Reflection And Reconstruction Of Wage Concept In Labor Law

The first provision of convention ninety-fifth stipulates that "wages" refer to the remuneration or income paid by an employer to an employee for the work they have completed and completed, or the services that have been provided or will be provided by the employer, which can be settled in the currency and is determined by a common agreement or national law or article by a written or oral employment contract.

(2) from the point of view, we find that the Convention considers that wages are the remuneration and income of laborers due to paid labor, that is, the consideration of labor, in order to incorporate complicated wage phenomena into the regulation system of contract law through the external system construction of abstract concepts.

The construction of external system of abstract concept is an important way to realize the ideal of systematization of law.

It separates some elements from the constitutive facts by abstracting them into category concepts, and then forms a conceptual system with different levels of abstraction and distinct levels through the increase or decrease of the elements.

It aims to induce a large number of legal materials into a few "supreme concepts" through logical reflection, so that all legal problems can be solved by logical deduction, so as to ensure the academic and legal stability of the system.

(3) the concept of wage constructed by this method is presented in this way:

1. the category of wages.

In the employment labor relations, labor payment is the contractual obligation of laborers. Wages are the subject matter of laborers' claims to their employers. They are the means to fulfill their needs independent of the main body of labor relations and fulfill their obligations. They are the reference and coordinate systems that highlight the dominant position of laborers. Their external characteristics are consistent with those in civil law and can be classified into the category of rights objects.

4. Since wages belong to the category of property, the property right and its relief system in civil law are directly related to the regulation of wage law. It is not difficult for them to regulate the norms of pplant civil law or to interpret wage laws in civil law theory.

Therefore, scholars in Taiwan area pay attention to the concept of wage: the essence of wages is the consideration of labor payment, and its regulation is based on contracts and other civil rules.

5.

2. the conceptual elements of wages.

Salary is not a purely legal concept. It comes from rich life practice and is an important concept related to law.

Convention ninety-fifth defines the general characteristics of wages based on the abstract factor of "labor consideration", so as to put the wage system of laborers into the wage system.

On the contrary, the income earned by laborers who are not paid for labor can not be regarded as wages but is abandoned outside the regulation of labor law.

The wage concept based on this seems to be an international common rule of wage legislation.

However, the wage ranges they have identified vary widely: the second labor and the third provisions of the Taiwan Labor Standards Act (promulgated in June 12, 2002) stipulate: "wages are remuneration paid to workers for work: wages, salaries and bonuses, allowances, and any other name given to them on time, days, months, pieces of cash or in kind."

The employer's command of labor during the period of labor relations, that is, the relationship between wages and labor, and emphasizes the relationship between wages and labor should be equivalent to the consideration, should be excluded from wages, including: dividends, incentive bonuses (such as long term awards, competition awards, etc.), bounty benefits (such as the Spring Festival, Mid Autumn Festival and other annual payments, wedding and funeral gifts from the employer, condolence or gold, etc.), the termination of labor relations as a condition of payment (such as pensions, severance payments, etc.), the cost of compensatory payment (such as work clothes, homework supplies and their subprime, etc.), welfare benefits in kind. The scholars in Taiwan area explained the connotation of wages according to this article.

In contrast to the provisions of the Taiwan region, the Japanese Labor Standards Act (January 1, 2004) has included incentive bonuses, pensions and severance payments into the wage structure.

The provisions of the National Statistical Bureau of China on the composition of total wages (promulgated in January 1, 1990): the fourth provision: total wages consist of six parts, namely, time wages, piecework wages, bonuses, allowances and allowances, overtime wages and wages paid under special circumstances.

The interpretation of the specific provisions of the National Bureau of statistics on the provisions on the composition of wages (promulgated in January 1, 1990) stipulates that the following items are not included in the total amount of wages: 1., the cost of labor insurance and employee welfare.

They are: death and funeral expenses, pensions, medical and health expenses or public medical expenses, difficulties in living allowance for workers, subsidies for collective welfare services, trade union cultural and educational fees, collective welfare benefits, visiting relatives' travel expenses, winter heating subsidies, commuting and pportation subsidies and cleaning fees.

Two

All kinds of expenses.

There are: Labor clothes, gloves and other labor protection supplies, antidotes, cool drinks, and the labor protection expenses for the five categories of jobs that are exposed to toxic substances, silica dust operations, radiation operations, diving, caisson operations and high temperature operations according to the seven units stipulated by the Ministry of labour in July 19, 1963.

For such legislative discrepancy, there seems to be no explanation or no convincing explanation of the theory of valence.

3. the regulation and order characteristics of wage consideration theory.

The theory of valence emphasizes the equivalence between labor and wages, and inherits the basic concept of classical economics in Epistemology: labor has real price and nominal price.

The former is composed of the quantity of life necessaries and convenience goods obtained from labor, while the latter is the quantity constitution of money.

Although labor is the true yardstick of the exchange value of all commodities, the value of commodities is not generally measured by labor, because labor is difficult to measure.

In a word, the real price of labor is difficult to ascertain.

But as the nominal price of money, that is, the exchange price to buy a certain amount of labor, wages can be obtained through market pactions to meet the needs of life rather than precise equality.

According to the "deep insight" of "labor and currency valuation", the legal regulation of wage is based on the paradigm of contract theory. It always pays attention to wage freedom and labor competition.

What is pursued is a free order of labor relations.

Hayek advocated the free order and declared that economic freedom is an indispensable condition for all freedoms, and the free enterprise system is a necessary condition for individual freedom and the result of such freedom.

In the free society he advertised,

Equivalent to the services he provides, and is not bound by social morality.

(11) therefore, how the pricing labor should not be affected by the social contract other than the labour and capital individuals should be determined by the parties concerned through free consultation.

This concept of freedom constitutes the ideological cornerstone of contract law construction of wage law concept, making wages an object of individual and desirable labor and capital.

On the road to freedom and order, the theory of price in the individual contract category involves the complicated wage phenomenon under the category of rights object through the concept of "labor consideration", and expands the principle of individual autonomy of labor and capital into the principle of social choice, and forms the external legal system of "free wages", so as to realize its function of constructing the free order of labor relations.