正式契约的第三方实施与权力最优化——对农民工工资纠纷的契约论解释

本文运用契约理论解释农民工工资纠纷的成因 ,提出以下主要观点 :首先 ,农民工工资被拖欠的主要原因并非农民工与直接“关系”雇主之间的非正式口头契约无法有效实施 ,而恰是国家明文规定的、应该由国家作为第三方强制实施的正式契约无法有效实施 ;其次 ,国家作为强制实施的第三方 ,无法有效保护农民的合法权益 ,原因在于一方面国家拥有的部分绝对权力在追求租金最大化的动机下被滥用 ;另一方面 ,作为国家强制实施的直接工具的司法体系的相对权力又被强势利益群体所削弱 ,无法有效进行强制 ;再次 ,国家作为第三方在保护农民工合法权益方面的失效 ,导致农民工选择契约的其他执行方法 ,使得契约的实施由“公共强制”倒退回“私人秩序” ,进而可能导致私人暴力的无序使用 ,危及社会稳定 ,反过来又迫使政府只能选择更大力度地实际使用权力 ;最后 ,国家要重新建立国家作为强制实施第三方在保护农民工权益中的权威 ,就必须考虑“第三方权力的最优化”问题

The Third-party Enforcement of Formal Contract and Optimization of Power

Up on the foundational research structure of contract theory, and supported by some cases, The main points of this paper are listed here: Firstly, the primary reason why wages of rural-workers are usually defaulted is not that the informal contracts between rural-workers and their direct “Relationship” employers are not implemented effectively, but is that the formal contracts which should be managed by state are not implemented effectively. Secondly, as the third-party enforcing contract by force, the reason why the State failed in managing formal contracts is that the government has absolute power in a sense. Government seeking rent abuses this absolute power. Whereas on the other hand, the comparative power of the judicial system, the direct force implemental of the state, is weakened by powerful interest groups. So it doesn't enforce the law effectively. What is more, the fail of State in maintaining rural-workers, right cannot but encourage rural-workers to choose alternative enforcement mean, which should lead contract enforcement back from “Public Constraint” to “Private Order”. This situation may induce abuse of violence endangering the stability of society in turn. So the government has to use more powerfully power in practice more frequently. That is the real reason why central government launched a nationwide movement by administration power to maintain the right of rural-workers in the end of 2003.Finally, if State wants to rebuild its authority as the third-party, it should think about how to “optimize the power of the third-party”. To optimize its power, it should build a collective choice mechanism based on obligational democracy.