual property rights, especially when contradictions exists between the working rights of a laborer and the management rights of an entity. There are many problems in this aspect in the present legislation in China and some suggestions concerning the improvement on them should be put forward.Regarding the relationship between the working rights and the other social rights such as social security rights, environment rights, and consumer's rights, because they are at the same level and in the same position with working rights, therefore, when they are conflicted, we can only decide which right should prevail by judging which social interests are bigger according to each individual case.