关键词: 公司高管, 劳动权利冲突, 有效配置, 法律经济学新解

Abstract: The labor rights of the company′s senior managing officer are in conflict with the labor law and the company law, it is urgent to optimize the legal adjustment. Distinguishing and analyzing the actual authority of the general manager, deputy general manager and other types of senior management groups of company, it makes clear that the senior managing officer of company does not have the labor subordination of ordinary worker in the traditional labor law theory, and is not suitable for the legal regulation of labor law. Based on the theory of the effective allocation of conflicting rights in company originated from R. H. Coase′s perspective on law and economics, starting from the use of market mechanism, property rights and transaction costs, and contract selection, it shows that the allocation of labor rights of the senior managing officer in company should respect the market mechanism, clearly define rights through laws, and attach importance to the structural choice of contracts, so as to realize the autonomy of private law and reduce transaction costs. Moreover, there is no reason to believe that legal compulsion is necessary. Therefore, the effective allocation of labor rights for the senior managing officer in company of China should be guided by the general direction of “negative exclusion of labor law + positive adjustment of company law”, and reform and innovate in labor law and company law, rationally responding to social reality and modern legal reform.

Key words: senior managing officer, conflicting labor rights, effective allocation, R. H. Coase′s Perspective on Law and Economics