中日劳务派遣制度比较研究
发布时间：2019-04-19 06:56
【摘要】：劳务派遣是现代劳动力市场中的一种灵活用工形式。其以涉及主体的三方性、雇工与用工相分离性为主要特点,服务于我国企业的临时性、辅助性、替代性工作岗位。但近年来,我国劳务派遣陷入了超常发展的状态。为此国家加大力度,先后出台了《劳动合同法》、《劳务派遣行政许可实施办法》、《劳务派遣暂行规定》等一系列法律法规对行业进行治理。邻邦日本的劳务派遣制度发展较为完善,相关法律从劳动权利义务关系和市场运行规律双视角对劳务派遣进行调整,在适用领域、行业监管以及劳动者职业保障等方面均有成熟规定。我国应将劳务派遣相关制度同日本进行比较研究,取长补短,根据我国国情将可行性制度借鉴并引入,从而提高我国劳务派遣立法水平、解决社会实际问题。在具体制度改进上,笔者认为应从三个角度着手进行制度完善:从派遣适用角度,应在行业准入条件中加入人格评判标准,以此净化劳务派遣行业环境。应以反向列举的方式建立禁止性行业目录,并通过科学调整“10%”的派遣岗位比例限制真正起到适应市场、活化市场的作用。同时应引入登录型派遣制度,将更多社会零散用工纳入到劳务派遣法律的保护范围中来;从行业监管角度,应对派遣用工的续签次数及累计持续时间进行限制,区分其与正式雇工的界限。同时应重视对非法劳务派遣行为的法律规制并严肃其惩处力度;从劳动者职业保障角度,我国应通过立法建立劳动者身份转正制度、明确企业的职业培养义务,将尊重和保障派遣劳动者的职业稳定权及发展权定义为发展劳务派遣的重中之重。更应在各地区建立劳务派遣行业工会,充分发挥其监督与协调作用,保障派遣劳动者合法权益。由于企业的弹性需求与劳动者稳定欲求的天然冲突,劳务派遣制度设计十分困难。其立法方式绝不是源于书斋中的空想与假设,而应是一个时刻贴合实际、应对矛盾的随时查缺补漏、添砖加瓦的过程。笔者认为,我国应时刻关切劳务派遣相关社会问题,恒久保持治理热情与调整力度,在借鉴日本等市场经济发达国家立法经验的基础上,以随时发现问题解决问题的方式逐渐形成最为契合我国国情的劳务派遣法律制度。
[Abstract]:Labor dispatch is a flexible form of employment in the modern labor market. It is mainly characterized by the tripartite nature of the subject and the separation of employment and employment, and serves the temporary, auxiliary and alternative jobs of enterprises in our country. However, in recent years, China's labor dispatch has fallen into a state of extraordinary development. To this end, the state has stepped up efforts to introduce a series of laws and regulations, such as the Labor contract Law, the measures for the implementation of Administrative license for Labor dispatching, and the interim provisions for Labor dispatching, etc., to govern the industry. The development of labor dispatch system in neighboring Japan is relatively perfect. The relevant laws adjust labor dispatch from the perspective of labor rights and obligations and the law of market operation, which is applicable in the field of application. Industry supervision and labor career security and other aspects of mature provisions. In order to improve the legislation level of labor dispatch and solve the practical social problems, we should compare and study the relative system of labor dispatch with Japan in order to learn from and introduce the feasible system according to the national conditions of our country. In the aspect of improving the specific system, the author thinks that the system should be perfected from three angles: from the angle of application of dispatch, the personality evaluation standard should be added to the conditions of admission to the industry, so as to purify the environment of labor dispatch industry. A list of prohibited industries should be set up in the form of reverse enumeration, and the ratio limit of "10%" should be scientifically adjusted to adapt to the market and activate the market. At the same time, the registration dispatch system should be introduced to bring more scattered workers into the protection scope of labor dispatch law. From the angle of industry supervision, the renewal times and cumulative duration of dispatched workers should be limited, and the boundary between them and regular employees should be distinguished. At the same time, we should pay attention to the legal regulation of illegal labor dispatch and seriously punish it. From the perspective of workers' occupational security, our country should establish the system of workers' status as a regular worker through legislation, and make clear the duty of enterprises to cultivate their jobs. The right to professional stability and the right to development of the dispatched workers are defined as the most important part of the development of labor dispatch. Moreover, we should establish labor dispatch trade unions in various regions, give full play to their supervision and coordination role, and protect the legitimate rights and interests of dispatched workers. The labor dispatch system is difficult to design because of the natural conflict between the elastic demand of the enterprise and the stable desire of the labourers. The way of its legislation is not derived from the fantasy and hypothesis in the study, but it should be a process of fitting in with the reality at all times, and dealing with the contradiction at any time to check the gaps and fill the gaps and add some bricks to the bricks. The author believes that China should always pay attention to the social issues related to labor dispatch, keep governance enthusiasm and adjustment for a long time, and draw lessons from the legislative experience of developed countries such as Japan and other market economies. The legal system of labor dispatch is gradually formed in the way of finding problems and solving problems at any time, which accords with the national conditions of our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.5;D931.3
