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工资集体协商中政府责任担当的合法性依据何在,具有怎样的法律属性和内容,边界在哪里,运作原则是什么,这一系列法理追问在当下国内学术研讨中尚未得到充分回应。从本体意义上讲,工资集体协商过程中私人利益与公共利益、个人利益与社会利益、社会利益与公共利益的二元分化、冲突与平衡,为政府责任担当提供了法理基础;从内在属性上看,通过工资集体协商表现出来的集体缔约权具有消极权利和积极权利的双重属性,与此相对应的政府责任便具有消极责任与积极责任的双重内容;从契约自由的历史演进来看,作为工资集体协商结果的集体合同可以被认为是对普通劳动合同完成否定之否定后的产物,政府的介入在二次否定中发挥了必要的创新功能,但必须严格限定在契约自由的法权要求范围内;从实现路径上看,政府在工资集体协商中的责任担当应当遵循比例原则,在有为与无为、目的与手段、成本与效益、刚性与弹性的二元架构中具体展开。
The legitimacy of the government responsibility in collective bargaining is based on what is the basis, what kind of legal attributes and contents are there, where are the boundaries and what is the operating principle? This series of legal questioning has not yet been fully answered in the current domestic academic research. In terms of ontology, the dual differentiation, conflict and balance between private interests and public interests, individual interests and social interests, social interests and public interests in wage collective bargaining have provided the legal basis for the government to assume responsibility; from the intrinsic attributes Judging from the historical evolution of contractual freedom, the collective contracting power manifested through wage collective bargaining has the dual attributes of negative rights and positive rights. The corresponding government responsibilities have the dual content of negative responsibility and positive responsibility. From the historical evolution of freedom of contract, The collective contract of wage collective negotiation can be regarded as the product after the negation of ordinary labor contract is completed. The intervention of the government has played the necessary innovation function in the secondary negation, but it must be strictly limited to the scope of legal right of freedom of contract From the point of view of implementation, the responsibility of the government in wage collective bargaining should follow the principle of proportionality, and should be specifically carried out in the dual structure of being and inaction, purpose and means, cost and benefit, rigidity and flexibility.