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我国《劳动法》的调整对象是劳动关系,雇佣关系在我国现行法律中还没有明确的规定。但实践中雇佣关系在劳动争议却经常出现。目前,在我国理论上雇佣关系有民法调整模式,劳动法调整模式,民法与劳动法共同调整模式三种学说。而实践中我国《劳动法》调整范围以外的雇佣关系并不是完全意义上的民事关系,其在本质上应属于劳动关系范畴,雇佣关系可视为劳动关系的特殊存在状态。故对雇佣关系的法律调整不宜采用现阶段与劳动关系“分而治之”由民法加以调整的模式。现阶段司法实践用民法调整雇佣关系,仅可视为雇佣关系目前尚未由专项法律予以明确规范情况下的暂时性应急措施,但从长远来看,它应统一纳入作为独立法律部门的劳动法调整的对象体系,由劳动法予以全面规制。
The adjustment target of Labor Law in our country is the labor relation, and the employment relationship has not been stipulated clearly in our current law. In practice, however, the employment relationship often appears in labor disputes. At present, there are three theories of employment in China: civil law adjustment mode, labor law adjustment mode and civil law and labor law joint adjustment mode. In practice, the employment relationship outside the scope of the “Labor Law” adjustment in China is not a civil relationship in the complete sense. It should belong to the category of labor relations in essence, and the employment relationship can be regarded as the special existence state of labor relations. So the legal relationship of employment should not be adjusted by the current stage of labor relations “divide and rule ” by the civil law to adjust the model. Judicial practice at this stage to adjust the employment relationship with civil law can only be regarded as a temporary emergency measures under the current situation in which the employment relationship has not been clearly regulated by the special law, but in the long run, it should be uniformly incorporated into the labor law adjustment as an independent legal department The object system is fully regulated by the Labor Law.