Dilemma and Solution for Relief in the Right to Equal Employment-From the Perspective of Rectifying Private Law with Social Law  

作　　者：周圆 CHEN Feng ZHOU Yuan

机构地区：[1]the School of Law,Renmin University of China [2]不详

出　　处：《The Journal of Human Rights》2023年第2期395-421,共27页人权（英文版）

基　　金：the research result of the Scientific Research Fund Project(supported by the Special Funds for Basic Scientific Research for Central Universities)of Renmin University of China,“Research on Solving the Dilemma of Private Law Relief for the Right to Equal Employment in Social Law”(Project Approval No.21XNH019)。

摘　　要：At present,the legal remedies in terms of the right to equal employment in China are mainly related to private law,that is,laborers seek direct legal remedies for personality rights liability and infringement liability according to typical private law,supplemented by indirect remedies for labor contract liability under special private law.However,there are many challenges in private law remedies for the right to equal employment,which are manifested in the misunderstanding of the general tort identification of employment discrimination,the loopholes in the regulations on discriminatory employment,the imbalance in the burden of proof,and the limitation and alienation of the functions of civil liability and private law autonomy.The root of those problems lies in the fact that the nature of anti-employment discrimination law is not private law but social law.Equal employment involves both public and private interests,and it should be based on the public interest of society and adhere to the value orientation of prioritizing fairness while taking into account efficiency.Improving the legal relief mechanism for protecting the right to equal employment,with a focus on correcting private law with social law,is the solution to the dilemma.Specific measures include establishing the special tort liability system for equal employment,the legal mechanism against discriminatory labor contracts,the public-private integrated legal responsibility system,and an essentially fair system for the responsibility of adducing evidence.

关 键 词：right to equal employment private law social law right infringement of discrimination in employment discriminatory employment behaviors 

分 类 号：D922.5[政治法律—民商法学]