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劳动合同是以从属性劳动与劳动报酬的交换为基本内容的继续性合同,其具有区别于普通民事合同的特殊性。劳动合同的自身特点决定了劳动合同的无效原则上不溯及既往。德国法上对于劳动合同无效后果的限制,是通过事实劳动关系的概念来实现的。事实劳动关系规则的适用,意味着对劳动合同已经履行的部分做有效处理。但是,如果对事实劳动关系的承认有悖于相关禁止性法律的规范目的、危及法律所保护的特定对象的利益,则应当排除事实劳动关系规则的适用,使劳动合同的无效后果溯及既往。对于双方当事人已经付出的劳务和报酬,依不当得利规则进行返还清算。
Labor contract is a continuation contract based on the exchange of dependent labor and labor remuneration, which is different from the ordinary civil contract. The characteristics of the labor contract determines that the invalidation of the labor contract is not retrospective in principle. German law on the ineffectiveness of the labor contract restrictions, through the concept of factual labor relations to achieve. The fact that the application of the rules of labor relations means that the part to which the labor contract has been performed is effectively dealt with. However, if recognition of factual labor relations runs counter to the normative purpose of the relevant prohibition laws and jeopardizes the interests of the specific objects protected by law, the application of the factual labor relations rules should be excluded and the nullity of the labor contract should be retroactive. For both parties have been paid labor and compensation, according to the rules of unmanaged profit return liquidation.