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人事保证,又称职务保证、雇佣保证,系就劳务、职务关系或其他人事关系中将来可能发生的损害赔偿债务所作的一种特殊保证。人事保证为民法上的保证,它除具有一般保证特征外,又具有自身的特性,如人情性、继续性、专属性、不可撤回性等。人事保证为中国固有的社会传统习惯和法文化之一;同时,它作为一项民法制度,为国外立法、判例与学说所认可。人事保证制度作为一种私法制度,具有独特的社会功能,可将人事运作有效地纳入法治轨道,防范、分散和填补雇用人因受雇人职务行为所致的损害,保护雇用人的信赖利益,维护社会信用。人事保证已于20世纪80年代在中国社会重新兴起,因其涉及重大社会和法律理论问题,人们认识不一,致使相关纠纷难以得到妥善公正处理,其性质与效力亟待明定。人事保证在社会经济生活中广泛存在,并且已成为起草中国民法典的争议点之一,应对其进行系统的分析研究。本文较深入系统地论述了人事保证的基本原理,并针对中国人事保证立法争论,进行了利弊法理分析,赞同在适当时候对人事保证进行立法、规范。
Personal Assurance, also called job security, employment security, is a special guarantee that damages may occur in the future in respect of employment, employment or other personal relationships. Personnel guarantee is the guarantee of civil law, it has the general characteristics of assurance, but also has its own characteristics, such as human nature, continuity, specificity, irrevocable. Personnel guarantee is one of China's traditional social traditions and legal cultures. At the same time, it is recognized as a civil law system for foreign legislation, precedents and doctrines. As a private law system, the personnel guarantee system has unique social functions, which can effectively integrate the operation of personnel into the track of the rule of law, prevent, disperse and fill the damage caused by employers' employment duties and protect the reliance interests of employees. Maintain social credit. Personnel assurance has been revived in Chinese society in the 1980s. Because of its involvement in major social and legal issues, people have different understandings. As a result, it is difficult to properly handle the disputes in a fair and reasonable manner. The nature and effectiveness of the personnel guarantee need to be determined urgently. Personnel guarantee exists widely in social and economic life, and has become one of the controversial points in the drafting of Chinese civil code, which should be systematically analyzed and studied. This article discusses the basic principles of personnel assurance in depth and systematically, and analyzes the pros and cons of legal personnel in light of the controversy over China's personnel assurance legislation. It also agrees to legislate and standardize the personnel guarantee at an appropriate time.