农民工法律地位的界定及考察路径——一条从抽象到具体的研究思路

农民工法律地位,是农民工在各种法律关系中所处的位置及其享有权利和承担义务的综合体现,它具有法定性、独立性、合法性等特点.考察农民工的法律地位,可以从法律关系切入:一方面,在抽象法律关系中,集中从宪法视角研究农民工在宪法关系中的根本法律地位;另一方面,在具体法律关系中,从多元视角观察农民工在不同法律关系中的相对法律地位.

An Approach to the Definition of Farmer Laborers'''' Legal Status——A Change from Abstract to Specific

The legal status of farmer laborers refers to that of farmer laborers and their relevant rights and duties stipulated by law,which features the following three respects: (1) it is statutory; (2) it is legitimate; and (3) it is independent. In the Jurisprudence,according to the extent of the specification of the subjects in legal relation,we can divide the legal relations into abstract ones and concrete ones. In this context,we have two alternatives in exploring the legal status of farmer laborers,focusing either on the abstract legal relations or on the specific ones. The first approach discusses the farmer laborers' legal status from the perspective of the Constitution law,treating them as equals to all other Chinese citizens in terms of fundamental rights and duties. The second approach adopts a multi-dimensional analysis to explore the comparative legal status of farmer laborers in different legal relations,for example,examining the relationships between farmer laborers and local governments,farmer laborers and employers,and between farmer laborers and city dwellers to analyze their status,rights and duties in administrative law,economic law,and civil law. According to the Constitution,as citizens,farmer laborers should enjoy equally the fundamental rights formulated by the Constitution,including equal civil rights,equal political rights,equal economic rights,equal social rights,and equal educational rights and so on. They have the same political,economic and social rights in all fields as all other citizens,and should not be treated unequally due to external differences. Meanwhile,they should also fulfill their obligations. In line with the administrative law,the administrative organization has dominant and ruling status,while they are subject to administration,farmer laborers must be obedient to the management and conduction of administrative organizations. However,considering the management and service to farmer laborers,the governments at all levels and departments concerned need tighten macro-control,lay down the rules or regulations of labor market,establish a system of labor supervision and inspection,monitor the operation of the labor market,set the lawful duties for the management and service oriented for farmer laborers. In the economic legal relations,it is true that there is relationship of subordination,including organic one and volitional one,between the subjects of economic law. But,this is on the premise that both parties act by law. Take the case of legal relationship of labor for example. On the one hand,the employer can fix the rights and duties for farmer laborers by signing a labor contract,and require them to observe the in-house management rules. On the other hand,the contract must be reached on the basis of equality and free volition. Besides,the management rules cannot contradict to rules concerning labor rights of law,such as working time,holiday and minimum wage. According to the civil law,the two parties of civil law relations have equal status,rights and duties. As usual,bearing duties is the precondition of obtaining rights. No rights can be obtained in the absence of duty or no duties in the absence of right. Take farmer laborers once again. When they enter into the same kind of civil law relations with city dwellers,the core of the matter is that farmer laborers should enjoy the same and equal civil treatment. This is the crucial precondition for actualizing the equality in the legal status of both farmer laborers and city dwellers.