On Missing Provisions Governing Gender Equality in the Law of PRC on Employment Contracts and Legislative Remedies
- 法学研究 
【中文摘要】现行《劳动合同法》未明定男女平等，未提及同工同酬原则，这种缺失不能等闲视之！男女平等是我国法律的基本原则，是基本国策之一。劳动合同强调用人单位与劳动者之间双向的权利与义务，但是，男女平等不应是劳动合同立法可以“绕开”或者不涉及的问题。相反，劳动合同立法有义务回应宪法保障男女平等的要求，针对我国劳动领域普遍存在的性别歧视现象作出相应规制。男女平等、同工同酬应成为《劳动合同法》坚守的底线。建议尽快修改《劳动合同法》，增设性别平等条款，补充防治职场性骚扰条款;规定公立用人单位履行性别平等义务应高于私立用人单位；对用人单位课加纠正性别歧视行为的义务；设立监督、保障性别平等的专门执行机构，规定对违规行为的经济制裁和法律责任。 【Abstract】This situation cannot be accepted that Equality between men and women as one of basic national policies, and especially equal pay for equal work as legal principles have not been introduced into the current Law of PRC on Employment Contracts. This issue is very serious. Equality between men and women should not be avoided by employment contracts law that governs rights and obligations between employers and the employees. On the contrary, employment contracts law should ensure gender equality, this is not only because in labor area in China, gender discrimination is widespread,but also gender equality is one basic principle which all laws must adhered. Gender equality and equal pay for equal work are borderline which the Law of PRC on Employment Contracts should insist on. So. It is suggested that the Law should be amended for adding equality clauses as soon as possible. And the Law should cover these values and clauses such as no-sexual harassment clause in the workplace, the obligation burden of gender equality on public employers more than the private employers; imposition the duties against sex discrimination on all of employers, the establishment of institutions or specialized agencies which guarantee or supervise gender equality，setting economic punishment and legal liability on illegal conducts.