平等就业权和用工自主权的合理边界研究外文文献翻译

1、外文文献 原文+译文原文The study on reasonable boundary of equal employment rights and autonomy of employmentMartin GAbstractUnit of choose and employ persons labor autonomy is the objective requirement of the market rule, but in the context of labor supply exceeds demand and capital strength, on the one hand,

2、 unit of choose and employ persons is an infinite labor autonomy, in the practice of laborer equal employment rights violated the phenomenon is very common. Due to equal employment, on the other hand, the lack of culture and the rule of law, a lot of worker of unit of choose and employ persons labor

3、 abuse of autonomy behavior is taken for granted, even though I have objections, but often because of right remedy the gate was blocked, these voices will eventually die out gradually forgotten by people. Under the rule of law concept of social standard, both when unit of choose and employ persons i

4、n the equal employment rights of laborer and conflict, equal employment right is better than that of unit of choose and employ persons with right attribute management authority should belong to. But under this concept, the boundaries between equal employment rights and autonomy of employment when ho

5、w to grasp, it is a need to further discuss specific in theory and in practice is of great significanceKey words: Equal employment rights; Recruitment autonomy; Reasonable boundary1 IntroductionEqual employment rights protection idea comes from the idea of human rights and equality, the practice of

6、the path is mostly prohibit employment discrimination and promote equal employment policies. In mature rights under the background of the rule of law, equal employment rights as a kind of deep and basic human rights for granted, its positive declared and research seems to be superfluous, and damage

7、the rights of employment discrimination has received increasingly more attention and become the focus of theoretical research and system construction.The emergence of employment is not associated with right at the beginning, but merely a state of facts. But the rise in employment is a kind of right

8、is the development of human society is facing a new reality and has to make a kind of inevitable choice. From the 18th century British industrial revolution make social productivity gets unprecedented development, the capitalist system was established, the human into industrial society. With the dev

9、elopment of the industrial revolution and mass production, a large number of landless farmers into the city, can only rely on selling their labor to survive. The first time in human society of integrity the labor force and the complete separation of production data. Industrialization, urbanization w

10、hile promote the great development of the capitalist economy, but for loss of production workers, to some extent, it is a nightmare. Machine turns mass production once again let them separated from production, unemployment that they lost the only make a living. For most people, the social security s

11、ystem has not been before they establish and improve the employment has become almost the only survival guarantee. In front of such a cruel social reality, it is evolved into a kind of employment relationship survival major interests.Employment rights clear concept, the concept of the equal employme

12、nt rights to follow it. It seems to be the equal employment rights in the field of natural deduction. Equal employment rights are the value concept of equality in employment in the field of concrete application when there is no doubt. But this simple clear logical deduction can reduce to the difficu

13、lty of defining the right to equal employment, because equality itself is an extremely complex, the broad question. Equality begins with the study of Plato and Aristotle, they first pointed out that people should get similar treatment of similarity, and given equal status with law and moral. Equalit

14、y history proves that equality is a concept of multiple lines, rich connotations and the value of equality is to artwork and shown, accepted by all sorts of different civilizations, the essence of which is benefited from the connotation of it as a concept of ambiguous and vague. Not only that, some

15、scholars argue that even the equality is enduring, hollow stems from its contents. The principle of equality to meaning, some external value must be inclusive; to decide what and what treatment is similar, but once the external value get advice, the principle of equality itself will become redundant

16、. Despite the various disciplines to equal the value concept of scholars have their different perspective and dimension of interpretation, but it is the value of a thorough popular feeling.2 Principles of the limits of right to equal employmentAny right to have their own borders, it is of equal empl

17、oyment rights. Despite employment equality has become an international consensus, everybody understanding of equality is not yet deeply in our country, research on the front of the equal employment rights declared and cannot contain the case, we should also be soberly aware it should be limited, and

18、 its development without boundary can not be tolerated. But at the same time considering the survival guarantee equal employment rights conveys the basic functions, and so on the right to limit when we should be prudent and insist on some basic principles to ensure that the limitation on the rights

19、given by the beginning of design will not damage the rights to achieve the goals of the value of it.2.1 The principle of interests balanceCountries use public power to intervene to equal employment problem, due to the realization of the right to employment relationship to guarantee citizens right to

20、 life and protect the weak, reflect the lofty goal of real equality, involving social welfare and social stability. But the country on a certain rights is throughout society as a whole, even when the design of overall consideration. Is often a conflict between rights and rights, and the use of publi

21、c power is to coordinate the conflict between the right. When the other social and public interests needs (such as the reproduction of the population), national security needs, special groups, the need of employment protection and unit of choose and employ persons labor independent need when conflic

22、t with equal employment rights, the state should take public managers to the identity of the laborer equal employment rights to the entire society and other various interests analysis, comparison, coordination and balance, to seek the interests of the laborer equal employment and other social benefi

