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Research on Legal Regulation of Dispatched Employment

Author: SunBingXin
Tutor: FengYanJun
School: Jilin University
Course: Civil and Commercial Law
Keywords: The dispatch Worker Labor contract relationship Labor Contract Law Legal Regulation Labor relations Employer's liability The employer Legal relationship Labor laws and regulations
CLC: D922.5
Type: PhD thesis
Year: 2008
Downloads: 2727
Quote: 37
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Abstract


In recent years, social and economic environments have changed radically. Due to the increase of international competition, variation of business structures, revolution of inter-net technology and diversity of work context, many types of employment are not confined within the structure of "typical employment". New kind of employment, called "atypical employment", has been created. "Typical employment" has three dominant characteristics: personal relationship between employers and employees, full-time work scheme, and indefinite working period. "Atypical employment" is different from "typical employment" in terms of characteristics. Dispatched employment is one kind of "atypical employment". Currently, number of workers engaging in dispatched employment has been increasing. The population participating in dispatched employment in our country has also increasing in recent years. However, the current labor legislation in our country is enacted to regulate "typical employment". Therefore, the current labor legislation in our country is insufficient to regulate dispatched employment, and also can not solve the problems caused by dispatched employment. Moreover, dispatched employment may cause a negative impact on the workers engaging in "typical employment". It can be foreseen that worker engaging in dispatched employment will grow rapidly in our country. It will become a great problem if the growing number of dispatched workers is unable to be protected under the current labor laws and regulations. Therefore, it is urgent to study the problems and establish a system regulating dispatched employment.This thesis plans to do a thorough research on the following six issues:In first chapter, what main attention is some basic information of dispatched employment? Through to the basic definition of dispatched employment, the essential feature, the basic classification’s elaboration, is for the purpose of explaining that the characteristics of dispatched employment which the tripartite two place nature of "Atypical employment" as well as separation of "employ" and "use" thus the revelation dispatched employment different changes to the traditional employment relations. This chapter will discuss the source and course which and in finally the positive and negative effect foundation of dispatched employment, definite the positive role of dispatched employment in the promoting employment, from this has established main key of the legal rules and regulations to dispatched employment.In second chapter, what studies is the legal relationship nature of dispatched employment and analyzes its constitution. First, in the dispatched employment the worker has two employers, fulfills the service pay, to obtain a payment for labor, therefore has two theory saying about the legal relationship’s nature of dispatched employment - - single layer labor contract relations and dual layer labor contract relations at present that as soon as through to these two theory’s explanation and the analysis, searches the outcome from one side facing the legal relationship’s nature of dispatched employment. In addition, regarding superior legislation standard of dispatched employment, is not concerned the legal relationship regarding dispatched employment tripartite as well as the proper basic content and the potency at present in our country. In this chapter primary intention is in clarifies in the tripartite legal relationship essence on dispatched employment, further establishes the basic content and the potency of contractual relationship between tripartite, be supplied as the reference to the legislator will draw up the standard in the future. The Detached organization and dispatched worker schedule the labor contract, the dispatched organization and employing labor unit schedule the dispatch agreement, and dispatched worker and employing labor unit does not have any congruent relationship existence. Finally, elaborating in detail different changes between the legal relationship of dispatched employment and the traditional work relations.In third chapter, Elaborating specifically theory question and the practice difficult problem in the legal relationship of dispatched employment. In this part, what first proves is some basic theory question in the legal relationship of dispatched employment, explains difference among the dispatched employment and the service relations, the employment service emphatically, contract relations as well as the loaned service and so on related similar concept in the work practice, defines clearly the legal relationship of dispatched employment by, avoids the confusion being related in the concept. In this chapter which will discuss finally under the dispatched employment sustained development will bring affection to the traditional work relations, and proposed hides the question in the developing process of dispatched employment, like the ecstatic employs’ question, the unsuitable exploitation question, the question on association and consultation, the discrimination question as well as the service dispute difficulty with comb, urgently awaits the government, the legislator and related scholars to concentrate the mental effort for it, solutes the question which produced in the work practice at present.In forth chapter, there are the corporation and uses for reference legal adjustment of dispatched