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作为“有闲阶级”特权的“休假自由”经历了相当长的历史阶段才通过休假法律制度逐渐成为劳动者能够享受的平等权利。作为特殊休假,带薪年休假的规制需要在劳动者的休假自由与雇主的雇佣权力之间寻找平衡。目前,世界范围内年假法律规制以权利属性划分形成三种主要模式:日本的“自由年假”模式、欧陆国家的年假劳资集体共决模式以及我国港台地区年假债权保护模式。三种模式中劳动者的休假自由依次递减。然而我国却“独树一帜”地建立雇主决定休假模式,这是“休假难”的制度症结。化解年假困局须重构我国劳动者带薪年休假的权利基础,明确劳动者对年假的请求权并优化年假请求权的行使和救济制度。
The “freedom of vacation” as the privilege of “free-lanced ” has gone through quite a long historical period and gradually becomes the equal right enjoyed by laborers through the legal system of vacation. As a special leave, the regulation of paid annual leave needs to find a balance between the worker’s freedom to leave and the employer’s employment power. At present, the legal regulation of annual leave in the world is divided into three categories according to the classification of rights: Japan’s model of “free annual leave”, the collective collective model of annual leave and collective labor in European countries, and the protection model of annual leave in Hong Kong and Taiwan. The worker’s freedom of vacation in the three modes is decreasing in turn. However, our country has established the employer to decide the vacation mode, which is the crux of the system of “vacation difficult.” The solution to the holiday predicament needs to reconstruct the basis of the rights of workers in our country with paid annual leave, clarify the workers’ right to demand annual leave and optimize the exercise and relief system of annual leave claim.