民法典制定中民事雇傭合同與勞動合同之功能與定位

The Function and Orientation of Civil Employment Contract and abor Contract in Chinese Civil Code

大陸法系國家或地區之民法典中大多有“雇傭合同”的規定，但我國《合同法》有名合同中無“雇傭合同”的規定。我國自社會主義改造完成後至上世紀80年代，“雇傭”消失於社會生活，“雇傭”亦未成為官方中性用語。正視“雇傭”，並在民法典中重置雇傭制度，實有必要。雇傭合同與勞動合同之關係直接反映為民法與勞動法調整雇傭關係的定位與理念，亦反映了兩者的關聯與區別。雇傭合同制度與理論的提升，對於勞動合同制度與理論，對於其他勞務類合同，如承攬合同、委任合同，皆有促進作用。

The Civil Code in drafting is the fundamental code of China's laws. As an integral part of the Civil Code, the Obligation Chapter has already been laid fine foundation by the Contract Law of 1999. The pity is no employment contract specified in Contract Law. However, the employment contract has never lost its status in civil codes of civil law countries. Employment practice was abolished in social activities in China from the success of socialist transformation to 1980s. In reality, the employment is still not classified as a neutral official word. The substantial industrial employment- labor contract institution was rebuilt in the last century. It is necessary to set employment institution in Civil Code as it is a must of social life. The relation between civil employment contract and labor contract reflects the function and concept of civil law and employment law in regulating employment relations. The improvement of the institution and theory of employment contract has positive effects on labor contract and other labor related contracts as contract of hired work and agency appointment contract.