摘要
离线权是数字时代中因数字技术在工作领域的广泛运用而在比较法上发展出来的一项新型数字权利,具有人权、人格权的属性。在我国现行法上并未承认离线权的背景下,可以因离线权的性质及所欲实现之目的,通过生活安宁权保护和个人信息保护涵摄离线权所要解决的问题。在侵权责任认定上,考虑到劳动者和用人单位之间的特殊法律关系,因此既要处理劳动者同意对用人单位相应行为之侵权责任认定的影响,也要在构成要件论不能发挥作用的领域通过引入利益衡量方法来解决用人单位侵害行为的法律效果评价问题,同时还要通过过错证明责任的适当分配协调劳动者和用人单位之间事实上的力量不对等问题,以此在数字时代为劳动者合法权益的充分保护提供规范支持。
In the digital age,the widespread use of digital technology has broken the once relatively clear boundary between workers’work and life.Employers can contact workers anytime and anywhere through digital technology,affecting workers'living arrangements and rest outside working hours.The damage this causes to workers’physical health,family life and freedom to make their own living arrangements may be incalculable.To deal with this problem,some countries have passed legislation to clearly establish the right to disconnect,giving workers the right to disengage from work and not to participate in work-related electronic communication during non-working hours.In contrast,China has not yet recognized the right to disconnect in legislation,and the existing right to rest in the labor law cannot fully address the problems addressed by the right to disconnect.We can provide normative support for the solution of these problems based on the general legal attributes of civil law and the attributes of the right to disconnect as a human right,a personality right,and a digital right.This is because there is a special law and general law relationship between labor law and civil law,and the right to disconnect itself has the attributes of human rights,personality rights,digital rights,etc.Specifically,Article 1032 of the Civil Code and Article 13 Paragraph 1 Subparagraph 2 of the Personal Information Protection Law,which provide for the right to peaceful private life and rules on the handling of workers’personal information by the employer,can provide a normative basis for the solution of the problems to be solved by the right to disconnect from the perspectives of right protection and behavior regulation,respectively.In terms of the determination of specific tort liability,it is necessary not only to take workers’consent into consideration but also to introduce the method of interest balancing when the constitutive elements theory does not work.Meanwhile,it is important to appropriately allocate the burden of proof to protect the legal rights and interests of workers.With regard to the protection of workers,it is also important to address the de facto power imbalance between employees and employers through the appropriate allocation of fault-proofing responsibility and urge employers to protect employees during non-working hours through fair,lawful and transparent measures.Due to the special legal relationship between employers and employees,employees are generally reluctant to claim remedies through the protection rules of civil law when their legitimate rights and interests are infringed on in practice.In this sense,the existing civil law rules in China may provide a last resort solution to the problems in the protection of workers that are the concern of the right to disconnect in comparative law.This also means that there is still a need to establish the right to disconnect in labor law,so as to protect the interests of both employers and workers in a balanced way.
出处
《环球法律评论》
CSSCI
北大核心
2023年第3期24-42,共19页
Global Law Review
作者简介
朱晓峰,中央财经大学法学院教授。
