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书面形式,一直是我国法律对劳动合同形式提出的基本要求,2007年通过的《劳动合同法》及其《实施条例》从实体法角度强化了劳动合同书面形式的法律规制。理论与实务界对二倍工资差额仲裁时效起算点的突破性解释,从程序法角度迎合了实体法中书面形式的强制性要求。但是上述实体法的规则设计欠缺妥当性,程序法的法律解释不具有合法性。我国法律对于劳动合同书面形式的强制性要求已经将保护劳动者的手段上升至立法目的层面,手段与目的的倒置在一定程度上反映出我国劳动关系法律调整中国家干预的越位。具有浓厚的国家强制色彩的劳动关系法律调整机制,在劳动合同制度起步阶段的确发挥了重要作用,但是,随着社会主义市场经济体制的发展完善,我国当前的劳动关系法律调整机制亟待做出相应调整。国家干预只有建立在充分尊重并保障劳动关系双方当事人意思自治的基础之上,才能实现劳动法律制度的立法目的。
Written form has always been the basic requirement put forward by our country in the form of labor contract. The Labor Contract Law passed in 2007 and its Implementing Regulations have strengthened the written regulation of labor contract from the perspective of substantive law. From the perspective of procedural law, the theoretical and practical interpretations of the ground-breaking interpretation of the double arbitration between arbitrations for the time difference of wages have met the compulsory requirements of written form in substantive law. However, the rules of the substantive law are not properly designed, and the legal interpretation of the procedural law is not valid. The mandatory requirements of the law of our country for the written form of labor contract have raised the means of protecting workers to the legislative purpose. The inversion of means and purpose reflects to some extent the offside of China’s intervention in the legal adjustment of labor relations in our country. However, as the development of the socialist market economic system has perfected, the current legal system for the adjustment of labor relations needs to be made correspondingly Adjustment. State intervention can only achieve the legislative purpose of the labor legal system only if it is based on full respect and guarantee of the party autonomy of the labor relations.