论超龄劳动者“不完全劳动关系”的界定与保障

On the Definition and Protection of “Incomplete Labor Relations” for Older Workers

摘要: 面对人口老龄化背景下超龄劳动者就业常态化与权益保障滞后的矛盾，传统“劳动关系”与“劳务关系”的二元划分已难以适应现实需求。2025年《超龄劳动者基本权益保障暂行规定》的出台及司法解释的修订，为制度重构提供了契机。基于从属性理论分析，超龄用工在人格、经济及组织维度均具备劳动关系的本质特征，但因主体资格特殊性，宜界定为“不完全劳动关系”。该形态的确立打破了“全有或全无”的保护逻辑，转向“分层分类”的保障模式：在强制落实劳动报酬、工时休假、安全卫生及工伤保险等核心基准的同时，豁免经济补偿金等非核心义务，以平衡权益保护与企业负担。通过完善立法供给、统一司法裁判、强化行政监管及构建社会协同机制，可逐步建立起适应新型用工形态的劳动保障体系，实现超龄劳动者“老有所为”与“劳有所保”的有机统一。

Abstract: Amid the contradiction between the normalization of employment among older workers and the lagging protection of their rights and interests in the context of population aging, the traditional dichotomy between “labor relations” and “civil law relations” can no longer meet practical needs. The promulgation of the “Interim Provisions on the Protection of Basic Rights and Interests of Older Workers” in 2025, along with the revision of judicial interpretations, provides an opportunity for institutional reconstruction. Based on the theory of subordination, the employment of older workers exhibits the essential characteristics of labor relations in the personal, economic, and organizational dimensions. However, due to the specificity of their subject status, it is appropriate to define such employment as “incomplete labor relations”. The establishment of this form breaks the “all-or-nothing” logic of protection and shifts toward a “layered and categorized” protection model: while mandating the implementation of core standards such as labor remuneration, working hours and rest, safety and health, and work-related injury insurance, it exempts non-core obligations such as economic compensation, thereby balancing rights protection with the burden on employers. Through improving legislative supply, unifying judicial adjudication, strengthening administrative supervision, and building social coordination mechanisms, a labor protection system adapted to new forms of employment can be gradually established, achieving the organic unity of “productive aging” and “protected employment” for older workers.