本文编号：2460706
[Abstract]:Labor dispatch is a flexible form of employment in the modern labor market. It is mainly characterized by the tripartite nature of the subject and the separation of employment and employment, and serves the temporary, auxiliary and alternative jobs of enterprises in our country. However, in recent years, China's labor dispatch has fallen into a state of extraordinary development. To this end, the state has stepped up efforts to introduce a series of laws and regulations, such as the Labor contract Law, the measures for the implementation of Administrative license for Labor dispatching, and the interim provisions for Labor dispatching, etc., to govern the industry. The development of labor dispatch system in neighboring Japan is relatively perfect. The relevant laws adjust labor dispatch from the perspective of labor rights and obligations and the law of market operation, which is applicable in the field of application. Industry supervision and labor career security and other aspects of mature provisions. In order to improve the legislation level of labor dispatch and solve the practical social problems, we should compare and study the relative system of labor dispatch with Japan in order to learn from and introduce the feasible system according to the national conditions of our country. In the aspect of improving the specific system, the author thinks that the system should be perfected from three angles: from the angle of application of dispatch, the personality evaluation standard should be added to the conditions of admission to the industry, so as to purify the environment of labor dispatch industry. A list of prohibited industries should be set up in the form of reverse enumeration, and the ratio limit of "10%" should be scientifically adjusted to adapt to the market and activate the market. At the same time, the registration dispatch system should be introduced to bring more scattered workers into the protection scope of labor dispatch law. From the angle of industry supervision, the renewal times and cumulative duration of dispatched workers should be limited, and the boundary between them and regular employees should be distinguished. At the same time, we should pay attention to the legal regulation of illegal labor dispatch and seriously punish it. From the perspective of workers' occupational security, our country should establish the system of workers' status as a regular worker through legislation, and make clear the duty of enterprises to cultivate their jobs. The right to professional stability and the right to development of the dispatched workers are defined as the most important part of the development of labor dispatch. Moreover, we should establish labor dispatch trade unions in various regions, give full play to their supervision and coordination role, and protect the legitimate rights and interests of dispatched workers. The labor dispatch system is difficult to design because of the natural conflict between the elastic demand of the enterprise and the stable desire of the labourers. The way of its legislation is not derived from the fantasy and hypothesis in the study, but it should be a process of fitting in with the reality at all times, and dealing with the contradiction at any time to check the gaps and fill the gaps and add some bricks to the bricks. The author believes that China should always pay attention to the social issues related to labor dispatch, keep governance enthusiasm and adjustment for a long time, and draw lessons from the legislative experience of developed countries such as Japan and other market economies. The legal system of labor dispatch is gradually formed in the way of finding problems and solving problems at any time, which accords with the national conditions of our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.5;D931.3
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