23、t maximization as the goal. In addition, in the process of balancing of interests to deal with the relationship is between fairness and efficiency. Efficiency on behalf of the factors of social development, the fair is the social stability.2.2 Principle of relevanceRelevance principle was applied in

24、 many other areas, but in a reasonable limit for equal employment rights, refers to the laborers to limit must be completely because of the needs of the work itself. The international labor organization, the discrimination (employment and occupation) convention has made that clear. Relevance is labo

25、r law areas commonly referred to as real professional qualification (a genuine occupational qualification, GOQ).Real professional qualification refers to the employers requirements (such as an employer to applicant or servant of religion, gender, or national origin, etc. As a condition of employment

26、) to the institutions normal operation (normal operation) is reasonable and necessary (German Russian co-operation necessary).Need a female model, for example, unit of choose and employ persons, the limitation on the male at this time is the need of the principle of relevance, because the profession

27、 requires some physiological characteristics of women. Unit of choose and employ persons shall not arbitrarily to real professional qualifications meet the conditions as an excuse to not admit originally hired laborers or dismiss workers have accepted and to be able to do work. Relevance principle i

28、s not absolute, of course, when it and social and public interests conflict, should give priority to meet the needs of social and public interests. For example, Chinas laws and regulations on ethnic minority people, for the disabled veterans of the employment of special rules, is the principle of re

29、levance principle of balancing of interests to make a concession and compromise. In addition, when is unit of choose and employ persons to make a career limiting the question of whether or not to conform to the principle of relevance, divergent shall, according to labor law exercised standard though

30、t, make a better explanation for workers party.2.3 ProportionalityAlso known as suitability or balance principle, proportion principle is an important principle of public law, mainly considering the balance between means and purpose, to prevent excessive to achieve a certain purpose and damage the i

31、nterests of a. Specifically, the proportion principle is refers to the administrative organs to implement administrative behavior should be to achieve the goal of the administrative implementation and protection of the rights and interests of the other party, if in order to is to realize the adminis

32、trative goals may be some adverse effects on the relative person rights and interests, spoke and limit the adverse impact is as small as possible and limit, make the modest proportions. To restrict follow the purpose is to have the right to equal employment, limit the effects achieved by adopting th

33、e means and must have a reasonable, any excessive and inappropriate will make this limitation lose its rationality basis, resulting in the illegal infringement of right to equal employment.3 Autonomous right of labor useLaborer equal employment rights infringement mainly from government and unit of

34、choose and employ persons. The government in violation of the equal employment rights mainly for discrimination legislation. Both are the important of enterprise autonomy, so the author attempts to base on the analysis of enterprise autonomy discusses recruitment autonomy. Enterprises as market econ

35、omy important participation main body, which is the essence of natural person based on the autonomy of production or service to meet social needs, the independent operation, independent accounting, a for-profit economic organization established in accordance with the law. As a kind of autonomy of pr

36、ivate law subject depended on the natural reason, according to the need of the society and their own interests maximization of a kind of self management. In this sense, autonomy is enterprises (including companies and the companies) as the main body of private law autonomy enjoyed by, according to l

37、aw and articles of association or agreement between investors, balance the investors the rights and interests of workers, managers and other stakeholders, and deal with related to its business activities of self management rights of corporate affairs, its essence is a kind of economic autonomy. Auto

38、nomy is a principal relationship with external other subject category, it is a self decision without being dominant status. Enterprise management is the enterprise assets of the enterprise in the process of business management, investment, and other matters enjoyed by control and management; it is t

39、he main content of the enterprise autonomy, and autonomy. The essential content of private law autonomy lies in the improper intervention of liberty is not affected by others, the body of the traditional private law autonomy is a person, and the principle of autonomy of private law is established on

40、 the basis of individualism and liberalism, but as the changes of the social economy life subject scope has changed, except in the single state of a natural person, natural person according to certain rules and group as the main body of private law autonomy. So we can not help but ask, and as a grou

41、p of companies is based on what reason has not affected by improper intervention of liberty? American economist Galbraith believed that property itself is the source of power, the authority of certain aspects of the property or wealth caused by certain purpose, and can also cause conditional propert

42、y subject. However, is very obvious that power and reward power. The combination of property, income, provides the necessary money to buy other peoples obedience. Russell believes that the power of the industrialists is based on the ownership of objects. Power base American scholars Dennis said, loo

43、k at a ruler, though does not focus on the cause of his exercise of power and motivation, and looked at him into power relations make him to exercise the power of all kinds of resources.文献出处：Martin G. The study on reasonable boundary of equal employment rights and autonomy of employment J. Internati

