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2008年以来中国经济增长方式的转变以及劳动力供给结构的变化催生了一个新的群体,即非正规经济部门家庭工人,其劳动安全卫生条件以及劳动基准皆未进入法律规制的视野。给予家庭工人什么样的法律保护,取决于其在现行法律体系中的主体定位。劳动关系是劳动法适用的基点,但现行通用的“从属性”路径无法启动对家庭工人的劳动法保护。从各国拓展劳动法适用范围的趋势来看,我们应当反思劳动法的立法理念,将家庭工人纳入劳动法保护范畴,但并非完全适用劳动法保护,而是进行特别立法予以保护。
Since 2008, the transformation of China's economic growth mode and changes in the labor supply structure have given birth to a new group of domestic workers in the informal economy whose labor and safety conditions as well as their labor standards have not yet entered the field of legal regulation. What kind of legal protection is given to domestic workers depends on their subjective position in the current legal system. Labor relations are the starting point for the application of labor law, but the existing common “dependency” path can not start labor law protection for domestic workers. Judging from the tendency of countries to broaden the scope of labor law, we should reflect on the legislative concept of labor law and include domestic workers in the scope of labor law protection. However, we do not fully apply the protection of labor law but instead make special legislation to protect it.