劳动法与小企业的优惠待遇
谢增毅劳动法与小企业的优惠待遇
Labor Law and Favorable Treatment to Small Enterprises
期刊名称：《法学研究》
期刊年份：
作者：谢增毅
单位：中国社会科学院法学研究所
中文关键词：劳动法;劳动合同法;小企业;优惠待遇
英文关键词：labor law;Labor Contract Law;small enterprise;favorable treatment
中文摘要：
目前我国劳动合同法和其他劳动立法统一适用于所有企业和个体工商户的做法值得商榷。应充分考虑小企业和个体工商户的自身特点、特殊要求以及劳动法的实施状况，对它们在劳动法上实行一定的优惠待遇。境外的一些国家和地区包括美国、德国、韩国、日本以及我国台湾的劳动法都对小企业实行一定的豁免或差别待遇。借鉴境外的经验，根据我国的具体情况，可以对个体工商户、独资企业、合伙企业以及股份合作企业在劳动合同解除、劳动规章制定、社会保险方面实行一定的优惠待遇，以减少小企业的负担，扶持小企业的发展，并促进劳动法的真正实施。
英文摘要：
Chinese Labor Contract Law and other labor-related laws are applied to all employers including all enterprises as well as individual industrial and commercial households despite of their sizes and differences. Such regime needs further consideration.Small and medium-sized enterprises including individual industrial and commercial households are playing a more and more important role in economical development, state revenue and employment, etc. Furthermore, compared with large ones, small enterprises are disadvantaged in their size, capital, management, human resources, and so on, and have special needs in employment policy, especially need more employment flexibility. Moreover, some provisions of Chinese employment laws are very difficult to be observed by small enterprises and in theory, favorable treatments to small enterprises would not necessarily undermine the interests of their employees. Accordingly, to ease the burden on small enterprises, support their growth and promote the enforcement of employment laws, favorable treatments should be offered to small enterprises in employment laws.It is common in many jurisdictions to provide favorable treatments to small enterprises in employment laws. Considering their features, many employment laws in the US give immunity to small enterprises. For example, most antidiscrimination laws governing workplace in the US don’t apply to small employers with certain number of employees or less. Also, in Germany, where labor protection is well-known, there is strict termination law to protect the employees from unfair dismissals, however, such law also gives immunity to small enterprises. More similar provisions could be found in countries or regions such as Japan, Korea and Chinese Taiwan.In light of the foreign experiences and Chinese situations, some favorable treatments should be given to small enterprises including individual industrial and commercial households, sole proprietorship enterprises, partnership enterprises and share-holding cooperative enterprises which share similar features and have few employees on average. These enterprises could be exempted from the provisions concerning to dismissal, working rules, social insurance, etc.
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