44、onal Journal of Service Industry Management, 2016, 4(3): 61-71.译文平等就业权和用工自主权的合理边界研究Martin G摘要用人单位用工自主是市场规律的客观要求，但在劳动力供过于求和资本强势的背景下，一方面，用人单位的用工自主权被无限放大，实践中劳动者平等就业权被侵犯的现象很常见。另一方面，由于平等就业文化和法制的缺失，许多劳动者对用人单位滥用用工自主权的行为甚至认为是理所当然的了，虽然偶有反对意见，但往往因为权利救济的大门被牢牢封锁，这些声音最终也消逝殆尽渐渐被人们遗忘了。在社会本位的法治理念下，当用人单位的用工自主权遭遇劳动者的

45、平等就业权并且发生冲突的时候，具有生存权属性的平等就业权优于用人单位的经营权当属无疑。但是在这种理念之下，平等就业权与用工自主权之间的界限当如何把握，这是一个在理论上需要进一步具体探讨而在实践中意义重大的问题。关键词：平等就业权；用工自主权；合理边界1 引言平等就业权保护的思想源于“人权”和“平等”的理念，其实践的路径也主要是禁止就业歧视和推行平等就业政策。在成熟的权利法治背景下，平等就业权作为一种根深蒂固和天经地义的基本人权，它的正面宣示和研究似乎是多余的，而损害权利本身的就业歧视则得到了日益渐多的关注，成为理论研究和制度构建的焦点。就业的出现一开始并不与权利关联，而仅仅是一种事实状态。但就

46、业上升为一种权利则是人类社会的发展面临新的现实而不得不作出的一种必然的抉择。 18 世纪源于英国的工业革命使社会生产力得到空前发展，资本主义制度得以确立，人类进入工业化社会。随着产业革命和社会化大生产的发展，大量失去土地的农民涌入城市，只能依靠出卖自己的劳动力维持生存。“人类社会第一次出现了整体性的劳动力与生产资料的彻底分离”。工业化、城市化虽然促进了资本主义经济的极大发展，但于失去生产资料的劳动者而言，在某种程度上这却是一场噩梦。机器化大生产再一次让他们与生产资料分离，失业让他们失去了唯一的谋生手段。对于多数人而言，社会保障制度尚未建立、健全之前就业几乎成了他们唯一的生存保障。在如此残酷的社

47、会现实面前，就业演化成了一种关系存亡的重大利益。就业权的概念清晰之后，平等就业权的概念便是水到渠成之事了。因为它似乎就是就业权在平等领域的自然推演而已，无需其他。平等就业权乃平等之价值理念在就业领域的具体运用当属无疑。但是这种逻辑推演的简单清晰丝毫无法降低对平等就业权进行界定的难度，因为平等本身就是一个极为复杂、宽泛的问题。平等之学始于柏拉图和亚里士多德，他们最先指出相似之人应获得相似对待，并赋予平等以法律和道德上的显著地位。“平等的历史证明了平等是一个内涵及其丰富的多行概念，平等的价值之所以得以传之久远并播及四海，为各种不同的文明所接纳，其实质是得益于它作为一种理念的内涵的含糊和空泛”。不仅

48、如此，有学者甚至主张，平等之所以经久不衰，是源于其内容的空洞。平等原则要获得意义，必须包容某些外部价值，以决定哪些人和哪些对待是相似的，然而一旦这些外部价值得到开示，平等原则本身也就成为多余。尽管对平等这一价值理念各个不同学科领域的学者有着自己不同视角和维度的解读，但它已然是一种深入人心的价值。2平等就业权的限制原则任何权利都有自身的边界，平等就业权亦是如此。尽管就业平等已经形成一种国际共识，在大家对平等权的认识尚未深入，对平等就业权的正面宣示和研究尚且不足的情况下，我们也要清醒地意识到它应当受到限制，而不能纵容其毫无边界地发展下去。但同时考虑到平等就业权所承载的生存保障的基本功能，所以在对这

49、种权利进行限制的时候我们要格外审慎并且坚持一些基本的原则从而确保对权利的限制不会损害权利设计之初所赋予它的价值目标的实现。2.1利益平衡原则国家采用公权力对平等就业问题加以干预，缘于就业权的实现关系到保障公民生存权及保护弱者、体现实质平等的崇高目标，牵涉社会福祉和社会安定。但是，国家在对某个权利进行设计时还要综观社会整体，进行全盘考虑。权利和权利之间往往是冲突的，而公权力的运用则在于协调权利之间的冲突。当其他的社会公共利益需要（如人口的再生产）、国家安全的需要、特殊群体就业保护的需要和用人单位用工自主的需要等与平等就业权产生冲突时，国家应当以社会公共管理者的身份对全社会劳动者的平等就业权与其他各种利益进行分析、比较、协调和平衡，以谋求劳动者平等就业利益和其他社会利益的最大化实现为目标。此外，在进行利益平衡的过程中还要处理好公平和效率的关系。效率代表社会发展的因