0? Recently, the National People's Congress Standing Committee (NPCSC) released the draft labor contract law for comments, which aroused great concern from all walks of life in the country and triggered a debate in the legal field. The news media even reported with eye-catching headlines such as "Labor Contract Law Attracts Laborers" and "Labor Contract Law: Highlighting Laborers' Standard", and some officials in the labor and social security departments also advocated this statement. Obviously, under the political slogan of "protecting the vulnerable groups", a law that has not yet been promulgated has been dominated by radical political orientation. Under the pressure of strong political inertia, some scholars must first declare that "I am not speaking for the employer" before expounding their views. The voices of the legal profession, enterprises and employers have become the real vulnerable groups in this legal and legislative process. The author believes that this kind of public opinion is harmful to the formulation of the labor contract law. To clarify the essence of labor contract law, we must first clarify what is a "contract". What is a contract? Article 85 of the General Principles of Civil Law promulgated by China 1986 explains: "A contract is an agreement between the parties to establish, change and terminate a civil relationship. "Article 2 of the Contract Law of People's Republic of China (PRC) promulgated by 1993 is interpreted as:" A contract referred to in this Law is an agreement between natural persons, legal persons and other organizations with equal subjects to establish, change and terminate civil rights and obligations. " Comparing the above two legal interpretations, the latter's interpretation of "contract" is more perfect and accurate. I think: "contract" should have two essential features: the first essential feature is that its participants should be equal parties. What we are talking about here is legal equality, not de facto equality. The so-called de facto equality refers to the equality of having social resources, and the so-called legal equality refers to the equality of social subject status recognized by national laws. The two are not the same thing. The amount of social resources owned by one party does not affect the establishment, change and termination of civil relations with other parties, because they are equal subjects in law. In real life, a prisoner who has been deprived of political rights or business access by law may still have a lot of social resources, but due to the unequal legal status with some government departments, enterprises and natural persons, he may not be able to conclude contracts with them. And a proletarian who has nothing but his own physical strength or wisdom can sign a contract with Bill Gates, the world's richest man, or Li Ka-shing, the richest man in Asia, without requiring him and the richest man to have equal social resources. Another basic feature of "contract" is the autonomy of the parties. That is, the parties voluntarily take responsibility for their own will. It should not be imposed by one party to the contract on the other, let alone by forces other than the parties to the contract. The essence of "contract" determines the essence of "Labor Contract Law". The second paragraph of Article 3 of the draft Labor Contract Law defines a labor contract as: "The labor contract mentioned in this Law refers to an agreement between a laborer and an employer to establish a labor relationship and clarify the rights and obligations of both parties. "The author believes that the draft is not comprehensive in the determination of labor contracts. Labor contracts should include not only the establishment of labor relations, but also the change and termination of labor relations. Therefore, I believe that the labor contract law should be the norm for workers and employers to conclude, change and terminate labor relations agreements on an equal basis; Belongs to the civil law system but not to the administrative law system; It belongs to private law rather than public law. I even think that the labor contract law should be an important sub-rule of contract law in legislative logic, and should not be legislated separately. Judging from the provisions of the draft labor contract law promulgated by the National People's Congress, it is more like public law (administrative law) than private law (civil and commercial law); What it embodies is not the autonomy of the will of equal subjects when establishing labor relations, but more the mandatory norms of state administration. Is there a real "labor contract" under the compulsory intervention of the state administration? Second, the Labor Contract Law should not become the Labor Protection Law. As mentioned above, the Labor Contract Law is the norm for workers and employers to establish, change and terminate labor relations agreements on the basis of equality. It should embody the basic principles of equality of both parties to a labor contract and autonomy of will, and should not force one party to a labor contract (such as forcing the employer to set preconditions before concluding a labor contract). Similarly, the labor contract law should not have mandatory provisions aimed at protecting one party to the contract. If preconditions are set for employers and protection clauses are set for workers in the labor contract law, the labor contract law will become a law to protect workers, not a labor contract law. I understand that the original intention of the legislative drafters is that in real life, some employers take advantage of their monopoly on resources to force workers to sign unequal labor contracts with them, which infringes on the interests of workers. Therefore, it is necessary to set up labor protection clauses in the Labor Contract Law. I think this will lead to the confusion of legislative logic and eventually lead to the deviation of labor contract law from its essence. Eliminating unequal labor contracts and protecting workers' rights and interests belong to national administrative norms, not to civil and commercial norms. The former belongs to the will of the state, while the latter belongs to civil autonomy. Therefore, it is not necessary and should not be written into the labor contract law to protect the rights and interests of workers. Just as the clauses protecting consumers' rights and intellectual property rights cannot be written into the contract law, the protection of consumers' rights and intellectual property rights can only be regulated through the consumer rights protection law, patent law, trademark law and product quality law. Three, the "labor contract law" should not emphasize "workers-oriented" and "tilt to workers". In China's civil and commercial law system, General Principles of Civil Law and People's Republic of China (PRC) Contract Law belong to the superior law, while the Labor Contract Law being drafted belongs to the subordinate law. If we confirm the interpretation of Article 85 of the General Principles of Civil Law: "A contract is an agreement between the parties to establish, change and terminate a civil relationship." It also confirms the explanation in Article 2 of the Contract Law of People's Republic of China (PRC): "The contract referred to in this Law is an agreement between natural persons, legal persons and other organizations with equal subjects to establish, change and terminate the relationship of civil rights and obligations." In the legislative activities of labor contract law, we should not put forward "workers-oriented" and "leaning towards workers" Such a slogan is a violation of the labor contract law. Imagine, if the buyer is emphasized in the contract law in order to protect consumers' rights and interests, what will the commodity sales contract look like? In fact, labor relations are a relationship of buying and selling labor services. On the one hand, employers use money to buy services from workers, on the other hand, workers use money to exchange their services with employers. Both parties must be equal in law. If "Labor Contract Law" emphasizes "worker-oriented" and "leaning towards workers", it will inevitably break the legal equal status of both parties in labor relations, force employers to conclude unequal labor contracts, and have adverse consequences on labor relations and socialist market economy. However, in the draft labor contract law, the word "should" is used in 15 for the behavior and responsibility of the employer; There are only four places where the word "should" is used to express the behavior and responsibility of workers.