分類與分層：公司高管法律身份的體系性定位

Classification and Stratification: Systematic Definition of the Legal Identity of Company Executives

公司高管人員的法律身份界定較為複雜，學理上欠缺體系性探討，由此導致勞動法與公司法外部體系的衝突以及勞動法內部體系的衝突。在理論上，委託與勞動都屬於勞動給付法律關係，雖都有從屬性，但程度強弱有別，前者為自主勞動，後者為從屬勞動，且二者存在一般和特殊的體系關係。根據從屬性標準定性分類，高管之經理代表公司利益、享有更高的自主性，屬於受託人；經理之外的其他高管人員的職權受限、從屬性程度更高，屬於勞動者。根據收入標準定量分層，收入超過職工平均工資一定倍數的高管屬於強勢勞動者，應豁免勞動法的適用。在法律適用中，應根據高管的不同身份、不同來源、不同情形區別適用。在立法上，勞動法應根據崗位職責、崗位名稱、收入水平相結合的標準，明確最長工時、加班工資、最低工資、勞動合同變更和解雇保護以及集體合同制度的豁免；公司法應該完善高管辭職和解聘、離職補償以及職務行為的損害賠償規則。

There are differences opinions of the legal identity definition of company executives, and there is a lack of systematic exploration in theory. The legislation and judiciary are not clear, and there is controversy in academia. Corporate law scholars believe that they are the trustees of the entrusted relationship, while labor law scholars have three different views employer theory, employee theory, and dual identity theory of employer and employee. Among them, the dual identity theory of employer and employee is the general theory, which has a deep historical foundation in China. However, the dual identity theory confuses workers as macro class identities with workers in micro specific labor relations, resulting in conflicts between the external and internal systems of labor law and company law. For external conflicts between labor law and company law, there is confusion between autonomous labor and subordinate labor, and there is a difference between legalism and liberalism in contract formation, modification, and termination. For internal conflicts within labor law, including strong workers, it may lead to institutional arbitrage, thereby causing differences in judicial rulings. In theory, both entrustment and employment belong to the legal relationship of labor payment, but their payment contents are different. Entrustment is based on work as a means, while labor is based on the purpose of work itself. There is a difference in the strength of their personal attributes, with the entrusted one having a weaker subordinate attribute and engaging in autonomous labor. The subordinate attribute of employment is stronger, it is subordinate labor, and there is a general and special system relationship between them. According to the qualitative classification based on subordination criteria, managers represent the interests of the company, have planning and decision-making power, organizational command power, and agency power, and belong to trustees. Other senior executives outside of the manager have limited authority and a higher degree of subordination, and belong to the category of employees. According to the quantitative stratification based on income standards, executives whose income exceeds a certain multiple of the average employee salary can be classified as stronger workers and should be exempt from the application of some parts of labor laws. In the application of the law, it should be applied differently based on the different identities, and circumstances of the executives. For example, as the principal, managers are allowed to sign labor contracts and agree to apply labor laws. For other executives, they are employees and must apply labor laws. The external professional manager has to leave the company after dismissal by the board of directors, but as for the manager who was promoted from the employee of the company, his original labor contract should be restored after dismissal by the board of directors, unless their illegal behavior during their tenure as manager affects the performance of the labor contract. In terms of legislation, the labor law should clearly exempt other executives as strong employees from the maximum working hours, overtime pay, minimum wage, labor contract changes and termination protection, and the application of collective contract system based on the standards of job responsibilities, job titles, and income levels; The company law should improve the rules for executive resignation and dismissal, severance compensation, and compensation for damages caused by job behavior. The manager may resign at any time, and the board of directors may dismiss the manager at any time, except as otherwise provided in the articles of association. Executives can agree on termination compensation with the company, Senior executives should review and determine their subjective status based on their position, division of labor, salary, and other factors, and determine the degree of responsibility. They should also establish deductibles and limit the percentage of salary deductions.