摘要
对于经理与公司之间的合同关系是雇佣还是委任的问题,应当以从属性作为基本判断标准,依据人格从属和经济从属予以认定。总经理给付劳务由于不具有从属性,应当属于委任合同。对于除总经理外的高级经理和低级经理,应当依据从属性指标体系甄别从属性程度差异,给予差别化的劳动法保障。在员工升任总经理的情况下,原雇佣合同与新委任合同可以并存,双方有特别约定则从其约定,无特别约定则原雇佣合同中止,待委任合同终止后继续履行。
As to the issue that the contractual relationship between a manager and a company is an employment one or a mandate one, the subordination, both personality subordination and economic subordination included, shall be regarded as the basic criterion for judgment. Since there is no feature of subordination in the labor service given by the general manager, it should be seen as a contract of mandate. For senior managers （ excluding the general manager） and junior managers, we should examine and distinguish the difference in the degree of subordination by using an index system of subordination, and render differential protection under the Labour Law. In the case that an ordinary employee is promoted to the general manager, the original employment contract can coexist with the new contract of mandate. Special agreement will be conformed to if there is one on which both parties has agreed ; and if there is no special agreement, the original employment contract will fall into abeyance, however, it will come into effect againonce the contract of mandate expires.
出处
《中国法学》
CSSCI
北大核心
2016年第3期282-302,共21页
China Legal Science
基金
中国博士后科学基金第57批面上资助项目(项目批准号:2015M570067)的阶段性成果
