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在实践中,用人单位往往与劳动者签订有某种协议,但名称并不是劳动合同,也不完全具备劳动合同必备条款,在劳动纠纷发生时,该类协议能否被认定为劳动合同成为关键问题。文章在对《劳动合同法》规定的各项必备条款进行分析的基础上,认为不存在绝对影响劳动合同成立的必备条款,这些条款或隐含,或可事后协商,或由法律补缺,因此只要能证明劳动关系,明确双方当事人的权利义务,保护劳动者合法权益,用人单位与劳动者签订的各种协议便可认定为劳动合同,即劳动合同成立。
In practice, the employer often signs some agreement with the worker, but the name is not a labor contract, nor does it fully possess the necessary provisions of a labor contract. Whether such an agreement can be deemed to be a labor contract when a labor dispute occurs The key issue. Based on the analysis of all the necessary provisions stipulated in the Labor Contract Law, the article considers that there are no essential clauses that absolutely affect the establishment of a labor contract. These articles are either implicit or may be negotiated later or may be supplemented by law, Therefore, as long as the labor relations can be proved, the rights and obligations of both parties clarified, and the legitimate rights and interests of laborers protected, various agreements signed by employers and laborers can be regarded as labor contracts, that is, labor contracts are established.