employment law. In this chapter the studying key point aims at the International Labor Organization in 1997 through "Privately operated Employment Organization Joint pledge" as well as countries just as Germany Japanese and American legal system of dispatched employment, introduced one by one its legislative background and discussed its legislative content, separately tended to two aspects from the legislative pattern and the value to contrast. This chapter have not enumerates regulation overseas dispatched employment in detail, but uses the intercepted way, takes its essence, goes to its dregs, derives value part in the overseas legal regulation to have the reference to our country set up dispatched employment, like "common employer" theory in US, dispatched professional limitation in Japan, Detached organization admittance system in German and so on. Finally, in the foundation of evaluating each state-run legal regulation content, discusses it the enlightenment which brings to our country legal regime’s establishment of dispatched employment.In fifth chapter, what main elaborates present situation and the flaw analysis to the legal adjustment of dispatched employment in our country. In this chapter firstly introduces domestic present developing situation on dispatched employment, promulgates that is not the perfect market mechanism on dispatched employment in our country at present, simultaneously existences law supervision vacancy, related service standard serious lag phenomenon to dispatched employment. Henceforth the premise embarks, discusses present related standard in our country to be suitable the dispatched employment one by one validity or not, is mainly evaluates concerned requirements the related with dispatched employment in "Employment Contract Law", obtains the conclusion that the Detached organization’s intelligence rules and regulations not to be unclear, main body of dispatched worker to be unclear and the dispatch deadline lacks the rules and regulations, the content standard of dispatch agreement does not make concrete, the protection of dispatched worker’s rights and interests to be short, the employers liability assigned not clearly as well as after the dispatch relations ended, dispatched worker’s dismissal protection which improper and so on a series of questions exist. In drawing the conclusion that the legal adjustment on dispatched employment are defective at present, think the discussion in view of possibility of legislation of dispatched employment in our country sin the future, propose that future legislative direction as well as the related question’s solution way, has completed should draw up "Dispatched Employment Law" as soon as possible the tentative plan from a macroscopic stratification plane, by the effective rules and regulations service dispatch activity, overcomes the present system’s flaw.The sixth chapter may be considered that is this hard core in article. In this chapter, the concrete tentative plan is be made to our country’s rules and regulations of dispatched employment law. First, bases on the reality, proposed to consummate to the legislative system, in the short-term may revise and the adjust the regulations of dispatched employment in "Employment Contract Law", adapts the demand of the existing dispatched employment market; So long as the conditions are ripe, should adapt measures according to time draws up special method-"Dispatched Employment Law" , satisfies the need of swift development to dispatched employment, then can construct finally the Chinese characteristic social safety net, forms the stable labor market environment. Next, when draws up the concrete system of "Dispatched Employment Law", must pay attention to coordinate with related legislations, namely must pay attention to coordinate with "Labor law", "Employment Contract Law", "Promotion Employment Law", "Mediation and Arbitration of Labor dispute", avoids uncoordination and conflicts mutually between the legal rules and regulations. In the final part, the actual content which "Dispatched Employment Law" should contain will be made in the future proposes consummated and innovated idea. The related Detached organization’s content mainly involves that set ting up the market access system to Detached organization, the system to dispatch contract , the determining the system to dispatch scope, the system to dispatched deadline, the system to Detached organization supplementary duty; The related Detached worker’s content mainly involves that the wage payment system, the rejection to work rule, the security duty is suitable, the operating time change rule, the operating location concrete provision, the working overtime stipulation, The duty about security and competition industry forbids, the concurrent job stipulation as well as the right that signs the labor contract with the employing labor unit; the related the employing labor unit’s content involves that the responsibility to relieve the contract between employing labor unit midway with dispatched worker, the duty that employing labor unit protect dispatch worker individual information, the stipulation to equal pay for equal work, the working overtime stipulation, the employing labor unit to dispatch worker’s disciplinary punishment power. At the same time, "Dispatched Employment Law" should forbid dispatch again to protect dispatched worker’s rights and to make the employment market shabbily, And performs the concrete assignment specifically employers’ liability between Detached organization and the employing labor unit based on actual employing labor situation, in order to strengthens the operationally of "Dispatched Employment Law", to satisfy the reality to its demand.

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CLC: > Political, legal > Legal > Chinese law > Labor Law
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