积极老龄化视角下退休再就业劳动权益保护的法治困境及纾解
Resolving Legal Dilemmas in Protecting Labor Rights during Retirement Re-Employment from the Perspective of Active Ageing

目前，我国退休年龄并不能适应社会发展状况，硬性退休制度也造成了养老保险制度与建立劳动关系互斥的局面，理论和实践对劳动再就业人员的用工关系定性有较大争议，且高龄劳动者在劳动市场并不能获得平等对待。基于我国宪法所赋予的劳动权和平等就业权的考虑，借鉴他国应对人口老龄化问题的做法，我国应实行弹性的退休制度，相应改革养老金发放标准，完善养老金激励机制；使劳动法体系与养老保险体系相兼容，领取养老金与劳动关系并行不悖，避免司法实践中的冲突；针对年龄歧视问题做出专门立法，全过程保障高龄劳动者的权益。
At present, the retirement age in China cannot adapt to the social development situation, and the mandatory retirement system has also caused a situation where the pension insurance system and the establishment of labor relations are mutually exclusive. There is significant controversy in theory and practice regarding the qualitative nature of the employment relationship of re-employed workers, and older workers cannot receive equal treatment in the labor market. Based on the consideration of the labor rights and equal employment rights granted by the Constitution of China, and drawing on the practices of other countries to address the issue of aging population, China should implement a flexible retirement system, reform the standards for pension payment, and improve the incentive mechanism for pension; make the labor law system compatible with the pension insurance system, ensure that receiving pension benefits and labor relations go hand in hand, and avoid conflicts in judicial practice; enact special legislation to address the issue of age discrimination to ensure the rights and interests of elderly workers throughout the entire process.